R v DCE[2024] QCA 165

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with Flanagan JA.
2. [2]
   FLANAGAN JA:  On 19 August 2024, the Court made the following orders:

1. The appeal is allowed.
2. The convictions are set aside.
3. A new trial is ordered.

These are my reasons for joining in those orders.

3. [3]
   After a two-day trial in the District Court of Queensland at Brisbane, the appellant was convicted by a jury of two counts of assault occasioning bodily harm while armed.  Each of the counts were particularised as having occurred on 11 June 2021, and involved separate complainants who were both Child Safety officers.  The appellant assaulted the complainants with three small decorative flags.  She was sentenced to nine months’ imprisonment.
4. [4]
   The appellant appealed against her convictions on the sole ground that the learned trial judge erred by failing to allow the defence of provocation, within the meaning of ss 268 and 269 of the Criminal Code, to be considered by the jury.  Provocation constitutes a complete defence to an offence of assault occasioning bodily harm.  A provocation direction was sought by defence counsel.  The trial judge ruled that the defence of provocation should not be left to the jury, as there was “no evidence”^[1] that any insult had been conveyed.  Had the defence been left to the jury, the Crown would have been required to exclude the defence by satisfying the jury, beyond reasonable doubt, that it did not apply.
5. [5]
   For reasons which follow, the trial judge’s refusal to direct the jury in relation to provocation constitutes a wrong decision of any question of law for the purposes of s 668E(1) of the Criminal Code.  The nature of the error prevents the application of the proviso^[2] and, in any event, the Crown did not submit that it should be applied.
6. [6]
   The Crown called the complainants who will be referred to as Complainant 1 and Complainant 2.  The Crown’s case was that both assaults occurred in a meeting attended by Complainant 1, Complainant 2, the appellant, and the appellant’s support person.  The purpose of the meeting was to discuss the process for the appellant to reconnect with her two children whom she had not seen for more than two years.
7. [7]
   The Crown also called the support person.  A video of the assaults, without any audio, was played to the jury.  The appellant was interviewed by a police officer on the date of the assaults.  The body-worn footage of this interview was played to the jury and an edited transcript was marked for identification.  The appellant did not give or call evidence.

(a)The evidence of Complainant 1

8. [8]
   Complainant 1 had been working for Child Safety since 2017.  As at 11 June 2021, she had been the Child Safety officer for the appellant’s two children for approximately six months.  The children had been placed with relatives.
9. [9]
   She had not met the appellant prior to 11 June 2021.  The meeting was conducted at a rectangular table with the appellant and her support worker on one side and the complainants on the other.
10. [10]
    Complainant 1 was aware that the appellant had not had contact with her children for “years”.^[3]  During the meeting with the appellant, she explained that the process for the appellant to reconnect with her children involved writing letters.^[4]  She deposed to the following during her examination-in-chief:

“…And what was sort of discussed in respect of reconnecting? --- A process at [the Department of] Child Safety … for children to reconnect with their parents is by starting to write letters, the parent writing letters to the child.  And that was discussed with – with the defendant about her starting to write letters to start to reconnect with her children that she hadn’t seen for some time.”

She did not note any particular reaction to this information being conveyed to the appellant.

11. [11]
    According to Complainant 1, the appellant raised the issue of whether the children had had contact with their father.  She replied that the father had contact with one of the children, and that she was involved in that contact.  It was at this stage that the appellant became agitated and wanted to know more about the contact.
12. [12]
    She told the appellant that she had spoken with the father and had supervised a visit for him.  She had driven the eldest child with a relative to the prison where they had supervised contact with the father.
13. [13]
    The appellant became quite angry and seemed unhappy with that information.  By using her hands, Complainant 1 explained to the appellant that her having contact with her children on the one hand, and the father having contact with the children on the other hand, were different issues.  She also explained that the purpose of the meeting was to talk about her contact with the children, not about the father’s contact with the children.
14. [14]
    The appellant asked Complainant 1 whether she knew that the father had raped one of the children, to which she responded that the purpose of the meeting was about contact with her, not the father.  Complainant 1 was not aware of any allegations of rape.
15. [15]
    The appellant came to her feet and threw a glass of water.  She then came around the table and headed towards the complainants.  Complainant 1 opened the door, believing that the appellant was about to exit the office.  Instead the appellant picked up three ornamental indigenous flags that were on the table.  She hit Complainant 1 in the face to the right side of her eye with the flags.  Complainant 2 had exited the room but returned.
16. [16]
    In cross-examination, Complainant 1 stated that she knew, as at 11 June 2021, that the father was serving a sentence for manslaughter, which occurred when the two children were living with him.  She understood that the manslaughter occurred while the two children were in the house.  When asked whether the children witnessed the manslaughter, the trial judge sent the jury out and suggested to defence counsel that what was being led was hearsay.  Defence counsel stated that he was not seeking to prove the truth of the facts but rather the knowledge of the Child Safety officers.  That knowledge was that Complainant 1 had taken the eldest child to see his father in prison in circumstances where Child Safety knew that he had committed manslaughter with a hammer in front of the child, and in circumstances where the appellant had reported to Child Safety that the father had sexually abused the eldest child.
17. [17]
    The trial judge indicated that he would be giving directions to the jury at the end of the trial in relation to a wrongful act or insult but expressed a preliminary view that, putting those allegations at their highest, it was difficult to see how any conduct constituted either a wrongful act or insult.^[5]
18. [18]
    The appellant is an indigenous person.  Complainant 1 was aware from training that in some indigenous cultures making direct eye contact could be considered rude.  She explained that she had maintained eye contact with both the appellant and her support worker “to be polite”.^[6]  She could not recall whether it was her or the appellant who first raised the child’s visit with the father.  She accepted that she had said to the appellant words to the effect of “we have taken [the appellant’s child] to see his dad in prison”.^[7]  She could not recall the appellant stating that she had been coming to Child Safety for two years and had done everything right, yet her son had been taken to the prison to see his father in circumstances where Child Safety had not let the appellant see her children.
19. [19]
    She recalled the appellant asking her whether she knew that the father had been raping the child.  She responded that they were not there to discuss the father but only the appellant’s contact with her children.
20. [20]
    She accepted that it was immediately after she explained to the appellant that they had taken the eldest child to see his father in prison that the appellant suddenly lost her temper.  She accepted that the appellant’s demeanour “changed radically”.^[8]  She further accepted that the appellant “exploded in temper”.^[9]  The decision to take the eldest child to see the father in prison was made by her and Complainant 2.

(b)The evidence of Complainant 2

21. [21]
    As at 11 June 2021, Complainant 2 had been working for the Department of Child Safety for approximately seven years.  Her role was to supervise a team of Child Safety officers, including Complainant 1.  She was aware that Complainant 1 supervised the care of both of the appellant’s children.  She had not previously met the appellant but knew her to be the mother of the children.  The purpose of the meeting was to discuss the appellant having contact with her children.  She was aware that the appellant had not had contact with her children for a number of years.
22. [22]
    The process of re-establishing contact with her children was explained to the appellant.  That process commenced with writing letters and sharing photographs and thereafter proceeding to a face-to-face contact.  The appellant expressed some concern that her letters would not be passed on to the children because of some mistrust she had for the relatives who were caring for the children.  When it was explained to her that the letters would be passed on by Child Safety officers, the appellant appeared to have “warmed up to the idea”.^[10]
23. [23]
    She recalled the appellant speaking about the children’s father, which included her having experienced domestic violence as well as the circumstances surrounding the father being in jail.  The appellant was told that recently there had been a supervised visit at the prison between one of the children and the father.  When told this, Complainant 2 observed that the appellant became “extremely upset and aggrieved”.^[11]  The appellant stood up, threw a glass of water and grabbed a water bottle which she began to raise over her head, but then proceeded to pick up three decorative flags from the middle of the table.  Complainant 1 then opened the door and Complainant 2 ran out.  She heard Complainant 1 screaming and, upon re-entering the room, noticed that the appellant was hitting Complainant 1 in the face with the three flags.  She attempted to intervene and pulled Complainant 1 away.  The appellant then used the flags to hit Complainant 2 in the back of her head and her back.  She believed that the appellant hit Complainant 1 with the flags multiple times, and that she was hit in the back approximately four or five times.
24. [24]
    She recalled that when the appellant was informed that one of her children had visited the father in prison, she had yelled “You’re letting a rapist murderer see my children”.^[12]  This was said by the appellant just before she threw the glass of water.  Complainant 2 accepted that when the appellant raised issues about the father, she and Complainant 1 tried to redirect the conversation to be more focussed on the appellant’s own contact with her children.
25. [25]
    In cross-examination, she recalled that the appellant, when told of the visit with the father, had said words to the effect of “You are telling me you have taken my son to see his dad in prison and you haven’t let me see him”.^[13]  She recalled the appellant stating that there had been ongoing sexual abuse by the father of the children.  She recalled the appellant saying words to the effect “You took my son to prison knowing what he had done to them”.^[14]
26. [26]
    Like Complainant 1, Complainant 2 also accepted that as soon as the appellant was informed of the details of the child’s visit with his father, the appellant suddenly lost her temper and exploded.

(c)The evidence of the appellant’s support worker

27. [27]
    The first time the support worker met the appellant was on 11 June 2021.  The meeting with the Child Safety officers had been arranged by the support worker because the appellant wished to reconnect with her children.
28. [28]
    Her recollection was that it was the appellant who asked whether the children had visited their father in prison .  When Complainant 1 told the appellant about this visit, the support worker observed that the appellant became very angry.
29. [29]
    The support worker had tried to terminate the meeting earlier, prior to the appellant being informed about the visit with the father.  She recalled that the appellant accused Complainant 1 of “intimidating her, of giving her direct eye contact”.^[15]
30. [30]
    In cross-examination, the support worker accepted that it was Complainant 1 who had first mentioned the father (in the context that they had taken the eldest child to see the father in prison).  She had some recollection of the appellant saying words to the effect, “I’ve done everything right and you are telling me you have taken my son to see his dad in prison”.^[16]  She recalled the appellant saying words to the effect, “Do you realise what he was doing to that child and why he had to murder that man?  He was trying to kill me, that’s why I had to leave and you took him back to him, even though you knew he was raping … him, a child?”^[17]

(d)The video of the assaults

31. [31]
    At the invitation of the parties during the appeal hearing, this Court viewed the video of the assaults.  It shows the appellant initially sitting at the table until she suddenly stands up and commences to assault Complainant 1 and then Complainant 2.  The video is consistent with the appellant suddenly losing her temper and “exploding”, as described by both complainants in their cross-examination.

(e)The appellant’s interview with police

32. [32]
    The appellant informed police that she had not seen her children for a while and that she had just commenced university.  It was at the meeting with the Child Safety officers that she learnt that they had taken her eldest child to visit his father in prison.  She stated that the father was in prison for killing someone in front of the child and that she had complained about the father raping the child.  She had been told by the Child Safety officers that they were aware of the father being in prison for killing a person and were also aware of the rape allegations.
33. [33]
    She informed police that she had told the complainants that she had been trying to see her children for over two years, and yet, despite knowing of the rape allegations, they had taken her eldest child to visit his father:^[18]

“[Appellant]: That he's been visiting them. And so, and so, I said … I've been here for two years trying to see 'em. And you're telling me that youse have all been in kahoots and um, you, youse knew that, I asked them to stop, they said it to my face that they've known about the rape, they've known that he r-, repeatedly raped [the eldest child], but there's all visitations and that now--

SGT BOWDEN: Okay, was it--

[Appellant]: They're all having a great picnic, now.”

34. [34]
    She stated that she had told the complainants that she had been bringing presents for two years.  The appellant was “hoping that someone was gonna call me back, like I, I kept begging these people, but they’re too busy they reckon, all the time.”^[19]
35. [35]
    According to the appellant, it was Complainant 1 who first raised the visitation.  She did not like the way the Child Safety officers were looking at her, stating:

“Oh, it's just the way they were looking at me, just like, we know what we're doing”;^[20] and

“You should have seen the way she was looking at me…”^[21]

36. [36]
    When asked about the assaults, the appellant stated:  “Yeah, it was those two women that were … talking openly and knew that um [the father] had been … the one”.^[22]
37. [37]
    The appellant again referred to the way she was being looked at and stated:  “And the other one was backing her up, and, and that’s why we, were letting him see them, and we have been doing it for a while now …”.^[23]
38. [38]
    The appellant sought to explain to police her reaction when informed of the visit:

“Yeah, I wanna … I just, this is so wrong. Why did they make me feel like I'm the piece of shit, for having a problem with my son seeing his rapist? You know what I mean? Like, I'm just some dumb black cunt, you know, that's why, how I felt for the last few… years”.^[24]

The issue of provocation as it arose in the course of the trial

39. [39]
    As observed at [16] above, the issue of provocation first arose in the context of defence counsel’s cross-examination of Complainant 1.  The trial judge had intimated that the defence of provocation may not arise as no insult had been conveyed.
40. [40]
    Defence counsel, in submitting before the trial judge that a provocation direction should be given, disavowed any reliance on a wrongful act but identified the relevant insult as follows:

“Well, it’s insulting in this way, she’s a mother of the children.  [Complainant 1 and Complainant 2] are charged with … the children’s care… So then they have told her that what they’ve done is take that child out to the prison to see someone who – it says ‘murdered’ there, it’s actually manslaughter, but has no doubt violently killed someone in front of the son and is … alleged to have sexually molested him.  So those words are insulting to my client who was offended.”^[25]

41. [41]
    The trial judge observed that the evidence had to reach the threshold of there being an “insult”, which was to be contrasted with words that may be considered upsetting or insensitive.
42. [42]
    After receiving written submissions, the trial judge ruled that the defence of provocation would not be left to the jury.  His Honour referred to the definition of “provocation” in s 268(1) of the Criminal Code.  By reference to Stingel v The Queen,^[26] his Honour accepted that whether the defence of provocation should be left to the jury is to be resolved by reference to the version of events most favourable to the accused.  The most favourable version was that given by the appellant in her interview with police.
43. [43]
    His Honour noted defence counsel’s submission that what occurred constituted an insult because the disclosure by Complainant 1, in context, implied that the appellant was less worthy of parental contact than a killer, a child molester and someone serving a term of imprisonment.
44. [44]
    His Honour observed that the word “insult” is not defined in the Criminal Code and referred to the Macquarie Concise Dictionary^[27] definition of insult as meaning “to treat insolently or with contemptuous rudeness; affront”.  His Honour continued:

“There is no evidence of conduct amounting to this on the part of the Child Safety officers in the course of the meeting, and in particular, in the course of making the disclosure that so enraged the defendant.  As is correctly submitted by the learned prosecutor, they were just doing their job.

To the extent it may be asserted that the insult was conveyed by a gesture, being a look, as assumed by the defendant in her interview with police quoted above, firstly, the term ‘gesture’ is not defined in the Criminal Code.  It is defined in the Macquarie Concise Dictionary … as, ‘Movement of the body, head, arms, hands or face expressive of an idea or an emotion.’  Looking at the defendant like they know what they were doing on the part of … the Child Safety officers does not amount to a gesture pursuant to this definition.  Accordingly, even in the context of the disclosure the defendant found so upsetting, the alleged look combined with the disclosure could not constitute an insult.  The defendant has not demonstrated that the defence of provocation should be left to the jury.  Accordingly, I dismiss the application, and this defence will not be left to the jury.”^[28]

45. [45]
    In his summing up to the jury, the trial judge identified, as relevant elements of the offence, that the appellant assaulted the relevant complainant and that the assault must be unlawful; that is, not authorised, justified or excused by law.  As to these elements, his Honour directed the jury as follows:

“The only submission that seems to call into question those two elements is the rather extraordinary submission that [Complainant 2] joined in a voluntary fight in respect of the count involving her, but you have got the video and you can make your own minds up on the facts about that.”^[29]

46. [46]
    After it had retired, the jury sent a note to the trial judge which read:

“Are we deciding whether the response (the assaults) were proportional?  What is a lawful versus unlawful assault?  Can we please get a copy of the charges?  Does the defendant’s state of mind play any role in our decision?”^[30]

47. [47]
    His Honour instructed the jury that they were not deciding whether the assaults were proportional, and that the appellant’s state of mind did not have any role to play in their decisions on each count.  Further, his Honour advised that while there are defences which involve such considerations, these had not been identified for the jury’s consideration in the present case.

The defence of provocation should have been left to the jury

48. [48]
    The defence of provocation is contained in s 269 of the Criminal Code, which provides:

1. “(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.”

49. [49]
    The meaning of the term provocation is dealt with in s 268 of the Criminal Code, which provides:

1. “(1)
   The term ‘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, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, 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.

2. When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

3. A lawful act is not provocation to any person for an assault.

4. An act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

5. An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.”

50. [50]
    The starting point in construing ss 268 and 269 is the text of each provision, having regard to its context and purpose.^[31]  In Charlie v The Queen,^[32] Kirby J identified the principles relevant to construing provisions that are part of a code:

“Although a code is enacted by legislation and thus attracts the general rules applicable to the task of statutory construction, it is a special type of legislation.  It does not (unless expressly stated) set out to be a mere restatement of the pre-existing or common law.  It is not uncommon for codes, including in the area of criminal law, to introduce fundamental changes.  Accordingly, it is erroneous to approach the meaning of a code with the presumption that Parliament’s purpose was to do no more than restate the pre-existing law.  The first loyalty, as it has been often put, is to the code.”

51. [51]
    Before considering the meaning of “insult” in s 268(1), it is first convenient to recognise the areas of common ground between the appellant and the Crown.
52. [52]
    The elements of the defence in s 269 requires that:

    1. there was provocation for the assault;
    2. this provocation actually deprived the person of their power of self-control;
    3. the person acted on the provocation on the sudden, before there was time for their passion to cool; and
    4. the force used by the person was not out of proportion to the provocation and was not intended or likely to cause death or grievous bodily harm.
53. [53]
    Putting to one side the issue of whether there was a provocation for the assaults, the Crown concedes that there was evidence to support the other elements of the defence.  The video evidence, along with the cross-examinations of the complainants and the support worker, form a basis upon which a jury could have found that the appellant was in fact deprived of the power of self-control by the provocation, and that she had acted upon it on the sudden and before there was time for her passion to cool.  While little may be made of the jury note, had the defence been left to the jury, one of the relevant elements under s 269(1) was whether the force used was not disproportionate to the provocation.  Whether a person is deprived of the power of self-control by the provocation, and whether any force used is or is not disproportionate to the provocation, are expressly stated in s 269(2) to be questions of fact.
54. [54]
    It is also common ground that the word “wrongful”, as it appears in the term “wrongful act or insult” in s 268(1), qualifies the word “act” and not the word “insult”.  In Stingel v The Queen,^[33] the High Court considered s 160 of the Criminal Code (Tas), which was a provision that provided a partial defence to murder so as to reduce it to manslaughter.  Section 160(2) referred to “any wrongful act or insult”.  The High Court observed:^[34]

“The composite phrase ‘wrongful act or insult’ appears in a number of other statutory provisions dealing with provocation, including the Queensland and Western Australian Criminal Codes.  The phrase did not, however, have any settled legal meaning when the Code was enacted in 1924 and it should not be seen as a technical one.  Its critical words – ‘wrongful’, ‘act’ and ‘insult’ – are words of wide general import which should be given their ordinary meaning.”

55. [55]
    The High Court held that the word “wrongful” in s 160(2) does not qualify “insult”.  The Court referred to the decision of the Queensland Court of Criminal Appeal in Reg v Stevens,^[35] where Demack J., with whom Kelly S.P.J. and Kneipp J. agreed, considered that the word “wrongful” qualified both “act” and “insult”.  While the High Court considered that the reasons given for this construction were unpersuasive, it considered it inappropriate to express a concluded view about the phrase as it appeared in the Queensland and Western Australian Codes, given that only the Tasmanian Code was being considered in that case.
56. [56]
    There are, however, other indications in s 268 which support the construction that the word “wrongful” only qualifies “act” and not “insult”.  Section 268(3) provides that a lawful act is not provocation to any person for an assault.  The use of the word “wrongful” in s 268(1) distinguishes an act which is wrongful from a “lawful” act as referred to in s 268(3).  Similarly, s 268(4) also draws a distinction between a “wrongful act” and an act which would not attract the defence of provocation.  It provides that an act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.  The qualification “wrongful” therefore has utility in qualifying the word “act”, but it serves no apparent purpose in qualifying the word “insult”.
57. [57]
    In light of this common ground, the only question of construction raised by this appeal is in relation to the meaning of the word “insult” in the context of ss 268 and 269.
58. [58]
    “Insult” is not a defined word in the Code.
59. [59]
    The word “insult” is used as a noun in s 268(1).  The Macquarie Dictionary, Ninth Edition, 2023, defines “insult” as a noun to mean “an insolent or contemptuously rude action or speech; affront”.  Another meaning given is “something having the effect of an affront”.  The word “affront” (as a noun) has the following two relevant meanings:

1. “1.
   a personally offensive act or word; an intentional slight; an open manifestation of disrespect; an insult to the face …

1. 2.
   an offence to one’s dignity, self-respect or sensibilities.”

60. [60]
    “Insult” is a non-technical word with a broad meaning.  In Thurley v Hayes,^[36] the High Court considered the phrase “insulting words” in s 137 of the Police Act 1905 (Tas).  The Court observed:^[37]

“‘Insulting’ is a very large term, and in a statement of this kind is generally understood to be a word not cramped with narrow limits.  In the Oxford Dictionary under the word ‘insult’, we find it means in a transitive sense ‘to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect;  to offer indignity to; to affront, outrage.’  We find in the same dictionary:  ‘Hence “insulted,” treated with contemptuous abuse, outraged.”

61. [61]
    The words spoken in that case were “you are sponging on the Government and you waste public money and I will report you”.  These words were spoken to a returned soldier.  The High Court considered that the words used were legally capable of being regarded as insulting words and observed that whether words may be characterised as insulting on any particular occasion depends “entirely on the circumstances”.^[38]
62. [62]
    The breadth of the meaning of the word “insult” was explained by the House of Lords in Cozens v Brutus:^[39]

“We were referred to a number of dictionary meanings of ‘insult’ such as treating with insolence or contempt or indignity or derision or dishonor or offensive disrespect.  Many things otherwise unobjectionable may be said or done in an insulting way.  There can be no definition.  But an ordinary sensible man knows an insult when he sees or hears it.”

63. [63]
    Whether words and/or gestures constitute an insult is to be determined objectively and will depend on context and the relevant circumstances.  An insult is not constituted merely by the use of what may be considered normally rude or offensive words.  Such words may be used in a jocular fashion.  Similarly, statements of fact or words imparted in the course of one’s employment may, depending on context and the circumstances, constitute an insult.  As the word “insult” is not a technical word and has a broad meaning, it would ordinarily be a question for the jury whether particular words and/or gestures constitute an insult.  This is particularly so where it is incumbent on the prosecution to exclude the defence of provocation beyond reasonable doubt.  The Queensland Criminal Benchbook identifies two of the relevant directions to be given to the jury in relation to the requirement for the Crown to exclude provocation:

1. “1.
   that the accused was not the subject of wrongful act or insult by the complainant; or

1. 2.
   that there was no provocation, bearing in mind how an ordinary person would be likely to react to the wrongful act or insult.”^[40]

(emphasis in original)

64. [64]
    In considering whether the relevant words and/or gestures constitute an insult, the context and circumstances include the characteristics of the accused.  As observed by Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen:^[41]

“However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused.  Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history.  The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done.  But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions.”

65. [65]
    To similar effect are the observations of the High Court in Stingel^[42]:

“Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused.  Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation.  In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct.  For example, any one or more of the accused’s age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult.”

66. [66]
    While these observations in Masciantonio and Stingel concern a consideration of the gravity or the “content and extent” of the relevant conduct, they are also relevant to a consideration of whether particular words and/or gestures are capable of constituting an insult.
67. [67]
    Whether provocation arises for consideration by the jury is a question for the judge.  It is, however, usually necessary to approach this task with caution, particularly in circumstances where the defence of provocation constitutes a complete defence to offences involving assault and where the onus is on the Crown to exclude the defence beyond reasonable doubt.  This cautionary approach is reflected in observations by the High Court in both Stingel and in Masciantonio.  In Stingel,^[43] the High Court stated:

“As s. 160(3) makes clear, however, the ultimate question whether the prosecution has proved the absence of provocation is a question of fact for the jury alone.  That being so, a trial judge should be conscious of the limited scope of the preliminary ‘question of law’ whether there is material in the evidence ‘capable of constituting provocation’ and of the need to exercise caution before declining to leave provocation to the jury in a case such as the present where it is sought to rely on a defence of provocation or failing to do so in a case where, even though provocation is not raised by the accused, there is material in the evidence which might arguably be thought to give rise to a defence of provocation.”

68. [68]
    To similar effect is the High Court’s statement in Masciantonio:^[44]

“The answer to the question whether the trial judge should have left provocation to the jury at either stage of events in this case depends upon whether there was evidence which was capable of constituting provocation.  However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely.  It is ‘whether, on the version of events most favourable to the accused which is suggested by [the] material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.’  The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can.  As was observed by the Privy Council in Lee Chun-Chuen v The Queen “there is a practical difference between the approach of a trial judge and that of an appellate court.  A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence.  An appellate court must apply the test with as much exactitude as the circumstances permit.”

69. [69]
    In deciding whether to leave the defence to the jury, the decision must be made by reference to the version of events most favourable to the accused and, if there is the least doubt, the issue should be left to the jury.
70. [70]
    In the present appeal, when the conduct of the complainants is considered in context and regard is had to the attributes of the appellant and the surrounding circumstances, there was at least some evidence capable of constituting provocation.
71. [71]
    The appellant was the mother of two children.  She had not seen her children for over two years.  The meeting with the complainants had been arranged in order to discuss the appellant having contact with her children.  Both children were in the care of the Department of Child Safety.  The appellant considered that she had been doing everything correctly over the last two years to facilitate contact with her children.  Both complainants were seated at a table across from the appellant.  She considered that Complainant 2 was “backing up” Complainant 1.  This is consistent with Complainant 2’s evidence that she and Complainant 1 would try to redirect the conversation to be more focussed on the appellant’s own contact with her children.
72. [72]
    Complainant 1 explained the process for the appellant to reconnect with her children, not by direct contact but by initially writing letters to the children.  In the course of the meeting, the appellant was informed by Complainant 1 that the eldest child had been taken to visit his father in prison.  According to the appellant, this information was conveyed in circumstances where the complainants knew that the father had unlawfully killed a man in front of the children and that there were allegations he had repeatedly raped the eldest child.  According to the appellant, she had herself been the victim of domestic violence at the hands of the father.
73. [73]
    According to the appellant, the insult was that, as the mother of the children, she was being denied contact in circumstances where the complainants had organised and permitted the eldest child to visit his father in prison.  As stated by the appellant to police in her interview, “they’re all having a great picnic, now.”^[45]Complainant 1 was making direct eye contact with the appellant.  The appellant told police that they should have “seen the way she was looking at me”.^[46] The appellant believed that she was being judged and made to feel like a “piece of shit” for having a problem with her eldest child being taken to see “his rapist”.^[47]  She felt she was being treated and judged as “some dumb black cunt”.^[48]  The thrust of the insult was that as the mother of the children, she could not have direct contact with her children without first establishing contact by writing letters in circumstances where Child Safety officers had arranged for the eldest child to visit the father in prison.  There was, therefore, at least some evidence that the words and/or gestures of the complainants constituted an insult in the sense that they could be considered by a reasonable jury to constitute an affront to the appellant’s dignity, self-respect or sensibilities.
74. [74]
    Whether or not the words and gestures of the complainants constituted an insult in the particular circumstances of the case was a question of fact for the jury.
75. [75]
    KELLY J:  I agree with the reasons of Flanagan JA.