WHITEHEAD -v- PROCOPIS [2005] WASC 195

Link to Appeal :

[2005] WASCA 249

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 195
Case No:	SJA:1031/2005	Heard:	2 AUGUST 2005
Coram:	HASLUCK J	Delivered:	2/09/05
No of pages:	26	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MICHAEL JOHN WHITEHEAD BENJAMIN JOHN PROCOPIS
Catchwords:	Criminal law Assault Nature of prosecution case Issues of causation and duplicity Whether events amounted to one continuous assault Turns on own facts
Legislation:	Criminal Code, s 222, s 317(1) Justices Act 1902 (WA), s 43
Case References:	Campbell v The Queen [1981] WAR 286 Carden v The Queen (1992) 8 WAR 296 Gardner v Caporn [2004] WASCA 14 Gardner v Caporn [2005] WASCA 153 Garrett v Nicholson (1999) 21 WAR 226 Glennon v The Queen (1999) 179 CLR 1 Harling v Hall (1997) 94 A Crim R 437 Haskett v Police [2005] SASC 174 Liberato v The Queen (1985) 159 CLR 507 Lomans v Morony [2000] WASCA 90 M v The Queen (1994) 181 CLR 487 R v Rippingdale (1999) 109 A Crim R 304 Verhoeven v Ninyette (1998) 101 A Crim R 24 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Gebert, Haley & Black v The Queen [1992] SASR 110 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 R v Morrow & Flynn (1990) 48 A Crim R 232 R v Trifyllis [1998] QCA 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : WHITEHEAD -v- PROCOPIS [2005] WASC 195 CORAM : HASLUCK J HEARD : 2 AUGUST 2005 DELIVERED : 2 SEPTEMBER 2005 FILE NO/S : SJA 1031 of 2005 MATTER : Justices Act 1902 (WA) BETWEEN : MICHAEL JOHN WHITEHEAD

Appellant

AND

BENJAMIN JOHN PROCOPIS

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MRS J G MUSK SM

File No : FR 1671 of 2004

Catchwords:

Criminal law - Assault - Nature of prosecution case - Issues of causation and duplicity - Whether events amounted to one continuous assault - Turns on own facts

(Page 2)

Legislation:

Criminal Code, s 222, s 317(1)

Justices Act 1902 (WA), s 43

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr L Rayney

Respondent : Ms S M De Maio

Solicitors:

Appellant : Lewis Blyth & Hooper

Respondent : State Director of Public Prosecutions

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

Campbell v The Queen [1981] WAR 286
Carden v The Queen (1992) 8 WAR 296
Gardner v Caporn [2004] WASCA 14
Gardner v Caporn [2005] WASCA 153
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1999) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
Haskett v Police [2005] SASC 174
Liberato v The Queen (1985) 159 CLR 507
Lomans v Morony [2000] WASCA 90
M v The Queen (1994) 181 CLR 487
R v Rippindale (1999) 109 A Crim R 304
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v…

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 Whitehead v Procopis

Details

AGLC: Whitehead v Procopis [2005] WASC 195
Case: [2005] WASC 195
Decision Date

CaseChat Overview and Summary

The appeal was brought by Michael John Whitehead against his conviction for unlawfully assaulting James Ian Lloyd and thereby doing him bodily harm. The conviction was imposed by the Court of Petty Sessions at Fremantle. The appeal was dismissed by Hasluck J of the Supreme Court of Western Australia. The appellant submitted that the bodily harm alleged was the injury to the back as distinct from grazes or cuts and that the prosecution could not run it both ways. The appellant further submitted that the prosecution case could not succeed unless the prosecutor established that the lower back injury which was said to constitute the bodily harm was caused by a deliberate kick or blow inflicted by the appellant. The court held that the appellant's line of argument was seriously flawed. The court held that it was open to the prosecution to adduce evidence that the cluster of events comprising the brief altercation amounted to an unlawful assault, and that the bodily harm complained of, being an injury to the lower back area, was caused by this cluster of events. The court held that it was sufficient for the prosecution to establish beyond reasonable doubt that the complainant's injury was a foreseeable consequence of the appellant's actions.

Orders