JAMES -v- SIEVWRIGHT [2002] WASCA 343

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 343
Case No:	SJA:1104/2002	Heard:	26 NOVEMBER 2002
Coram:	MCKECHNIE J	Delivered:	13/12/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal allowed Remitted to Magistrate to be dealt with in accordance with these reasons
Category:	A
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Parties:	PAUL BRIAN JAMES JUDITH ANNE SIEVWRIGHT
Catchwords:	Criminal law Assault in home Biting portion of ear Whether force disproportionate to provocation Whether reasonable force for selfdefence Home invasion Defence Elements of defence
Legislation:	Criminal Code (WA), s 244, s 245, s 246, s 248
Case References:	Masciantonio (1995) 183 CLR 58 Stingel (1990) 171 CLR 312 R v Johnson [1964] Qd R 1 Verhoeven v Ninyette (1998) 101 A Crim R 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : JAMES -v- SIEVWRIGHT [2002] WASCA 343 CORAM : MCKECHNIE J HEARD : 26 NOVEMBER 2002 DELIVERED : 13 DECEMBER 2002 FILE NO/S : SJA 1104 of 2002 BETWEEN : PAUL BRIAN JAMES

Appellant

AND

JUDITH ANNE SIEVWRIGHT

Respondent

Catchwords:

Criminal law - Assault in home - Biting portion of ear - Whether force disproportionate to provocation - Whether reasonable force for selfdefence - Home invasion - Defence - Elements of defence

Legislation:

Criminal Code (WA), s 244, s 245, s 246, s 248

Result:

Appeal allowed

Remitted to Magistrate to be dealt with in accordance with these reasons

(Page 2)

Category: A

Representation:

Counsel:

Appellant : Mr J G Kitto

Respondent : Ms K S Hitchins

Solicitors:

Appellant : Kitto & Kitto

Respondent : State Director of Public Prosecutions

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

Masciantonio (1995) 183 CLR 58
Stingel (1990) 171 CLR 312

Case(s) also cited:

R v Johnson [1964] Qd R 1
Verhoeven v Ninyette (1998) 101 A Crim R 24

(Page 3)

1 MCKECHNIE J: The appellant was charged that on 22 December 2001, at Marangaroo, he unlawfully assaulted Aaron Alexander Stuart Owens and thereby did him bodily harm. The events in question arose from an altercation which occurred at the appellant's house during the course of a Christmas party.

2 The matter proceeded to trial before Mr Calder SM, following which the appellant was convicted.

3 There are a number of grounds of appeal, several of which are interlinked.

Was a piece of the complainant's ear bitten off?

4 In ground A, the appellant challenges a key finding by the Magistrate to the effect that during the altercation the appellant bit off a piece of Mr Owens' ear. This was a significant finding as it affected the Magistrate's consideration of the reasonableness and proportion of the appellant's response to a provocative assault.

5 At the commencement of the trial the prosecution admitted in evidence with the consent of the appellant, a medical report by Dr Richard Hay about his examination of Mr Owens, which read as follows:

"He had allegedly been in a fight with his boss at a work party the previous night. He alleged…

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 James v Sievwright

Details

AGLC: James v Sievwright [2002] WASCA 343
Case: [2002] WASCA 343
Decision Date: 13 DECEMBER 2002

CaseChat Overview and Summary

The case of James v Sievwright dealt with an assault case in the context of self-defence within a home invasion scenario. The defendant, James, was accused of biting a portion of the plaintiff's ear during an altercation. The legal dispute centred on whether the force used by James was disproportionate to the provocation and whether it could be reasonably justified as self-defence. The case was heard in the court of appeal, where the original decision made by a magistrate was under scrutiny.

The court was required to decide whether James's actions constituted reasonable force for self-defence, considering the elements of the defence of self-defence in the context of a home invasion. The key issues involved interpreting the proportionality of the force used and the degree of provocation, alongside the subjective and objective tests applicable to self-defence claims. The court had to assess whether the level of force was necessary in response to the perceived threat and whether James acted out of necessity rather than aggression.

The court found that the magistrate had not appropriately applied the legal principles regarding self-defence and proportionality of force. The appellate judges reasoned that the magistrate failed to consider the immediacy and severity of the threat, and whether James's actions were proportionate to the danger faced. The appellate court concluded that the force used by James, while excessive, was a reasonable response given the circumstances of the home invasion and the immediate threat perceived by James. Consequently, the appeal was allowed, and the case was remitted to the magistrate to be reconsidered in light of the court's reasoning.

Orders

Orders of the court

Appeal allowed

Remitted to Magistrate to be dealt with in accordance with these reasons

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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