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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Smith v Queensland Police Service  QDC 156
BRETT STEVEN SMITH
QUEENSLAND POLICE SERVICE
5 of 2019
Magistrates Court, Mount Isa
13 July 2020
10 June 2020
1. Appeal dismissed.
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION – where the appellant was found guilty by an Acting Magistrate of one count of assault occasioning bodily harm following a summary trial – where the appellant appeals the conviction on the basis that the Acting Magistrate misdirected himself as to the elements of self-defence
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – NON-DIRECTION – Where s 260 of the Criminal Code Act 1899 was not raised on the evidence at first instance – whether the Acting Magistrate failed to consider and apply s 260 of the Criminal Code Act 1899
Criminal Code Act 1899 (Qld) s 24, s 260, s 271, s 272
Justices Act 1886 (Qld) s 222
Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police  QCA 132
Fox v Percy (2003) 214 CLR 118
R v Beetham  QCA 131
Teelow v Commissioner of Police  QCA 84
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police  QCA 121
M Hibble for the appellant
J Marxson for the respondent
Gunn Lawyers for the appellant
The Office of the Director of Public Prosecutions for the respondent
- One night in the Barkly Hotel at Mount Isa, Mr Smith punched a man to the face, knocking him unconscious. After a summary trial in the Magistrates Court, he was convicted of assault occasioning bodily harm. He was sentenced to six months imprisonment, to be suspended after serving one month, with an operational period of 18 months.
- He appeals against his conviction, but not his sentence, pursuant to section 222 of the Justices Act 1886 (Qld) (the ‘Justices Act’).
Grounds of appeal
- The only issue at trial was whether the assault was unlawful: that is, not authorised, justified or excused by law. Specifically, whether Mr Smith was acting in self-defence, or self-defence in combination with a mistake of fact under section 24 of the Criminal Code Act 1899 (Qld) (the ‘Code’) operated to justify the assault.
- Mr Smith raises three grounds of appeal but they are interconnected and all relate to a single issue: whether the Acting Magistrate misdirected himself with respect to self-defence. As the point is a relatively narrow one, it is unnecessary to descend into a detailed analysis of the evidence. A broad description will suffice.
- For the reasons that follow, I have concluded that the appeal should be dismissed.
Nature of appeal
- The applicable principles for the hearing of such an appeal are not in dispute. To succeed, Mr Smith must demonstrate that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
- The court must consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.
- The rehearing requires this court to conduct a real review of the evidence before the Acting Magistrate and make up its own mind about the case. While this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.
Summary of evidence
- At the summary trial on 5 July 2019, the prosecution called evidence from the complainant (Mr Taylor), various hotel employees and two patrons.
- At trial, Mr Smith admitted that on 10 August 2018 at the Barkly Hotel in Mount Isa he assaulted Mr Taylor by punching him once and that the punch caused bodily harm. Mr Taylor’s injury was treated with stitches and he had a brain scan. There was no other evidence about the extent of the bodily harm.
- Mr Smith and Mr Taylor did not know each other. They were both drinking at the hotel. Mr Taylor became involved in a verbal argument with another patron, Mr Barry. Mr Smith and others intervened to separate the two men. After they had been separated, Mr Smith approached Mr Taylor and assaulted him.
- The offending was captured on CCTV. The footage was video only (without sound). That footage was played at trial and at the hearing of the appeal.
- Both parties accepted that the Acting Magistrate’s Reasons contained an accurate summary of what could be observed from the CCTV footage:
“Mr Smith comes over and approaches Mr Taylor. He pushes Mr Taylor in the shoulder, forcing him to take several steps back. Mr Barry then comes out to the smoking area towards where Mr Taylor and Mr Smith are, as does Mr Cooper. Mr Cooper tries to get into the path of Mr Barry who steps around him. Mr Smith then turns to Mr Barry and pushes him back into the bar area near the ATM. Mr Cooper assists and walks back to the bar area. …Mr Smith…walks out from the bar area, having pushed Mr Barry back inside to the smoking area where Mr Taylor and Mr Eldridge are.
Mr Smith approaches Mr Taylor for the second time. Mr Taylor is not, at that stage or any stage, in the process of walking back at this time into the bar area. He remains standing in the same position. He does not follow Mr Barry into the bar area or go any closer to the bar area after Mr Barry had come out and tried to confront him and being pushed back inside by Mr Smith. So Mr Smith approached Mr Taylor, and at that time Mr Eldridge [sic] is standing right there. As Mr Smith is walking at and pushing Mr Taylor, Mr Eldridge [sic] walks back into the bar area. It is very clear … that when Mr Smith punches Mr Taylor, Mr Eldridge has his back to the smoking area. Mr Smith is seen to walk out and into Mr Taylor, forcing him to take three steps backwards towards a table and chairs, pushing him twice, and after the second push, continued to have his hand on Mr Taylor’s chest, applying force.
… As Mr Taylor is forced to take three steps backwards, as Mr Smith walks at him and pushes him, he has his hands down by his side, arms out from his body, palms out towards Mr Smith. Whilst there is some movement of both his arms during this period, there was no movement of his left arm or shoulder backwards. Mr Taylor’s left arm remains down by his side and he does not start to move it in an upward motion until the CCTV footage shows Mr Smith’s body and shoulder moving as he is in the process of throwing a punch at Mr Taylor. Mr Smith punches Mr Taylor with his right fist to the face. Immediately upon Mr Taylor being struck, his legs buckle and he crumples to the ground. The punch caused Mr Taylor to become immediately unconscious. Mr Taylor does not hit his head on the table. His back strikes a chair as he is falling and that pushes the chair into the table, causing the chair he struck with his back and two other chairs around the table to fall over.
Mr Smith roughly tries to roll Mr Taylor from his back to his side…..”
- Having viewed the footage, I agree that that is an accurate summary of it.
- The Acting Magistrate made findings about the credit of some witnesses. On appeal, no challenge was made to his summary of the witnesses’ evidence or to those findings. This court ought pay due regard to the advantage that the Acting Magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to his view. Appellate courts are reluctant to interfere with decisions of a trial court that involve findings of credit. However, the Acting Magistrate’s findings of fact did not depend entirely on the credibility of witnesses. He also, appropriately, relied upon other independent evidence including the CCTV footage.
- The relevant portions of the evidence and the Acting Magistrate’s findings are summarised below.
- The complainant, Mr Taylor, said that the last thing he remembered was having an argument with Mr Barry. He did not remember anything after that until he woke up at the hotel. He knew someone had hit him. He did not know who did it. Mr Taylor accepted that he was heavily intoxicated. In cross-examination, he was asked “Do you remember saying to Mr Smith that if he touched you one more time you would assault him? … If Mr Smith touched you one more time you would – you’d punch him out?”. He answered “I definitely don’t remember that one. … No, I don’t remember saying that… I don’t believe I would have said that.” It was suggested to him that he went to punch Mr Smith. He answered “I definitely don’t remember punching anyone.” It was suggested that he moved his shoulder back to clock it back to punch someone. He answered, “I don’t remember that at all.” He said “You can say that if you like to, but I know I definitely didn’t swing no punches at no one and I never said I was going to punch no one.” He accepted that he was unsteady on his feet.
- The Acting Magistrate found that “Mr Taylor had a very limited recollection of what happened, which is understandable, given he was knocked out by the punch from Mr Smith for several minutes and was heavily intoxicated at the time.”
- The hotel security officer, Mr Vacala, (referred to in the transcript of decision as Bercala) gave evidence that Brett (Mr Smith) hassled the tall guy (Mr Taylor), that Mr Smith was pushing him and saying ‘“come on, come on”. The tall guy was not saying anything to Mr Smith and was putting his hands up, defenceless. The tall guy was not trying to fight Mr Smith. He was cross-examined to suggest that he was mistaken, that he was further away and that he did not see the punch being thrown. He maintained that he had seen Mr Smith punch Mr Taylor with a closed fist and that Mr Taylor was moving backwards and had not moved his shoulder before the punch. He rejected the suggestion that immediately before the punch Mr Taylor was making threats, saying he was going to assault people. He said “No. Never. This man has been coming to the Barkly Hotel. He’s a harmless guy.”
- The Acting Magistrate did not accept Mr Vacala as a credible or reliable witness. He found that he gave inconsistent accounts of where he was when the punch was thrown, and that those accounts were in turn inconsistent with the CCTV footage. Mr Vacala wrote in the security log that “suddenly [Mr Taylor] fell on to the floor. …Ref. CCTV.” In that log he did not record a punch being thrown. The Acting Magistrate found his explanation for not mentioning the punch in the log “nonsensical”. He did not accept Mr Vacala’s evidence that Mr Smith was saying “come on, come on”. He found that the CCTV showed that Mr Vacala was not in a position to have heard any such statements, that his attention was elsewhere, and that his back was to Mr Smith and Mr Taylor at the relevant time. Those findings were in Mr Smith’s favour.
- The Acting Magistrate found that Mr Edridge also had his back to Mr Smith and Mr Taylor. He could not be satisfied that Mr Edridge saw the punch. He also found his evidence inconsistent with the CCTV footage. The Acting Magistrate found that “Mr Taylor is not shown on the CCTV footage with his hands above his head when he is being confronted by Mr Smith. The CCTV footage shows his hands down by his side.” Mr Edridge agreed that he could not hear any conversation just before Mr Taylor was struck.
- Ms Ehrlich’s evidence was also inconsistent with the CCTV footage. She said that Mr Taylor had his hands up, saying he didn’t do anything, that she saw a man hit him twice, and that Mr Taylor hit his head on the table and went down to the floor.
- Mr Cooper did not see the punch and did not hear any conversation between Mr Smith and Mr Taylor before the punch.
- Ms Thirlwall (referred in the transcript of the decision as Mrs Nicol) did not see the punch and although she gave evidence of words being exchanged, could not say what was said.
- The defendant, Mr Smith, elected to give evidence.
- In evidence-in-chief, he said he had two years experience working as a security officer but was not employed in that role at the time. He did not know Mr Taylor or Mr Barry. He heard them arguing. He intervened to assist the duty manager, whom he did know. He said:
“I returned back to Ben [Mr Taylor] and started pushing him back into the smoking area. … To create some sort of distance between the two so they – they couldn’t yell and keep aggravating each other. … I pushed him back a couple of times, and then he made a couple of threats that if I touched him one more time he was going to knock me out and jump on my head. And then I – I seen him move his sort of left shoulder/arm. I believed at the time that he was going to throw a punch, so I struck him first.” [emphasis added]
- Mr Smith struck Mr Taylor once in the mouth, which knocked him unconscious. He then rolled him into the recovery position. He said that he struck Mr Taylor because “I believe that he was going to strike me”.
- In cross-examination, he was asked why he did not just leave Mr Taylor where he was. He said he wasn’t aware that a security guard was there so he believed that if he left him there that ‘he was going to escalate the situation’. He denied that he ‘king hit’ Mr Taylor. He said he punched him because he believed Mr Taylor was going to strike him. He said:
“He made several threats. … Well, he made the verbal threats – and then – which made me believe that he was going to act on it, and then I believe I – I seen his shoulder and left arm move. … I believe he was about to assault me, yes. Because he made the verbal threats and he moved his left arm and shoulder. … Yes, in a way, I believe, he was getting ready to punch me. … All I seen was the left shoulder and arm come backwards, and I believe that was the action – that he was going to take a swing.”
- He suggested that the CCTV footage showed “just before I strike him, he moves his left shoulder and left arm.”
- The Acting Magistrate found Mr Smith’s evidence predominantly consistent with the CCTV footage, except in cross-examination. He found that Mr Smith said two things for the first time in cross-examination which he did not mention in his evidence in chief: that Mr Taylor moved his left arm and shoulder backwards, and that Mr Taylor threatened to “stomp” on his head. According to the transcript provided to me on appeal (the accuracy of which was not challenged by the parties), those findings are incorrect because Mr Smith referred to both matters in his evidence-in-chief. Mr Smith said “if I touched him one more time he was going to knock me out and jump on my head. And then I – I seen him move his sort of left shoulder/arm”. There was no reference to “stomping” on his head but there was a reference to “jumping”. No party raised this error on appeal and I do not consider that anything turns on it, in the context of the Acting Magistrate’s Reasons as a whole.
- The Acting Magistrate noted, correctly, that the proposition that Mr Taylor threatened to stomp (or jump) on Mr Smith’s head was never put to Mr Taylor in cross-examination, or anyone else. The Acting Magistrate observed that Mr Smith was represented by competent and experienced counsel, and his evidence as to what occurred immediately prior to the punch was critical to the defence case. He found that the only possible explanation for that matter not being put to Mr Taylor was that Mr Smith did not give that account to his counsel. That affected the Acting Magistrate’s assessment of the credibility of that aspect of Mr Smith’s evidence. On appeal (in which the same counsel appeared for the defendant/applicant), no issue was taken with that finding. The Acting Magistrate’s finding is supported by the fact that defence counsel did not open on the basis that Mr Taylor threatened to jump, or stomp, on Mr Smith’s head. The defence opening was confined to Mr Taylor saying to Mr Smith words to the effect “If you touch me again, I’m going to assault you.”
- The Acting Magistrate did not find any of the witnesses to be completely credible and reliable, but said that that was not surprising given that so much happened and it all occurred very quickly. He found that the CCTV footage was the best evidence of what occurred.
- Having considered the evidence myself, I agree with his assessment, and his findings, save where I have identified otherwise.
- Defence counsel submitted to the Acting Magistrate that the prosecution bore the onus of negativing self-defence, and that the court would accept Mr Smith’s evidence that he believed that the victim would strike him. He emphasised that Mr Smith had not been cross-examined about the honesty of that belief.
- The police prosecutor emphasised that there was no evidence of any aggression by Mr Taylor towards Mr Smith. No prosecution witnesses heard Mr Taylor threaten Mr Smith. The CCTV footage showed Mr Smith advancing on Mr Taylor and pushing him backwards before punching him. He submitted that the Acting Magistrate should find that Mr Taylor did not threaten Mr Smith, and that Mr Smith did not act in self-defence.
- Although self-defence was raised on Mr Smith’s evidence, neither party assisted the Acting Magistrate with any submissions about the appropriate directions with respect to self-defence, including which of the limbs of ss 271 or 272 of the Code properly arose on the evidence and should be considered. Nor did they assist him with any submissions about the operation of mistake of fact.
- The Acting Magistrate reserved his decision. He delivered it three weeks later on 31 July 2019. He gave detailed Reasons comprising 14 pages. No issue is taken with the sufficiency of his Reasons.
- The Acting Magistrate expressly directed himself in accordance with the Supreme and District Court Benchbook directions for self-defence in ss 271(1) and 272. The relevant versions in effect at trial and decision were the March 2017 amendments. Those Benchbook directions have since been amended: in January, May and June 2020. For present purposes, the relevant version is contained in the May and June 2020 amendments. At the hearing of the appeal, I raised the fact of those amendments with the parties. No party submitted that anything turned upon those amendments. I granted leave to the parties to provide a supplementary written outline of submissions on that issue if they wished. No party did so.
Section 271(1) of the Code – self-defence against unprovoked assault
- The Acting Magistrate first considered s 271(1) of the Code. It was appropriate to do so. He set out the subsection in full. He correctly identified that the prosecution bore the onus of negating the defence, or proving that the defendant was not acting in self-defence. He correctly identified the four issues that must be considered:
- whether there had been an unlawful assault on the defendant;
- whether the defendant had provoked that assault;
- whether the force used by the defendant upon the complainant was reasonably necessary to make effectual defence against the assault; and
- whether the force used was intended, or such as was likely, to cause death or grievous bodily harm.
- He correctly identified that the prosecution will negate this defence if it can satisfy the court beyond reasonable doubt of any one of the following four elements:
- that the defendant was not unlawfully assaulted by the complainant; or
- that the defendant gave provocation to the complainant for the assault; or
- that the force used was more than was reasonably necessary to make effectual defence; or
- that the force used was either intended or was likely to cause death or grievous bodily harm.
- On appeal, Mr Smith submits that the Acting Magistrate erred in directing himself with respect to the first and fourth elements of the defence.
First element of the defence
- As to the first element, whether there had been an unlawful assault on the defendant, the Magistrate considered this in two stages: first whether Mr Taylor assaulted Mr Smith and second, whether the assault was lawful.
- There was no evidence that Mr Taylor inflicted any actual violence on Mr Smith. But assault includes a situation where violence is threatened so long as the assailant has an actual or apparent present ability to implement the threat.
- The Acting Magistrate referred to the relevant part of the definition of assault:
“245(1) A person … who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.”
- The Acting Magistrate observed that words alone are not sufficient to constitute assault. He found, having studied the CCTV footage, that Mr Taylor raised his left arm only after Mr Smith commenced moving his arm or shoulder to punch Mr Taylor. He found that there was no bodily act or gesture by Mr Taylor that would constitute an attempt or a threat to apply force of any kind to Mr Smith. He found that the footage showed the opposite: that Mr Taylor’s acts were non-threatening. I agree.
- The Acting Magistrate then considered whether Mr Smith had an honest and reasonable but mistaken belief about the threat, under s 24 of the Code. Mr Smith’s evidence was that:
“I pushed him back a couple of times, and then he made a couple of threats that if I touched him one more time he was going to knock me out and jump on my head. And then I – I seen him move his sort of left shoulder/arm. I believed at the time that he was going to throw a punch, so I struck him first.”
- The Acting Magistrate found in Mr Smith’s favour on this issue. While he did not find Mr Smith’s evidence entirely convincing, he could not be satisfied beyond a reasonable doubt that Mr Taylor had not made the verbal threats alleged. He found that even though Mr Taylor did not in fact move his left arm and shoulder backwards, he could not be satisfied that Mr Smith did not honestly and reasonably believe that Mr Taylor was about to punch him. Therefore, the Acting Magistrate could not be satisfied of the first element of the defence: that Mr Smith was not unlawfully assaulted by Mr Taylor.
- If there was such an assault, the second element the Acting Magistrate had to consider under s 271(1) of the Code was whether the defendant had provoked it. The Acting Magistrate correctly identified this in his Reasons at page 10. However, at page 12 he said “The second consideration is whether I am satisfied beyond a reasonable doubt the assault by Mr Taylor was lawful.” Mr Smith complains that this is a misdirection which has led to a miscarriage of justice.
- Although the Acting Magistrate’s statement at page 12 is potentially confusing, it must be considered in the context of his Reasons overall, including his correct identification of the elements at page 10, and his analysis on pages 12 and 13. That shows that when the Magistrate made the statement complained about, he was still considering the first element of the defence, and specifically whether the assault by Mr Taylor was lawful. In doing so, he considered Mr Smith’s conduct towards Mr Taylor before the alleged verbal threat was made by Mr Taylor, stating:
“Mr Smith has assaulted Mr Taylor by pushing him once minutes before the altercation and then by walking at and into Mr Taylor, forcing him to take three steps backwards towards the table and chairs, pushing him twice and after the second push, continuing to have his hand on Mr Taylor’s chest, applying force.”
- He found that “Having been assaulted by Mr Smith, as I have outlined, any assault by Mr Taylor, I am satisfied beyond reasonable doubt, was in self-defence.” On that basis the Acting Magistrate was satisfied that Mr Taylor did not first unlawfully assault Mr Smith. He found that self-defence under s 271(1) of the Code was not open. This ground of appeal fails.
- Although they were not in issue in the appeal, for the purposes of the rehearing I have also considered the second and third elements of the defence under s 271(1) of the Code.
Second element of the defence
- The second element was whether the defendant had provoked that assault. “Provocation” means any wrongful act or insult, of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.
- I agree with the Acting Magistrate’s findings that Mr Smith first assaulted Mr Taylor by pushing him once, minutes before the altercation, and then by walking at and into Mr Taylor, forcing him to take three steps backwards, pushing him twice and continuing to have his hand on Mr Taylor’s chest, applying force. This occurred immediately before, on Mr Smith’s account, the verbal threat and perceived arm movement which prompted Mr Smith to punch Mr Taylor.
- On my own view of the CCTV footage, I am satisfied beyond reasonable doubt that if there was any assault by Mr Taylor (within the meaning of the definition), it was provoked by Mr Smith’s actions. That means that self-defence under s 271(1) of the Code is not open.
Third element of the defence
- The third element was whether the force used by Mr Smith against Mr Taylor was reasonably necessary to make effectual defence against the assault. This is a matter for objective consideration. It does not depend on Mr Smith’s state of mind about what he thought was reasonably necessary. The court must bear in mind that a person defending himself cannot be expected to weigh precisely the exact amount of defensive action that may be necessary. Instinctive reactions and quick judgments may be essential. I must not judge his actions as if he had the benefit of safety and leisurely consideration.
- The CCTV footage shows Mr Smith advancing on Mr Taylor and repeatedly pushing him backwards. On the most favourable view of the evidence for Mr Smith, any assault by Mr Taylor was limited to a verbal threat and a belief by Mr Smith that Mr Taylor had moved his left arm/shoulder and was going to throw a punch. Mr Taylor did not in fact throw any punch nor did he apply any force to Mr Smith. He was retreating when he was hit. Nothing about his physical position or stance was visibly threatening. Despite that, Mr Smith delivered a single punch of considerable force to Mr Taylor’s face.
- Even allowing for Mr Smith making an instinctive reaction in the heat of the moment, I am satisfied beyond reasonable doubt that the force he used was more than was reasonably necessary to make effectual defence to any perceived threat. Mr Smith was not justified in using the level of force that he did. That means that self-defence under s 271(1) of the Code is not open.
Fourth element of the defence
- Having ruled that the prosecution excluded the defence by negating the first element, the Acting Magistrate did not need to consider the other elements of the defence. However he went on to consider the fourth element, whether the force used was either intended or was likely to cause death or grievous bodily harm. He found that the prosecution had also proved that element beyond reasonable doubt.
- Defence counsel submitted on appeal that the Acting Magistrate erred by failing to address the evidence about the fourth element of the defence.
- The Acting Magistrate made these findings about the fourth element:
“While Mr Smith only punched the complainant once, the punch was to the face – head of Mr Taylor and delivered with considerable force as can be seen on the CCTV footage. The punch was delivered with such force that the complainant was knocked out by the punch. That is clear from the CCTV footage. ….Upon being struck, Mr Taylor’s legs immediately buckle and he falls to the ground. ….I have no doubt, having viewed the CCTV footage, that the force of the punch solely caused Mr Taylor’s unconsciousness. It is well-established that a powerful punch to the head of someone can kill or cause serious injury. In fact, there has been a well-publicised campaign, One Punch Can Kill, to that effect. I am satisfied beyond a reasonable doubt that a forceful punch … as delivered by the defendant to the head the complainant was likely to cause death or grievous bodily harm. That the punch did not cause the death of the complainant nor cause him grievous bodily harm was fortunate for both the complainant and the defendant, but the fact that the force used did or did not cause death or grievous bodily harm is not the point. The question is whether it was likely to happen in all the circumstances. And I am satisfied beyond a reasonable doubt that a single punch delivered with such considerable force to the head – face as to cause the recipient of the punch to immediately lose consciousness is likely to cause death or grievous bodily harm. I am satisfied beyond a reasonable doubt that the defence of self-defence pursuant to s 271(1) has been excluded on this basis as well.”
- On appeal, defence counsel submitted that the Acting Magistrate erred in referring to the “One Punch Can Kill” campaign and in failing to refer to any other aspects of the evidence. He also submitted that there was no medical or expert evidence adduced about the complainant’s medical history, the nature of his injury, and the force required for loss of consciousness, relevant to this issue.
- In my view, nothing turns on those complaints and no error has been disclosed. The Acting Magistrate accurately summarised the evidence on this issue, limited as it was, and he was entitled to make the findings of fact referred to. The Acting Magistrate had the benefit of video footage of the assault. There was nothing improper about referring to the “One Punch Can Kill” campaign: see R v Beetham  QCA 131 at 9 . Considering the evidence as a whole on the rehearing, I would have come to the same conclusions.
- In conclusion, the Acting Magistrate was correct to find that the prosecution successfully negated the defence of self-defence in s 271(1) of the Code. This ground of appeal fails.
Section 271(2) of the Code – self-defence against unprovoked assault when there is death or grievous bodily harm
- The Acting Magistrate did not consider s 271(2) of the Code. No complaint is made about this and no error is said to arise. This was not a case where it was said that Mr Smith faced serious bodily harm or life threatening violence from Mr Taylor and believed on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm.
Section 272 of the Code – self-defence against provoked assault when there is death or grievous bodily harm
- The Acting Magistrate went on to consider s 272(1) of the Code. It was appropriate to do so because of the evidence of Mr Smith being first to assault Mr Taylor by pushing him, by walking at and into him forcing him to take steps backwards, and by pushing him twice and continuing to have his hand on Mr Taylor’s chest, applying force.
- The Acting Magistrate correctly directed himself in accordance with the relevant Benchbook direction for s 272 of the Code.
- He was satisfied beyond reasonable doubt that any assault by Mr Taylor would not have been of such violence as to cause a reasonable apprehension of death or grievous bodily harm, and that Mr Smith did not believe on reasonable grounds or otherwise that it was necessary for his own preservation from death or grievous bodily harm to punch Mr Taylor as he did. He found the defence under s 272 of the Code was excluded.
- No complaint is made about his directions or findings on this issue, and no error is said to arise.
- This was not a case where Mr Smith had good reason for believe he was in serious danger of losing his own life or suffering a very serious injury, even though he himself provoked any assault by Mr Taylor. The assault by Mr Taylor was not of such physical menace or violence that Mr Smith would have feared grievous bodily harm or death such that s 272 of the Code would operate.
Section 260 of the Code
- On appeal, defence counsel submitted that the Acting Magistrate failed to consider s 260 of the Code, preventing a breach of the peace, regarding “the lawfulness of [Mr Smith’s] actions in attempting to remove the victim.” He submitted that Mr Smith gave evidence raising this defence: that he told Mr Taylor to leave and that he was trying to create some distance between Mr Taylor and Mr Barry “so they couldn’t keep aggravating each other”.
- Section 260 of the Code provides:
“It is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give the person into the custody of a police officer.”
- At trial, defence counsel did not rely upon s 260 of the Code, nor did he submit that it arose on the evidence. The trial proceeded on the basis that Mr Smith delivered the blow to Mr Taylor in self-defence, not to prevent a breach of the peace.
- On appeal, the same defence counsel argued that any initial assault by Mr Smith on Mr Taylor by pushing him would be lawful if acting pursuant to s 260 of the Code.
- Putting to one side the difficulties faced by defence counsel in raising this issue for the first time on appeal, no miscarriage of justice has occurred by the Acting Magistrate not dealing with it. That is because the evidence excludes the operation of s 260.
- “Breach of the peace” is a common law term. It is by no means clear that the verbal argument between Mr Taylor and Mr Barry would fall within the meaning of that term. Assuming that it did, it was not in dispute (and the CCTV footage showed) that Mr Smith and others intervened to prevent a heated argument between Mr Taylor and Mr Barry continuing. They separated Mr Taylor and Mr Barry and moved them each to different areas of the hotel. At the time of the assault by Mr Smith, Mr Barry had been escorted away and was not near Mr Taylor. There was no opportunity for a physical confrontation between them. Mr Taylor was not approaching or following Mr Barry. There was no suggestion that Mr Taylor was trying to renew his argument with Mr Barry. It was at that point that Mr Smith advanced towards Mr Taylor, pushed him a number of times and ultimately punched him in the face.
- In those circumstances, I am satisfied beyond reasonable doubt that the force used by Mr Smith was not reasonably necessary to prevent the continuance or renewal of a breach of the peace, and was not reasonably proportioned to the danger to be apprehended from such continuance or renewal. The defence is excluded. This ground of appeal fails.
Conclusion and orders
- In conclusion, the Acting Magistrate was entitled to find beyond reasonable doubt that Mr Smith had committed the offence. Mr Smith has failed to establish any legal, factual or discretionary error.
- I order that the appeal is dismissed.
- The respondent does not seek its costs of the appeal. I make no order as to costs.
 Allesch v Maunz (2000) 203 CLR 172, 180  followed in Teelow v Commissioner of Police  QCA 84  per Muir J (Fraser JA & Mullins J agreeing). See also White v Commissioner of Police  QCA 121  per Morrison JA (Muir JA & Atkinson J agreed).
 Fox v Percy (2003) 214 CLR 118, 126 ; Warren v Coombes (1979) 142 CLR 531, 551; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police  QCA 132, 5.
Teelow v Commissioner of Police  QCA 84 at –.
 Acting Magistrate’s Reasons, page 7 – 8.
 White v Commissioner of Police  QCA 12, - per Morrison JA (Muir JA & Atkinson J agreed); Forrest v Commissioner of Police  QCA 132, 5 - 6.
 Fox v Percy (2003) 214 CLR 118.
 Acting Magistrate’s Reasons, page 13.
- Published Case Name:
Brett Steven Smith v Queensland Police Service
- Shortened Case Name:
Smith v Queensland Police Service
 QDC 156
13 Jul 2020