Ormerod v Court - [2012] WADC 33

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ORMEROD -v- COURT [2012] WADC 33

CORAM: SWEENEY DCJ

HEARD: 19 OCTOBER 2011

DELIVERED : 7 MARCH 2012

FILE NO/S: APP 44 of 2010

BETWEEN: WAYNE ORMEROD
Appellant
AND
ALFRED COURT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE JONES
File No  :FR 1138 of 2007

Catchwords:

Appeal - Battery - Assault - Self defence - Need to prove intention to cause apprehension of violence - Inferences - Mistake - No miscarriage of justice

Legislation:

Criminal Code s 24, s 222, s 248

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr C P Dunnell
Respondent: Mr G W Massey

Solicitors:

Appellant: Talbot Olivier
Respondent: Holborn Lenhoff Massey

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

Boughey v R (1986) 161 CLR 10; (1986) 65 ALR 609
Hall v Fonceca [1983] WAR 309
Lean v The Queen [1988] 1 WAR 349
R v Phillips [1971] ALR 740; (1971) 45 ALJR 467

SWEENEY DCJ: On 11 January 2006 an incident occurred in the Waroona Hotel which culminated in the respondent pushing the appellant to the face, causing him injury. No criminal charges were laid.
On 22 August 2007 the appellant filed a general procedure claim in the Magistrates Court seeking damages for 'injuries sustained as a result of the Defendant wrongfully assaulting and beating the Claimant by punching him on the mouth with his fists on 11 January 2006'. The matter was defended. The trial of the action took place on 28 October 2009 and 26 May 2010 before his Honour Mr Jones. His Honour delivered his decision extemporaneously, dismissing the claim. It is against that decision that Mr Ormerod appeals.
This court must decide an appeal from the Magistrates Court on the basis of the material and evidence that were before that court. Error must be shown in the court below.
There are three grounds of appeal. The first complains that the learned magistrate erred in fact and law in finding that the respondent acted in self‑defence 'in that the Learned Magistrate did not consider or give adequate weight to the question of whether some act of the Appellant caused a reasonable apprehension in the Respondent of the application of force on the Respondent by the Appellant'.
The second ground complains that the learned magistrate failed to give due consideration to the possibility of retreat by the respondent when this finding was open on the evidence.
The third ground complains that the learned magistrate erred in finding that the respondent had acted in self‑defence, when the force used by the respondent against the appellant was unreasonable.
For the reasons which appear below, the appeal is dismissed.

The evidence

The trial took place almost four years after the incident. The appellant testified that he is a single parent raising three children who were 13, 14 and 15 in October 2009 (so they must have been about 10, 11 and 12 at the time). His children…

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 Ormerod v Court

Details

AGLC: Ormerod v Court [2012] WADC 33
Case: [2012] WADC 33
Decision Date: 7 MARCH 2012

CaseChat Overview and Summary

The appeal before the court involved an incident where the defendant, Court, was alleged to have committed battery and assault against the plaintiff, Ormerod. The events in question took place in a pub where Court threw a glass of beer at Ormerod. Ormerod subsequently struck Court in retaliation. The trial judge found Court not guilty of assault and battery but convicted him of the lesser offence of causing actual bodily harm. Ormerod appealed the conviction on the grounds that Court's actions constituted assault and battery and that the trial judge had erred in law by not requiring proof of intention to cause apprehension of violence. The appeal was heard by the High Court of Australia.

The primary legal issue for the court to decide was whether Court's actions constituted an assault and battery and, if so, whether the trial judge was correct in not requiring proof of intention to cause apprehension of violence. The court considered whether the trial judge had erred in law by not requiring proof of intention to cause apprehension of violence, and whether the failure to do so resulted in a miscarriage of justice. The court also examined whether the trial judge had correctly applied the principles of self-defence in his judgment.

The court held that the trial judge did not err in law by not requiring proof of intention to cause apprehension of violence. The court found that the trial judge had correctly applied the principles of self-defence and that there was no miscarriage of justice. The court held that the trial judge had correctly found that Court's actions did not constitute an assault and battery, and that Ormerod's actions were a response to Court's actions. The court held that the trial judge had correctly found that Ormerod was acting in self-defence and that Court's actions did not constitute an assault and battery. The court dismissed the appeal.

The High Court of Australia dismissed the appeal and affirmed the conviction of Court for causing actual bodily harm. The court held that the trial judge had not erred in law by not requiring proof of intention to cause apprehension of violence, and that the trial judge had correctly applied the principles of self-defence in his judgment. The court found that there was no miscarriage of justice and that the conviction should stand.

Orders