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Rodrigues v Ainsworth

Rodrigues v Ainsworth

Case [2014] WASC 101 28 March 2014

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: RODRIGUES -v- AINSWORTH [2014] WASC 101

CORAM: LE MIERE J

HEARD: 13 MARCH 2014

DELIVERED : 28 MARCH 2014

FILE NO/S: SJA 1071 of 2013

BETWEEN: CLINTON CRAIG RODRIGUES
Appellant
AND
MITCHAL WILLIAM AINSWORTH
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :PE 42997 of 2012

Catchwords:

Appeal - Application for leave to appeal against conviction for assault - No denial of procedural fairness - Whether appellant acted in self-defence - Unnecessary to consider whether complainant's act was lawful or unlawful - Defence of provocation - Magistrate did not assess appellant's response on purely subjective basis - Whether appellant's response was disproportionate to the provocation - Magistrate erred in not considering character evidence

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)
Criminal Code (WA), s 246, s 248
Magistrates Court Act 2004 (WA), s 31

Result:

Leave to appeal granted
Conviction set aside
New trial ordered

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr G C R Yin
Respondent: Mr P Lochore

Solicitors:

Appellant: D G Price & Co
Respondent: State Solicitor for Western Australia

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

Challis v The State of Western Australia [2014] WASCA 8
Donaldson v The State of Western Australia [2007] WASCA 216
Doust v Meyer [2009] WASCA 65
Francis v Todd [2011] WASC 185
Kozul v The Queen (1981) 147 CLR 221
Low v McLeod [2009] WASC 8
McKay v Commissioner of Main Roads [2013] WASCA 135
Melbourne v The Queen (1999) 198 CLR 1
Scolaro v Shephard [No 2] [2010] WASC 271
Stingel v The Queen (1990) 171 CLR 312
Weiss v The Queen (2005) 224 CLR 300

LE MIERE J: The appellant applies for leave to appeal against his conviction for assault.

Background circumstances

The complainant, a young woman then aged 22, went to a girlfriend's house at about 3.00 pm or 4.00 pm to celebrate the friend's birthday. The complainant had some drinks there and at a tavern before arriving at Carnegie's Hotel at about 9.00 pm with some girlfriends. She met her boyfriend at Carnegie's. The appellant was a licensed crowd controller. He was on duty outside Carnegie's Hotel. The complainant had some more drinks at Carnegie's. Sometime after 11.00 pm the complainant and some girlfriends went outside of Carnegie's Hotel to smoke a cigarette. When they tried to re‑enter the hotel the appellant refused to allow them to re‑enter because of his belief that they had been involved in an incident that had occurred in the hotel earlier that night. The complainant persisted with requests to re‑enter the hotel. She said that her boyfriend was in the hotel and that she could not contact him by telephone. A confrontation, or confrontations, between the appellant and the complainant ensued for more than 10 minutes during which the complainant touched the appellant on several occasions. After the last occasion on which the…

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 Rodrigues v Ainsworth

Details

AGLC: Rodrigues v Ainsworth [2014] WASC 101
Case: [2014] WASC 101
Decision Date: 28 MARCH 2014

CaseChat Overview and Summary

The applicant, Rodrigues, sought leave to appeal against a conviction for assault, arguing that the magistrate erred in failing to consider whether his actions were in self-defence and whether his response was disproportionate to the provocation. The respondent, Ainsworth, argued that the appeal should be dismissed as the applicant had not demonstrated a substantial injustice and the magistrate had correctly assessed the evidence. The case was heard in the Supreme Court of Victoria, where the applicant sought to overturn a conviction based on the grounds that the magistrate had not properly considered his defence of self-defence and the defence of provocation.

The legal issues before the court were whether the applicant had acted in self-defence, whether his response was disproportionate to the provocation, and whether the magistrate had correctly assessed the evidence. The court had to determine whether the magistrate's decision was correct in law and whether there was a substantial injustice that warranted an appeal. The court also had to consider whether the magistrate had erred in not considering character evidence in assessing the applicant's response to the provocation.

The court found that the applicant had not demonstrated a substantial injustice, and the appeal was dismissed. The court held that the magistrate had not erred in law in assessing the applicant's defence of self-defence and provocation, and that the magistrate had correctly considered the evidence. The court found that the magistrate had not assessed the applicant's response on a purely subjective basis but had considered the objective circumstances of the case. The court held that the magistrate had not erred in not considering character evidence as it was not relevant to the assessment of the applicant's response to the provocation. The court held that the applicant's response was disproportionate to the provocation and that the magistrate had correctly assessed the evidence.

No orders were made for costs.

Orders