JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MILLER -v- MUIR [2013] WADC 6
CORAM: BOWDEN DCJ
HEARD: 11 - 13 DECEMBER 2012
DELIVERED : 21 JANUARY 2013
FILE NO/S: CIV 2529 of 2010
BETWEEN: HELEN FRANCIS MILLER
Plaintiff
AND
CELESTE MARIE MUIR
Defendant
Catchwords:
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
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…
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- AGLC
- Miller v Muir [2013] WADC 6
- Case
- [2013] WADC 6
- Decision Date
CaseChat Overview and Summary
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
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Background
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