Jovicevic v Palmer

[2006] WASC 112

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   JOVICEVIC -v- PALMER [2006] WASC 112

CORAM:   MCKECHNIE J

HEARD:   25 MAY 2006

DELIVERED          :   25 MAY 2006

PUBLISHED           :  21 JUNE 2006

FILE NO/S:   SJA 1111 of 2005

SJA 1112 of 2005

BETWEEN:   ALEKSANDAR JOVICEVIC

Appellant

AND

DAVID FRANCIS PALMER
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE B A LANE

File No  :PE 9192 of 2005, PE 9193 of 2005

Catchwords:

Criminal law and procedure - Errors in reasoning - No new principles

Legislation:

Criminal Code, s 25, s 248

Result:

Appeal allowed
Retrial ordered

Category:    B

Representation:

Counsel:

Appellant:     Mr D Grace QC

Respondent:     Ms L B Black

Solicitors:

Appellant:     Laurie Levy

Respondent:     State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

1. MCKECHNIE J:  At the end of the hearing on 25 May 2006 I ordered that the appeal be allowed, the conviction be quashed, the matter be remitted to the Magistrates' Court for a retrial and that the defendant be remanded on bail on condition to appear in the Magistrates' Court in Perth on 15 June 2006.  I said that I would publish my reasons for making those orders later and these are the reasons.

2. The events giving rise to the appeal occurred over a very short time at 2 am on 23 January 2005 on a staircase landing outside the Under the Sea Nightclub in Rokeby Road, Subiaco.  It was undisputed that the appellant, who was unlicensed, discharged an unregistered handgun into the ceiling above him.  As a result, he was charged, and in due course convicted, of unlawfully discharging the firearm and being in possession of it.

3. The incident was captured largely, though not perhaps entirely, on a surveillance camera stationed outside the landing.  A group of aggressive young men known in the trial as Monty's Group appeared to be trying to get to the group of which the appellant was a member.  The nightclub security officers were attempting to prevent the two groups meeting when the appellant discharged the firearm.

4. Issues were raised as to a defence under s 248 of the Criminal Code and a defence under s 25 of the Criminal Code.  The grounds of appeal asserted that there were errors in the Magistrate's reasoning as to both of those sections.  The respondent, appropriately, conceded that the Magistrate had made significant errors but argued that there had been no miscarriage of justice because the errors that she made ultimately were in favour of the appellant.  There is some force in these submissions.  However, there were other misdirections.  The Magistrate said at 41 of her reasons for decision:

   "15.I do not accept the evidence of Aleksandar Jovicevic as being entirely credible and reliable.  Where there is a dispute between his evidence and the prosecution witnesses evidence, I prefer their evidence.

   16.I do not accept the evidence of Isaac Taylor to be entirely credible and reliable."

5. Although at other times the Magistrate directed herself correctly to the ultimate standard of proof, in this case it was necessary to conduct a more detailed analysis of the appellant's evidence particularly to explain which parts were rejected and why.

6. In the trial court it was assumed that s 248 and s 25 both provided possible defences, it being accepted on all hands that the prosecution had to negative their existence. I query the assumption. Section 25 commences:

   "Subject to the express provisions of this Code relating to acts done … in self defence …"

7. The so‑called defence of emergency has been described as a residual defence. If a matter can fall within s 248, then there is no scope for the operation of s 25.

8. In this case, the appellant asserted, and the prosecution conceded, that the appellant had been unlawfully assaulted due to the actions of Monty's Group threatening to apply force to the appellant among others. There was no evidence that the appellant had provoked that assault. Those two matters triggered s 248. It is an issue as to whether the discharge of the weapon into the roof is "any such force to the assailant" within s 248. I express no concluded view on that because it is a matter of fact for resolution at the trial.

9. If the facts give rise to a defence under s 248, then s 25 does not arise. I consider the Magistrate was in error when she said: "In my opinion section 25 is complimentary [sic] to the provision of the Code relating to self‑defence." The errors made by the Magistrate and her notion that the two defences created by s 248 and s 25 were complementary did not, as a consequence, permit her to properly analyse the evidence as to whether the prosecution had negatived "to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault".

10. As I was unable to apply the proviso I allowed the appeal. 

11. Ground 8 of the appeal related to the evidence of a particular witness and asserted that the Magistrate had made an error of fact about the evidence.  As I have ordered a retrial on other grounds it is not necessary to deal with this ground and the trial court will consider the evidence put before it.

12. The appellant appealed against his sentence but that appeal now falls away.