Hayman v Cartwright
[2018] WASCA 116
•18 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAYMAN -v- CARTWRIGHT [2018] WASCA 116
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 14 MARCH 2018
DELIVERED : 18 JULY 2018
FILE NO/S: CACR 148 of 2017
BETWEEN: DION PETER HAYMAN
Appellant
AND
JAMES DARREN CARTWRIGHT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE RANDAZZO
File Number : PE 70541 of 2016
Catchwords:
Criminal law - Assault - Whether assault by an application of force involves an element of intention
Legislation:
Criminal Code (WA), s 222
Result:
Appeal upheld
Matter remitted to the Magistrates Court for rehearing
Category: A
Representation:
Counsel:
| Appellant | : | Mr G T W Tannin SC & Mr E Fearis |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms K Farley SC |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | In person |
| Amicus Curiae | : | Legal Aid of Western Australia |
Case(s) referred to in decision(s):
Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Brennan v The King [1936] HCA 24; (1936) 55 CLR 253
BRK v The Queen [2001] WASCA 161
City of Kwinana v Lamont [2014] WASCA 112
Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Fernandez v The State of Western Australia [2017] WASCA 223
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Fogden v Wade [1945] NZLR 724
Hall v Fonceca [1983] WAR 309
Hawke v The State of Western Australia [2017] WASCA 40
Johnson v Ayling [2013] WASC 312
Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545
Marchesano v The State of Western Australia [2017] WASCA 177
Matsebula v Vandeklashorst [2000] WASCA 141
Mellifont v Attorney‑General (Qld) [1991] HCA 53; (1991) 173 CLR 289
Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Pickering v The Queen [2017] HCA 17; (2017) 91 ALJR 590
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Barlow [1997] HCA 19; (1997) 188 CLR 1
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v LK [2010] HCA 17; (2010) 241 CLR 177 [96] ‑ [97]
R v McIver (1928) 22 QJPR 173
Re Attorney‑General's Reference No 1 of 1977 [1979] WAR 45
Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514
Rossi v Carter [2000] WASCA 321
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171
Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Ward v The Queen [1972] WAR 36
Widgee Shire Council v Bonney (1907) 4 CLR 977
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
Zobair v Miller [2017] WASC 241
JUDGMENT OF THE COURT:
Introduction
This appeal raises an issue of construction of s 222 of the Criminal Code (WA) (the Code), by which 'assault' is defined.
The appellant appeals against the respondent's acquittal on a charge of common assault. The magistrate acquitted the respondent on the basis that the prosecution was required to prove, but had not proved, intention on the part of the respondent. In so holding, the magistrate properly applied a decision of a single judge of the General Division[1] which, in turn, had followed a decision of this court's predecessor.[2]
[1] Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74.
[2] Hall v Fonceca [1983] WAR 309.
For the reasons that follow, in our respectful opinion, on a proper construction of s 222 of the Code, read in the context of the Code as a whole, there is no requirement for the prosecution to prove intention for an assault said to have occurred by the actual application of force. Essentially, that is because the ordinary meaning of the language of s 222, construed in the context of pt 1 ch V and the Code as a whole, suggests there is no element of intention in such a case and there is no reason to depart from the ordinary meaning of the statutory provision. Consequently, the appeal must be upheld and the matter remitted to the Magistrates Court for rehearing.
The prosecution case
The respondent was charged with unlawful assault in circumstances of aggravation. The prosecution case was as follows. The respondent was cycling with another man when they were overtaken by a car being driven by the complainant's husband and in which the complainant was a passenger. An incident occurred, between the respondent and the driver of the car, in which the driver sounded the horn while the car was passing to the right of the respondent. As the car passed to his right, the respondent struck his hand against the front passenger side of the car, making contact with the complainant's left hand which was resting on the window.
The magistrate's reasons
A central factual issue at trial was whether the respondent had made any contact with the complainant's hand. The video record of the respondent's police interview was tendered as part of the prosecution case. In the interview, the respondent told the police that he had hit his hand against the car, but denied making any contact with the complainant's hand (or with any part of any person's body).
The magistrate found that the respondent's left hand 'was struck down in a downward motion and came in[to] contact with [the complainant's] hand or arm'.[3] This finding is not challenged on appeal.
[3] ts 65.
The magistrate found that this was 'clearly' a touching, a striking or an application of force within the meaning of those concepts in s 222 of the Code.[4]
[4] ts 66.
The magistrate then referred to and applied the decision of Corboy J in Murphy v Spencer. The magistrate concluded that Corboy J's reasons meant that the prosecution was required to prove beyond reasonable doubt that the touching, striking or application of force was intentional in order for it to meet the definition of assault in s 222. The magistrate concluded that this needed to be proved before any questions of unwilled act or accident under s 23A or s 23B would arise.[5]
[5] ts 66 ‑ 69.
The magistrate found that the respondent's action in striking his left hand down was a willed act; done of his own volition. He found that it was borne out of frustration and anger.[6]
[6] ts 69, 70.
The magistrate noted that the respondent told the police that, at the time that he struck at the car door, he did not realise that there was a passenger in the vehicle or that the window of the passenger door was open.[7] The respondent said he had no intention to strike any person. He simply struck the vehicle.[8] The magistrate found, contrary to what the respondent told the police, that the respondent made contact with the complainant's hand. However, this did not cause his Honour to reject the veracity of what the respondent told the police. The magistrate accepted that the respondent honestly believed he had not made contact with the complainant's hand.[9]
[7] ts 70.
[8] ts 70.
[9] ts 70.
The magistrate formed the view that the respondent was frank and forthright with the police.[10]
[10] ts 72.
The magistrate focused on the question of whether the prosecution had proved beyond reasonable doubt that this touching, striking or application of force was intentional.[11] His Honour referred to the ordinary meaning of the word 'intends' as being 'to mean' or 'to have in mind'. In considering the question of intention, his Honour also referred to the decision of the High Court in Zaburoni v The Queen.[12]
[11] ts 71.
[12] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482.
The magistrate concluded that he had a reasonable doubt about whether the striking or application of force which occurred was intentional.[13]
[13] ts 72.
The magistrate reiterated his view that there was a willed act. His Honour went on to say that if he needed to express any view he would have some doubt as to whether 'it', presumably meaning contact with the complainant's hand, was reasonably foreseeable. However, his Honour concluded by stating that he did not need to express a clear view on the question of whether it was an accident.[14]
[14] ts 72.
As he was not satisfied that the respondent intentionally applied force to the complainant, the magistrate acquitted the respondent.[15]
[15] ts 73.
Ground of appeal
The appellant advances a single ground of appeal that the magistrate erred in law by requiring the appellant to prove that the application of force by the respondent was intentional.
On 10 July 2017, Martino J ordered that the appeal be dealt with by the Court of Appeal pursuant to s 13(2) of the Criminal Appeals Act 2004 (WA). Leave to appeal has been granted.[16]
[16] Order of Mazza JA, 18 September 2017.
It is convenient to set out the statutory framework before turning to the case law bearing on the issue in the appeal.
Statutory framework
The respondent was charged with an offence against s 313 of the Code. That section provides, so far as is material, that any person who unlawfully assaults another is guilty of a simple offence and is liable, if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine of $36,000.
Circumstances of aggravation are defined in s 221 and include, relevantly, where the victim is of, or over, the age of 60 years.
By s 1(1), the term 'assault' has the definition provided in s 222.
Section 222 provides as follows:
222.Term used: assault
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
Section 2 provides as follows:
2.Term used: offence
An act or omission which renders the person doing the act or making the omission liable to punishment is called an offence.
Section 223 provides as follows:
223. Assault is unlawful
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.
In addition to s 313, assault is an element of many other offences under the Code. See, for example, s 281, s 317, s 317A, s 318, s 318A, s 323 and s 324.
Chapter V of pt 1 of the Code contains various provisions as to criminal responsibility. These include s 23, s 23A, s 23B and s 24, which provide as follows:
23. Intention and motive
(1)Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.
(2)Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.
23A. Unwilled acts and omissions
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
23B. Accident
(1)This section is subject to the provisions in Chapter XXVII and section 444A relating to negligent acts and omissions.
(2)A person is not criminally responsible for an event which occurs by accident.
(3)If death or grievous bodily harm -
(a)is directly caused to a victim by another person's act that involves a deliberate use of force; but
(b)would not have occurred but for an abnormality, defect or weakness in the victim,
the other person is not, for that reason alone, excused from criminal responsibility for the death or grievous bodily harm.
(4)Subsection (3) applies -
(a)even if the other person did not intend or foresee the death or grievous bodily harm; and
(b)even if the death or grievous bodily harm was not reasonably foreseeable.
24. Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
The cases
The role, if any, of intention in the s 222 definition of 'assault' has been considered in one decision of this court's predecessor and in a number of single judge decisions of this court.
Hall v Fonceca concerned an appeal from a decision dismissing a claim for damages for civil assault. At trial, the respondent (who was the defendant) admitted the assault, but claimed it was committed in necessary self‑defence, relying on s 248 of the Code (as then enacted). That section was engaged when a person was unlawfully assaulted. One of the grounds of appeal challenged the trial judge's finding that the conduct of the appellant, immediately prior to the assault upon him by the respondent, constituted an assault upon the respondent for the purposes of s 248. The trial judge did not find that the appellant applied force of any kind to the person of the respondent. Rather, the judge found that, by a combination of actions and attitude, the appellant threatened the respondent in a manner which caused the respondent reasonably to apprehend that he would be hit.
Thus, Hall v Fonceca concerned an assault by an attempted or threatened application of force, not by an actual application of force. Consistently with that, Smith and Kennedy JJ set out the second part of the definition in s 222, and omitted the first part.[17] Their Honours then said, as regards the element of intention within the definition of 'assault':[18]
Section 222 contains no express reference to any particular intention with which the assailant must act, although, clearly, so far as an 'attempt' is concerned, it would seem to be obvious enough that an intention on the part of the assailant to apply force is necessarily involved (cf s 4). Furthermore, there can be no assault in the case of an attempt or a threat under the definition unless there is an actual or apparent ability to effect the assailant's 'purpose'. It would not normally be realistic to speak in terms of 'purpose' in a context such as this without there being an intention on the part of the assailant, although, in the case of a threat, the purpose which the assailant must have, or appear to have, a present ability to effect poses some difficulty, unless it be treated as the purpose conveyed by the threat (cf R v Dale[1969] QWN 30).
It is generally accepted that the section lays down the common law as understood at the time of enactment of the Code (see, for example, Brady v Schatzel[1911] St R Qd 206). At common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted. That has not been of recent development. It is unnecessary to consider whether recklessness, where the assailant adverts to the consequence of his conduct, suffices for this purpose, although there is strong support for the view that it does. See generally Russell on Crime (12th ed), p 652; Smith and Hogan, Criminal Law (4th ed), p 353; Tuberville v Savage(1699) 1 Mod 3; 86 ER 684; Wood v Bowron(1866) LR 2 QB 21 at 30; MacPherson v Brown(1975) 12 SASR 184 at 188-9, 199‑200, 212; Fagan v Commissioner of Metropolitan Police[1969] 1 QB 439; R v Venna[1976] QB 421 and Logdon v DPP(1976) Cr L Rev 121. As to the necessity for the existence of a relevant intention in order to constitute an assault in the law of tort, see Prosser on Torts (4th ed), pp 40-1; Fleming on The Law of Torts (6th ed), p 24; Restatement of the Law of Torts (2nd ed), par 21 and Linden Canadian Tort Law, p 40; but cf Bruce v Dyer(1966) 58 DLR (2d) 211; Salmond on Torts (17th ed), at p 122; 38 Halsbury's Law of England (3rd ed), p 761 and Winfield and Jolowicz on Tort (11th ed), p 51.
Although the authorities are surprisingly sparse in this area, we accept that an intention on the part of the assailant either to use force or to create apprehension in the victim is an element in an assault. Macrossan SPJ apparently had no doubt that the relevant intention on the part of the assailant was necessary to constitute an assault under the Code (see R v McIver(1928) 22 QJPR 173 and see also Fogden v Wade(1945) NZLR 724 at 728).
[17] Hall v Fonceca (313).
[18] Hall v Fonceca (313 ‑ 314).
Their Honours went on to find that the trial judge had implicitly found intention on the part of the respondent either to use force or to create apprehension in the victim.[19] Wallace J came to a similar conclusion as to the trial judge's findings.[20]
[19] Hall v Fonceca (314 ‑ 315).
[20] Hall v Fonceca (311).
In Rossi v Carter,[21] Anderson J dealt with another case in which an assault was said to have occurred by a threat, by bodily gesture, to apply force to the person of the complainant. Anderson J said as follows:[22]
It is clear that the prosecution case was that the applicant had, by bodily gesture, threatened to apply force to the complainant. That being so, it was necessary for the prosecution to prove an intention on the part of the applicant either to use force or to create apprehension of the use of force on the part of the complainant: Hall v Fonceca[1983] WAR 309, per Smith and Kennedy JJ at 313 - 314.
[21] Rossi v Carter [2000] WASCA 321.
[22] Rossi v Carter [12].
The words '[t]hat being so' should be noticed. In our respectful view, in this passage, Anderson J correctly captures the effect of what was (actually) decided in Hall v Fonceca. We will return to this point later at [82].
In Matsebula v Vandeklashorst,[23] Miller J applied Hall v Fonceca in circumstances where, again, the prosecution case was that the appellant had, by bodily gestures, threatened to apply force to the person of the complainant.
[23] Matsebula v Vandeklashorst [2000] WASCA 141 [11] ‑ [12].
In Murphy v Spencer, Corboy J applied Hall v Fonceca to a case of indecent assault constituted by (actual) touching. His Honour summarised Hall v Fonceca, as follows:[24]
In Hall v Fonceca [1983] WAR 309, Smith and Kennedy JJ held that 'an intention on the part of the assailant either to use force or to create apprehension in the complainant is an element in an assault' (314). Their Honours noted that Macrossan SPJ apparently had no doubt in R v McIver (1928) 22 QJPR 173 that the relevant intention on the part of the assailant was necessary to constitute an assault under the Code. They also noted that it was generally accepted that s 222 of the Code adopted the common law as understood at the time that the Code was enacted and that '[a]t common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted' (313). It is to be noted that when, as is usually the case, the word 'assault' is used at common law to mean a battery, it simply means an act by which a person intentionally applies unlawful force to the complainant - the 'actual' intended use of unlawful force to another person without his consent: Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439, 444 (James J).
[24] Murphy v Spencer [50].
After referring to the limited submissions made by the parties, his Honour continued as follows:[25]
Accordingly, I do not propose to further dissect the reasoning in Hall v Fonceca. I accept and adopt the reasoning to find that the prosecution was required to prove that the appellant intentionally touched the complainant as an element of the offence charged. I would add, however, that I consider that the reasoning in Hall v Fonceca applies to those provisions of the Criminal Code that make it an offence to commit an assault.
At common law, an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence. The act must be accompanied by a hostile intent calculated to cause apprehension in the mind of the complainant: see Archbold: Criminal Pleading, Evidence and Practice 2012, at 19-166. The element of intent distinguishes an assault from the unintentional contact between persons that is an everyday occurrence. In my view, the Code imports that element by the very use of the word 'assault'. It would seem unlikely that it was intended that every application of force within the meaning of s 222 would constitute an offence under, for example, s 324 of the Code for which the person applying the force would be criminally responsible unless the provisions of s 23A and/or s 23B applied. That is not a conclusion that is contrary to the requirement that the Code is to be construed as a statutory instrument. It merely reflects that the Code is to be interpreted in a particular context - as was recognised by the Full Court in Cox v The Queen and in Hall v Fonceca.
Accordingly, the offence created by s 324 of the Code requires the prosecution to prove beyond a reasonable doubt that the accused intentionally struck or touched the complainant or otherwise applied force of some kind (s 222 of the Code) without consent 'accompanied with circumstances of indecency' (Cox v The Queen). An unintentional, accidental touching of a person would not constitute an assault. Further, such unintentional contact would not be indecent; it would not be offensive to common propriety and it would lack the necessary sexual character.
[25] Murphy v Spencer [52] ‑ [54].
In Johnson v Ayling,[26] Simmonds J adopted substantially the same approach.[27] His Honour observed that, while Hall v Fonceca was concerned with civil liability for a threat to use force, the statement in that case, that 'an intention on the part of the assailant either to use force or to create apprehension in the victim is an element of an assault', was not restricted to threats.
[26] Johnson v Ayling [2013] WASC 312.
[27] Johnson v Ayling [67].
More recently, in the context of an allegation of indecent assault by touching, Smith AJ stated that the offence of assault incorporates an element of intention on the part of the assailant either to use force or to create an apprehension of the use of force in the complainant. In doing so, Smith AJ referred to Hall v Fonceca and Murphy v Spencer.[28]
[28] Zobair v Miller [2017] WASC 241 [23].
The starting point for any exercise of statutory construction is the text. Before turning to the text, we will outline the legislative history of s 222.
The legislative history of s 222
The Criminal Code Act 1902 (WA) (the 1902 Act) established a Code of Criminal Law. Section 2 of the 1902 Act provided that on and from 1 May 1902 the provisions contained in the Code set forth in the First Schedule to the 1902 Act shall be the law of Western Australia 'with respect to the several matters therein dealt with'. The Code adopted substantially Sir Samuel Griffith's draft Criminal Code, which had been enacted in Queensland by the Criminal Code Act 1899 (Qld).
By s 2 of the Criminal Code Act Compilation Act 1913 (WA) (the 1913 Compilation Act), the 1902 Act as amended was repealed, and the compiled Act set forth in Appendix B to the 1913 Compilation Act was enacted under the title of the Criminal Code Act 1913.
Sir Samuel Griffith sent his draft Criminal Code to the Attorney‑General of Queensland with a letter dated 29 October 1897.
In the letter Sir Samuel Griffith noted:[29]
(a)The pages of the draft were arranged in two columns, the proposed provisions of the Code being printed in the right‑hand column, and the sources from which they were derived, or other analogous provisions, being stated or referred to in the left‑hand column.
(b)Where the source was statute law, the corresponding provisions of the statute were reprinted from Sir Samuel's Digest of the Statutory Criminal Law of Queensland of 1896.
(c)In other cases, the sources or analogous provisions were indicated by a reference to the section of the draft Bill introduced into the House of Commons in 1880 (the 1880 Draft Bill), which was based on a Draft Code of Criminal Law of 1879 prepared by Lord Blackburn, Justice Barry (of Ireland), Justice Lush and Sir James Fitzjames Stephen, or other authority to which Sir Samuel had had recourse, with such notes as appeared to be desirable to elucidate any particular provision.
(d)When the proposed provision was 'undoubted Common Law', Sir Samuel had not thought it necessary to do more than say so.
[29] Griffith, Draft of a Code of Criminal Law (1897), xiv.
Sir Samuel Griffith's notes in his draft Criminal Code stated, in relation to the proposed provision subsequently incorporated in s 222 of the Code:[30]
Common Law
Compare Bill of 1880, s.196.
[30] Griffith, Draft of a Code of Criminal Law (1897), 107.
Section 196 of the 1880 Draft Bill was materially different from the text of Sir Samuel Griffith's proposed provision. Section 196 provided:
An assault is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose.
Section 222 of the Code, as originally enacted, has never been amended.
The text of s 222: preliminary observations
Section 222 provides for two categories of assault. The first may be broadly summarised as an actual application of force; the second as an attempted or threatened application of force. The first embraces a person who strikes, touches, moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent.[31] The second embraces a person who, by bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent under circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose.
[31] The alternative limb of consent obtained by fraud may be ignored for present purposes.
In the case of assault by actual application of force, it is not easy to find textual support for a requirement of intention. In their ordinary meaning, the concepts of striking, touching, moving or applying force do not necessarily carry any connotation of intention. For example, in ordinary parlance a person may be said to have struck, touched or moved someone, without having done so intentionally.
While of no relevance to the construction process, it may be noted that the magistrate evidently shared this view of the meaning of these words. His Honour described what had happened as being 'clearly' a touching, a striking and an application of force[32] and identified the question as whether this touching, striking or application of force was intentional.[33]
[32] ts 66.
[33] ts 71.
However, the position is otherwise in relation to the second limb, which involves assault by attempted or threatened application of force. The notion of an attempt, in the context of an attempt to commit an offence under the Code, involves an element of intention.[34] The same is true of the notion of an attempt generally. The word 'threatened' is more equivocal in that respect, but the second limb also refers to the 'purpose' of the person making the attempt or threat.
[34] See s 4 of the Code; Re Attorney‑General's Reference No 1 of 1977 [1979] WAR 45, 51; BRK v The Queen [2001] WASCA 161 [28] ‑ [29].
Thus, in our view, the statutory text of s 222 does not support a construction that requires intention in order to commit an assault by an actual application of force. That invites attention to whether there are other considerations justifying such a construction.
In effect, the cases to which we have referred[35] and the respondent's submissions advance two justifications for construing s 222 as requiring intention for an assault (by an actual application of force). The first is that, in this respect, the provisions of the Code reflect the common law. The second is that a contrary construction would mean that inadvertent contact amounts to an assault, something unlikely to have been intended by the legislature.
[35] In particular, Hall v Fonceca and Murphy v Spencer.
We will deal initially with the first justification.
The proper approach to the construction of s 222
We begin by outlining principles relevant to the construction of the Code and to the relevance of the common law to that process.
The starting point for any process of construction is the text of the statutory provision.[36] The meaning of a specific provision must be determined by reference to the language and purpose of all of the provisions of the statute.[37] A definition is not to be construed in isolation from the operative provision(s) in which the definition is used. Rather, ordinarily at least, the definition is to be inserted into the operative provision and then the operative provision construed.[38]
[36] See, for example, the authorities cited in City of Kwinana v Lamont [2014] WASCA 112 [47].
[37] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
[38] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [62], [150], [218].
These general precepts of statutory construction apply equally to the construction of a code.
The proper approach to the construction of a code was explained by Dixon and Evatt JJ in Brennan v The King:[39]
[The Code is] intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (263).
[39] Brennan v The King [1936] HCA 24; (1936) 55 CLR 253. See also Kaporonovski v The Queen [1973] HCA 35; (1973) 133 CLR 209, 236; Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437.
Resort to the common law may be appropriate where the language of the code is ambiguous or uses language which has previously acquired a technical meaning.[40] However, as Gibbs J noted in Stuart:
it should be remembered that the first duty of the interpreter of [the provisions of the Code] is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance.[41]
[40] Stuart v The Queen (437); R v Barlow [1997] HCA 19; (1997) 188 CLR 1, 19, 31 ‑ 32; L v The State of Western Australia [2016] WASCA 101; (2016) 49 WAR 545 [52]; Marchesano v The State of Western Australia [2017] WASCA 177 [96].
[41] Stuart v The Queen (437). See also Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56.
The principle that a code should be construed according to its ordinary meaning, without any presumption that it was intended to do no more than to restate the existing law, is qualified in relation to the adoption in a code of a word or expression having an established meaning under the pre‑existing law where that word or expression is not defined in the code.[42] In Boughey v The Queen,[43] Brennan J observed:
It is erroneous to approach the Code [the Criminal Code (Tas)] with the presumption that it was intended to do no more than restate the existing law but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law including decisions subsequent to the Code's enactment. The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found but when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required (229).
[42] R v LK [2010] HCA 17; (2010) 241 CLR 177 [96] ‑ [97].
[43] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, cited with approval in R v LK [97].
In Murphy v Spencer,[44] Corboy J said, in effect, that the Code imports the common law meaning of assault by its use of the word 'assault', that being a term with an established meaning at common law. The plurality in Hall v Fonceca appear to have adopted similar reasoning. As we have said, where a code uses an expression with an accepted legal meaning in the common law, and that expression is not defined in the code, reference may be made to the common law meaning of the expression.[45] An example of this is the phrase 'intent to defraud' in s 409 of the Code.[46] However, 'assault' is defined in s 222. In our respectful opinion, in construing 'assault', as defined in s 222, attention is to be directed to the language of that statutory definition, in the context of the Code as a whole, and not to the common law meaning of the term.
[44] Murphy v Spencer [53].
[45] Boughey v The Queen (30 ‑ 31); R v LK [96] ‑ [97].
[46] Bolitho v The State of Western Australia [2007] WASCA 102; (2007) 34 WAR 215 [130], [169].
In other words, whether and if so to what extent intention is an element of an 'assault' under the Code is to be ascertained by reference to the statutory text of s 222, read in its context of the Code as a whole and inserted into the various provisions in which the term is used. In our respectful view, it is wrong to approach the construction of the statutory definition by assuming or asserting that the defined term is intended to reflect the common law meaning of 'assault'. Whether the statutory definition reflects the common law meaning is determined after, and as a consequence of, ascertaining the meaning of that definition through the process of construction.
Although the word 'assault' had an established meaning under the common law when the Code was originally enacted, the Code does not merely adopt the word 'assault'. Rather, s 222 of the Code sets out a detailed definition of the term 'assault'.
It is true that Sir Samuel Griffith, in his draft Criminal Code sent to the Attorney‑General of Queensland with the letter dated 29 October 1897, noted that the source of the proposed provision subsequently incorporated in s 222 of the Code was 'common law'. However, it does not follow that, on its proper construction, the word 'assault', as defined in s 222, was intended to do no more than to restate the existing law, including the mental element at common law. Rather, as explained in more detail below, the mental element is supplied by ch V of pt 1 of the Code. Sir Samuel Griffith's identification of the source of the provision is not a statement as to how the provision is to be construed. Moreover, in construing s 222, it is the text of the statutory provision, not any relevant secondary material, that is of paramount significance.[47] The ordinary meaning of the text - that intention is not an element - is reinforced by the statutory context in which the mental element is supplied by ch V of pt 1.
[47] Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22]; see also Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518.
We turn to the second justification advanced in the cases and in the respondent's submissions.
Does construction in accordance with ordinary meaning produce unintended results?
The respondent submits that, if intention is not an element of an 'assault' under the Code, assaults would happen extremely frequently in crowded spaces, which is an absurd result that cannot have been intended by Parliament.[48] In a similar vein, Corboy J in Murphy v Spencer said that it was the element of intent that distinguished an assault from the unintentional contact between persons that is an everyday occurrence. His Honour observed that it would seem unlikely that Parliament intended every application of force, within the meaning of s 222, to constitute an offence unless s 23A and/or s 23B applied.[49]
[48] Respondent's submissions [27].
[49] Murphy v Spencer [53].
In our respectful opinion, the application of the provisions of ch V of pt 1 means that construing s 222 in accordance with its ordinary meaning does not produce consequences so unlikely to have been intended as to justify departure from it. We proceed to explain this conclusion.
The common law doctrine of mens rea has no application to the Code. Rather, the elements of an offence (including any mental element) are determined solely by the provisions of the Code. Part 1 ch V of the Code is headed 'Criminal responsibility' and comprises s 22 to s 36. Those provisions set out the circumstances in which a person is not criminally responsible for an act or omission. Absent other provision in the text of the law creating a particular offence (see, for example, s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and the decision of the majority in The State of Western Australia v R[50]), ch V comprises the whole of the law in respect of the criminal responsibility of persons charged with criminal offences in this State.[51] Chapter V thus excludes the common law concept of mens rea.[52]
[50] The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483.
[51] See Ward v The Queen [1972] WAR 36, 41 ‑ 42; Mellifont v Attorney‑General (Qld) [1991] HCA 53; (1991) 173 CLR 289, 309; BRK [22].
[52] Widgee Shire Council v Bonney (1907) 4 CLR 977, 981 - 982; The State of Western Australia v R [20], [83]; Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [38], [89].
The following provisions in ch V of pt 1 are of particular relevance:
1.s 23A(2), by which a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will;
2.s 23B(2), by which a person is not criminally responsible for an event which occurs by accident; and
3.s 24, by which a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of a state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he or she believed to exist.
The legal burden is on the prosecution and the evidential burden is on the accused in relation to the defences in ch V of pt 1. A defence must be left to and considered by the fact‑finding tribunal if, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable fact‑finding tribunal, properly instructed, to have a reasonable doubt as to whether the prosecution has negatived the defence.[53] Where one of the defences in ch V of pt 1 applies, an 'assault', as defined in s 222, will not be unlawful and will not give rise to any criminal responsibility.
[53] Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [83]; Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [32].
It seems to us that the application of s 23A(2), s 23B(2) and s 24 removes the spectre of everyday inadvertent contact, of a kind Parliament may be taken not to have intended to amount to an offence, constituting a criminal offence. One or more of them will apply in such cases of everyday inadvertent contact; which of them will apply depends on the facts and circumstances of a given case.
Section 23A and s 23B distinguish between unwilled physical acts (s 23A) and accidental outcomes of willed acts (s 23B).[54]
[54] Kaporonovski v The Queen (266 - 227), (231); Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171 [25] - [27]; Collard v The State of Western Australia [2016] WASCA 135; (2016) 51 WAR 1 [115]; Hawke v The State of Western Australia [2017] WASCA 40 [116].
The 'act' in s 23A refers to some physical action or movement, apart from its consequences.[55] It is the 'bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or accompanying state of mind, entails criminal responsibility'.[56]
[55] Kaporonovski v The Queen (231); Pickering v The Queen [2017] HCA 17; (2017) 91 ALJR 590 [22], [39]; Collard [115] - [116]; Marchesano v The State of Western Australia [120]; Hawke v The State of Western Australia [2017] WASCA 40 [119], [136].
[56] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 38; Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56, 64; Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [8]; Fernandez v The State of Western Australia [2017] WASCA 223 [109].
Taking the respondent's hypothetical scenario,[57] where a moving person (X) inadvertently bumps into, and thereby applies force to, another person (Y), there may be room for different characterisations of the relevant 'act' for the purposes of s 23A.
[57] Respondent's submissions [27].
If the 'act' is characterised as the physical bodily movement and nothing more, the contact with and touching of Y would be an 'event' for the purposes of s 23B. On this analysis, the event will have occurred by accident, and entail no criminal responsibility, so long as X did not intend or foresee the contact and the contact was not reasonably foreseeable.[58]
[58] Kaporonovski (231); Collard [115], [119]; Hawke [124] - [128].
Alternatively, if the 'act' is characterised as encompassing the movement of X's body coupled with the contact with Y's body,[59] X has not willed that inadvertent act and, therefore, is not criminally responsible for it.
[59] As was submitted by the amicus curiae. See appeal ts 14 - 15, 20.
Whichever way the 'act' is characterised, the inadvertent bumping will be, alternatively, an accident or an unwilled act.
It is neither necessary nor appropriate to resolve any question as to the proper characterisation of the 'act' in this hypothetical scenario. As explained above, it is not necessary because, whichever characterisation is adopted, the application of s 23A and s 23B will avoid inadvertent everyday contact between people from constituting unlawful assault. It is not appropriate because the appellant did not make detailed submissions on this issue and because care is needed in formulating any universal propositions about the application of s 23A and s 23B in the abstract, in light of the following observations. First, the distinction between the 'act' in s 23A and the 'event' in s 23B is not without difficulty.[60] Secondly, it is important to avoid overly refined analysis of what constitutes an 'act'.[61] Thirdly, s 23A and s 23B, like ch V of pt 1 generally, are pitched at a high level of generality, making it important to understand how the general principles have been applied to particular factual circumstances.[62]
[60] Ugle v The Queen [26].
[61] Murray v The Queen [49].
[62] Vallance v The Queen (61); Murray [12].
Also, in some cases, where a person who, in the course of a willed physical movement, unwittingly comes into contact with another person, of whose presence or proximity they were unaware, there may be scope for s 24 to operate to exculpate the actor from criminal responsibility.
BRK v The Queen concerned appeals against conviction by offenders who were convicted after trial of, relevantly, numerous counts of aggravated indecent assault, contrary to s 324 (as then enacted) of the Code, and aggravated sexual penetration without consent, contrary to s 326 (as then enacted) of the Code. The court's reasons for rejecting a contention that the judge was obliged to direct the jury that an element of the offences was that the accused knew that the complainant was not consenting have some parallels with our reasoning outlined above. Murray J (Parker J agreeing) explained that knowledge of the absence of consent is not inherent in the notion of an indecent assault. Rather, any issue of that character is subsumed in the application of s 23 (as then enacted) and s 24 of the Code:
[I]t is to be noted that neither in the provisions defining the relevant offences, which I have discussed above, nor in any of the provisions of Chapter V, is there any provision which would make it an element of the offences of sexual assault or indecent assault, to use shorthand terms, that not only should the offender intentionally, wilfully or deliberately penetrate or apply force to the complainant, but that he should do so, as the ground of appeal has it, knowing that she was not consenting thereto. In my opinion, the relevant Code equivalent to the common law doctrine of mens rea is to be found in the provisions of s 23 [as then enacted] and the requirement that, subject to the express provisions of the Code relating to negligent acts and omissions (to be found in Chapter XXVII), 'a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will'. The consequence of that view is not at all that the law would permit such offences to be committed as a result of mere carelessness, as senior counsel submitted, although, of course, as has been seen, s 23 [as then enacted] does preserve the capacity in certain circumstances for criminal responsibility to flow from what may be described as grossly negligent or reckless behaviour.
Of course, s 23 [as then enacted] imports a general state of mind of conscious and deliberate action in relation to the acts or omissions of a person which may constitute the offence charged. The additional element of the absence of the consent of the alleged victim in the offences under discussion has nothing to do with the state of mind of the accused, but is concerned with that of the complainant, and is to be established as a fact beyond reasonable doubt in its own terms. So far as the accused is concerned, his consciousness or state of mind in relation to the existence of that factual element, the absence of the complainant's consent, is, as was done in this case, to be tested against the application to the case of s 24 of the Code with the effect that the accused's criminal responsibility is to be co-extensive with what would have been the position had the real state of things been as he honestly and reasonably but mistakenly believed them to be. Again it is clear that that is a provision to be applied in the context that the onus remains upon the Crown to negate its application beyond reasonable doubt, once there is evidence capable of raising it [23] ‑ [24].
Further, engaging in certain activities involves consenting to some physical contact with, or application of force by, others. Playing football provides an example. Persons who enter crowded areas such as a train or a busy pedestrian area may be taken to have impliedly consented to minor inadvertent contact by others.
Taking all those matters into account, when the definition of 'assault' in s 222 is inserted into the offence-creating provisions of the Code in which the term is used, the absence of an element of intention does not produce consequences so unlikely to have been intended as to militate against adoption of the ordinary meaning of the text of s 222.
Conclusions on the proper construction of s 222
As we have said, the ordinary meaning of the language of s 222 is that there is no element of intention in the case of an assault by actual application of force (as distinct from assault by attempted or threatened application of force). That meaning sits comfortably with the Code as a whole in which the mental element is supplied by ch V of pt 1. For the reasons already given, in our view, there is no justification for departing from the ordinary meaning of the statutory text.
The decision, as distinct from the reasoning, in Hall v Fonceca is not inconsistent with this construction. As we have said, Hall v Fonceca concerned an assault by threat, not by the actual application of force. Like Anderson J,[63] we consider that what was decided in Hall v Fonceca was that it is necessary for the prosecution to prove intention on the part of the accused in a case of assault by attempting or threatening to apply force. The language of the second limb of the definition of 'assault', concerning attempted or threatened application of force, is materially different from the language of the first limb. The language of the second limb sustains the construction adopted in Hall v Fonceca that the element of intention is required in the case of the second limb.
[63] Rossi v Carter [2000] WASCA 321 [12].
The reasons in Hall v Fonceca can fairly be read to be expressed more widely, so as to apply to all forms of assault as defined in s 222. That is how the reasons were read by Corboy J in Murphy v Spencer, in following Hall v Fonceca. However, insofar as statements as to intention made in Hall v Fonceca are expressed to apply to all forms of assault as defined in s 222, they go further than was necessary for the decision in that case and, for the reasons we have given, we prefer a different construction of s 222.
We accept the appellant's submission that the authorities relied on in Hall v Fonceca provide very little assistance. Fogden v Wade[64] concerned a definition of assault that included the word 'intentionally'. R v McIver[65] involved, so far as is material, no more than a comment made in the course of a hearing, following which the indictment was amended.
[64] Fogden v Wade [1945] NZLR 724.
[65] R v McIver (1928) 22 QJPR 173, 174.
Thus, on our construction of s 222, in applying Murphy v Spencer, as the magistrate was bound to do, his Honour erred. Consequently, we would uphold the ground of appeal.
What orders should be made?
The appellant's written submissions and 'orders wanted' contended that, upon upholding the appeal, this court should enter a judgment of conviction of the respondent.[66] After some equivocation, at the hearing of the appeal senior counsel for the appellant ultimately accepted that, if the ground of appeal were upheld and the appeal allowed, the matter should be remitted to the Magistrates Court.[67] In our opinion, the appellant was correct to concede that this court should remit the matter to the Magistrates Court, rather than enter a judgment of conviction. The magistrate acquitted the respondent on the ground that the element of intention had not been established. The magistrate expressed doubt about whether the defence of accident had been excluded, but said that it was not necessary to come to a final view about that.[68] That is evidently because his Honour had determined that the necessary element of intention had not been established. In those circumstances, the matter must be remitted to the Magistrates Court to enable all issues to be resolved.
[66] White AB 17, 20.
[67] Appeal ts 26.
[68] ts 72.
The appellant submits that the matter should be remitted to the same magistrate so that his Honour can decide the matter without the need for a further trial. In that respect, the appellant emphasises that the complainant is more than 70 years of age.[69]
[69] Appeal ts 9.
We do not consider that it would be appropriate for the matter to be resolved without a new trial. Given the considerable passage of time since the matter was heard in April 2017, the matter must be heard and determined afresh. Therefore, the matter should be remitted for a retrial. There is no reason that the retrial need be before the same magistrate.
Whether a retrial actually occurs is a matter for the exercise of the discretion of the prosecution.
We would make orders to the following effect:
1.The appeal be upheld.
2.The magistrate's decision be set aside.
3.The matter be remitted to the Magistrates Court for a retrial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH18 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HAYMAN -v- CARTWRIGHT [2018] WASCA 116 (S)
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 18 JULY 2018 AND ON THE PAPERS
DELIVERED : 20 JULY 2018
FILE NO/S: CACR 148 of 2017
BETWEEN: DION PETER HAYMAN
Appellant
AND
JAMES DARREN CARTWRIGHT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE RANDAZZO
File Number : PE 70541 of 2016
Catchwords:
Criminal law - Appeal against acquittal - Appeal successful - Whether respondent should pay appellant's costs
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h)
Result:
No order as to costs
Representation:
Counsel:
| Appellant | : | Mr G T W Tannin SC |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms K Farley SC |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | In person |
| Amicus Curiae | : | Legal Aid of Western Australia |
Case(s) referred to in decision(s):
Fitas v O'Brien [2017] WASCA 147
Hall v Fonceca [1983] WAR 309
Hayman v Cartwright [2018] WASCA 116
Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74
Wilson v McDonald [2009] WASCA 39 (S)
JUDGMENT OF THE COURT:
On 18 July 2018, we upheld the appellant's appeal against the respondent's acquittal on a charge of common assault.[70] The appellant sought an order that the respondent pay the appellant's costs of the appeal. As only one member of the coram was present for judgment delivery, it was ordered that the question of costs be determined on the papers.
[70] Hayman v Cartwright [2018] WASCA 116.
For the reasons that follow, in our view, there should be no order as to costs.
Costs: legal principles
Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) provides relevantly:
(1)In deciding an appeal, the Supreme Court may do one or more of the following -
…
(h)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
That provision, made applicable to the appeal to this court by s 13(3), confers a general and unconstrained discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest, and without any presumption or ordinary rule that costs should follow the event.[71]
[71] Wilson v McDonald [2009] WASCA 39 (S) [7] ‑ [10]; Fitas v O'Brien [2017] WASCA 147 [14].
The role of the respondent in the appeal
The respondent filed written submissions in opposition to the appeal.
However, the respondent did not appear at the hearing of the appeal. Senior counsel appeared at the hearing as amicus curiae.
The appropriate costs order
The appellant submits that:
(1)the respondent opposed the appeal, filing submissions in opposition which required consideration and response by the appellant;
(2)the ordinary course is that costs should follow the event; and
(3)that should apply here, so the respondent should be ordered to pay the appellant's costs.[72]
[72] Appeal ts 29, 30, 32, 34.
We do not accept these submissions. As we have said, unlike in civil proceedings or a civil appeal, there is no general rule that costs follow the event. Further, in all the circumstances, particularly when account is taken of the following, the appropriate order is that there be no order as to costs:
1.In holding that the prosecution was required to establish intention, the magistrate properly applied the decision in Murphy v Spencer.[73] Consequently, the respondent cannot be said to have played any part in the magistrate coming to what we ultimately found to be an erroneous conclusion as to the proper construction of s 222 of the Code.
[73] Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74.
2.The appeal involved a question of statutory construction of s 222. That question has a broader significance than the resolution of this appeal.
3.The appellant was required to establish error in the magistrate's construction of s 222. That was so regardless of whether the respondent took any active role in the appeal.
4.The active role taken by the respondent was limited to the formulation of written submissions. The respondent cannot be said to be responsible for the appellant's costs in preparing written submissions, or in presenting oral argument. The appellant's written submissions were, of course, prepared prior to the respondent's submissions. At the hearing of the appeal, as we have said, the respondent did not appear. The presence of the respondent's written submissions did not give rise to any significant additional costs on the part of the appellant. It was, in any event, necessary for the appellant to deal in his submissions with the reasoning in Hall v Fonceca[74] and in Murphy v Spencer. The written submissions filed on behalf of the respondent raised substantially the same arguments as were raised in those cases. That is reflected in our reasoning.[75]
[74] Hall v Fonceca [1983] WAR 309.
[75] Hayman v Cartwright [51].
5.Further, at the hearing of the appeal it was necessary for the appellant to deal with the submissions advanced by the amicus curiae.
Conclusion
For these reasons, we order that there be no order as to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH20 JULY 2018
15
51
1