Kirkpatrick v Quinkan[1997] QCA 232

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 155 of 1997

Brisbane

[Kirkpatrick v. Quinkan]

ROSS OWEN KIRKPATRICK

v.

HENRY THOMAS QUINKAN

Appellant

Pincus J.A.

McPherson J.A.

Williams J.

Judgment delivered 1 August 1997

Judgment of the Court

THE APPEAL AGAINST CONVICTION IS DISMISSED

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 August 1997

Before 20 February 1997 Henry Quinkan lived at Pompuraaw in a defacto relationship with Katie Holroyd.  On or about that date he left home and went to Matthew Holroyd’s place where he was playing cards.  Katie followed him there and tried to persuade him to come home.  She was, as she admitted, drunk at the time.  She pushed him against the wall, but he refused to come home, and she left.

She was back in about 20 minutes or half an hour.  He still refused to come home, so she gave him a whack on the head with a flour drum or bin but he continued playing cards.  She left again and a couple of hours later she saw Henry in the street. She could not remember the details because she was drunk, but she agreed she had probably called him “mother fucker” and “father fucker”.  He hit her with his fist and broke her jaw.  It was for doing this that he was convicted in the magistrate’s court of occasioning bodily harm.

Henry did not give evidence at the hearing, but the police tape-recorded an interview with him.  The tape was admitted at the hearing as ex.2. In the interview Henry did not refer to the words Katie had used.  He did, however, point to the bruising he had sustained on the head from being hit by her with the flour drum.

Mr Clark for the defence relied on provocation under ss.268 and 269 of the Criminal Code.  Referring to the taped interview, Mr Clark remarked that Henry had said he had been sworn at, but he wouldn’t give the words used.  Speaking from the Bar table and basing himself on his own experience, Mr Clark said that people in Cape York would not repeat the particular words which had been used by Katie, especially when they are sober and there are other people around.  Katie, he noted, had also been unwilling to use those words in her evidence at the hearing.  Mr Clark invited the magistrate to find they constituted an insult within the terms of s.269.

The magistrate found that Henry had hit Katie and broken her jaw.  However, he found that the blow was “out of all proportion to whatever provocation was offered”.  There is some reason to think that the words used by Katie are considered a great provocation among Aboriginal people.  Cultural standards and backgrounds are relevant in assessing the response of an ordinary person to acts or words that are claimed to constitute provocation.  See Stingel v. The Queen (1990) 171 C.L.R. 312, 325-326; Masciantonio v. The Queen (1995) 183 C.L.R. 58, 74; but there is no admissible evidence about the matter in the present case.

In any event, the taped interview records Henry as saying that, although he was upset by what Katie had said to him, he had not lost his temper.  The relevant portion of the tape transcript is as follows:

“Okay.  Now, right before she said - before this happened, did Katie say anything that upset you?  --- Yeah, like I said, he [sic] was swearing at my mum real bad.

Right.  And - and how long before you hit her did - was she swearing at your mother? --- Oh, just after that.

Just after that.  Like, would it be a couple of minutes before or a couple of - or just a couple of seconds before or maybe half an hour before?  How long do you reckon?  --- Say about [indistinct].

About sorry? --- Say about a couple of minutes.

A couple of minutes before.  Okay.  Now when - when she was swearing at your mother, did that upset you when she said that?  --- Oh, yeah.

Yeah.  Now, did you get - did you get a temper up?  --- No, I was cool, like I wasn’t that temper [indistinct].

Right.  And so - so when - when you - you say you hit her - at the point where you hit her, do you think you had lost your temper or were you still under control?  --- I was under control.”

In his extempore reasons for judgment, the magistrate is recorded as saying:

“What has to be looked at then is these three elements of provocation [indistinct] established on the evidence.

Now, even if I accept that there was the act of provocation and loss of self‑control, even though I don’t - on that, Exhibit 2 tendered - I have some doubts about that.  It’s the third element really that I don’t think the defence - that has been established on the evidence.  That is the retaliation in proportion to the provocation.”

It was submitted that the magistrate had approached the matter as if the onus of proof of provocation rested on the accused person.  We are not persuaded that he did so.  He seems rather to have been saying that there was no sufficient evidence of provocation to raise an issue on which the prosecution bore the onus of proof.  In any case, it does not appear to us to matter in the light of what was said in the taped interview.  On the evidence contained in ex.2 the applicant Henry Quinkan does not appear to have lost his self-control.  He said he was “cool” and was “under control” when he hit the complainant Katie Holroyd. Section 269 excludes criminal responsibility for an assault only if there is provocation that in fact deprives the person, who commits the assault, “of the power of self-control” so that he acts upon it “before there is time for that person’s passion to cool”.  On Henry’s own admissions, as recorded in ex.2, that was not his state of mind or condition at the time he hit Katie.  Section 269 was therefore not available to exempt him from criminal responsibility for the assault on Katie which broke her jaw.

The appeal therefore fails and must be dismissed.