JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MAY -v- THOMAS [No 3] [2015] WADC 59
CORAM: SCHOOMBEE DCJ
HEARD: 18-20 MARCH 2013
DELIVERED : 15 MAY 2015
FILE NO/S: CIV 2394 of 2004
BETWEEN: MARK CHRISTOPHER MAY
Plaintiff
AND
ANTHONY TREVOR THOMAS
Defendant
Catchwords:
Damages for personal injury - Assault - Whether selfdefence in common law - Whether selfdefence under Criminal Code (WA) - Whether defence against home invasion or defence of property against trespasser under Criminal Code (WA)
Legislation:
Criminal Code (WA) s 1, s 222, s 244, s 248, s 250, s 254
Criminal Code Act Compilation Act 1913 (WA) s 5
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr T H Offer
Defendant: Mr T H Percy QC with Ms J Moore
Solicitors:
Plaintiff: Vertannes Georgiou
Defendant: DLA Piper Australia
Case(s) referred to in judgment(s):
Boughey v The Queen (1986) 161 CLR 10
Community and Public Sector Union v Telstra Corporation Ltd (No 2) [2001] 112 FCR 324
De Bussche v Alt (1878) 8 Ch D 286
Medlin v State Government Insurance Commission (1995) 182 CLR 1
R v Seaton [2010] EWCA Crim 1980; [2011] 1 All ER 932
The Nominal Defendant v Clements (1960) 104 CLR 476
SCHOOMBEE DCJ:
Background
This matter concerns a re‑trial of a claim for damages arising from personal injury brought by the plaintiff, Mr Mark May against the defendant, Mr Anthony Thomas. The District Court previously dismissed Mr May's claim and Mr May appealed the decision. The Court of Appeal held that the honourable trial judge had not sufficiently indicated what findings of fact had been made and how they applied to the various defences relied upon by Mr Thomas. The matter was remitted to the District Court to be differently constituted.
On this occasion the court was considerably assisted by the Court of Appeal having spelt out exactly what matters had to be proven by Mr Thomas on a balance of probabilities in order to rely on any of the defences raised by him. A re-trial is a rehearing as if the case had never been heard before: Community and Public Sector Union v Telstra CorporationLtd (No 2) [2001] 112 FCR 324, [11]. All findings of fact have to be made afresh, based on the evidence heard at the re-trial. The evidence led at the re‑trial may therefore result in different findings of fact than those made by the trial judge on the occasion of the first trial.
I have read those portions of the Court of Appeal decision in which the defences on which Mr Thomas relied were set out together with the matters that need to be proven in respect of each defence. I have not read the transcript of the evidence given at the previous trial, nor the summary of the evidence or any findings made in…
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- May v Thomas [No 3] [2015] WADC 59
- Case
- [2015] WADC 59
- Decision Date
CaseChat Overview and Summary
In considering these issues, the court recognised the necessity for a fresh evaluation of the facts presented at the re-trial, as mandated by the principles outlined in Community and Public Sector Union v Telstra Corporation Ltd (No 2). The court emphasised that all findings of fact must be made anew based on the evidence presented during the re-trial, which may differ from those made in the initial trial. The court also noted that it had not reviewed the transcript of the previous trial or the Court of Appeal's summary of the evidence and findings, to ensure an unbiased approach to the evidence at the re-trial. The court further observed that the evidence of two medical experts, Associate Professor Robert Mead and Dr Kim Fong, was accepted as their evidence from the previous trial.
The reasoning of the court was influenced by the Court of Appeal's detailed exposition of the defences available to Thomas and the specific matters that needed to be proven for each defence. The court determined that a re-trial constituted a rehearing, necessitating a complete re-evaluation of the evidence and facts. The outcome hinged on whether Thomas could successfully establish the requisite defences on the balance of probabilities, based on the fresh evidence presented at the re-trial. The court acknowledged the necessity of approaching the evidence without pre-conceived notions derived from the initial trial or the Court of Appeal's findings. The court's decision underscored the importance of a de novo approach to the evidence and findings in a re-trial.
Orders
Orders of the court
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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
On this occasion the court was considerably assisted by the Court of Appeal having spelt out exactly what matters had to be proven by Mr Thomas on a balance of probabilities in order to rely on any of the defences raised by him. A re-trial is a rehearing as if the case had never been heard before: Community and Public Sector Union v Telstra CorporationLtd (No 2) [2001] 112 FCR 324, [11]. All findings of fact have to be made afresh, based on the evidence heard at the re-trial. The evidence led at the re‑trial may therefore result in different findings of fact than those made by the trial judge on the occasion of the first trial. I have read those portions of the Court of Appeal decision in which the defences on which Mr Thomas relied were set out together with the matters that need to be proven in respect of each defence. I have not read the transcript of the evidence given at the previous trial, nor the summary of the evidence or any findings made in that regard by the honourable trial judge, nor the portions of the Court of Appeal judgment that deal with the evidence or the findings made by the trial judge. It is best that the evidence presented at the re‑trial be approached without any pre‑conceptions or prior knowledge of the facts. All of the evidence at the re‑trial was presented afresh apart from the evidence of Associate Professor Robert Mead and Dr Kim Fong. It was agreed between the parties that the evidence given by these two medical experts should stand as their evidence in the re‑trial and that the court should rely on the transcript in that regard. Mr Mark May's claim is based on the allegation that he was unlawfully punched on the chin by Mr Thomas during an engagement party that both attended on the evening of 3 March 2001 at the house of Mr and Mrs Sadgrove. Mr May says that he fell backwards onto his head as a result of the punch and received a fracture to the base of his skull. Mr and Mrs Sadgrove's daughter, Rochelle, who is now known as Mrs Reeves, had become engaged to Mr Zeffron Reeves. A party was held to celebrate the event. Mr Thomas was a friend of the Sadgrove family, as well as of Mr Reeves and his family and was invited as a guest. Ms Kate Chadbourne was a friend of Ms Reeves and had been invited to the party together with her then partner Mr May. The party took place on the patio and lawned area behind Mr and Mrs Sadgrove's house. Their house was the back unit on a battle-axe block. The lawned area was right at the back of that block and one had to mount a few steps to reach the raised veranda or patio area behind the house. Sliding doors led from the patio area into the kitchen. On the right side of the house, as one faced the back of the block, was a long driveway leading past the side of Mr and Mrs Sadgrove's unit as well as the unit closest to the street. In order to get to the street one had to leave the part of the verandah which extended beyond the right rear corner of the house, walk through a gate at the side of the house, then through a covered carport and down the driveway. It appears from the photographs tendered that the driveway was constituted of large slabs of cement.