SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was convicted of assault occasioning bodily harm after a two day jury trial.  He was sentenced to two and half years imprisonment.  He is now self‑represented and appeals against his conviction.  He contends that the trial judge erred in not allowing the defence of provocation to go to the jury;  by not discharging the jury following the jury's inadvertent exposure to discussion between counsel and the trial judge about the defence of provocation;  in refusing to allow defence counsel to submit to the jury that the complainant's driving history was a relevant consideration and in directing the jury to that effect;  that the verdict is unsafe, unsatisfactory or otherwise unreasonable;  that his counsel was incompetent and that the prosecution acted unfairly.  He also applies for leave to appeal against his sentence which he contends is manifestly excessive.

The relevant evidence and aspects of the trial

[2] Before turning to those grounds of appeal it is necessary to set out the relevant evidence and events at the trial.

[3] The complainant left home at about 8.00 am on 26 March 2004 to drive his Nissan Patrol four-wheel drive station-wagon to work in Townsville.  He gave the following evidence.  Just before 8.00 am he was travelling along the Bruce Highway in a 100 km per hour zone where it intersected with Bentley Road and Allendale Drive.  A small red car travelled from Bentley Road onto the highway causing him to brake heavily and drive onto the road shoulder to avoid a collision.  He returned his vehicle to the highway and followed the red car which was travelling very slowly.  He was concerned that the driver may not have seen him and he turned his headlights on to let him know he was behind.  The red car continued to travel slowly at about 40 to 60 kms in a 100 km per hour zone.  When the complainant had an opportunity to pass the red car, the driver swerved to the right to prevent him, shook his fists out the window and gestured his fingers at him.  The complainant pulled back behind the red vehicle.  He eventually passed it by speeding up to at least 90 km per hour.  He then had to pull in very quickly in front of the red car because there was oncoming traffic and the road markings changed to a double line.  During the overtaking manoeuvre the red car sped up, making the manoeuvre more difficult and dangerous in the light of the approaching double line and oncoming traffic.  In his rear-vision mirror he saw the appellant shaking his fist at him.  He wondered what the driver's problem was and continued down the highway to work.

[4] Seven or eight minutes later he turned off the highway following his route to work.  He stopped in the inside lane at a red light at a busy intersection with four lanes of traffic in both directions.  He heard a horn sounding.  In his rear-vision mirror he saw the red car again.  The driver, the appellant, was shaking a clenched fist out the window and giving him "the finger".  The appellant tooted his horn again.  The complainant again checked the rear-vision mirror.  He saw the appellant throw what looked like a stubby beer bottle at the complainant's vehicle.  The complainant took his car out of gear, put on the handbrake and got out to see if any damage had been done.  The cars were not touching at any stage.  His vehicle was about 18 months old and in "as new" condition;  it had no difficulty with its brakes.  The appellant's car was parked so close to his that he could not walk between them.  The appellant's car windows were down.  The complainant asked why he was throwing "stuff" or "shit" at his car.  The appellant yelled;  he was carrying on and not making any sense.  The appellant hesitated;  he had his hands down low doing something in the car.  He very quickly got out of the car, came around the door towards the complainant, lunged at and punched him:  "... he was carrying on, abusive, like in a fit of rage."

[5] The protagonists were on a grass median strip dividing the road.  The appellant hit him in the face, the temple, the chest and the shoulder.  Most of the blows were to his head.  The complainant put up his hands to protect himself because he was not expecting the blows and was focussing on self‑protection.  His eye bled.  He estimated that he was punched "maybe 30 or 40 times".  He did not attempt to retaliate.  After a few blows to the head he went down on one knee to the ground.  The appellant continued to punch him to the back, the kidneys and the head.  The complainant almost passed out.  He tried to get up but eventually went down on the ground.  The appellant then kicked him in the back and kidneys.  Three or four people came to the scene and yelled at the appellant to stop.  One person said he was calling the police.  The appellant stalled for a moment, "did a sort of a smile" and said "Yeah, good, call the police" before punching the complainant again.  The assault continued for about a further 30 seconds. The appellant said "I'm going fucking kill you".  The complainant said "Why do you want to kill me?  I don't even know you.  I don't know who you are."  The traffic had by now cleared and the outside lane became free.  The appellant ran back to his car and drove off.  The complainant took his car registration number.

[6] The complainant suffered bruising to the temple, face, eye, chin, chest, shoulder, rib, kidney and rump area and a 2.5 cm laceration to the left eyebrow area.  He was treated by an ambulance officer and taken to the emergency department at the Townsville General Hospital.  He received four sutures and was given Panadeine Forte for a severe headache.  He was X-rayed but no fractures were seen.  He was discharged later that evening.

[7] In cross-examination the complainant conceded that his traffic history included 10 speeding offences over 17 years.  He had a radar detector in his vehicle because of his traffic history.  In his statement to police he did not mention his first attempt to overtake the red car.  He denied tailgating the complainant's vehicle but he agreed he was driving close behind him and wanted to pass him.  He denied being angry and aggravated about the appellant pulling out in front of him but conceded that this aspect of the complainant's driving made him anxious.  He agreed he flashed his lights three, four or more times at the appellant because he was driving very slowly and because he had almost killed him.  He denied reversing his car into the red car immediately prior to the assault but he conceded that his vehicle may have rolled back onto the red car when he took it out of gear and put on the handbrake.  He conceded that his vehicle may have made contact with the red vehicle.  He conceded that he may have been a little angry and surprised and his voice would have been elevated because of the ambient traffic noise.  He denied being aggressive and reaffirmed that he acted only to protect himself.  The appellant threatened to kill him.  He agreed that in his first statement to police he did not mention any threat to kill.  He first mentioned this when he gave evidence in the Magistrates Court.  The appellant "was ranting and raving, he was yelling and very abrupt ... [h]e almost yelled with a slur in his voice, bit difficult to understand."

[8] Real estate agent Ms Christine Nolen gave evidence that she had known the complainant for about fourteen years prior to this incident.  On 26 March 2004 she was driving her daughter to school.  She stopped at traffic lights.  The complainant was in the right hand lane behind her.  She gave him a wave as she went past.  She looked in the rear-vision mirror to see his response.  She saw an unknown man punching into the complainant.  She did a U-turn, parked her car and ran to the traffic island.  She described the appellant's hits as "frenzied" and "very scary".  The complainant was lying on the ground.  She screamed at the appellant to stop hitting the complainant.  Other people also approached.  She screamed at a woman with a mobile phone to ring the police.  Her screams had no effect on the appellant.  Another passer-by kept saying to the appellant "You're in enough trouble.  Just go.  Just go.  Just get in your car and go."  The appellant stopped punching for a while, looked up and said to the complainant "I'm going to kill you."  The complainant responded "I don't even know who you are."  At that stage the complainant was merely trying to defend his face with his hands.  At no time did she see the complainant strike at the appellant.  She felt scared because the appellant "was in like, a frenzied manner ... He was very angry ... Just the way he was hitting and not seeming to be cared [sic] that people were actually standing there now watching what he was doing. ... He was not put off by people being there."  She added "As I said, it was pretty much a [frenzied] sort of attack."  She saw what looked like a broken beer bottle near the cars.

[9] Mr Ian Wright gave evidence that he was travelling through the relevant intersection at about 8.00 am on 26 March 2004 when he noticed the traffic had slowed even though there was a green light.  He was in the inside lane.  He saw the door of a Nissan Patrol open.  The driver got out of the car.  There was a scuffle with another man.  By the time Mr Wright pulled up in front of the Nissan he saw the appellant involved in "a reasonably vicious attack" on the complainant.  He did not see the complainant swing any punches or motion as if he wanted to fight;  he did not raise his fists.  The appellant continually punched the complainant predominantly in the head.  He used his right hand which seemed to be in a glove.  Mr Wright said to the appellant "Look, you've - you've done enough damage.  If you keep going you're going to - you know, you're going to kill him or you're going to hurt him worse".  There was a momentary pause.  The appellant then delivered a couple more punches to the complainant before hurriedly leaving.  The appellant added "I know where you live and I'm going to get you" or something similar.

[10]  About four and a half months later on 8 August 2004 the appellant voluntarily attended the Townsville police station and took part in a record of interview with police officer Price.  The appellant said "I was defending myself.  He initiated some road rage and he reversed into my car and ... a fight happened after that which I say I was defending myself and I didn't go too far and I let him up and didn't use anything but my fist and he's a big sook".  When asked for further details he added that at about 8.00 am on 26 March 2004 he drove onto the highway:

"I thought it had plenty of time clear but obviously [the complainant] was speeding and so he's run right up my arse, stayed up behind me being smart and then he's overtaked [sic] me, swerved his car at me pretending to try and run me off the road.  Next I've encountered him on Railway Avenue and ... we were looking at each other.  He was looking in the side mirror.  I was looking at him, pointing at him. .... 'Cause I intended to have a few words with him.  He's reversed into me and then I've done something and then he's jumped out of the car, raced towards me and what I anticipated would have been an assault.  So I've jumped out of my car and met him right beside my front door and we've had a punch up, ended up on the ground.  He's grabbed my left arm, I've given him a couple more. ...

And when he's let go of my arm, I've let him go.

... And then I hopped back in my car and drove away.

... But also when he reversed into me, he broke my left head light and left a dint on the bonnet which is still there now."

[11]  He added that on the Bruce Highway the complainant came up very quickly behind him and then tailgated him, flashing his lights at him and "being rude and dangerous and a smart arse" so that he "gave him the finger".  Then the complainant overtook him, possibly on double lines.  This scared the appellant.  He followed him to take his number but the complainant was too fast.  Later he caught up to him in traffic.  He pointed at the complainant and mouthed some words at him which he did not wish to repeat but the complainant then reversed deliberately into his car.  The appellant then "done something that I don't want to put on record ... [i]n case I incriminate myself."  The complainant then got out of his car and charged at the appellant's car "like a wounded bull".  The appellant thought he was going to punch him through the window and got out of his car. They then had a mutual "punch up" and "shaped up".  The complainant missed the first punch.  The appellant punched him to the ribs and they boxed until they both went to the ground.  After a scuffle the appellant told the complainant that if he let go they could walk away.  The initial scuffle lasted about 15 seconds.  After they hit the ground the altercation continued for about 10 seconds.  The complainant was a big man and the appellant was frightened of him.  The complainant initiated the fight.

[12]  The appellant added:

"He's lost the fight and ... had his ego broken in front of his friends.

... I didn't want it to go any further. ... I called it square.

... I had a broken car and a sore hand and now obviously I have to wait for a Court case or something and he's gone tit for tat wasting police time and he's probably lying as well.  And ... he's the sort of person that probably ... does road rage all the time and - and 'cause he was in a big LandCruiser.  I was in a little car.  He probably was on a power trip and as far as I'm concerned I gave him what he asked for."

[13]  Police officer Price explained that the disposable camera he used to photograph the appellant's vehicle after the interview had been damaged so that there were no photographs of it.

[14]  On the first day of trial the appellant was represented by two counsel, Mr Honchin and Ms McKenzie.  On the second day only Ms McKenzie appeared on his behalf.  She indicated that she had completed her cross-examination of police officer Price when the following exchange occurred:

[15]  The appellant did not give or call any other evidence.

[16]  The judge then called on Ms McKenzie to address the jury first because she led evidence by tendering photographs.  Ms McKenzie seemed a little surprised by this.  She took a few moments before commencing her address to the jury during which she raised the issue of provocation.  The judge interrupted and said "No, I'm not going to let you leave provocation to the jury.  I mean - I mean, if you want to address me about it - well, do so."  He then invited the jury to leave the courtroom whilst the issue was discussed.  Ms McKenzie submitted that the evidence of events leading up to the fight, including the tailgating, flashing lights, cutting off the appellant and reversing into his car, were sufficient to raise provocation.  Without hearing from the prosecution, the judge indicated that there was no evidence of provocation to leave the issue for the jury.

[17]  When the jury returned they inquired whether they could ask some as yet unformulated questions of the appellant.  The judge explained that the appellant had exercised his right not to give evidence.  Had he chosen to give evidence MsMcKenzie would have questioned him first;  he would have been cross‑examined by the prosecutor;  if there were then issues the jury wished to have covered in questioning, they could then inform the judge who would consider their request.  The judge added "[b]ut because [the appellant] has exercised his right not to give evidence he can't be questioned and - unlike the Crown witnesses".

[18]  The judge then told the jury "I've indicated to Miss McKenzie, and she agrees after discussion, that the defence known as 'provocation' in our Criminal Code is not available to the accused here".

[19]  Ms McKenzie then continued addressing the jury.  Unfortunately she was again interrupted, this time by the prosecutor and apparently wrongly and unnecessarily, but nothing in this appeal turns on this further unwarranted interruption.

[20]  During his summing-up to the jury the judge said that neither the complainant's traffic history nor the course of his driving on 26 March 2004, including whether he reversed or rolled his vehicle into the appellant's vehicle, were issues which had to be decided in determining whether the appellant was guilty or not guilty but were matters only relevant to the complainant's credit.  As the judge foreshadowed when interrupting Ms McKenzie's address, he did not leave the issue of provocation to the jury.

[21]  The issue of provocation arose in the summing-up in a limited way when the judge explained the issue of self-defence to the jury.  He said that for justifiable self‑defence to apply there must have been an unlawful assault by the complainant on the appellant.  If the complainant threw the first blow or tried to throw the first punch or actually struck the first punch then the jury would have to consider whether the complainant had been provoked.  The judge referred to the definition of provocation in the Criminal Code, explaining that the prosecution case was either that the complainant did not assault the appellant, or that, if he did, he was provoked to do so.  The judge explained the third element to be considered was whether any force used by the appellant if he was acting in self-defence was reasonably necessary to make effectual defence against the assault.  His Honour explained to the jury that if they concluded the appellant provoked the assault or actually started the assault then the defence of self-defence was not open to him and the prosecution would have excluded it.

Should provocation have been left to the jury?

[22]  The provisions as to provocation in the Criminal Code relevantly state:

"268Provocation

(1)In this section -

provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, ... to deprive the person of the power of self‑control, and to induce the person to assault the person by whom the act or insult is done or offered.

...

269Defence of provocation

(1)A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

(2)Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact."

[23]  The appellant did not give or call evidence specifically stating that he was in fact deprived by the complainant's provocation of the power of self-control.  He did not make any such claim in his interview with police which instead suggested self‑defence or a consensual fight.  It is well‑established that such evidence is not necessary to raise the defence of provocation:  Stingel v The Queen.[1]  Provocation suggesting a possible loss of self-control may be inferred from the evidence:  Van Den Hoek v The Queen.[2]  If there is any such evidence the trial judge must leave the issue of provocation to the jury even where it is inconsistent with the defence raised:  Stingel;[3] Van Den Hoek;  R v Cowan.[4]

[24]  The jury may well have rejected the appellant's contention in his record of interview that the complainant was the aggressor and that the appellant was acting in self‑defence.  They may well have viewed these claims as the appellant's attempt with hindsight to justify his loss of control and over-reaction to the complainant's behaviour on the road.  If the jury rejected the appellant's claims of self-justification in his record of interview, there was then ample evidence from which they could infer that when the appellant assaulted the complainant, he may have been deprived by provocation as defined in s 268 of the power of self-control and acted suddenly in the heat of passion in assaulting the complainant.  The evidence raising provocation came from both the complainant and the appellant's record of interview with police.  Both drivers described discourteous conduct towards each other in the 20 minutes or so preceding the assault.  The complainant gave evidence that his vehicle may have rolled back onto the appellant's vehicle immediately before the assault.  The appellant contended in his interview with police that, immediately before the assault, the complainant reversed into him, breaking his left headlight and denting his bonnet.  Under s 269(2), it was a question for the jury what they made of this evidence and whether it may have amounted to provocation as defined in s 268 Criminal Code.

[25]  The evidence from the complainant was that the appellant then behaved irrationally, "ranting and raving" "like in a fit of rage".  Ms Nolen described the appellant's attack on the complainant as "frenzied".  Mr Wright described the attack as "reasonably vicious".  It was a question for the jury whether the appellant may have assaulted the complainant whilst deprived by provocation of the power of self‑control acting on the sudden before there was time for his passion to cool and whether the force he used was not disproportionate and not intended to cause death or grievous bodily harm.

[26]  The judge erred in law in not leaving provocation to the jury.  It follows also that the complainant's driving history as observed by the appellant in the 20 minutes or so preceding the assault was relevant for the jury's consideration of the issue of provocation.  The judge erred in directing the jury otherwise.

[27]  Insofar as the appellant complains about the judge's directions to the jury as to the use to be made of the complainant's previous speeding tickets, that contention is unfounded.  The judge was right to direct the jury that his previous traffic history was relevant only to his credit and not to the issue of whether the appellant was guilty or not guilty.

The conduct of counsel at trial

[28]  The transcript does not reveal why defence counsel tendered the photographs after otherwise finishing her cross-examination of the last Crown witness.  It may be that the prosecutor said something to her which prompted this.  The photographs were uncontroversial.  The common practice in such a case where an accused person is not intending to give or call evidence is for the prosecutor to tender the uncontroversial photographs in the prosecution case so that defence counsel does not lose the right of last address.  There is however nothing before this Court to demonstrate that the prosecutor acted improperly or, as the appellant contends, "treacherously".  The appellant has not demonstrated that the result that defence counsel addressed the jury before the prosecutor, or anything else about her conduct of the case, has here caused a miscarriage of justice.  Nor is there any evidence that the prosecutor's regrettable and unwarranted interruption of defence counsel's address or anything else about his conduct of the case has caused a miscarriage of justice.  This ground of appeal is without merit.

Is the jury verdict unreasonable?

[29] The appellant contends the guilty verdict is unreasonable on the evidence, emphasizing both inconsistencies between the complainant's evidence and his initial statement to police and the complainant's large size.  He submits police officer Price perjured himself when claiming the disposable camera with the photographs of the damage to the appellant's car had been destroyed.

[30]  These issues were questions of fact for the jury to determine.  A jury properly instructed as to the law could have been satisfied beyond reasonable doubt that the appellant was neither acting under provocation as provided in the Criminal Code, nor acting in self-defence as provided in the Criminal Code, nor participating in a consensual fight with the appellant and so could have convicted the appellant of the offence of assault occasioning bodily harm.  This ground of appeal fails.

Section 668E(1A) Criminal Code

[31]  Because of the judge's error in not leaving the provocation to the jury the appeal must be allowed and a retrial ordered unless under s 668E(1A) Criminal Code this Court is of the opinion that the appeal should be dismissed because no substantial miscarriage of justice has actually occurred.

[32]  The appellant has not had a fair trial according to law.  The judge left self-defence to the jury on a basis which included their consideration of whether the complainant was provoked into assaulting the appellant but refused to leave to the jury the issue of whether the appellant had been provoked.  After reviewing the evidence I am not satisfied that a properly instructed jury would have convicted the appellant.  I am not prepared to deprive him of the opportunity of having these issues determined by a jury according to law.  His trial has resulted in a substantial miscarriage of justice and s 668E(1A) cannot be invoked.

[33]  It follows that a retrial must be ordered.  It is therefore undesirable and unnecessary to now deal with the application for leave to appeal against sentence.  If the appellant is convicted after a trial according to law, the appropriate sentence will turn on the facts which emerge at that trial as determined by the sentencing judge.

Orders

[34]  The appeal is allowed, the conviction quashed and a new trial is ordered.

[35]  HOLMES JA:  I have read the reasons for judgment of the President.  I agree with her reasons and the orders proposed.

[36]  MACKENZIE J:  I agree with the reasons of the President and the orders proposed by her.