Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE AJ MAUGHAN
File Number : NE 467/2021
Catchwords:
Criminal law - Appeal against conviction - Provocation - Error by magistrate - No substantial miscarriage of justice - The provocation was not such as could cause an ordinary person to act as the appellant did
The appellant Mr Peros was charged with assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) (the charge).
Mr Peros pleaded not guilty and the matter went to trial on 24 and 25 October 2022. During the trial, Mr Peros admitted that he had repeatedly punched the complainant, but raised three defences: self‑defence, provocation, and prevention of repetition of insult. Mr Peros alleged that the complainant had made a threat the night before the incident, was belligerent immediately prior to the incident, and had thrown the first punch.
On 9 December 2022, the learned magistrate delivered his verdict and reasons. His Honour was not satisfied that the prosecution had disproved self‑defence in relation to the first stage of the incident. He was, however, satisfied that, in relation to the latter part of the incident, each defence had been negated by the prosecution. As his Honour was not satisfied beyond reasonable doubt that the complainant's bodily harm was caused by the punches delivered in the latter part of the incident, his Honour acquitted Mr Peros of the charge, and found him guilty of the statutory alternative offence of common assault.
The learned magistrate imposed a fine of $2,000 and granted a spent conviction order.
Mr Peros seeks leave to appeal against the conviction. The application for leave to appeal was ordered to be heard at…
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.
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Details
AGLC
Peros v Murray [2023] WASC 208
Case
[2023] WASC 208
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Western Australia, John Peros appeals against his conviction by a magistrate of common assault. Peros was convicted of unlawfully assaulting Katelyn Murray, causing her bodily harm, in breach of s 317(1) of the Criminal Code (WA). Peros had raised three defences: self-defence, provocation, and prevention of repetition of insult. Peros admitted that he had punched Murray but maintained that he had acted in self-defence and/or in response to provocation. Peros appeals on the basis that the magistrate's decision to convict was unreasonable or unsupported by the evidence. The appeal raises two issues: (1) whether the magistrate erred in law by failing to consider a wrongful act when applying the defence of provocation; and (2) whether the conviction was unreasonable or unsupported by the evidence, so as to give rise to a miscarriage of justice. The appeal is dismissed. The magistrate's error in failing to consider the alleged first punch as a wrongful act when applying the defence of provocation was not material to the outcome. This is because, even if the alleged first punch had been considered, the evidence established that Peros' actions were not reasonable in response to the provocation. The magistrate's findings were based on the uncontested evidence of two independent witnesses who saw Peros punching Murray on the walkway, while she was cowering and yelling for help.