DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT

1. [1]
   This is an appeal under s. 222 of the Justices Act 1886, against a Magistrate’s finding the appellant guilty of two charges of common assault on 21 July 2004, at the conclusion of a disjointed trial which extended over a year or so.  The offences charged occurred at premises of the Church of Jesus Christ of the Latter Day Saints at 370 Underwood Road, Eight Mile Plains, at about 2.20 p.m. on Sunday, 29 June 2003.  A service was underway at which Bishop Holzworth, who was the priest, pastor or minister of the Eight Mile Plains ward of the Church (and not, it seems, vested with any wider authority) was officiating. 

2. [2]
   The appellant, said to be aged in his early or mid 20s, accompanied by his mother arrived late for the service. He was refused entry by Mr Dobinson, a retired police officer and First Councillor to the Bishop in his ward, and by Mr Ives (a police officer by occupation), who is a member of the Rochedale ward of the Church and a Councillor to its State President, Mr O'Rielly. The two of them had been assigned by the Bishop to confront the appellant if and when he turned up at the Church. In the course of the encounter that took place:

1. (a)
   There was contact between the appellant’s body and Dobinson’s, of which the Magistrate said at pages 10-11 of his reasons. “The defendant said on this point that he moved to go around Dobinson. He accepted in cross-examination that is was he and not Dobinson that took the first step and I Dobinson with his body and applied force to the right-hand side of Dobinson’s body in the chest area.” (this event occurred on the stairs or landing outside double glass doors giving access to the church proper);

2. (b)
   Subsequently, in the open car park, the appellant pushed Ives, causing him to move back (but not fall) - having apparently changed his mind about leaving and turned back, as if intent on getting into the Church.

Dobinson and Ives were the complainants, one of whom ended up (to quote the Magistrate) as “this 100 plus kilogram man on top of (the defendant)”:  page 22 of the Magistrate’s reasons.

3. [3]
   It is always likely that the versions of those involved in scuffles or brawls vary. It happened here. The Magistrate described the complainants as giving “honest recollection”, without making findings to the effect of everything they asserted. The appellant’s version was found to be “at best, unreliable…I do not accept that it is an honest account of what occurred from the top of the stairs until he was subdued by Ives.” Nevertheless, he clearly harboured the misgivings a fair-minded person would develop about the whole proceeding, as indicated by his remarks on the “sentence”, which, in the face of the appellant’s having previously been ordered to perform community service (no conviction recorded) for assault occasioning bodily harm was: “ordered that he be discharged absolutely without conviction.”

4. [4]
   The Magistrate may well have had in mind former provisions of the Criminal Code dealing with offences considered “trifling” (s. 343) or trivial (s. 657A).  One would expect a prosecutorial discretion to be exercised with respect to proceeding with trivial prosecutions.  One of the appeal grounds related to the police Prosecutor’s being a member of the Church; this ground was not pursued. 

5. [5]
   The Magistrate was obliged to determine the charges according to law on the basis of his views about the evidence. One suspects that, had that been a jury, the verdicts may not have been guilty. He said at page 27 of the transcript for 21 July 2004:

“Neither Ives or Dobinson received any injuries and, although I didn't refer to it in my decision, when Hodgens was taken to the ground he received an injury to, which I could refer to as more like gravel rash, his back and he received some graze to his lip.  At the very least, he had some blood on his lip that was identified by the officers – arresting officers – when they arrived.

He has suffered a deal of embarrassment as a result of being pinned on the ground by Ives in front of his church peers and, while I accept that on the Prosecution case, it was necessary for the Bishop to bring this matter to a head so that these issues could be sorted out, and that in the evidence Bishop Holsworth acting reasonable and that it was reasonable for the defendant to agree to meet with him and meet the conditions of entry, I also find that these are very minor charges and ordinarily not matters which would come into the criminal jurisdiction of the Magistrates Court.”

6. [6]
   Unsurprisingly, the Magistrate discounted the evidence of the appellant’s mother (which was far from being a carbon copy of his) as not “independent”. Surprisingly, he appeared to accept the complainants as independent of each other. He seemed critical of some over-reaction by them:

“Ives said because of his behaviour and his threats to Dobinson and himself, he feared for the other patrons in the church as a result of he grabbed him and pushed on the ground.

On the evidence I find there was no threats towards other church patrons.” (Page 19 of reasons).

It seems there was not the slightest justification for suggesting that the appellant might have been “offering violence to officiating ministers of religion (an offence under s. 206 of the Criminal Code) or “disturbing religious worship” (an offence under s. 207).

7. [7]
   The principal defence relied on at the trial was provocation. There was a wealth of evidence that the appellant on the day was repeatedly asserting his right as an adult member of the Church, who paid his tithes (the respondent sought to devalue this by asserting the appellant was not working, rather, relying on Government benefits) and the like. He and his mother (whose father was a founder of the Church in Queensland) were regular attendees at worship, including services of the Eight Mile Plains ward, although the appellant did not reside within its boundaries and may, strictly, have been a member of a different ward – raising issues about the Bishop’s pastoral authority over him.

8. [8]
   The Criminal Code establishes the defence of provocation in s. 269:

“(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. (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.”

9. [9]
   The Magistrate’s rejection of the defence was not based on any of the possibilities open to the prosecution (which bears the onus in this regard) of excluding the defence, but rather on the preceding definition section:

“(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, 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. (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. (3)
   A lawful act is not provocation to any person for an assault.

…”

(Use of the word ‘section’ in (1) is odd. One would expect to find ‘chapter’.  The cases on s. 304 suggest that the definition does not apply there.   It has always been assumed that s. 268 controls s. 269.  Technically, that may have ceased to be so, in which case the common law “definition” of provocation should have been applied by the Magistrate and s. 268(3) would not stand to embarrass the applicant at all.  The drafting error seems to have been made in the early 1990’s when s. 268 was divided into subsections.  Perhaps the section should be corrected.^[1])  The view expressed in Stevens [1989] 2 Qd R 386 at 392 that “wrongful” qualifies “insult”, as well as “act” was disapproved by the High Court in Stingel (1990) 171 CLR 312 at 323.  The Court of Criminal Appeal of Tasmania in Bedelph (1980) 1 A Crim R 445 reached the conclusion that “an ‘insult’ means an insult offered by any means, by words, signs, acts, or any other means (if it is possible that an insult can be offered otherwise than by words, signs, or acts)…to amount to ‘provocation’…the insult must be ‘of such a nature as to be sufficient to deprive an ordinary person of the power of self-control’ as to do what the particular accused did, in that the retaliation must bear a reasonable relation to the provocation.”  See 456.  In my opinion, to exclude a Church member from worship in the circumstances under consideration, when no prior warning of an intention to do so was given and no disciplinary steps were in train to justify it, is capable of constituting provocation.  Indeed, I do not think that it could be said that the prosecution proved beyond reasonable doubt that it was not.  Nor did the Magistrate proceed on that basis.  He relied on s. 268(3).  He found that everything done by the complainants leading up to the “assaults” on them amounted to a “lawful act”.

10. [10]
    There is an interesting Full Court decision of Nakayama [1912] St. R. Qd 287, in which the District Court reserved for consideration the question whether there was any evidence of provocation on the part of the complainant for the defendants’ assault upon him.  Only the Crown made submissions, which relied on certain parts of s. 268, including the present subsection (3).  Cooper CJ said:

“In this case the learned Judge told the jury who were trying the prisoners for robbery and assault that there was no evidence of provocation for the assault, which was a very light one, committed on the principal witness. The evidence was to the following effect: - That the principal witness was detected cheating at a game of cards or dominoes – some game which he was playing with the prisoners. It was clearly proved that he had been cheating, and there upon two or three of the prisoners seized him and assaulted him. The Judge, under those circumstances, told the jury that there was no evidence of provocation. He must therefore have come to the conclusion that cheating, whether a wrongful act or not in itself, was not “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 who the act or insult was done or offered.” I think the learned Judge was wrong. I think cheating is “a wrongful act” of such a nature that it is under some circumstances “likely when done to an ordinary person to deprive him of the power of self-control, and to induce him to assault that other.” Under those circumstances I think the conviction was wrong, that the jury were misdirected, and that the conviction ought to be quashed.”

Real J agreed:

“I am of the same opinion.  It is quite possible that the men may have been guilty, but the jury were directed that there was no evidence of provocation.  The jury might have found them guilty on the ground that the provocation did not justify the manner in which they treated Hoy Sam, but to say that a man might not be induced to grasp the hand of another man who was cheating – to say that cheating would not constitute a provocation for an assault – seems to be wrong.”

–      as did Chubb and Lukin JJ.

11. [11]
    The appellant’s argument here boils down to the Magistrate’s having misdirected himself in effectively determining that provocation did not need to be considered, as indicated at page 11 of his reasons:

“Section 268(3) provides that this defence is not available to a lawful act.  I found that Dobinson was acting lawfully and I find that the defence of provocation is not properly raised.”

As to the Ives count, he said at 13:

“The defence of provocation is raised in respect of this assault.  However, I do not believe it is properly raised.  The defence is not available in response to a lawful act.”

12. [12]
    In my opinion if the potential defence of provocation were to be excluded in reliance on s. 268(3), it was for the prosecution to exclude it beyond reasonable doubt. There are all manner of things a person may “lawfully” do, in the sense that no law is being broken, that, on the common sense approach taken by the Full Court in 1912 would amount to provocation. An example might be setting fire in the presence of a patriotic citizen to the flag or his or her country. A recent examination of an issue of this nature occurred in Oxer v Grant BC 9702008, Supreme Court of Western Australia, SJA 1065 of 1994, White J, which concerned a boy whose repeated ringing of a householder’s doorbell induced the latter to assault him.  The Judge said in concluding:

“The appellant submitted that Matthew’s conduct could not amount to provocation because the act of pressing the intercom bell was a lawful act.  Counsel cited Roche v R [1988] WAR 278 at 280 (per Burt CJ) and 284 (per Brinsden J), where his Honour said that adultery, not being an unlawful act, could not amount to provocation by reason of the provision in s 245 that ‘a lawful act is not provocation to any person for an assault.’

However, the proposition that the ringing of the bell by Matthew was a lawful act cannot, with respect, be correct.  No doubt, a householder who provides an intercom bell at his front gate, impliedly licences any person who has a legitimate reason to communicate with him, to operate the bell for that purpose.  In such case, no doubt, the pressing of the bell would be a perfectly lawful act.  What Matthew did was, of course, not pursuant to a legitimate desire to communicate with the respondent but was done in order to annoy the respondent.  By operating the bell, Matthew was, therefore, committing, quite deliberately, a nuisance and a trespass.  His conduct cannot be described as lawful, in my opinion and the decision in Roche does not assist the Crown.”

While accepting that the Bishop and the complainants’ actions were well intentioned, rather than mischievous, like Matthew’s, there lurks here potential concern whether their professed motivations represent a full and accurate picture.  S 268(3) assumes pursuit of a purpose that cannot be impugned.

The references to Roche were sufficiently intriguing to prompt my hunting them out.  Brinsden J at 284 said:

“Yensch did nothing active which could be said to amount to provocation.  From time immemorial, however, it has been held that a husband finding his spouse in the act of adultery may be found to have acted under provocation.  Sir W Blackstone, Commentaries on the laws of England, Bk IV, p 190 justifies the exception on the ground that ‘there could not be a greater provocation’:  see Holmes v Director of Public Prosecutions [1946] AC 588.  Viscount Simon (at 598) refers to Parke B in Pearson’s case (1835) 2 Lew CC 144; 168 ER 1133 where he insisted on the condition of ocular observation:  ‘Even if Iago’s insinuations against Desdemona’s virtue had been true, Othello’s crime was murder and nothing else.’  A similar view has been taken in Australia in Parker v The Queen (1963) 111 CLR 610 by Dixon CJ (at 628) and Windeyer J (at 653): see also Hutton v The Queen (1986) 29 A Crim. R 315 at 320.  The Crown makes the concession, if there need be one, that finding a man in bed with his wife could amount to provocation to the husband as being a wrongful insult within the meaning of s. 245 of the Criminal Code (Western Australia).  It may seem that I have been labouring the obvious, but if the matter had come before this court for the first time, a Court having to administer the provisions of the Code, it might be arguable that adultery, not being an unlawful act, could not amount to provocation by reason of the provision of s. 245 that ‘a lawful act is not provocation to any person for an assault’ which exception is expressly excluded in the definition of provocation.  However in view of the Crown’s concession, and the weight of authority, I propose for the purposes of this case at least, to accept that the conditions observed by the appellant when he went into the bedroom could amount to a wrongful act or insult within the meaning of s. 245 though in this regard it is interesting to note in Hutton (supra) the appellant did not contend that similar conduct constituted a wrongful act within the meaning of s. 160 of the Criminal Code of Tasmania.  The case seemed to proceed on the basis that the conduct amounted to an insult.”

Burt CJ said at 280:

“In this case the Crown conceded that the act or insult of the deceased constituted by his being in bed with the appellant’s wife was a wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him of his power of self-control.  In other words the Crown concedes that there was evidence in the case capable of establishing the objective element within the idea of provocation.  I think the concession was rightly made whether the word “provocation” contained in s. 281 of the Code is to be understood in the sense of the definition in s. 245 of the Code or not.  If it is to be so understood, the act of the deceased would be ‘wrongful’ and it would not in the sense in which the word is used in that section be ‘lawful’.  In my opinion the word ‘lawful’ in that section is used in the sense of being ‘by the Code … declared to be lawful’: cf s. 5 of the Code.  If not so understood the word ‘wrongful’ would be inappropriate and one would be required to read it as ‘unlawful’ so requiring that it be an ‘offence’ (s. 2 of the Code) or at least requiring that it be actionable and that would not seem to me to be the legislative intention.”

The Chief Justice’s explanation of the meaning of the word “lawful” seems plainly correct.  The Criminal Code is replete with provisions both before and after sections 268 and 269 declaring certain actions “lawful”.  I find it astounding that there seems to be little or no jurisprudence available to assist the Magistrate and this court in regard to the interaction of those provisions with s. 268 and s. 269. 

13. [13]
    The prosecution here relied on s. 277:

“(1)It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or in order to remove  therefrom a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.

2. (2)
   It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person acting by his or her authority, to use the force that is reasonably necessary in order to remove therefrom any person who conducts himself or herself in a disorderly manner therein, provided that he or she does not do the person grievous bodily harm.

3. (3)
   In this section –

place includes any part of the enclosure or structure, whether separated from the rest of the enclosure or structure by a partition, fence, rope, or any other means, or not.”

There is not the slightest suggestion of the appellant’s acting in a disorderly manner so as to trigger subsection (2).  Subsection (1) was relied on by the Magistrate at page 9 of his reasons:

“I find that Prosecution is able to rely on section 277 of the Criminal Code, to use such force as is necessary in circumstances where the defendant is wrongfully on church property, as in the terms of Jones v Smith [1976] 1 WLR 672 (cited in Carter Criminal Law 274.10 at page 262)…, he has entered the property in excess of the permission of Bishop Holzworth when he fails to agree to the terms of entry to the church, which includes the church property, the church car park.

I find that Dobinson and Ives were acting lawfully, first in preventing the defendant from entering the church building upon the defendant failing to agree to the conditions imposed by Bishop Holzworth and, consequently, he was then wrongfully on church property and they were entitled to direct him to leave and use such force as necessary to remove him….”

14. [14]
    (While R v Jones [1976] 1 WLR 672 is annotated to s. 277 in Carter’s Criminal Law of Queensland, it concerned the interpretation of a statutory provision describing as guilty of burglary someone who steals “having entered… a building as a trespasser”.  The decision is helpful in construing “trespasser” but is clearly not directly relevant to construction of s. 277.  The expression requiring construction is “wrongfully remains”.)

15. [15]
    The authority which Dobinson and Ives had was described in a rather unusual way by the Bishop:

“Those instructions were to invite Craig Dobinson and David Ives to attend the door and invite Mr Hodgens, that when he arrived, to wait in the office – my office there, to speak with me at the conclusion of this worship meeting and if he was not prepared to sit and abide by that instruction, then he was to be invited to remove himself from the premises until he was prepared to do so.”

as set out in the reasons – which go on:

“In evidence-in-chief, he was asked: ‘And what if’ – meaning the defendant – ‘didn’t take up that information to leave?’  Holsworth’s reply:  ‘I don’t recall immediately that I gave any further instruction than that.’”

16. [16]
    The reasons record at 2-3:

“It came as no surprise that there was some background history to the incident on the 29^th of June 2003.  It is not disputed that on the Sunday before this date, Bishop Holsworth and Dobinson had personally attended at the address of the defendant to discuss some issues concerning the defendant’s prior behaviour when attending services at the Church of Jesus Christ of the Latter Day Saints at 370 Underwood Road, Eight Mile Plains.  It is common ground that their presence was not welcome;  that the defendant told them to leave;  if they did not, he would call the police and that he did call the police and consequently Bishop Holsworth and Dobinson left.”

The Bishop in his evidence said he had mentioned “concerns with his conduct at the meeting house” (24) and perhaps a more general concern “about some of the inappropriate conduct by Mr Hodgens towards others in the Church community” (25).  He said he “was concerned with the ongoing safety of the Church community” (26), without explaining why.

17. [17]
    The Magistrate is to be commended for his thorough analysis of the factual and legal issues put up for his determination. He has gone to considerable trouble to explain his conclusions about credibility of witnesses. Another Magistrate or a jury may well have responded differently. For example, Dobinson and Ives may not have been thought more “independent” of each other than the appellant’s mother was from him. A more indulgent attitude to the appellant’s vacillation as to whether it was Dobinson or Ives who started pushing him down the steps than the Magistrate’s at page 15 of his reasons may have been taken, especially in the light of his presumed inexperience in giving evidence (especially as compared with the complainants) and the considerable length of time which elapsed between the relevant date and his giving evidence. Dobinson and most of the prosecution witnesses had the advantage of being in the witness box after 101 days: it was a further 201 days before the appellant and his mother had their chance. Other minds might have eschewed the approach taken to exempt the complainants from the suspicion of having perpetrated any “assault” themselves at page 21 of the reasons:

“It seemed unreasonable on the evidence why Dobinson and Ives would not have stated that they used the force described by the defendant and his mother, if it was in fact used by them.  It appears to me that on their case, following their refusal to allow him to enter the church, and his attempt to force past Dobinson, that they were entitled to use reasonable force to prevent him from entering the church and remove him from the church property.  Ives certainly was prepared to use force after they had walked, on his evidence, about 10 metres from the bottom of the stairs, and described in fair detail how he resisted force applied by the defendant in a continued attempt to go into the church, and that he applied force on two occasions on his versions, to restrain the defendant on the ground.”

(In other words, on the basis that the complainants would be protected by s. 277 in using force, if they had used force, they would have said so.)

18. [18]
    Notwithstanding the content of the preceding paragraph, this court must accept that the Magistrate who heard and saw the witnesses was in the best position to determine what the evidence proved; there is no basis shown for second-guessing his findings. Those do not accept the complainants totally. In particular, it seems noteworthy there is no finding that the last sentence in the speech attributed to the appellant:

“You can’t stop me coming in.  This is my Church.  Is my name on the membership roll?  If you don’t let me in to the building, I will bash you.”

was said.

19. [19]
    The Magistrate took some trouble to pull out and quote passages of Ives’s evidence about the alleged assault on Dobinson. He said at page 4 line 49:

“Ives said, on this point, ‘Craig once again said that he wasn’t welcome to enter the building.’  The defendant replied words to the effect of, ‘You can’t stop me coming in.  This is my church.’  Ives said the defendant was still in front, but after those words, he had changed.  ‘He went around to Craig’s right-hand side and tried to push past – push past Craig, requiring Craig to extend his right arm to stop the defendant’s progress.’  Ives then interceded and told the defendant he was committing an offence and directed him to leave the premises.”

and at page 18:

“Ives said ‘The defendant didn’t seem to be understanding what I was saying and I asked him repeatedly whether he was refusing to leave the premises and once again, he didn’t give any direct answer to those questions.’”

having noted at 14 that:

“The Prosecution alleges that Ives gave the defendant a direction to leave after he stated to him ‘that you have committed an offence’, namely the common assault on Dobinson.”

20. [20]
    A particular concern I have is that the Magistrate may have proceeded on the basis that he should accept evidence which was undisputed (page 7 line 54) or where there was “no challenge” (page 5 line 35) or where “there was no evidence to the contrary” (page 6 line 2). It is open to any jury or tribunal of fact to reject evidence which is unchallenged. The evidence which gained acceptance in this way was important at the trial, bearing on the Bishop’s authority to exclude the appellant from the Church premises or attach conditions to his presence there, and also the authority that he might and/or did delegate to Dobinson and Ives.  By reference to delegation, the Magistrate found or stated at various point that they were “acting lawfully” (for example page 8 line 5, page 8 line 21, page 9 line 39, page 11 line 50, page 24, line 31).  Twice, by reference to s. 268(3) it was noted in relation to provocation that the “defence is not available [in response] to a lawful act,” (page 11, page 23).  As appears elsewhere, the concepts are not necessarily the same.  It is not clear that “acting lawfully” refers to the same concept of “lawful act” as was explained in the West Australian cases, which I think are correct.  What makes this important is that there appears to have been an unintended changing of the onus of proof, which from start to finish in a prosecution rests on the prosecution side.  Of course, the Magistrate expressly stated the standard of proof in the third paragraph of his reasons, which conclude in an orthodox way in respect of the Dobinson charge at page 14 (“I find that the prosecution have proven all elements of that charge against the defendant beyond reasonable doubt, and I find him guilty of what I would describe as a very minor assault”) and in relation to the Ives charge at page 24 (“I also find that the prosecution have proven all the elements of this offence and I find the defendant guilty of that offence”).  What one does not find is any statement that the prosecution bore (still less satisfied) the onus of negativing the defence of provocation beyond reasonable doubt.  It is trite law that the common defences of provocation, self-defence, accident, mistake and the like, where they arise on the evidence, are not matter for proof by the defence, but matters for proof (to exclude them) by the prosecution.  The situation is made more concerning by the way in which the Magistrate (conceptually correctly) dealt with the defence of mistake, which at one point seemed to be rolled up with the appellant’s asserting an honest claim of right to enter the church, at page 13:

“I find that the defence of s. 24 of the Criminal Code has been raised but it has been negatived by the prosecution.”

21. [21]
    Another defence which the Magistrate ruled had not “been properly raised in this instance” was self-defence, under s. 271 of the Criminal Code.  See page 23 lines 23-53. 

(Again, at page 24 line 37, it was said that, “The defence of self-defence against unlawful assault is not able to be raised by the defendant.”)

22. [22]
    Section 277, as Ms Cuthbert noted in the appeal, in terms does not apply, as on the prosecution case (which the Magistrate accepted) there was no actual use of any force whatever by Dobinson or Ives until after both had been separately assaulted by the appellant. (It is intriguing to note that, having regard to the appellant’s injuries, if the incident had occurred six years earlier, when s. 277 referred to “bodily harm” only, not “grievous bodily harm”, the complainants might potentially have been unable to invoke the section successfully (other things being established) and may have been liable either criminally or civilly. (See McNeill v Gold Coast City Council [2002] QDC 029.)  It would seem that if s. 277 authorises use of force, it would a fortiori apply to an invitation, exhortation or order to leave.  However, the object of any of those must be a person wrongfully entering or wrongfully remaining.  Although the word “trespassers” appears in the heading, I do not think there was any occasion to rely on UK authority about the meaning of that word, as noted already.  Section 277(1) is clear in its meaning.  The prosecution had to prove (and prove beyond reasonable doubt) that the appellant wrongfully remained on the premises in order to have any prospect of negativing the defence of provocation by reliance on s. 268(3).  I reiterate that it was for the prosecution to prove a “lawful act” beyond reasonable doubt – which requires that s. 277(1) be shown to operate beyond reasonable doubt. 

23. [23]
    In my opinion, the “oral evidence” about the Bishop’s authority over the premises (which the Magistrate was not obliged to accept) was unsatisfactory. The situation is complicated by the sharing of the premises by three different wards or congregations, despite Heffernan (1985) 20 A Crim R 122, which confirmed the authority of the officer in charge of a police station for a particular shift to withdraw the licence of members of the public to be there, and that officer’s status as “occupier” for purposes of making guilty of an offence a person who “refuses to leave that place after being warned to do so by the owner or occupier or a person authorised…”.  There must have been relevant written rules that could have been referred to.  President O'Reilly made it clear the Church has disciplinary procedures which had not been invoked.  On the face of things, I think it extraordinary that a Church member should be excluded from worship, still more so that he should be excluded from the entire Church premises, while informal attempts are pursued to encourage him to agree to meet to discuss “issues” with a Bishop (a fortiori if not the Bishop of his own ward – the evidence here was conflicting, but it seems the appellant did not reside in the Eight Mile Plains ward).  My analysis may have been otherwise if the Bishop himself had given some advance notice of his intention.  The appellant’s claim of right to enter the Church to worship is easily understood.  I do not think it can be said beyond reasonable doubt that, having attended with his mother without any inappropriate intention or (as far as the evidence goes) being likely to threaten the safety, ease or tranquillity of others at the worship event, he can be characterised as “wrongfully remaining” because he did not bow to the Bishop’s out of the blue invitation as communicated by the complainants. The appellant was suddenly in the unsatisfactory situation of having to guess whether the complainants were authorised by the Bishop. It was not shown beyond reasonable doubt that it was open to the Bishop or Dobinson (or Ives) to change the terms of the appellant’s right of access to and use of the premises in the way purported to be adopted.

24. [24]
    I think the inevitable conclusion from the Magistrate’s statement in relation to each charge that the defence of provocation was “not properly raised” is that he did not even get to the point of considering s. 269, which creates the defence (it is nowhere mentioned in the lengthy reasons) or ever get beyond s. 268(3) and s. 277 in his reasoning.

25. [25]
    There are various possibilities for negativing the defence of provocation open to the prosecution. Some arise under s. 269, which enables it to be shown that the defendant did not lose his power of self-control, or used force disproportionate to the provocation (or excessive in being likely to cause unacceptable physical consequences). Section 268 offers the prosecution additional possibilities. It may be shown under subsection (1) that there was no “wrongful act or insult” at all, or that an ordinary person would not have been deprived of the power of self-control by whatever was done - or it may be shown under subsection (3) that the matter suggested to be provocation was “a lawful act”. It is not necessary to examine additional possibilities, for example under subsection (4). The s. 268 possibilities must be established by the prosecution beyond reasonable doubt every bit as much as the s. 269 possibilities. I am troubled by the statement (at page 5) that “whether Dobinson and Ives were acting unlawfully…is a central issue for the prosecution and the defence” and the possibility that it bespeaks a notion that the defence must prove something. It is not necessary to place any weight on that statement, however, for me to reach the view that the Magistrate’s reasoning is vitiated by reliance on such a notion. His expression “not properly raised” is apt only to describe a deficiency on the appellant’s part, and presumably a deficiency of proof.

26. [26]
    When the Magistrate said, at page 14 line 3, that the prosecution had proved all elements of the offence being considered, he did not say, as ideally he might have, that it had excluded defences. It must be acknowledged that where an element of an offence is unlawfulness, proof of the elements, technically, implies excluding defences such as provocation, which make otherwise concerning conduct “lawful”. It is always a comfort to have the approach adopted towards defences expressly stated. See, in relation to the other charge involving Ives, the similar mode of expression at page 24 line 46.

27. [27]
    I regret to say that, in those circumstances, the findings of guilt must be set aside. That is not to say, any more than was the case in Nakayama, that the appellant committed no offence, he may have done;  the prosecution failed to show that he did, by not excluding defences of provocation beyond a reasonable doubt.  My interpretation of the reasons is that the Magistrate did not apply the criminal standard of proof rigorously throughout.  If there were any question of sending the proceeding back to the Magistrates Court under s. 225 of the Justices Act 1886, I would not be disposed to do so, having regard to the trivial nature of the offending charged and the extent of court proceedings that the appellant has already been subjected to.

28. [28]
    Regarding the appellant, the Eight Mile Plains ward hierarchy displayed a willingness to involve police (albeit off duty, presumably), then rostered local police, then the police prosecutions branch, which may strike some as an unusual approach towards dealing with spiritual, pastoral or ethical concerns. Ives, brought in by the Bishop from outside the ward on account of his expertise (in “issues related to the legal capacity that we might have to ask someone to leave the premises, given the concerns” (transcript page 35)) was quick to characterise the Dobinson incident as an offence and, I would think, inflame the situation. One would think that backing for Dobinson other than that of an imported police officer (of rather legalistic bent^[2]) might have been found.

29. [29]
    It should not be thought that the court is endorsing the general approach of the appellant towards the Church hierarchy, from the point of view of showing appropriate respect. The supposed “issues” about the appellant’s behaviour in the Church never got beyond scuttlebutt or innuendo, so far as the evidence goes, but it is clear the Bishop held genuine concerns. The appellant did not expand on his assertion to the effect that he had been subjected to treatment as bad as or worse than whatever he stood accused of. Perhaps fortunately, neither the Magistrates Court nor this court got any detail about those matters. A consequence was that the prosecution was weakened by not showing anything remotely approaching a compelling case for excluding the appellant.

30. [30]
    The appeal will be allowed and the Magistrate’s findings of guilt set aside, to be replaced by findings of ‘not guilty’.