Thomas v Christian - [2021] WASC 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THOMAS -v- CHRISTIAN [2021] WASC 151
CORAM:   HALL J
HEARD:   14 MAY 2021
DELIVERED          :   14 MAY 2021
FILE NO/S:   SJA 1055 of 2020
BETWEEN:   ARWON LEE THOMAS
Appellant
AND
CHRISTOPHER JACK CHRISTIAN
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE O'DONNELL
File Number            :   ES 576 of 2019

Catchwords:

Criminal law – Appeal against conviction – Sudden or extraordinary emergency – Onus on the prosecution to exclude emergency beyond reasonable doubt – Wrong onus and standard or proof used in considering whether emergency applied

Legislation:

Criminal Code (WA), s 25

Result:

Leave to appeal on ground 1 granted
Appeal allowed
Conviction set aside
Matter remitted to the Magistrates Court for a retrial

Category: B

Representation:

Counsel:

Appellant	:	R S Napper
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Aboriginal Legal Service - Kalgoorlie
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

Braysich v The Queen (2011) 243 CLR 434
Floyd v The State of Western Australia [2013] WASCA 33
NPK v The State of Western Australia [2020] WASCA 50
Petersen v The State of Western Australia (2016) 50 WAR 45

HALL J:

On 17 June 2020 the appellant was convicted after a trial in the Esperance Magistrates Court of being armed with a dangerous weapon in circumstances that were likely to cause fear to any person contrary to s 68(1) of the Criminal Code (WA). He was fined $1,000 and ordered to pay costs. He now seeks leave to appeal against his conviction.
There are two grounds of appeal. The first is that the learned magistrate erred in law by applying the incorrect burden and standard of proof to the defence of emergency raised at the trial. The second is that the learned magistrate erred by failing to disclose in her reasons how the prosecution had proven that the defence of emergency did not apply.
The respondent accepts that the first ground has been made out and that the appeal should be allowed. That concession is properly made. I have independently come to the same conclusion. Leave to appeal will be granted, the appeal allowed on ground 1, the conviction set aside and the matter remitted to the Magistrates Court for a retrial.

Factual background

On 31 August 2019 the Esperance Football Club played in the local league grand final. The game was played at the opposing team's grounds in Gibson and ended at about 4.00 pm. Esperance lost. The players and supporters then returned to the club's grounds on Simms Street in Nelson, a suburb of Esperance. As one of the witnesses described it, they went to the clubrooms to 'drown our sorrows'. Alcohol was consumed.
Later that evening there was a fight between two men. Things calmed down for a while and then a car arrived with a number of men. There was an altercation which soon descended into an all-in brawl eventually involving, according to…

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 Thomas v Christian

Details

AGLC: Thomas v Christian [2021] WASC 151
Case: [2021] WASC 151
Decision Date

CaseChat Overview and Summary

The appellant, Arwon Lee Thomas, appeals against his conviction in the Esperance Magistrates Court for being armed with a dangerous weapon in circumstances likely to cause fear to any person, in contravention of s 68(1) of the Criminal Code (WA). The conviction was for events that occurred on 31 August 2019, following a fight that broke out after a football match in Esperance. The appellant carried a boomerang through the streets, which he intended to use as a means of protection for himself. The respondent accepts that the appeal should succeed on the first ground, which is that the learned magistrate erred in law by applying the incorrect burden and standard of proof to the defence of emergency. The court accepted this concession. The onus of disproving the defence of emergency lay with the prosecution and the standard of proof required was beyond reasonable doubt. The magistrate, however, applied the balance of probabilities and held that the defence had not been made out on that standard. This was incorrect. As a result the conviction is set aside and the matter is remitted to the Magistrates Court for a retrial before a different magistrate. The respondent accepts that the appeal should succeed on the first ground and no further orders are needed.

The appellant's conviction was for carrying a dangerous weapon in circumstances that were likely to cause fear to any person. The appellant argued that his actions were in response to a perceived emergency, which excused his behaviour under s 25 of the Criminal Code. The magistrate accepted that the appellant believed an emergency existed and that going to the scene was a necessary response to that emergency, but held that the appellant's actions in going to the scene armed was not a reasonable response to the emergency as perceived by him. The magistrate concluded that the defence had not been made out on the balance of probabilities. The appellant contends that the magistrate erred in law by applying the incorrect burden and standard of proof to the defence of emergency. The respondent accepts this contention. The court agrees. The defence of emergency is not a defence in the ordinary sense. Rather it excuses the appellant's actions by excusing his breach of the criminal law. As such, the onus is on the prosecution to exclude the defence beyond reasonable doubt. The magistrate's error in applying the balance of probabilities means that it is not possible to determine whether the prosecution had succeeded in disproving the defence. As a result the conviction must be set aside and the matter remitted to the Magistrates Court for a retrial.

Orders