Lomans v Morony - [2000] WASCA 90

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LOMANS -v- MORONY [2000] WASCA 90

CORAM: SCOTT J

HEARD: 21 MARCH 2000

DELIVERED : 10 APRIL 2000

FILE NO/S: SJA 1109 of 1999

BETWEEN: STEPHEN JOHN LOMANS
Appellant
AND
KENNETH IAN MORONY
Respondent

Catchwords:

Criminal law - Appeal against conviction - Failure to particularise charges - Duplicity of charges - Magistrate preferred prosecution evidence - Assault occasioning bodily harm - Appellant used excessive force - Appellant acting in capacity as a licensed crowd controller - Magistrate did not make an error in law - Appeal dismissed - Turns on own facts

Legislation:

Criminal Code (WA), s 317, s 260 Part V Ch XXVI

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Ms M Wells

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

SCOTT J: The appellant was convicted following trial of one count of assault occasioning bodily harm.
The complaint alleged that on 3 November 1998 at Mandurah, the appellant unlawfully assaulted David McKain ("McKain") and thereby did him bodily harm. Although the appellant was represented at trial, he was not represented on this appeal.
At the start of the trial there was some debate between the prosecutor and counsel for the accused as to whether there should have been one or two complaints. The reason, was a suggestion that there were two separate incidents involved in the conduct with which the appellant was charged.
At the end of the day, the learned Magistrate did not make any ruling as to whether there was one or two offences involved but simply directed that the matter proceed. As it turns out, in my opinion, his Worship was correct in so proceeding in that the chapter of events, which will be described later in these reasons, constituted one continuing course of conduct rather than two separate incidents.
The evidence establishes that on the day of the alleged assault (which was Melbourne Cup day 1998), the complainant, McKain, had been at the Silver Sands Hotel since about midday. The appellant's position was that of crowd controller, more commonly known as a "bouncer". The incident involving the appellant occurred at around about 7.00 pm. A man, (referred to as "Paul") apparently in the company of McKain, had fallen over in the vicinity of the pool table. It is common ground that the appellant went to the area where Paul had fallen and McKain also went to the same area. It was there that a confrontation developed between McKain and the appellant.
On his Worship's finding, the appellant went behind McKain, put his arm around McKain's neck, in what his Worship described as "a well trained hold" and dragged McKain backwards out of the tavern. Once outside the tavern, it was said by McKain that the appellant held him up against a wall using his hand against his throat and threatened him.
On his Worship's findings of fact, it is…

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 Lomans v Morony

Details

AGLC: Lomans v Morony [2000] WASCA 90
Case: [2000] WASCA 90
Decision Date: 10 APRIL 2000

CaseChat Overview and Summary

The appeal in Lomans v Morony concerns the conviction of the appellant, Lomans, for the offence of assault occasioning bodily harm. The matter was heard and determined in the County Court of Victoria. The dispute revolves around whether the charges against Lomans were sufficiently particularised, and whether there was a duplicity of charges. The case also involves the evaluation of the evidence presented by both the prosecution and the defence, particularly in light of the appellant's role as a licensed crowd controller at the time of the incident.

The primary legal issues the court had to address were whether the charges against the appellant were specific enough to inform him of the precise nature of the allegations and whether there was more than one offence charged in a single count. Additionally, the court had to consider whether the magistrate erred in law when preferring the prosecution's evidence over that of the defence. The appellant's argument that he acted in self-defence and that his use of force was reasonable given his role as a licensed crowd controller was also a central point of contention.

The court found that the charges against the appellant were adequately particularised, and there was no duplicity in the charges. The magistrate's decision to rely on the prosecution's evidence was supported by the evidence presented and the credibility of the witnesses. The court held that the magistrate did not make an error in law, and thus, the appeal was dismissed. The court found that the appellant's use of force was excessive, and he did not act in self-defence under the circumstances.

In conclusion, the appeal was dismissed, and the conviction of the appellant was upheld. The court did not find any legal errors in the magistrate's decision-making process, and the evidence supported the magistrate's conclusion. The appellant's role as a licensed crowd controller did not absolve him of responsibility for using excessive force in the circumstances of the case.

Orders