Grove v Gage

[2000] WASCA 70

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Defences
3. › Provocation
4. › Common assault
5. › Whether blow struck 'on the sudden and before there was time for passion to cool'
6. › Whether prosecution negatived defence of provocation
7. › Criminal Code (WA), s 246
1. Appeal
2. › Appeal from Magistrate
3. › Appeal by way of rehearing
4. › Misapprehension of evidence
5. › Effect on credibility findings
6. › Whether conviction unsafe and unsatisfactory

Quick Take

A Magistrate's misapprehension of the evidence of a corroborating witness, where that evidence is relied upon to support credibility findings, may undermine those credibility findings sufficiently to render a conviction unsafe. An altercation lasting only 47 seconds in total, with continuous grappling, is insufficient to support a finding that there was time for passions to cool for the purposes of negativing provocation under s 246 of the Criminal Code (WA).