DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this matter the defendant was convicted after a trial before the learned Magistrate at Gympie of unlawful assault of the complainant, who was 60 years of age or more. Upon his conviction he was sentenced to three months imprisonment, wholly suspended with an operational period of 12 months and was ordered to pay $500 by way of compensation.

2. [2]
   The incident, which occurred on 6 March 2011, followed a minor traffic accident involving the vehicles that the complainant and the defendant were driving. After the collision both vehicles pulled over to the side of the road and the drivers got out. A short time later the defendant struck the complainant. That he did so was not disputed. The defendant’s case was that he did so in self defence, or as a result of the complainant’s provocation. He relied on ss 269 and 271 of the Queensland Criminal Code.

Decision appealed from

3. [3]
   The Magistrate concluded that neither defence was made out.

4. [4]
   She said with respect to the defence of provocation:

1. (i)
   The onus remained on the prosecution to show that the assault was unlawful;

2. (ii)
   “If the defence seek to raise [provocation] then as long as they raise that on the balance of probabilities, then the defence was not unlawful because it was the result of provocation” (see T2-3, lines 20-30);

3. (iii)
   Once the defendant raised the issue of provocation on the balance of probabilities, then the onus shifted to the prosecution to negative the defence beyond reasonable doubt.  In so holding she relied on R v Stingel (1990) 171 CLR 312;

4. (iv)
   The relevant test was an objective test.  She said the question was whether the acts said to constitute provocation were “such [as] to cause the ordinary person to lose self-control” (see T2-3, line 58 to T2-4, line 1);

5. (v)
   If she found the complainant’s actions were “such that on the balance of probability they are capable of causing a reaction in an ordinary person to satisfy section 269 or 270” then she must “look to the case of the prosecution to ascertain if this defence is negatived beyond reasonable doubt.” (T2-4, lines 4-12);

6. (vi)
   The “defence of course is negatived if the Crown have established beyond reasonable doubt that [the complaint’s] actions would not in fact deprive an ordinary person in [the defendant’s] shoes of all power of self control such that he would act upon it … suddenly and before his passion had time to cool.  Further…that the force then used is not disproportionate to the provocation.”

5. [5]
   The learned Magistrate then turned to the facts of the case, referring to the evidence of the complainant, Ms Hathily (who was a passenger in the complainant’s car) and the defendant. Importantly, the Magistrate noted that Ms Hathily was “momentarily distracted” and did not see the defendant strike the complainant. She said that Ms Hathily heard the complainant say “You could go to jail for that” and the defendant reply “No. It was self defence”.

6. [6]
   Both the complainant and Ms Hathily gave evidence of the defendant driving in what might be termed an aggressive manner. The learned Magistrate seemed impressed by their evidence (see T2-4, lines 48-52; T2-5, line 30; T2-6, lines 22-26 and line 40; T2-7, lines 12-28; T2-8, lines 2-4). By comparison, she was clearly not impressed by the defendant’s evidence.

7. [7]
   Importantly, the learned Magistrate said:

“I reject [the defendant’s] version of events…I accept the version of [the complainant] and Ms Hathily…I found [the defendant] evasive at times, in that he could not recall some things which were not supportive of his version and other parts such as the actual details of his hands in the assault….Over all I preferred the version of [the complainant] and Ms Hathily.”

8. [8]
   She then said:

“Whilst the case of Stingel provides that I must take the version most favourable to the defendant, I must be satisfied on the balance of probability the facts do establish the possibility of provocation.  On the balance of probability, I find that [the complainant’s] behaviour in the driving and his statement after the crash does not raise, on an objective test, sufficient to discharge that onus.  On the balance of probabilities, I find it more likely that [the defendant] was frustrated at his inability on the road to go where he wanted when he wanted but this was not caused by [the complainant].

I preferred the evidence of the complainant and his partner and accept that they passed [the defendant] as he sat behind the larger vehicle, was therefore not able to merge approximately until [the complainant’s] vehicle had passed.  I accept that [the defendant] was frustrated and, in fact, tooted his horn but cannot find this was due to [the complainant’s] behaviour.  In fact, I find it was caused by [the defendant’s] own impatience and aggression on the road. 

Importantly, I find that, in fact, it was [the defendant] who moved in to the complainant’s vehicle at the merging south of Gympie and I make this finding on the evidence that I preferred the evidence of [the complainant] in this respect and also that of Ms Hathily who both gave evidence that was not shaken.  Now, particularly, Ms Hathily was not shaken at all in her observation of the events of the vehicle incident. 

In relation to the fact of [the complainant] getting out of the car to say, ‘What the fuck do you think you are doing?’, I also find that on an objective test, as required by the High Court in Stingel, this is not satisfied to raise on the balance of probabilities that that would cause an ordinary person to react, losing self control and assault a person. 

Thus, I find that the defence was not raised on the facts that I have found on the balance of probabilities to establish the possibility of provocation.  I do not find on the balance of probabilities that the defence of provocation is raised.”

9. [9]
   Importantly, the learned Magistrate then said:

“But if I am wrong on that case, then as such I would have to go on to look whether the ordinary person would be deprived of the power of self control by provocation to assault the complainant as occurred.”  (My underlining).

10. [10]
    She continued:

“An objective test must be satisfied.  That is, is it such that it would have caused an ordinary person to lose control?” (My underlining).

11. [11]
    The learned Magistrate then observed that “the High Court went on to say that it may be that personal characteristics of the accused may not be necessarily relevant in assessing the gravity of the assault” (T2-11, lines 28-32). She said she had “to assess whether the gravity would cause an ordinary person to lose control” and found “on the ordinary person test, most people would not react” in the way the defendant had. (My underlining). In so finding, it is important to note she appeared to consider only the question of whether the complainant’s driving of his vehicle (see T2-11, line 42 where she referred only to the “road interference” and T2-12, line 20 where she referred to “the road behaviour”) would cause “an ordinary person [to] be so deprived of self control that they would jump out of a car and punch a person” and not whether other aspects of the complainant’s behaviour might have done so.  (My underlining). The learned Magistrate then said:

“Thus I find that even if I was wrong and provocation was in fact established, the Crown has negatived it beyond reasonable doubt.”

12. [12]
    On that basis the learned Magistrate rejected the defence of provocation. Nowhere in her analysis of the defence of provocation did the learned Magistrate refer to the evidence of what occurred between the complainant and the defendant once they had got out of their cars, other than referring to the words the complainant used, namely “What the fuck do you think you are doing”, and whether any conduct of the complainant at that time was relevant to the question of provocation.

13. [13]
    The learned Magistrate then turned her mind to the defence of self defence under section 271 of the Code. She said (at T2-12, line 40 and following) that the defence sought to rely on the circumstances of the accident and the complainant’s comment “what the fuck do you think you are doing”. She said:

“I’ve already found that I do not accept the defendant’s version of events in relation to the car ram and thus, on the balance of probability, find that on the facts they do not give rise to an assault to trigger the requirement for the Crown to negative the defence.”

14. [14]
    The learned Magistrate said the comment of the complainant to the defendant “could not cause a reasonable apprehension of grievous bodily harm or death and thus section 271(2) of the Code does not apply so that the only possible basis for self defence is to be found in section 271(1)”.  (My underlining). The learned Magistrate then said that “On the standard of probabilities I have to be satisfied that the comment ‘What the fuck do you think you are doing?’ raised a belief in the defendant that he must defend himself with such force as is reasonable in the circumstances as he believed them to be”.

15. [15]
    In considering this issue she said “I accepted the versions of the complainant [and] Ms Hathily and preferred it to the defendant.” (T2-13, lines 28-30). She said the defendant’s response “was a response of anger rather than a response of perceived danger”. In so finding, the learned Magistrate noted that the defendant had admitted that the complainant’s “hands were in the air with open palms actually in a more questioning style”. She said this did not suggest “a threat of attack or violence”. The learned Magistrate then said that she determined “on the balance of probabilities” that the statement made by the complainant could not give rise to a threat to the defendant. Further, she found that even if the defendant, mistakenly, believed it was such a threat that such a belief was “so unreasonable that it could not have been honestly held.” She said she could not accept that the defendant “honestly believed that [the complainant] was going to assault him.”

16. [16]
    The learned Magistrate then turned her mind to what action a person in the position of the defendant would have taken by way of response to any action by the complainant. She said that “[t]he punch from an objective point of view, was far greater than reasonably necessary to provide any defence against the statement of [the complainant].”

17. [17]
    She concluded her judgment by saying:

“I cannot, therefore, find in the circumstances that the facts are able to establish the defence of self defence and even if it was, the Crown has negatived the defence in that there was little dispute in…regard to the words and gestures of [the complainant]”.

18. [18]
    In such circumstances she found the defendant guilty and imposed the sentenced I earlier referred to.

Appeal

19. [19]
    The appellant appealed against both convictions and the alleged severity of the sentence.

20. [20]
    It is clear that the learned Magistrate relied in considering the defences of provocation and self defence almost entirely on the traffic incident itself and on the words spoken by the complainant namely “what the fuck do you think you were doing” (or similar). In fact the defendant’s case was significantly wider. The defendant’s trial counsel referred during submissions (see T1-92 and following) to the following:

1. (i)
   The traffic incident which he submitted was caused by the complainant running into the defendant’s vehicle.

2. (ii)
   The words the complainant used that I have already referred to.

3. (iii)
   The complainant’s demeanour.

4. (iv)
   The position of his hands as he walked towards the defendant.

5. (v)
   The fact the incident occurred very quickly.

21. [21]
    He reiterated the following factors as relevant to the defence as self defence (at T1-93, line 44 and following):

1. (a)
   the complainant’s alleged aggressive demeanour as he walked towards the defendant;

2. (b)
   the words the complainant used;

3. (c)
   the fact the defendant reasonably apprehended that he was going to be hit and the need to protect himself;

4. (d)
   the fact he threw only one punch.

22. [22]
    The defendant’s evidence about the incident was contained at T1-73 to T1-75 and T1-89 to T1-90. It may reasonably be summarised as follows:

1. (i)
   The complainant got out of his car and walked briskly towards the defendant (T1-73, line 4).

2. (ii)
   At the time the defendant was near the back of his car (T1-73, line 26) the complainant said “what the fuck are you doing” loudly (T1-73, line 32) and at that time was throwing his hands in the air (T1-73, lines 40-42; T1-89, lines 6-8).

3. (iii)
   The defendant could not remember anything else that the complainant had said (T1-88, line 50; T1-89, line 2) and could not recall whether the hands were open or clenched (T1-89, line 12).

4. (iv)
   The complainant seemed “pretty angry” (T1-73, line 46 and, generally, T1-74, lines 6-8).

5. (v)
   He approached within two feet of the defendant (T1-74, line 26).

6. (vi)
   Out of the corner of his eye the defendant said he saw a fist or a hand (T1-74, line 40; T1-89, lines 26-30) but denied seeing a punch (T1-90, lines 26-32).

7. (vii)
   The defendant “flinched and moved to the right” (T1-74, line 42) then punched the complainant with his left hand (T1-21, line 48), striking the left side of the complainant’s face (T1-74, lines 50-52) and knocking the complainant’s glasses off (T1-75, lines 20-30).

8. (viii)
   The defendant said he saw the complainant’s fist “waving around” but did not know whether the complainant was just gesturing with his hands (T1-90, lines 30-36) and could not recall whether they were opened or closed.

9. (ix)
   The defendant thought he was going to be struck (T1-89, line 32; T1-90 lines 40-50).

Was there error?

23. [23]
    The learned Magistrate made a number of significant errors in relation to both legal and factual matters. Of particular factual importance was her statement, when considering whether the complainant’s actions may have caused the defendant to react out of self defence to a perception of being struck by the complainant’s raised fist, that the defendant “admitted that [the complainant’s] hands were in the air with open palms, actually in a more questioning style” which did not suggest “a threat of attack or violence with [the defendant] admitting that the hands were open palmed not clenched fists.”

24. [24]
    I have already briefly outlined the tenor of the defendant’s evidence above. He did not make the admission on which the learned Magistrate relied. Because of the particular finding the Magistrate made I will set out his evidence about the threat or perceived threat of attack by the complainant more fully. The following passage is taken from his evidence in chief (see T1-74, lines 35-52):

25. [25]
    In cross-examination he gave the following evidence:

26. [26]
    Later this questioning took place:

27. [27]
    In my view it is quite apparent that the learned Magistrate was in error when she said that the defendant admitted the complainant had his hands extended with open palms in a questioning style, and that his hands “neither suggests a threat of attack or violence with [the defendant] admitting that the hands were open palmed and not clenched in fists.” In my view this factual error is of critical importance. It must necessarily have influenced the learned Magistrate’s approach to the issue of self defence, since she acted on the mistaken belief that on the defendant’s own version the complainant did not in fact pose any threat to him and, perhaps more importantly, the defendant could not have honestly and reasonably but mistakenly have believed that he posed such a threat. It is also very likely that her misunderstanding of the defendant’s evidence would also have adversely affected her view of his creditworthiness.

28. [28]
    It is also clear that the learned Magistrate made a number of mistakes in her approach to the legal issues of both provocation and self defence. The crown in its submissions conceded that to be so. In particular she appeared to generally confuse questions associated with whether the evidence would have raised defences of provocation or self defence sufficient to allow those matters to be left to a jury, if it were a jury trial, and the approach of a magistrate in a trial where no jury was involved. Ultimately, however, she did consider both defences on the basis that the prosecution had to negative the defences beyond reasonable doubt, although there were statements which suggest that at times she approached matters applying the less onerous civil standard. In addition, the learned Magistrate in my view misapplied the appropriate test when she suggested the question was whether an ordinary person would be deprived of the power of self control by provocation, and in respect of self defence, whether the statement of the complainant could cause a reasonable person to apprehend grievous bodily harm or rouse a belief in a person that they must defend themselves. (My underlining).

29. [29]
    In my view consideration of the relevant statutory provisions indicates that the test is not whether that would occur but, in respect of provocation, whether “any wrongful act or insult was 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 other. (My underlining).

30. [30]
    Similarly, with respect to the defence of self defence, the relevant question is whether force used by the defendant was “reasonably necessary” and not whether an ordinary person “would” act in the way the Magistrate considered.

31. [31]
    Ultimately however it is my view that the factual error to which I have referred vitiates the learned Magistrate’s findings. In my view she approached the issue of self defence on the incorrect factual basis as I have identified.

Consideration

32. [32]
    The important question which remains is to what should now be done with the matter.

33. [33]
    The defendant’s counsel submitted that I should determine the matter on the basis of the material before me and not remit it back to the Magistrates Court for re-hearing by another Magistrate. Section 225(1) of the Justices Act provides:

“(1) On the hearing of an appeal the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just.”

34. [34]
    If a Judge determines that the Magistrate who originally heard a matter was in error, such that the decision below is to be set aside, then the Judge “giving due deference and attaching a good deal of weight to the Magistrates view” (see Tate v Aarjets Pty Ltd ATF The Jurgholme Trust & Anor [2010] QCA 243) may himself or herself reconsider the matter.

35. [35]
    In my view it is in the interests of justice that the matter now be resolved without a rehearing. In so concluding I have had regard to:

1. (i)
   The fact that all witnesses gave evidence in November 2011 about this event, which itself occurred in March 2011 and I have a full transcript of that evidence.  If the matter were remitted it may well be about two years after the event before the matter is re-heard and memories would necessarily be diminished. 

2. (ii)
   It is also, in my view, in the interests of justice that the litigation be closed as early as possible (see Devereaux DCJ in Ragus v Staitt & Anor [2011] QDC 284).

3. (iii)
   The costs to the defendant, and indeed to the State, of having the matter re-heard must be balanced against the nature of the alleged crime which, though serious in its own way, is towards the lesser end of seriousness for offences of assault. In so concluding I have had regard to the fact that only one punch was delivered, serious injury was not occasioned and, although the complainant was more than 60, he was not infirm.

36. [36]
    In my view, the justice of the case requires that I determine the matter on the evidence that has been given.

37. [37]
    Having regard to the whole of the evidence, and whilst mindful of the learned Magistrate’s strong preference for the evidence of the complainant and his companion, Ms Hathily, I have come to the conclusion that, on a proper view of the evidence, the defendant should be found not guilty of the offence.

38. [38]
    The evidence leaves me, and would, in my view, leave a Magistrate considering the matter and mindful of the whole of the evidence, in reasonable doubt, at least with respect to the defence of self defence. It is always difficult to determine fault with respect to a motor vehicle accident in the absence of clear objective evidence. Here the only evidence was the evidence of the drivers and of the complainant’s passenger. In any case, the determination of fault with respect to the motor vehicle accident was not decisive of any issue. Even if, beyond reasonable doubt, the defendant was the sole cause of the accident that does not mean that the defendant’s stated perception that the complainant posed a threat to him was wrong or unreasonable. The evidence is clearly that the complainant said words to the effect “what the fuck do you think you were doing”. One needs little experience of life to understand that such words, containing the expletive stated, and in the emotion immediately after a motor vehicle accident on a highway, were likely to have been said vehemently, even belligerently (though perhaps with some justification).

39. [39]
    In my view the evidence does not persuade me beyond reasonable doubt that the defendant did not honestly and reasonably, though mistakenly, perceive the complainant’s presence, close to him, vehemently exclaiming as I have stated, as a threat and that the blow he delivered was by way of self defence to that perceived threat.

40. [40]
    Under s 271(1) of the Criminal Code, read with s 24 of the Code, there are four matters to be considered, namely:

1. (i)
   Did the defendant honestly and reasonably though mistakenly believe that the complainant was about to unlawfully assault him?

2. (ii)
   Had the defendant himself provoked the assault?

3. (iii)
   Was the force used by the defendant reasonably necessary to make an effectual defence against the perceived assault by the complainant?

4. (iv)
   Was the force used not intended or likely to cause death or grievous bodily harm?

41. [41]
    When considering those questions it is necessary to recall that the burden rests on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self defence.

42. [42]
    In my view, giving weight and due deference to the views of the learned Magistrate, it is not possible to conclude beyond reasonable doubt that the defence was disproven. The Magistrate misunderstood the evidence about the defendant’s description of the complainant’s hands as he approached the defendant, and mistakenly believed he had made a concession that he did not. She must therefore have necessarily misunderstood what the defendant said about the extent of any perceived threat to him from the complainant, and so in my view less weight should be attached to the Magistrate’s finding of fact about that issue than might otherwise have been the case. In my view, her findings were tainted by a belief that the defendant had reacted entirely inappropriately, and out of anger, because she viewed his behaviour from a consideration of how a reasonable person would react to another person approaching, with hands open, and outstretched, in a questioning manner. She failed to give consideration to how a reasonable person involved in what was likely to be an emotionally charged environment immediately following an accident on a highway might react, even if that person had in fact materially caused the accident, if approached in the manner the defendant described.

43. [43]
    Even if the defendant’s driving was the cause of the accident that would not mean the defendant had provoked an assault by the complainant.

44. [44]
    In my view, it would be difficult to conclude beyond reasonable doubt that such a person might not react, on the spur of the moment, by delivering one punch, albeit to another’s face, if confronted by a person, speaking vehemently, perhaps even belligerently, and perhaps with arms flailing and fists clenched. While I appreciate the complainant’s evidence was not to that effect, the absence of corroborative evidence, in my view, causes me to have a reasonable doubt about the prosecution case.

45. [45]
    That is not of course to find that the complainant in fact behaved as the defendant asserts, or to find that the defendant did in fact react out of self defence to a perceived danger.

46. [46]
    Rather, in my view, it is not possible in the circumstances of this case to conclude beyond reasonable doubt that the defendant was guilty of the offence charged. In my view, the prosecution did not negative the defence of self defence. In that circumstance it is unnecessary to consider the further submissions in respect of provocation.

Order

47. [47]
    In my view, the appeal should be allowed and the defendant should be discharged. I will hear argument as to costs.