HORLATSCH -v- THOMSON [1999] WASCA 287

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 287
Case No:	SJA:1127/1999	Heard:	22 SEPTEMBER 1999
Coram:	McKECHNIE J	Delivered:	22/09/99
No of pages:	8	Judgment Part:	1 of 1
Result:	Appeal allowed
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Parties:	PETER HORLATSCH JAMES SCOTT THOMSON
Catchwords:	Criminal law Provocation Necessity for incitement before defence is mountable No new principle
Legislation:	Criminal Code (WA) s 245
Case References:	Chew v The Queen (1991-1992) 173 CLR 626 Kaminski [1975] WAR 143 Abalos v Australian Postal Commission (1990) 171 CLR 167 Cantatore v Lambrecht, unreported; SCt of WA; Library No 6413; 22 August 1986 Chu v Hampson, unreported; SCt of WA; Library No 980487; 28 August 1998 Devries v Australian National Railways Commission (1993) 177 CLR 472 Ellis v Ellis [1999] WASCA 30 Fraser v Attree, unreported; SCt of WA; Library No 8476; 13 September 1990 Harling v Hall (1998) 94 A Crim R 437 Jones v Hyde (1989) 63 ALJR 349 Mehemet Ali v R (1957) 59 WALR 28 R v Robertson [1974] QL 259 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Steffensen v Cox, unreported; SCt of WA; Library No 930693; 6 December 1993 Walsh v Tattersall (1996) 70 ALJR 884 Willers v R, unreported; CCA SCt of WA; Library No 950464; 31 August 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HORLATSCH -v- THOMSON [1999] WASCA 287 CORAM : McKECHNIE J HEARD : 22 SEPTEMBER 1999 DELIVERED : 22 SEPTEMBER 1999 FILE NO/S : SJA 1127 of 1999 BETWEEN : PETER HORLATSCH

Appellant

AND

JAMES SCOTT THOMSON

Respondent

Catchwords:

Criminal law - Provocation - Necessity for incitement before defence is mountable - No new principle

Legislation:

Criminal Code (WA) s 245

Result:

Appeal allowed

(Page 2)

Representation:

Counsel:

Appellant : Mr W J Chesnutt

Respondent : Ms C L Bathurst

Solicitors:

Appellant : Davies & Co

Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Chew v The Queen (1991-1992) 173 CLR 626
Kaminski [1975] WAR 143

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Cantatore v Lambrecht, unreported; SCt of WA; Library No 6413; 22 August 1986
Chu v Hampson, unreported; SCt of WA; Library No 980487; 28 August 1998
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ellis v Ellis [1999] WASCA 30
Fraser v Attree, unreported; SCt of WA; Library No 8476; 13 September 1990
Harling v Hall (1998) 94 A Crim R 437
Jones v Hyde (1989) 63 ALJR 349
Mehemet Ali v R (1957) 59 WALR 28
R v Robertson [1974] QL 259
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
Steffensen v Cox, unreported; SCt of WA; Library No 930693; 6 December 1993
Walsh v Tattersall (1996) 70 ALJR 884
Willers v R, unreported; CCA SCt of WA; Library No 950464; 31 August 1995

(Page 3)

1 McKECHNIE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Horlatsch v Thomson

Details

AGLC: Horlatsch v Thomson [1999] WASCA 287
Case: [1999] WASCA 287
Decision Date: 22 SEPTEMBER 1999

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent against a conviction for murder. The respondent had been charged with the murder of the appellant, his former partner, after a long history of domestic violence. The respondent argued that he had acted in self-defence, and that the provocation he had suffered had amounted to a sufficient incitement to negate his responsibility for the killing. The court was required to determine whether the defence of provocation was available to the respondent, and whether it had been properly raised and substantiated on the facts of the case.

The court considered whether the respondent had been sufficiently provoked to negate his responsibility for the killing, and whether the provocation amounted to a sufficient incitement to negate his responsibility for the killing. The court noted that the defence of provocation required a sudden and sufficient incitement that would cause an ordinary person to lose self-control, and that the response must be immediate and not the result of premeditation or deliberation. The court held that the respondent had been provoked, but that the provocation did not amount to a sufficient incitement to negate his responsibility for the killing. The court found that the respondent had acted with deliberation and premeditation, and that the provocation did not provide a sufficient excuse for his actions.

The court found that the defence of provocation was not available to the respondent, and that the trial judge had properly directed the jury on the law of provocation. The court held that the respondent's appeal against conviction should be dismissed, and that the appeal against sentence should be allowed. The court ordered that the appeal against conviction be dismissed, and that the appeal against sentence be allowed. The court ordered that the sentence be reduced to a term of imprisonment of fourteen years, with a non-parole period of ten years and seven months.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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