R v Johnstone[2003] QCA 559

SUPREME COURT OF QUEENSLAND

McMURDO J:  The appellant was tried in the District Court on one count of assault occasioning bodily harm and one count of going armed in public in a manner so as to cause fear.  He was found guilty on both counts and sentenced to nine months imprisonment suspended after four months with an operational period of two years.

He originally appealed again his conviction on both counts before his case was then limited to the conviction on the assault account, which he challenged on the grounds that the Trial Judge should have led to the jury a defence based on section 270 of the Criminal Code.  Then when his appeal came on for hearing on 6 November last his counsel withdrew and the hearing was adjourned.  Since then he has been without legal representation and he has included the other count within this appeal, but his principal ground remains that under section 270.

The relevant events occurred at a caravan park at Airlie Beach in November 2001.  The complainant was the manager of the Caravan Park.  The appellant had recently befriended a young woman who lived at the park and had, on the day in question, erected his tent next to her caravan.  The complainant was concerned for safety reasons of the location of the appellant's tent and approached the appellant and his friend directing the appellant to remove it. 

An argument ensued which resulted in an assault of the complainant by the appellant.  On the prosecution case the assault involved the appellant's head butting the complainant.  The appellant gave evidence that he pushed her but that there was no head-butting.  It was common ground that in the conversation immediately preceding whatever was the assault, the complainant said to the young woman words to the effect that she should not "bring home every stray dog that she found", being an intended reference to the appellant.

On the prosecution case the appellant's immediate reaction to this statement was to approach her aggressively and then to head butt her across the bridge of her nose.  On the appellant's evidence the complainant's statement was followed the complainant herself punching the appellant in his jaw, after which the appellant pushed her causing her to fall over.

The trial Judge left a defence of provocation to the jury.  The effect of his summing-up was that the prosecution could not exclude provocation unless the jury could be satisfied that the force used by the appellant was disproportionate as to provocation.

The jury was directed that they should first determine whether they were satisfied that the appellant head butted the complainant.  If they were satisfied about that they were directed to consider whether that force was disproportionate to the provocation. 

The effect of the summing-up was that the provocation could not be excluded unless they were satisfied that there was an assault according to the complainant's version.  In consequence the jury's verdict involved findings that provocation was excluded because the force used was a head butt and that this was disproportionate to the provocation.

Section 270 of the Criminal Code provides as follows:

"Prevention of repetition of insult.  It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult for such a nature as to be provocation to personal assault if the force used is not intended and is not such as is likely to cause death or grievous bodily harm."

Had a section 270 defence been led to the jury that defence would have been excluded if the jury were satisfied that the force was disproportionate to that necessary to prevent the repetition of the provocative insult.  In my view, a jury which has found that the appellant's assault was disproportionate to the complainant's insult would also have been satisfied that the force was disproportionate to prevent a repetition of that insult.  If the insult did not justify this assault nor did any threat of its repetition do so.

On the hearing of this appeal the appellant challenged the accuracy of the transcript in the sense that he argued that the transcript did not record his request to the trial Judge that a defence under section 270 be left to the jury.  In fact the transcript does show that on several occasions, both before and after the summing-up the appellant requested in clear terms that the Judge put the defence to the jury and the Judge in each case refused to do so.

Accordingly there is nothing of substance in the appellant's challenge to the accuracy of the transcript.  It follows from what I have said about section 270 that it is unnecessary to explore further whether this defence should have been left to the jury on the assault because no substantial miscarriage of justice could have occurred.  But in any case it does not appear to me that the trial Judge was bound to put a defence of section 270 to the jury.  There was no basis to infer that the appellant was attempting to prevent a repetition of an insult.

The appellant also challenges his conviction of going armed in public so as to cause fear.  The case which the Jury accepted was that after he had assaulted the complainant other people attended trying to prevent further violence when the appellant grabbed a knife and held it in a threatening fashion.  The appellant denied that he picked up a knife and said that he had been threatened by the others who arrived at the scene.

The appellant has demonstrated no basis for setting aside this conviction.  It was open to the jury to accept the evidence of the complainant, her husband and the young woman and to thereby find him guilty on this count.  If section 270 could provide a defence to this charge, for which the use of force is not an element, the prospect of any repetition of the complainant's insult could not have justified the conduct, the subject of this count.

There was also some reference to a defence on the ground of self-defence under section 271.  In my view there was no basis to infer that the facts engaged the operation of section 271 either on the Crown case or on the defence case and the trial Judge was correct in not leading that defence to the jury.  It follows that the appeal should be dismissed.

WILLIAMS JA:  I agree.

CHESTERMAN J:  I agree.

WILLIAMS JA:  The order of the Court is that the appeal is dismissed.