Rothwell v Warner
[2006] WASC 143
ROTHWELL -v- WARNER [2006] WASC 143
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 143 | |
| Case No: | SJA:1001/2006 | 13 JUNE 2006 | |
| Coram: | HASLUCK J | 13/06/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed | ||
| B | |||
| PDF Version |
| 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
- 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
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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
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- HASLUCK J:
Introduction
1 The appellant, John Rothwell, was charged with two offences of aggravated assault of his de facto wife at their home at Karragullen, such assaults being allegedly committed on 16 and 22 January 2005. The fact of aggravation alleged was that the complainant was at the time living in a domestic relationship with the appellant. It was said that on two separate occasions he had argued with the complainant and assaulted her by pushing her.
2 In addition, the appellant was charged that on 26 January 2005, he committed the offence of assault occasioning bodily harm. As to this, it was alleged that as the female complainant attempted to drive away from the house the appellant grabbed her arm causing bruising and then snatched at the complainant's hand to take away her car keys causing a minor laceration to her finger.
The hearing
3 There was evidence before the learned Magistrate that the argumentation between the complainant and the appellant came about over disputes of ownership of the family dogs for which the appellant had a great affection. The appellant submitted that the alleged assault on 16 January never happened. He admitted that on 22 January he had pushed the complainant, but only to defend himself from an assault by the complainant upon him.
4 As for the assault occasioning bodily harm alleged to have been committed on 26 January, the appellant admitted that during the course of an argument with the complainant on 26 January he was provoked by her attempts to drive away with the family dogs such that he lost his self-control causing him to grab her arm and also snatch at the motor vehicle keys she was holding. In respect of that charge the appellant's position was that he had been provoked to assault the complainant and that her finger had been cut by accident.
5 At the hearing of the matter before the learned Magistrate the appellant's testimony was accepted and the learned Magistrate acquitted him of both charges of aggravated assault. When it came to dealing with the charge of assault occasioning bodily harm, her Honour convicted the appellant on the basis that, although she found him to have been sufficiently provoked by the complainant to assault her, the injury to the
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- complainant's finger was not an accident because the learned Magistrate believed it to be foreseeable that an injury might result from grabbing at the keys.
Reasons for decision
6 It will be useful, in light of what I have to say later to pause and look briefly at the learned Magistrate's reasons for decision concerning the alleged third assault and other matters bearing upon the defences raised by the appellant.
7 Her Honour said that the first question she had to decide was whether the act of the complainant in putting the dogs in the car in the circumstances then pertaining and her refusal to remove them from the car constituted provocation to the appellant.
8 She mentioned that the meaning of the term provocation is contained in s 245 of the Criminal Code. It must be a wrongful act or insult of such a nature as is likely when done to an ordinary person to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered.
9 Her Honour said that the first issue which she had to decide was whether the act of the complainant in placing the dogs in the car and refusing to let them out amounted to a wrongful act or insult. In her view the action in putting the dogs in the car and the complainant's refusal to let them out amounted to a wrongful act.
10 I pause here to note that as to this alleged third assault it is quite clear from the evidence and from the view that the learned Magistrate had of the evidence that all the central events took place in what might be described as a cluster of activity; that is, the events happened in a very short space of time.
11 Having made the observations I described a moment ago, the learned Magistrate then went on to say that the next question to be decided was whether the act and refusal by the complainant was such as to deprive an ordinary person of the power of self-control and induce such a person to commit the assault. Once again, this had to be considered in light of all the circumstances.
12 Her Honour was of the view that an ordinary person would be deprived of self-control in the circumstances of the case. As the complainant was seated in the driver's seat of the vehicle at the relevant
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- time, refusing to let the dogs out of the car, there was no time for the appellant's passion to cool.
13 The next question to be decided was whether the accused was in fact deprived of the power of self-control by the provocation. On the finding of the learned Magistrate, it was clear that he had been deprived of the power of self-control. She then considered the question of whether the force used was disproportionate to the degree of provocation and was of the view, beyond reasonable doubt, that the prosecution had not negatived that aspect of the defence.
14 The learned Magistrate then proceeded to consider the circumstances giving rise to the cut on the complainant's finger. It is readily noticeable from the learned Magistrate's reasons for decision that she proceeded to deal with this matter as though it could be singled out and viewed separately from the cluster of other events taking place in the short space of time comprising the alleged third assault.
15 In the end, the learned Magistrate held that she was satisfied beyond reasonable doubt that the cut to the complainant's finger was not an accident. Her Honour was therefore satisfied that the appellant assaulted the complainant and that the assault was not excused by law. It is apparent however from the tenor of her Honour's reasoning that as to that second matter (concerning the cut to the finger) she had put to one side the question of whether the defence of provocation was available in respect of this matter also. It seems that she gave no consideration to it.
Leave to appeal
16 It is against this background, namely, that two of the alleged assaults were the subject of acquittals, but the third alleged assault on 26 January was the subject of a conviction, that the appellant sought and obtained leave to appeal. It is apparent from the materials before me that the appellant relies on the following ground of appeal: that the learned Magistrate erred in convicting the appellant of the charge of assault occasioning bodily harm, the verdict being logically inconsistent and not reasonably open on the facts.
17 The particulars put up by the appellant are as follows: (a) the complaint alleged one continuous assault; (b) at the commencement of the trial the prosecution particularised the offence as comprising two acts of assault occasioning bodily harm, namely, grabbing the victim's arm, causing bruising, and snatching at some keys held by her, causing a minor laceration to her finger; (c) the facts upon which the prosecution relied
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- were so closely related in time and place as to comprise a single assault consisting of these separate applications of force and constituted what any reasonable person would regard as a single incident; (d) the learned Magistrate acquitted the appellant of the first act of assault on the basis that he had been provoked by the victim, but not the second act, which she had considered on the basis of a defence of accident but not provocation; (e) this was not a situation where the first act may have been excused because of provocation but the immediately succeeding act causing further injury was not; (f) the defence of provocation was equally open on the facts to both acts of assault sufficient to excuse the appellant's conduct and justify an acquittal. See Van Den Hoek v The Queen (1986) 161 CLR 158.
Statutory provisions and legal principles
18 Before I come to the determination of the issues thrown up by the ground of appeal and the supporting particulars, it will be useful to remind myself of the principles applicable to an appeal of this kind.
19 Appeals from courts of summary jurisdiction were formerly governed by the Justices Act 1902 (WA) but are now covered by Pt 2 of the Criminal Appeals Act 2004 (WA).
20 By s 4 of the latter Act, the Supreme Court may dismiss or allow the appeal or set aside or vary the decision or remit the case for rehearing. Further, if the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a ground of appeal has been decided in favour of the applicant.
21 By s 39 of the Act an Appeal Court must decide the appeal on the evidence and material that were before the lower court. That does not prevent consideration of any evidence that the lower court refused to admit. By s 40 an Appeal Court may admit any other evidence.
22 The Magistrate hearing the matter is generally required to set out the relevant findings of fact and the reasons for his or her decision. The reasons must disclose adequately the intellectual process which has resulted in a particular determination Garrett v Nicholson (1999) 21 WAR 226.
23 Where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses an appellate court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use or palpably misused the advantage of
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- seeing and hearing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
24 The relief to be provided may take the form of remitting back to the Court below unless the appellate court considers that no substantial miscarriage of justice has occurred. The task is to balance the public interest in the conviction of a wrongdoer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental the interests of justice may be best served by quashing the conviction and sentence and substituting a verdict of acquittal Verhoeven v Ninyette (1998) 101 A Crim R 24.
Submissions
25 The matter has come before me on the basis that both counsel have delivered to the Court very full written submissions. It appears from the submissions made on behalf of the appellant that the facts upon which the prosecution relied for the allegation of the assault occasioning bodily harm were so closely related in time and place as to comprise a single assault consisting of at least two applications of force.
26 It is said that defence counsel at the commencement of the trial had asked the prosecution to particularise the acts alleged to amount to the allegation of assault occasioning bodily harm. The prosecution responded by stating that it relied on two separate acts. The first act consisted of grabbing the complainant's arm causing her bruising. The second act was the snatching of car keys from the complainant's hand causing a minor laceration to her finger either of which it maintained was sufficient to amount to assault occasioning bodily harm.
27 It is said that the hearing commenced on the basis that the prosecution was seeking to establish that either or both of these acts amounted to an unlawful assault occasioning bodily harm committed by the appellant. No complaint is made of the learned Magistrate's finding that the defence of accident was not open on the facts, but it is submitted that she erred in failing to consider and apply the defence of provocation to both acts.
28 In order to resolve the issues raised by a submission of this kind it is necessary to give consideration to the concept of assault in the context of a case of this kind.
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29 Section 317 of the Criminal Code requires that an assault complained of be unlawful. Section 223 of the Code provides that: "An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law." The term "assault" is defined in s 222 of the Criminal Code:
"A person who strikes or applies force of any kind to the person of another without his consent is said to assault that person."
30 A definition of this kind clearly allows for the possibility that a single blow or a flurry of blows or events could be characterised as a series of discrete assaults. However, the decided cases indicate that ultimately the question of whether one continuous assault has occurred or whether there are separate assaults is a matter for applying a commonsense approach to the facts Lomans v Morony [2000] WASCA 90, Whitehead v Procopis [2005] WASCA 195.
The present case
31 It is apparent from the circumstances of the present case that the learned Magistrate recognised that the defence of provocation was a line of defence which might excuse what would otherwise be regarded as an unlawful assault. This is apparent from that part of the reasons for decision I touched on earlier. It is also apparent from her reasons that she clearly saw herself to be considering a case involving an assault said to comprise a flurry of blows or a cluster of events taking place within a very short space of time.
32 It is against this background that counsel for the appellant submitted forcefully that the learned Magistrate failed to consider whether the defence of provocation that she had found to apply to one event within the flurry of events alleged to constitute the offence also applied to the other act of snatching at the keys held by the complainant. Given that she had determined that both acts were part of a single incident or episode - and that is how the case had been presented to her by the prosecution - there was no reason not to excuse the appellant's act because of provocation.
33 Counsel submitted that it follows from the relevant provisions of the Criminal Appeals Act that consideration had to be given to whether on this view of the matter it could be said that there had been a substantial miscarriage of justice.
34 Section 14(2) of the Criminal Appeals Act is quite explicit that, even if a ground of appeal might be decided in favour of the appellant, the
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- Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. It is submitted forcefully that against the background I have described and the submissions put before me that it cannot be said that there is no miscarriage of justice.
35 Counsel for the respondent has analysed the matter and given consideration to the issues that I have touched on. It is accepted by the respondent that having regard to the learned Magistrate's acceptance of the appellant's evidence in its entirety, her adverse findings as to the complainant's credibility, and the learned Magistrate's subsequent rejection of that evidence, and the findings of fact made by the learned Magistrate, provocation was an issue that clearly arose from the evidence with respect to the third assault; that is, the alleged assault occasioning bodily harm. It was a matter that had to be negatived by the prosecution in order to secure a conviction.
36 It is against this background that counsel for the respondent essentially acknowledged the validity of the ground of appeal that I referred to earlier, and conceded that the appeal should be allowed. The respondent accepted that it was incumbent upon the learned Magistrate to consider whether the defence of provocation had been negatived by the prosecution if it arose on the evidence as presented, irrespective of whether it was identified by the appellant as a possible defence to the charge. Counsel referred to Van Den Hoek's case (supra) also.
Conclusion
37 Having reviewed the submissions made by the parties and the nature of the evidence given at the hearing as I described it in summary form earlier, I am persuaded by what has been put to me on behalf of the appellant. I take account also of what was said at par 19 of the learned Magistrate's reasons for decision, that the complainant was not, in the learned Magistrate's view, a forthright and reliable witness.
38 It was said by the learned Magistrate that the complainant appeared to avoid answering some questions put to her in cross examination and had a tendency to place responsibility on others such as lawyers and police in regard to issues which she found difficult to adequately answer.
39 Against the background I have described, I consider that it would be wrong to apply the defence of provocation to excuse one act or event within the flurry of events comprising the assault complained of but not the other act. The acts upon which the prosecution relied were so closely
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- related in time and place as to comprise a single assault consisting of two applications of force.
40 It therefore seems to me, and I so find, that a finding that the defence of provocation was sufficient to excuse one of the two events comprising the assault was bound to carry with it inevitably a finding that the same defence of provocation would excuse the second of the two matters which were closely related in time and place.
41 Accordingly, I consider that there is validity in the ground of appeal as supported by the particulars I have mentioned. I am of the view that the appeal must be allowed.
42 I must then come to the question as to how the matter should be dealt with. It often happens in a case of this kind that there is a necessity for the matter to be referred back to the Magistrates Court for the evidence to be reviewed in the light of the findings of the Appeal Court.
43 However, as I have noted, it is apparent from the decided cases that each case must be dealt with having regard to the individual circumstances of that case. As appears from the case of Verhoeven v Ninyette (supra) I mentioned earlier, the Court is entitled to give consideration to various matters as to what is the just order in the circumstances of the case.
44 It follows from everything I have said to this point that, in my view, the clear logic of the factual findings of the learned Magistrate that I have described must lead to a conclusion that the defence of provocation was available and ought to have been applied to excuse the second event; that is, the event providing the foundation for a conviction in respect of the third assault alleged against the appellant.
45 I am of the view that the learned Magistrate was in error in that regard and that the logic of her reasoning inevitably was bound to produce a finding that the defence of provocation was sufficient to excuse the alleged assault.
46 In these circumstances, and against the background of quite clear findings of fact leading to the conclusion I have just mentioned, I cannot see that the appropriate course is for the matter to be referred back to the learned Magistrate for a further hearing or review of the evidence. I consider that the appropriate order is that the appeal should be allowed and that the conviction be quashed. I will make orders accordingly.
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