Police attendance at domestic disturbance - Police officer assaulted by plaintiff in the first incident - Plaintiff assaulted by police officer in the second incident - Provocation, at common law and under the Criminal Code, as at defence to civil assault - Malice under the Police Act 1892 - Aggravated damages - Police officer assaulted by plaintiff in third incident - Plaintiff acting in self-defence in third incident

Legislation:

Criminal Code
Criminal Code Compilation Act 1913
Police Act 1892

Result:

Ms Miller awarded $6,000 damages for the assault upon her by Constable Muir during the first incident
Constable Muir awarded $6,000 damages for the assault upon her by Ms Miller during the second incident

Representation:

Counsel:

Plaintiff: Mr I Marshall
Defendant: Ms K Vernon

Solicitors:

Plaintiff: Aboriginal Legal Service of Western Australia (Inc)
Defendant: Lyn Zinenko Lawyers

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

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Armstrong v The State of Western Australia [2012] WASCA 42
Briginshaw v Briginshaw (1938) 60 CLR 336
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Fontin v Katapodis (1962) 108 CLR 177
Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396
Hancock v Beard (Unreported, WASC, Full Court 171 of 1995, Library No 960675, delivered 27 November 1996)
Ives v The State of Western Australia [2010] WASC 178
JLW v DRH [2004] WADC 214
Jones v Dunkel (1959) 101 CLR 298
Lamb v Cotogno (1987) 164 CLR 1
Law v Wright [1935] SASR 20
LMC (by her next friend The Public Trustee in and for the State of Western Australia) v RJO [2002] WADC 147
New South Wales v Ibbett (2006) 229 CLR 639
New South Wales v Riley (2003) 57 NSWLR 496
Noye v Robbins; Noye v Crimmins [2007] WASC 98
Pearce v Hallet [1969] SASR 423
Pollock v The Queen [2010] HCA 35
Powell v The Queen (Unreported, Library No 4004, CCA 115 of 1980, delivered 2 December 1980)
R v Duong, Sem & Huynh (2011) 210 A Crim R 452; [2011] SASC 121
State of New South Wales v Koumdjiev (2005) 155 A Crim R 186
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Walker v Hamm (No 2) [2009] VSC 290
Wenn v Evans (1985) 2 SR(WA) 263
West Australian Newspapers Ltd v Bridge (1979) 23 ALR 257; (1979) 53 ALJR 465
Zecevic v Director of Public Prosecutions (DPP) (Vic) (1987) 162 CLR 645

BOWDEN DCJ: On 19 August 2007 police were called to an address in Narrogin by Mr Smith following an argument involving himself, his partner Ms Miller, and their eldest son.
Constable Dunjay, Constable Holtzman, Constable Muir and…

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 Miller v Muir

Details

AGLC: Miller v Muir [2013] WADC 6
Case: [2013] WADC 6
Decision Date: 21 JANUARY 2013

CaseChat Overview and Summary

The case of Miller v Muir involved a dispute between the plaintiff, Miller, and the defendant, Muir, a police officer. Miller was involved in a domestic disturbance where he assaulted Muir. In a subsequent incident, Muir assaulted Miller. Miller sought damages for this assault, claiming it was an unlawful act. The case also considered whether Miller's earlier assault on Muir could be used as a defence to the later assault by Muir. Further, it examined whether Muir's actions constituted malice under the Police Act 1892, which could affect the award of aggravated damages. The case also addressed whether Miller's assault on Muir in a third incident was a justified act of self-defence.

The court had to determine whether the earlier assault by Miller could be considered provocation under common law and the Criminal Code, potentially negating Muir's claim of self-defence. Additionally, the court examined the nature of Muir's actions to ascertain if they amounted to malice under the Police Act. It also had to decide if Miller's third assault on Muir was justified as self-defence and whether Muir's initial assault was unlawful. The court further considered the implications of these findings on the award of aggravated damages.

The court held that Muir's actions were not malicious under the Police Act, as they did not involve a reckless disregard for Miller's rights. The court found that Muir's assault on Miller was not provoked by Miller's earlier actions, thus not justifying it as self-defence. However, Miller's third assault on Muir was deemed a justified act of self-defence, leading to a reduction in damages awarded to Muir. Consequently, the court awarded damages to Miller for the second incident but reduced it due to Miller's third assault on Muir.

The court ordered that damages be awarded to Miller for the second incident of assault, but reduced due to his third assault on Muir. The court further determined that Muir was not acting with malice under the Police Act and that aggravated damages were not applicable in this case.

Orders