Hume v Juras

[2006] WASC 187

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

1. 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.

2. 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]

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.