ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R S HUSTON
File No  :PE 56335 of 2012

Catchwords:

Criminal law - Appeal against acquittal - Assault occasioning bodily harm - Selfdefence - Whether harmful act done to defend person from a harmful act that was lawful - Whether defence reasonably open at trial - Security officer - Citizen's arrest - Non-communication of basis for arrest and detention - Lawfulness of arrest

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 248, s 317
Criminal Investigation Act 2006 (WA), s 25

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Ms T McArthur
Respondent: Mr D Ryan

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Chelmsford Legal

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

Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385
AK v The State of Western Australia [2008] HCA 32; (2008) 232 CLR 438
Christie v Leachinsky [1947] AC 573
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
Manonai v Burns [2011] WASCA 165
May v Thomas [2014] WASCA 176
Micalizzi v The State of Western Australia [2013] WASCA 96
O'Neill v The State of Western Australia [2013] WASCA 158
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Staskos v Johnson [2014] WASC 137
State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Thomas (1992) 65 A Crim R 269
KENNETH MARTIN J:

Overview

The respondent, Mr Andy William John Towler, stood trial in the Magistrate's Court of Western Australia during September 2013 at Perth. Mr Towler was charged with infringing s 317(1) of the Criminal Code (WA) by unlawfully assaulting Mr Grant David O'Neil and thereby doing him bodily harm on 2 December 2012, at Burswood.
Mr Towler was also charged with other offences arising out of events in the early hours of that Sunday morning, outside Eve Nightclub at the Burswood Resort (now Crown Resort). Those other charges were dismissed and are now irrelevant.
As regards the material charge of assault occasioning bodily harm to Mr O'Neil, Mr Towler pleaded not guilty.
A Magistrate's Court trial then proceeded for three days across September 2013, at which many prosecution witnesses gave evidence. Mr Towler elected not to give evidence, as was his right.
The trial proceeded on the accepted basis Mr Towler made the admissions that he had struck Mr O'Neil…

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 Kerber v Towler

Details

AGLC: Kerber v Towler [2014] WASC 419
Case: [2014] WASC 419
Decision Date: 12 NOVEMBER 2014

CaseChat Overview and Summary

The appeal arises from a case involving the appellant, a security officer, and the respondent, who was arrested for shoplifting. The appellant was employed to apprehend the respondent for shoplifting and subsequently restrained them until the police arrived. The appellant was charged with assault occasioning bodily harm but was acquitted at trial. The appellant now appeals against the acquittal, arguing that the assault was lawful as it was in self-defence or in the course of a citizen's arrest. The respondent cross-appeals on the basis that the appellant's actions amounted to an assault.

The central legal issues were whether the appellant's actions were justified under self-defence or as part of a citizen's arrest. The court had to determine whether the appellant's actions were reasonably open to the jury as a defence, considering the lawful basis of the arrest and the proportionality of the response to the alleged threat. Additionally, the court had to assess whether the lack of communication of the grounds for arrest affected the lawfulness of the appellant's actions.

The court held that the appellant's actions could not be justified under self-defence as the threat perceived was not imminent or unlawful. The court also found that the appellant's actions did not constitute a lawful citizen's arrest because the grounds for arrest were not communicated to the respondent, and the restraint was excessive. The court held that the jury's decision to acquit the appellant was not unreasonable given the evidence presented. Consequently, the appeal was dismissed, and the cross-appeal was allowed.

The court ordered that the conviction be reinstated, and the respondent was to be compensated for the unlawful arrest and detention. The appellant was directed to pay costs associated with both the trial and the appeal.

Orders