JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: TOMARCHIO -v- POCOCK [2002] WASCA 156
CORAM: PULLIN J
HEARD: 9 APRIL 2002
DELIVERED : 13 JUNE 2002
FILE NO/S: SJA 1142 of 2001
BETWEEN: SALVATORE TOMARCHIO
Appellant
AND
LANCE JOHN POCOCK
Respondent
Catchwords:
Criminal law - Offence under Firearms Act of pointing firearm at person without lawful excuse
"Lawful excuse" meaning
Whether Criminal Code defences applied - Self defence - Preventing person from wrongfully entering a place - Preventing home invasion - Suppression of riot - Using force to prevent breach of peace
Whether new trial should be ordered
Legislation:
Criminal Code Act 1913, s 5
Criminal Code, s 7, s 31, s 36, s 62, s 237, s 238, s 244, s 248, s 250, s 254
Firearms Act, s 23
Interpretation Act 1984, s 32
Justices Act 1902, s 199
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr R K Williamson
Respondent: Ms L E Christian
Solicitors:
Appellant: Williamson & Co
Respondent: State Crown Solicitor
Case(s) referred to in judgment(s):
Boxer v The Queen (1995) 14 WAR 505
Bridge v Tozer [1978] WAR 177
Canale v Bayens [2001] WASCA 383
Crafter v Kelly [1941] SASR 237
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Director of Public Prosecutions v Wille (1999) 47 NSWLR 255
Hancock v Birsa [1972] WAR 177
Hogermeer v Smyth, unreported; SCt of WA (Anderson J); Library No 970270; 27 May 1997
Ibbs v The Queen [2001] WASCA 129
Jenal v Milner (1994) 11 WAR 264
Jones v Metcalf [1979] 2 NSWLR 709
Lea v Gibson, unreported; SCt of WA (Rowland J); Library No 9058; 16 September 1991
Lewkowski v Lilley [2000] WASCA 14
Lotz v Bullock [1912] St R Qd 36
Nicholson v Avon [1991] 1 VR 212
Peacock v The King (1911) 13 CLR 619
R v Howe (1958) 100 CLR 448
R v Howell [1982] 1 QB 416
R v Mullen (1938) 59 CLR 124
Rabey v The Queen [1980] WAR 84
Soppa v Chatterton [1995] QCA 66
Taikato v The Queen (1996) 186 CLR 454
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632
West Australian Newspapers Ltd v Bridge and Tozer (1979) 141 CLR 535
West v Suzuka [1964] WAR 112
White v Connolly [1927] St R Qd 75
Wilson v Dobra (1955) 57 WALR 95
Case(s) also cited:
Clemesha v The Queen [1978] WAR 193
Field v Metropolitan Police Receiver [1907] 2 KB 853
Garrett v Nicholson [1999] WASCA 32
Matsebula v Vandeklashorst [2000] WASCA 141
McGinty v Webb, unreported; FCt of WA; Library No 8606; 27 November 1990
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Mraz v The Queen (1955) 93 CLR 493
R v Pickard [1959] Qd R 475
R v Storey (1978) 140 CLR 364
Roddan v Walker, unreported; SCt of WA; Library No 970252; 20 May 1997
Sun Securities Limited v National Companies and…
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- AGLC
- Tomarchio v Pocock [2002] WASCA 156
- Case
- [2002] WASCA 156
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the interpretation of the term "lawful excuse" as it pertains to the offence of pointing a firearm at another person. The court had to determine whether the defences outlined in the Criminal Code could be applied in such a scenario and if the trial judge had erred in providing instructions to the jury about these defences. The appellant argued that the trial judge failed to properly instruct the jury on the application of these defences, leading to an unsafe and unsatisfactory verdict. The court needed to decide if these errors warranted a new trial.
The court concluded that the trial judge did not err in the instructions given to the jury regarding the defences available under the Criminal Code. The judge's directions accurately reflected the law and provided the jury with a correct understanding of how the defences could be applied to the facts of the case. The court found that the jury was adequately guided to consider whether the appellant's actions were justified under the circumstances presented. Consequently, the court determined that no miscarriage of justice had occurred, and therefore, a new trial was not warranted. The appeal was dismissed, and the original conviction was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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