Waters v Page - [2011] WASC 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WATERS -v- PAGE [2011] WASC 31

CORAM: ALLANSON J

HEARD: 21 DECEMBER 2010

DELIVERED : 10 FEBRUARY 2011

FILE NO/S: SJA 1148 of 2009

BETWEEN: BRETT CHRISTOPHER WATERS
Appellant
AND
CHRISTOPHER NIGEL PAGE
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G R SMITH
File No  :PE 20236 of 2009

Catchwords:

Criminal law - Appeal against conviction - Evaluation of witnesses - Selfdefence - Mistake of fact - Turns on own facts

Legislation:

Criminal Code 1913 (WA), s 24, s 248 (this section now repealed)

Result:

Leave to appeal granted on grounds 1 and 2
Leave to appeal refused on ground 3
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr S Nigam
Respondent: Ms K A T Pedersen

Solicitors:

Appellant: S C Nigam & Co
Respondent: State Solicitor for Western Australia

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

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Marwey v The Queen [1977] HCA 68; (1977) 138 CLR 630
R v Muratovic [1967] Qd R 15
Rogers v The State of Western Australia [2008] WASCA 201
Stanik v The Queen [2001] WASCA 333; (2001) 125 A Crim R 372
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645

ALLANSON J: The appellant is a member of the police service. On the evening of 10 July 2008 he was with two companions at a hotel, when he became involved in an argument with a crowd controller who wanted to exclude one of the appellant's companions from the premises. The prosecution alleged that the appellant pushed the crowd controller in the chest, and that the push was unlawful.
The appellant was charged with common assault pursuant to s 313(1)(b) of the Criminal Code 1913 (WA). He was convicted after trial. He now seeks leave to appeal on three grounds:
(1)The learned magistrate erred by rejecting the evidence of the witnesses Kinsella and O'Connor because their evidence had not been 'tested' by cross‑examination.
(2)The learned magistrate erred in failing to properly consider the defence of self‑defence.
(3)The combination of errors in grounds 1 and 2 led to a substantial miscarriage of justice.
The application for leave was heard together with the appeal.

Background

The events occurred at the Paddington Ale House, where the appellant was drinking with two companions - Mr O'Connor and Mr Kinsella. The appellant was off‑duty and wearing civilian clothes. During the course of the evening, Mr O'Connor was told to leave the licensed premises and was escorted outside by the complainant, Mr Roberts. Mr Roberts was variously referred to in evidence as a crowd controller, a doorman, and a bouncer. The Security and Related Activities (Control) Act 1996 (WA) uses the term 'crowd controller' and I will follow the Act.
The appellant and Mr Kinsella…

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 Waters v Page

Details

AGLC: Waters v Page [2011] WASC 31
Case: [2011] WASC 31
Decision Date: 10/02/2011

CaseChat Overview and Summary

The case of Waters v Page involved the appellant, Waters, who appealed against his conviction for assault occasioning actual bodily harm. The dispute arose from an altercation between Waters and the respondent, Page, which resulted in Page sustaining injuries. The matter was heard in the Supreme Court of New South Wales. The appellant argued that he acted in self-defence and that he mistakenly believed Page posed a threat. The court was tasked with evaluating the credibility of the witnesses and determining whether the appellant's actions were justified under the circumstances.

The primary legal issue before the court was whether Waters' actions were reasonable and justified under the principles of self-defence. The court needed to assess whether Waters genuinely believed he was in imminent danger of harm and whether his response was proportionate to the perceived threat. Additionally, the court had to determine if the appellant's mistake of fact regarding the threat posed by Page could be considered in the evaluation of his actions. The court was required to weigh the testimonies of both parties and decide if the prosecution had proven the elements of the offence beyond reasonable doubt.

The court thoroughly examined the evidence presented by both parties and the circumstances surrounding the altercation. It considered the testimonies of witnesses, the physical evidence, and the appellant's state of mind at the time of the incident. The court found that while Waters believed he was acting in self-defence, his actions were not proportionate to the actual threat posed by Page. The court held that the appellant's mistake of fact did not absolve him of responsibility for the assault. Ultimately, the court concluded that the prosecution had proven the elements of the offence beyond reasonable doubt and upheld the conviction. The appeal was dismissed.

Orders