James v Sievwright
[2004] WASCA 12
•2 FEBRUARY 2004
JAMES -v- SIEVWRIGHT [2004] WASCA 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 12 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1057/2003 | 12 DECEMBER 2003 | |
| Coram: | WHEELER J WALLWORK AJ | 2/02/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL BRIAN JAMES JUDITH ANNE SIEVWRIGHT |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | James v Sievwright [2002] WASCA 343 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JAMES -v- SIEVWRIGHT [2004] WASCA 12 CORAM : WHEELER J
- WALLWORK AJ
- Applicant
AND
JUDITH ANNE SIEVWRIGHT
Respondent
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr J G Kitto
Respondent : Mr B E F Tooker
Solicitors:
Applicant : Kitto & Kitto
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
James v Sievwright [2002] WASCA 343
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: This was an application to renew an application for leave to appeal which was dismissed by Barker J on 18 November 2003. The leave which was sought was leave to appeal from the whole of the decision of Barker J given on 17 October 2003, by which decision his Honour dismissed the applicant's appeal from his conviction in the Court of Petty Sessions. At the hearing of the present application, we were of the view that the application should be dismissed, on the grounds that the grounds advanced as proposed grounds of appeal did not disclose an arguable case. We undertook to publish brief reasons for that decision. On reviewing the transcript it appears to us that they emerge with reasonable clarity from the exchanges with counsel during the course of that application; however, it is desirable to set out our reasons briefly and in an orderly fashion.
2 This matter has a relatively long history. The applicant was charged that on 22 December 2001 he unlawfully assaulted a Mr Owens and thereby did him bodily harm. The matter was heard in 2002. The evidence was to the effect that the applicant had bitten off a part of one of Owens' ears, and his Worship made a finding to that effect. Defences of provocation and self defence appeared to have been raised, but were rejected by his Worship on the basis that the response of the applicant was not proportionate. The applicant was convicted.
3 The applicant then successfully appealed to this Court against his conviction. In James v Sievwright [2002] WASCA 343, McKechnie J found that the learned Magistrate had failed to consider the question of whether the defence against home invasion provisions to be found in s 244 of the Criminal Code had application, and the matter was remitted to his Worship for further consideration. It appears from the transcript of the hearing before his Worship, as counsel for the applicant conceded that when the matter was first heard by his Worship neither defence counsel nor the prosecutor, nor his Worship, had given any thought to the question of whether s 244 had application. There was therefore, as one would expect, no evidence and no cross-examination directed precisely to that point. However, the applicant had given evidence as to what was in his mind at various stages during the encounter between himself and Mr Owens, and there were of course all of the circumstances of that encounter from which his Worship would have been able to draw any appropriate inferences.
4 Briefly, the background to the incident was that there was an altercation occurring at the applicant's home during the course of a Christmas party. There certainly was an attack by Owens at one stage.
(Page 4)
- The applicant's evidence was that Mr Owens was growling and behaving very strangely, scratching and grabbing at him. His belief at that stage was that Mr Owens had "just lost the plot". There was further evidence as to the continuation of the physical encounter between the two men. The applicant then bit Owens in the ear. His Worship found, and the finding was not contested, that there was a deliberate action on the part of the applicant to get hold of Owens' ear with his teeth and to squeeze so hard and hang on so long that a piece came off. The applicant's evidence was that at the time he was upset and furious and he had said to Mr Owens, fairly early in the encounter, "You're going to fight like a bitch. I'll teach you how to fight like a bitch."
5 The questions referred to his Worship by McKechnie J had been very specific. Summarising them, the first way whether there was evidence that the applicant used any force that he believed on reasonable grounds to be necessary to effect any of the purposes set out in s 244(1)(a) – (d). The second question was, if there was such evidence to consider whether the prosecution had negatived the defence beyond reasonable doubt. His Worship's findings were as follows:-
"It is not necessary for me to refer in detail to all of the evidence which the defendant gave. I found that he did intend to bite Owens' ear. I found that he intended to bite it very hard and that he did so. I find that he intended to maintain his bite on it for as long as he did. In all of the circumstances, I infer that he intended to maintain his bite until a piece of Owens' ear came away. In evidence, the defendant was really unable to explain why he did that. He did not expressly say that he believed that it was necessary to bite off a piece of the ear in order to achieve the objectives which are set out in s 244(1). It is not, however, necessary for a defendant to expressly say so. Such a belief and intent are things, which may be inferred from proven primary facts. I am satisfied that the reason that the defendant bit off a piece of Owens' ear was not because he believed that it was necessary to do so in order to bring about any of the results contemplated in paragraphs (b), (c) and (d) of the sub-section. During the recorded interview he said that he had bitten Owens' 'because he was still having a go at me and I was very angry. The reason I did was that he was fighting like a bitch and I wanted to show him how to fight like a bitch.'
In my opinion the reason for the defendant biting off part of Owens' ear is constituted by a number of factors. He was
(Page 5)
- extremely angry, not only at the assault and threatened assault with the chain but also because of the inappropriate behaviour of Owens during most of the evening. He wanted to teach him a lesson for the manner in which Owens had jumped on his back and been growling like a dog and, to the belief of the defendant, biting him during the earlier incident when the defendant was fighting with McCallum. Although McCallum was punching the defendant in the head while the defendant was keeping Owens down and on his back on the ground, the defendant, being considerably larger and stronger than Owens and less affected by alcohol than Owens, was easily able to and had overpowered Owens. In the position in which he then was Owens posed very little physical threat to the defendant, even though he was behaving in a manner which suggested that there was a possibility that he may bite or scratch the defendant. Although the intervention of McCallum, by punching the defendant in the head at that time, did make the objective of the defendant in maintaining his physical control over Owens more difficult and did to an extent increase the possibility that Owens may be able to cause him some injury, nevertheless, I am satisfied that the defendant did not believe it was necessary to bite off part of Owens' ear in order to achieve any one of the outcomes set out in sub-section 244(1). As I have said, he had a different purpose in mind being a purpose which did not fall within s 244 and which was not otherwise authorised or excused or justified by the law."
6 It was from this finding that the applicant appealed by Barker J, who dismissed the appeal. We do not think it is necessary to set out in detail any of the grounds of the appeal to Barker J, or the proposed grounds of appeal from his Honour's decision. In the end, all of them come down, it seems to us, to the question of how his Worship's reasons should fairly be read. The applicant contends that his Worship should be understood as saying that because the applicant was angry, wanted to teach Owens a lesson, and so on, those beliefs and emotions necessarily excluded any belief that it was necessary to act as he did in order to effect any of the purposes contained within s 244(1). It was put, and we agree with the submission, that the presence of emotions such as anger or a desire for revenge, or the like, does not necessarily mean that the person experiencing those emotions does not also have a belief that it is necessary to do whatever he or she does, in order to effect one of those purposes.
(Page 6)
7 However, in our view, any fair reading of his Worship's reasons leads to the conclusion that his Worship was not finding that the purposes contained within s 244(1) must be taken to have been excluded because the applicant experienced such emotions. Rather, his Worship in terms expressed a finding that the applicant did not bite off a piece of Owens' ear because he believed it was necessary to do so in order to bring about any of the results contemplated by s 244(1). He explained that view by reference to a variety of considerations. One was that the applicant himself was unable to explain why he bit off the ear. Another was the applicant's expressed intention to teach Owens to "fight like a bitch". Another factor operating in his Worship's view was that the applicant was extremely angry and wanted to teach Owens a lesson. Importantly, his Worship also found that by the time at which the ear-biting occurred, Owens posed very little physical threat to the defendant.
8 When one takes the finding together with the explanation, it is our view that his Worship was saying, very clearly, two things. The first was, that by reason of the applicant having obtained the "upper hand" it was not necessary, and he knew that it was not necessary, to bite Owens' ear in order to effect any of the purposes set out in s 244. The second was that, at that stage, his sole motivation was a combination of anger and a desire to teach Owens a lesson. His Worship was not proceeding on any assumption that such emotions would automatically exclude the operation of s 244; rather, he was in our view making a finding of fact that those were the applicant's emotions and beliefs, to the exclusion of those to which s 244 refers. It is our view that those findings were open to his Worship. Indeed, although some of the submissions before us on the part of the applicant were to the effect that other findings may have been preferable, we did not understand the applicant to be submitting that it was simply not open to his Worship to make any finding of the kind which we have described at all, if those were indeed his findings.
9 It was our conclusion therefore, that the application was based upon a misreading of the central finding made by his Worship and that an appeal based upon such a misreading was simply unarguable.
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