Rothwell v Warner

[2006] WASC 143

ROTHWELL -v- WARNER [2006] WASC 143

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 143
Case No:	SJA:1001/2006	Heard:	13 JUNE 2006
Coram:	HASLUCK J	Delivered:	13/06/06
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction quashed
Category:	B
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Parties:	JOHN ROTHWELL CLIFFORD WARNER
Catchwords:	Criminal law Offences against the person Accused acquitted of two counts of aggravated assault Defence of provocation raised on third charge of assault occasioning bodily harm Events so close in time as to constitute a cluster of events Whether it was open to Magistrate to apply the provocation defence to one event within the cluster but not to a related event Credibility of witnesses Held on appeal that the second event was excused also Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 14(2) Criminal Code, s 223, s 245, s 317
Case References:	Devries v Australian National Railways Commission (1993) 177 CLR 472 Garrett v Nicholson (1999) 21 WAR 226 Lomans v Morony [2000] WASCA 90 Van Den Hoek v The Queen (1986) 161 CLR 158 Verhoeven v Ninyette (1998) 101 A Crim R 24 Whitehead v Procopis [2005] WASCA 195 Zoccoli v McDarby [1999] WASCA 179

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ROTHWELL -v- WARNER [2006] WASC 143 CORAM : HASLUCK J HEARD : 13 JUNE 2006 DELIVERED : 13 JUNE 2006 FILE NO/S : SJA 1001 of 2006 BETWEEN : JOHN ROTHWELL

Appellant

AND

CLIFFORD WARNER
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE V C EDWARDS

File No : MI 4595 of 2005

Catchwords:

Criminal law - Offences against the person - Accused acquitted of two counts of aggravated assault - Defence of provocation raised on third charge of assault occasioning bodily harm - Events so close in time as to constitute a cluster of events - Whether it was open to Magistrate to apply the provocation defence to one event within the cluster but not to a related event - Credibility of witnesses - Held on appeal that the second event was excused also - Turns on own facts

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 14(2)

Criminal Code, s 223, s 245, s 317

Result:

Appeal allowed

Conviction quashed

Category: B

Representation:

Counsel:

Appellant : Mr M T Trowell QC
Respondent : Mr C G Astill

Solicitors:

Appellant : Maxim Litigation Consultants
Respondent : State Director of Public Prosecutions

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

Devries v Australian National Railways Commission (1993) 177 CLR 472
Garrett v Nicholson (1999) 21 WAR 226
Lomans v Morony [2000] WASCA 90
Van Den Hoek v The Queen (1986) 161 CLR 158
Verhoeven v Ninyette (1998) 101 A Crim R 24
Whitehead v Procopis [2005] WASCA 195

Case(s) also cited:

Zoccoli v McDarby [1999] WASCA 179

(Page 3)

HASLUCK J:

Introduction

1 The appellant, John Rothwell, was charged with two offences of aggravated assault of his de facto wife…