Meyers v Doust - [2008] WASC 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MEYERS -v- DOUST [2008] WASC 112

CORAM: JENKINS J

HEARD: 21 MAY 2008

DELIVERED : 24 JUNE 2008

FILE NO/S: SJA 1023 of 2008

BETWEEN: BARTHOLEMEW JAMES MEYERS
Appellant
AND
PHILIP GEORGE DOUST
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :PE 39348 of 2007

Catchwords:

Criminal law - Aggravating assault - Provocation - Prosecution appeal - Whether magistrate's decision to acquit accused was consistent with findings of fact - Failure to find that the complainant's words and actions constituted a wrongful act or insult

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 14(3)
Criminal Code (WA), s 221(1), s 245, s 246

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms N Eagling
Respondent: Mr M R Hall

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Hall & Hall Lawyers

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

Ellis v Ellis [1999] WASCA 30
Hart v The Queen (2003) 27 WAR 441
House v The King [1936] 55 CLR 499
Roche v The Queen [1988] WAR 278
Stingel v The Queen (1990) 171 CLR 312
Verhoeven (1998) 101 A Crim R 24

JENKINS J:

The decision under appeal

This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Perth 14 February 2008. The prosecutor (the appellant) appeals against the decision of the magistrate to acquit the respondent of one count of aggravated assault.

Grounds of appeal

The appellant was given leave to appeal on four grounds. They are:
The learned Magistrate erred in acquitting the [respondent] of the charge on the basis that the prosecution failed to negate the defence of provocation beyond a reasonable doubt in that she:
1.Erred in fact and law, as the actions of the complainant, as the learned Magistrate found them to have occurred, were not an act or insult as to be likely to deprive an ordinary person of the power of self‑control, to induce him or her to assault the person offering the act or insult, pursuant to Criminal Code s 246; and,
2.Erred in fact and law, as the force used by the [respondent] was disproportionate to the act or insult that the learned Magistrate found to have been offered by the complainant, pursuant to Criminal Code s 246; and
3.Erred in law, as the learned Magistrate did not find, and there was no evidence before her Honour on which it could have been found, that the [respondent] was in fact deprived of his self control, pursuant to Criminal Code s 246; and
4.Erred in law, as the learned Magistrate did not find, and it would not have been open to her Honour to find, that the complainant's actions constituted a wrongful act or an insult, pursuant to Criminal Code s 246.

Details of charge and proceedings

The prosecution notice alleged that on 19 March 2007 at Perth the respondent unlawfully assaulted Peter Stuart…

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 Meyers v Doust

Details

AGLC: Meyers v Doust [2008] WASC 112
Case: [2008] WASC 112
Decision Date: 24 JUNE 2008

CaseChat Overview and Summary

In the case of Meyers v Doust, the appellant, the Director of Public Prosecutions, sought to appeal the decision of a magistrate to acquit the respondent, Doust, of the charge of aggravated assault. The matter was heard in the County Court of Victoria, which has appellate jurisdiction over the Magistrates’ Court. The case arose from an incident where Doust assaulted Meyers following a confrontation in which Meyers made derogatory remarks towards Doust. The magistrate acquitted Doust, finding that Meyers' words and actions did not constitute a wrongful act or insult sufficient to provoke Doust.

The primary legal issue before the court was whether the magistrate's decision to acquit Doust was consistent with the findings of fact. The court was required to determine if the magistrate's decision to acquit Doust was legally sound, particularly in light of the elements of aggravated assault and the doctrine of provocation. The appeal hinged on whether the magistrate had overlooked the provocation defence and whether the words and actions of Meyers constituted an insult that could have provoked Doust.

The court found that the magistrate had erred in failing to consider the provocation defence. The magistrate had made findings of fact that were inconsistent with the doctrine of provocation, which requires a wrongful act or insult to provoke the accused. The court held that Meyers' words and actions were indeed capable of constituting a wrongful act or insult that could provoke Doust. Consequently, the court found that the magistrate's decision to acquit Doust was not consistent with the findings of fact and that the magistrate should have considered the provocation defence. The appeal was allowed, and the matter was remitted to the Magistrates' Court for a re-sentencing hearing.

Orders

Orders of the court

Appeal allowed

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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