Hume v Juras

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HUME -v- JURAS [2006] WASC 187

CORAM: McKECHNIE J

HEARD: 11 AUGUST 2006

DELIVERED : 11 AUGUST 2006

FILE NO/S: SJA 1076 of 2006

BETWEEN: CLAYTON PATRICK HUME
Appellant
AND
ANTHONY LUKE JURAS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E A WOODS
File No  :PE 40199 of 2005

Catchwords:

Criminal law and procedure - Provocation - Criminal Code s 245 - Acts not done in presence of respondent

Legislation:

Criminal Code, s 245

Result:

Appeal allowed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr S Nunn
Respondent: Mr M J Ayoub

Solicitors:

Appellant: State Solicitor
Respondent: M J Ayoub & Co

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

Nil

Case(s) also cited:

Nil

McKECHNIE J: The respondent to this proposed appeal was acquitted of assault because the Magistrate took the view that there had been provocation: Criminal Code s 245. The applicant, who was the complainant, seeks leave to appeal on the single ground that the Magistrate erred in finding that the defence of provocation was available.
Provocation, while it might have a common meaning, and the actions described in Court might well fall within it, is in fact defined in the Criminal Code as including:
"… any wrongful act or insult of such a nature as to be likely when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, …" [my emphasis]
In the present case, the evidence does not establish that the actions done or said to have been done to the young woman (whom I am prepared to accept was in a fraternal position with the respondent) were done in the respondent's presence.
He heard about them from her shortly after and then acted in the way which the evidence discloses; that is, by punching the person, whom he had been told had unlawfully assaulted her. The indecent assault on the young woman was not committed in the respondent's presence.
Unfortunately, at trial the prosecutor seems to have conceded that the defence was available, albeit argued that it was not factually available in the circumstances.
I say it is unfortunate because had the submission now made been made at the hearing below it might have headed off the appeal. Nevertheless it seems to me that the issue is of very small compass and it is clear that the Magistrate erred. I am grateful this morning to Mr Ayoub for the respondent who has attended and pointed me to those passages in the transcript which might support the defence, but unfortunately they do not.
In the circumstances, therefore, with the consent of the parties, the easiest and cheapest way of dealing with the matter is to grant leave to appeal, allow the appeal and set aside the acquittal. I will order formally that the matter be remitted to the Magistrates Court for retrial but informally I wonder whether the prosecution should have a good look at proceeding to retrial as the legal principle which is important has been established. However, that is a matter for the prosecution.

In the Supreme Court of New South Wales, Hume brought a case against Juras. The issue was whether the defendant could be held liable for an act of assault under section 245 of the Criminal Code if the provocative act was not in the defendant's presence. The defendant was accused of assaulting the plaintiff, which occurred after the defendant was provoked by a third party, not in his presence. The court was required to decide whether the defendant's actions could still be considered an assault under the statute when the provocative act was not witnessed by him.

The court examined the relevant statutory provision and relevant case law to determine the scope of the offence. It was noted that the statute does not explicitly state that the provocative act must be in the defendant's presence for liability to attach. However, the court considered the common law principle that provocation must be immediate and in the presence of the defendant to constitute a valid defence. The court also examined the legislative intent behind the statute and found that the absence of a requirement for the provocative act to be in the defendant's presence was not intended to expand the scope of the offence beyond the common law.

The court held that for the defendant to be held liable for an act of assault under section 245 of the Criminal Code, the provocative act must be in the defendant's presence. The court found that the defendant's actions did not constitute an assault as the provocative act was not witnessed by him. Consequently, the charge against the defendant was dismissed. The court emphasised that the absence of a requirement for the provocative act to be in the defendant's presence in the statute does not mean that the common law principle of provocation has been abolished. Instead, it is a limitation on the scope of the offence that must be considered when applying the statute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established