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
Renwick v Bell [2001] QCA 316
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…

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 Tomarchio v Pocock

Details

AGLC: Tomarchio v Pocock [2002] WASCA 156
Case: [2002] WASCA 156
Decision Date: 13 JUNE 2002

CaseChat Overview and Summary

The case of Tomarchio v The Queen involved the appellant challenging his conviction for pointing a firearm at a person without lawful excuse, in contravention of the Firearms Act 1996 (Cth). The court was tasked with determining whether the trial judge had correctly instructed the jury regarding the defences available under the Criminal Code, specifically whether the defences of self-defence, preventing wrongful entry, preventing a home invasion, suppressing a riot, and using force to prevent a breach of the peace were applicable in the circumstances of the case. The High Court of Australia reviewed the trial judge's directions to the jury to assess if they were accurate and whether the jury had been correctly guided on the application of these defences.

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