DISTRICT COURT OF QUEENSLAND

1. [1]
   On 22 August 2012 the appellant was convicted in the Gympie Magistrates Court on one count of having unlawfully assaulted Luigi Mario Sergi. He was sentenced to one month imprisonment. The sentence was wholly suspended for an operational period of six months.

2. [2]
   He appeals against both his conviction and his sentence. The finding of guilt upon which he was convicted is said to be contrary to the evidence and should be set aside as unreasonable. It is further, or alternatively, said that it cannot be supported, having regard to all the evidence. The sentence is said to be excessive in all the circumstances.

3. [3]
   The appeal against conviction raises as grounds that the prosecution did not exclude the defences of consent, self-defence, defence of a dwelling or of another, and provocation.

The Nature of the Appeal

4. [4]
   An appeal under s 222 of the Justices Act 1886 (Qld) is by way of rehearing on the evidence given before the learned Magistrate.^[1]  The court is required to conduct a real review of the trial and the learned Magistrate’s reasons.^[2]  In doing so, this court should give due deference to and attach a good deal of weight to the views of the learned Magistrate,^[3] but it remains for this court to draw its own conclusions on the evidence.

The Issues

5. [5]
   That the appellant struck Mr Sergi was not in issue. The appellant struck Mr Sergi on the head with an iron bar.  Mr Sergi was wearing a motorcycle helmet at the time.  Mr Sergi did not suffer injuries.

6. [6]
   The issues are whether the blow was struck during a consensual fight and thus was not an assault, or, if an assault, whether it was justified or excused because it was in self-defence, defence of a dwelling, defence of another, or because it was provoked.

The Evidence before the Learned Magistrate

7. [7]
   Mr Sergi said that on 30 December 2011 he was in Tin Can Bay to attend a 21^st birthday party.  He had been attending the house of friends by the name of Muir.  He went to an IGA store to buy cigarettes.  He said that whilst at the store, he was abused by the appellant, a person who he did not know.  He told the appellant to “fuck off”. 

8. [8]
   After this altercation, Mr Sergi said that he started to ride his motorcycle back to the Muir’s residence and that the appellant tailgated him. This tailgating caused Mr Sergi to turn off into a side street whereupon he became lost. 

9. [9]
   He said that he finally got his bearings and returned to the Muir’s house whereupon he said to the people who were gathered there, words to the effect of, “It’s on. I’m going to sort this out.”

10. [10]
    He then proceeded to the appellant’s house. He said that he knew it to be the appellant’s house because he had spotted the appellant’s vehicle, the registration number of which he had memorised. He also said that he had worked out who the appellant was when the appellant had mentioned the name of one of Mr Sergi’s friends, Perry Muir, during the earlier altercation at the IGA. 

11. [11]
    Mr Sergi described pulling up on the left hand side of the street.  He said that upon his arrival the defendant came running out on to the road wielding an iron bar. In his evidence-in-chief he described having seen the appellant pick up the iron bar.  He described the appellant’s demeanour as one of rage or anger.  He stated that he told the defendant “nicely” to put down the iron bar and that he and the appellant would talk about the problem.  He denied raising his voice to the appellant.  During this time, he got off his motorcycle, which was still running, and moved to the right hand side of the front of the motorcycle to protect it in case the appellant decided to lash out at the motorcycle.

12. [12]
    Mr Sergi stated that he kept asking the appellant to put the bar down so that the pair of them could talk.  Immediately following these events, he said that he was struck by the appellant with the iron bar.

13. [13]
    After the appellant struck him, Mr Sergi stated that he chased the appellant because the appellant had started running back inside his premises.

14. [14]
    He denied having arrived at the appellant’s premises to fight him. He denied agreeing to a fight. Mr Sergi said that his purpose in his going to the appellant’s house was to make peace and that he was intent on being a peacemaker.

15. [15]
    Under cross-examination, Mr Sergi agreed that he had said to the appellant at the IGA, as was recorded in his police statement, “I’ll be around in two minutes.”  He denied that his purpose in returning to the Muir’s house and saying “it’s on” was so that he would have backup.  Mr Sergi said that he had returned to his friend’s house to drop off the cigarettes which he had purchased at the IGA.

16. [16]
    When asked by the appellant’s counsel about his statement that he had seen the appellant pick up the iron bar, Mr Sergi said that he had seen the appellant pick it up from beside a tree in what he assumed to be the appellant’s yard.

17. [17]
    Mr Sergi denied that upon his arrival in the appellant’s street he got off his motorcycle and advanced towards the appellant, abusing him.  He again denied raising his voice to the appellant.  He said that at the time at which he was hit he was right beside his motorcycle and had one knee resting on it.  He said that following the blow to his head he went down with his hands hitting his knees for about two seconds.

18. [18]
    He denied that when the blow was struck to him he was either on the footpath or close to the appellant’s yard.

19. [19]
    Clifford Williams gave evidence. He was one of the people who had been at the Muir’s house. He said that after Mr Sergi had returned to the Muir’s house he (Mr Williams) followed Mr Sergi to the street where the appellant lived.  He said that when he arrived Mr Sergi was still on his motorcycle and was saying to the appellant words to the effect of “Mate, I don’t know what your problem is.  Put the bar down, we can talk about this.”  Mr Williams said that following this the appellant struck Mr Sergi with the bar, and then turned and ran to his house.  He said with Mr Sergi he followed the appellant and that they arrived at the house as the door shut.

20. [20]
    Mr Williams described the location at which the appellant had struck the blow to Mr Sergi as being probably halfway between the corner of the street and the appellant’s house.  He said that Mr Sergi was standing in the middle of the road with the appellant standing between the middle of the road and the side of the road on which his house was located.  He said that Mr Sergi’s motorcycle was still running at the time.  Mr Williams said that Mr Sergi had taken a couple of steps forwards, telling the appellant to put the bar down, before the appellant struck him.  He said that the appellant had also moved forward towards Mr Sergi.  He said that when he was struck, Mr Sergi went down.  He was not sure of Mr Sergi went down fully on one knee, but he looked like he was going to hit his knees.  He got up “pretty quickly”. 

21. [21]
    Mr Williams did not remember the appellant having said anything.

22. [22]
    Mr Williams said that when he first saw the appellant he (the appellant) was stepping off the footpath onto the road. It was not until the appellant was on the road that Mr Williams saw the bar which was then behind the appellant’s back. Mr Williams did not see the appellant pick up the bar.

23. [23]
    Under cross-examination Mr Williams denied that the blow was struck when the appellant and Mr Sergi were either on the footpath or inside the appellant’s yard.

24. [24]
    Ms Chantelle Muir was also at Mr Muir’s house when Mr Sergi returned, briefly, from the IGA.  When Mr Sergi had returned he had said, “It’s on.”  She too had followed Mr Sergi to the street where the appellant lived.  When she first arrived, Mr Sergi was seated on his motorcycle on the side of the road.  The appellant was out in the street and, she said, yelling.  Mr Sergi and the appellant were in the middle of the road.  She described the appellant as seeming very angry. 

25. [25]
    She said that Mr Sergi got off his motorcycle, walked around and said something to the effect of, “Put down the bar and we will talk about this. You don’t even know me.” The appellant then hit Mr Sergi. She said that after he was hit Mr Sergi fell to his knees and that he and Mr Williams then chased the appellant into the appellant’s premises.

26. [26]
    Under cross-examination Ms Muir denied that Mr Sergi got off his motorcycle and advanced towards the appellant’s house.

27. [27]
    Ms Muir also denied that when the blow was struck Mr Sergi was either on the footpath, or even further towards the appellant’s house.

28. [28]
    Mr Stuart Osborne gave evidence for the prosecution. He was not one of the persons who had been at the Muir residence when Mr Sergi had returned from the IGA.  He knew Mr Muir, but they were not friends.

29. [29]
    He lived two doors further down the street from the appellant. The learned Magistrate described Mr Osborne in her reasons as probably the most important witness. 

30. [30]
    Mr Osborne said he had heard an argument and had gone outside. He described seeing two people on the road. One (Mr Sergi) had pulled up on the side of the road. The other (the appellant) was in the middle of the road. They were arguing. He could not hear exactly what was said. All he recalled was one of the men saying words to the effect of, “Come over here onto the lawn and we’ll sort it out.” Whilst the identification of which person said that is not clear from the transcript (it being apparent that Mr Osborne identified one of the men in the courtroom as the speaker referring to him as “this gentleman here”) it would seem as though the person he recalled as having made this statement was the appellant. Mr Osborne, on a couple of occasions, referred to the statement as an invitation to step onto the lawn.

31. [31]
    Mr Osborne said that when he first saw them, Mr Sergi was sitting on his motorcycle and the appellant was a metre or two away from Mr Sergi on the roadway.

32. [32]
    Mr Osborne said that Mr Sergi got off his motorcycle and that the men casually walked over toward the footpath. Mr Osborne saw that the appellant had something in his hand, but he was not sure what it was at that time.

33. [33]
    On Mr Osborne’s account both men walked towards the footpath, and just before they reached the gutter he saw the appellant turn and hit Mr Sergi. The appellant then took off running towards his house. Mr Sergi chased the appellant.

34. [34]
    When asked by the Prosecutor whether Mr Sergi fell after he was struck by the appellant, Mr Osborne said that Mr Sergi had not “fallen down or anything”.

35. [35]
    When cross-examined, it became clear that the person who Mr Osborne recalled saying “come over onto the lawn and we’ll sort this out” was the appellant. Mr Osborne said that their voices were raised. He did not think that Mr Sergi was yelling. However, when reminded of his statement to police, Mr Osborne agreed that to the best of his recollection at the time he gave that statement, Mr Sergi had been yelling. He could not recall a word of what he heard Mr Sergi say, but he described Mr Sergi and the appellant as arguing.

36. [36]
    Mr Osborne, when reminded by counsel for the appellant, agreed that he had told police the following:

“I could see the male who was standing in the middle of the road was holding what looked like a metal bar in his hand and was screaming at the male on the bike words to the effect ‘come on mate, step onto my lawn and we’ll sort it out’.  The other male on the bike was yelling back at him and I couldn’t hear what he was saying.”

37. [37]
    Mr Osborne confirmed the accuracy of his earlier statement to police. He also agreed that the words he heard used by the appellant may have conveyed different meanings. One, effectively, being a warning not to come over onto the lawn; whilst another might be an invitation to do so.

38. [38]
    Mr Osborne denied, as did the other witnesses, that the blow may have been struck when the appellant and Mr Sergi were on the footpath. He said both men were definitely still on the road when the appellant struck Mr Sergi. He had them on the roadway about one-half to one metre from the gutter when the blow was struck.

39. [39]
    The complainant, Sergeant Grieve, gave evidence during which the court was played a video recording (Exhibit 4) made by Sergeant Grieve when he attended the home of the appellant when investigating the matter. The appellant, on that occasion, voluntarily re-enacted the events which had occurred. That re-enactment, which was recorded by Sergeant Grieve, included that the appellant was retreating into his yard in the face of an advance being made by Mr Sergi. The appellant said that as soon as Mr Sergi rode into the street and he saw Mr Sergi get off his motorcycle, the appellant walked back towards his house saying:

“Yeah mate, right, whatever.  Yep.  Yep.  Don’t come onto my lawn, cunt.  Don’t you fuckin’ dare come onto my lawn.  You come onto my lawn and I’ll fuckin’ kill you, you cunt.” 

40. [40]
    In the course of his retreat, the appellant said that he picked up the iron bar from behind a clump of trees and took a “swipe” at Mr Sergi through the trees. This swipe, on the version given by the appellant as recorded by Sergeant Grieve, must have been the occasion on which the blow was struck to Mr Sergi. On the appellant’s version, this occurred inside his yard.

Consideration

41. [41]
    It was understandable why the learned Magistrate referred to Mr Osborne as probably the most important witness. He was, as her Honour observed, “the only true independent witness”.

42. [42]
    However, having identified the importance of Mr Osborne’s evidence, the learned Magistrate did not deal with a number of aspects of that evidence which were inconsistent with other evidence in the prosecution case and, to some extent, consistent with the version of events given by the appellant as recorded by Sergeant Grieve in Exhibit 4. In other respects, her Honour’s findings on Mr Osborne’s evidence were not consistent with the entirety of his evidence.

43. [43]
    Her Honour said the following of Mr Osborne’s evidence:

“Importantly, however, he corroborated Mr Sergi’s claim that he pulled up and was sitting on his bike when he heard what he thought was the defendant say, ‘Come here and we’ll sort this out.’  He saw him get off the bike and stand in front of it, when he was hit.  He couldn’t recall if Mr Sergi fell, but under cross-examination too, he was adamant that the two men were still on the road and not on the footpath.  He denied that Mr Murray, the defendant, remained on the footpath.

On his own admission, however he said it happened fairly quickly and he was not totally committed to the entire scene.  He said under cross-examination that he didn’t hear the bike rider, Mr Sergi, yelling, but said he could have yelled back.  It was also put to him that if the other people had come around on the footpath, then his view may have been blocked thereby opening it that the parties were in fact on the footpath, but he rejected that.”^[4]

44. [44]
    The following observations may be made about those findings. First, whilst her Honour accepted Mr Osborne’s evidence as corroborating that Mr Sergi was sitting on his motorcycle at the time when he, Mr Osborne, heard the appellant say words to the effect of “come here and we’ll sort this out”, her Honour did not deal with the fact that Mr Sergi had not given evidence of any such statement having been made by the appellant, nor had Mr Williams nor Ms Muir. Indeed, Mr Sergi denied that the appellant had said anything to the effect of “don’t come in my yard” or “don’t come in my yard or it will be on”.^[5]  Secondly, her Honour did not give consideration to the concession made by Mr Osborne that the words which he heard the appellant use may have been conveying either a warning to Mr Sergi for him not to come onto the appellant’s lawn, or an invitation to do so.

45. [45]
    Thirdly, contrary to her Honour’s finding, Mr Osborne did not say that Mr Sergi was standing in front of his motorcycle, after having alighted from it, when he was hit. Mr Osborne’s evidence was clearly that, whilst the two persons were still on the roadway when the blow was struck, they had been walking over toward the footpath at the time,^[6] and that they had got to within about one-half a metre to a metre from the gutter.^[7]  In this regard, Mr Osborne’s evidence was contradictory, not corroborative, of Mr Sergi’s evidence.

46. [46]
    It is true that Mr Osborne was adamant that both people remained on the roadway and that accepting that evidence would exclude accepting the appellant’s suggestion in the recorded reconstruction that the blow was struck when they were on the footpath, or within his land. However, rejection of the appellant’s version of events as to location, does not necessarily require, or lead to, a rejection of his version of events as to the movements of the parties immediately before the blow was struck. Mr Osborne had them walking toward the footpath near the appellant’s home with Mr Sergi closely following immediately behind the appellant with the appellant turning and hitting Mr Sergi with the iron bar. That version of events, save as to the location and when the appellant picked up the bar, is more consistent with the appellant’s version than Mr Sergi’s.

47. [47]
    Fourthly, her Honour’s observation that Mr Osborne conceded that Mr Sergi could have yelled back at the appellant somewhat understates the evidence. The concession was that both Mr Sergi and the appellant were yelling. This is quite inconsistent with the versions of Mr Sergi, Mr Williams and Ms Muir, all of whom denied any suggestion of any yelling on the part of Mr Sergi. It is also quite inconsistent with Mr Sergi calmly and “nicely” telling the appellant to put down the bar so that they could talk about matters, as each of those witnesses had said that he had.

48. [48]
    The learned Magistrate considered it important that one particular aspect of the version given by the appellant was untrue, that being the time at which he picked up the iron bar. On his version, this occurred only as he retreated into his yard pursued by Mr Sergi. On no other version of events, particularly Mr Osborne’s, was this correct. It was an important issue as it determined whether the appellant initially went onto the street to confront Mr Sergi armed with the bar, or only armed himself when later retreating. Also, rejection of the appellant’s version of such an important issue may have reflected upon his credit such that other aspects of his version, not otherwise corroborated, might also be rejected. But, as I have already noted, much of the appellant’s version could be found to be consistent with, and thus corroborated by, Mr Osborne’s version. Those parts should not, therefore, be rejected because of the rejection of the appellant’s evidence as to when he armed himself.

49. [49]
    More importantly, for the purposes of this appeal, rejection of the appellant’s evidence as to when he picked up the iron bar, and a finding that this had occurred before he entered onto the road, is relevant to determining whether the defences raised, particularly consent, had been negatived.

50. [50]
    The learned Magistrate found that the defence had raised, on the balance of probabilities, each of the defences of consent, defence of a dwelling, self-defence, defence of another, and provocation. In respect of each of those defences, however, her Honour found that the prosecution had negatived it beyond reasonable doubt. In my view, her Honour erred in doing so in respect of the defence of consent.

Consent

51. [51]
    As set out above, the learned Magistrate did not address the evidence of Mr Osborne that Mr Sergi followed the appellant as they walked towards the footpath. Indeed, her Honour’s finding that Mr Osborne saw Mr Sergi stand in front of his bike when he was hit mistakes Mr Osborne’s evidence as to what occurred. That her Honour misunderstood this evidence is clear from a passage later in her reasons where she said:

“Even if he was intending to later accept the invite (sic) to step into the yard, which I do not find, he’d not even moved in that direction when he was struck.”^[8]

52. [52]
    Her Honour did observe, later in her reasons, that of the witnesses, “only Mr Osborne suggested Mr Sergi might have followed Mr Murray (the appellant) but even then he was still on the roadway”. Any acceptance of Mr Osborne’s evidence that Mr Sergi followed the appellant, even for the shortest of distances and so as not to have taken them beyond the roadway, would result in her Honour’s finding that Mr Sergi had “not even moved in that direction when he was struck” not being open.

53. [53]
    The learned Magistrate seemed to have concluded that Mr Sergi and the appellant both having remained on the roadway excluded the possibility that Mr Sergi had taken up the invitation. She was incorrect in so concluding. It was entirely consistent.

54. [54]
    Her Honour’s conclusion that consent had been negatived was based upon her acceptance that Mr Sergi was trying to calm the appellant down and requesting that he put the bar down so that they could talk. This was not supported by Mr Osborne’s account which had them both arguing and yelling.

55. [55]
    Accepting Mr Osborne’s evidence that Mr Sergi was walking behind the appellant after the appellant had invited Mr Sergi to “come over and we’ll sort it out”, and that at the time this invitation was issued the appellant was already armed with the iron bar, would lead to the conclusion that the prosecution had failed to prove beyond reasonable doubt that Mr Sergi had not consented to a fight. Her Honour had accepted that an invitation had been extended, but had found that the invitation had not been acted upon on a misunderstanding of Mr Osborne’s evidence.

56. [56]
    Furthermore, given that the appellant was then armed with the iron bar, the prosecution failed to negative beyond reasonable doubt that the level of violence to which Mr Sergi had consented extended to a blow with that bar to his head.^[9]

Defence of the Dwelling

57. [57]
    The learned Magistrate found that the defence of a dwelling under s 267 of the Criminal Code Act 1899 (Qld) (‘Criminal Code’) had been raised but negatived.  Her Honour did so, partly, on an erroneous basis.

58. [58]
    The error made by the learned Magistrate was that she found that she was satisfied beyond reasonable doubt that the force used was not necessary. Her Honour made that finding because she thought it was a question for her as to whether she considered the force to be necessary. It was not a matter for the learned Magistrate. Under s 267 the issue is whether the person who used the force believed, on reasonable grounds, it necessary to use that force.

59. [59]
    In answering that question which she incorrectly posed for herself, the learned Magistrate made another error. She found that the force was not necessary because the appellant could simply have retreated to his home and closed and locked the door. In R v Cuskelly Keane JA, with whom Muir JA and Daubney J agreed, observed:

“An accused person who is defending his or her home need not retreat from a threat even if retreat is a reasonably available way to make effectual defence against a threatened assault.”^[10]

60. [60]
    Notwithstanding these errors in her Honour’s reasoning, the learned Magistrate was, in my view, correct in rejecting this defence. Her Honour had already found that she was satisfied beyond reasonable doubt that the appellant did not hold the belief that Mr Sergi was attempting to enter the appellant’s dwelling to commit an indictable offence. Her Honour had also found that even if the appellant did hold that belief, it was not reasonable for him to do so.

61. [61]
    Her Honour based these findings on the fact that Mr Sergi had remained on his motorcycle and had only alighted in response to the apprehended threat of the appellant holding the iron bar in the striking position. Even allowing for the learned Magistrate’s failure properly to take into account the evidence of Mr Osborne, I am of the view that the learned Magistrate was correct in these findings. If Mr Sergi followed the appellant toward the footpath, he did so in response to comments made by the appellant when he had come onto the roadway brandishing the iron bar. I too would find that it had been established beyond reasonable doubt that the appellant did not believe, or did not believe on reasonable grounds, that Mr Sergi was attempting to enter the dwelling to commit an indictable offence.

Self Defence

62. [62]
    In finding that the defences of self-defence to, respectively, an unprovoked and provoked assault under ss 271 and 272 of the Criminal Code had been negatived, the learned Magistrate found that there was nothing in the evidence which suggested that Mr Sergi had assaulted or threatened to assault the appellant.

63. [63]
    I accept that there is nothing in the evidence to suggest that Mr Sergi actually assaulted the appellant, however, in my view there were bodily acts or gestures by Mr Sergi by which he threatened to apply force to the appellant. At the IGA Mr Sergi had told the appellant to “fuck off” and that he would be at his place in two minutes. He then arrived at the appellant’s street shortly thereafter. Even if he initially remained on or near his motorcycle, he later followed the appellant toward the footpath. In the absence of consent, those bodily acts and gestures of walking behind the appellant, in the context of the matters which preceded them, could constitute a threat of application of force.

64. [64]
    However, on the basis of an acceptance of Mr Osborne’s evidence, those bodily gestures occurred only after the appellant had invited Mr Sergi to step onto the appellant’s lawn so that they could sort it out, and only after the appellant had come onto the road carrying the iron bar yelling and arguing.

65. [65]
    For the same reasons I have found that Mr Sergi consented to being struck, any threat of force by Mr Sergi to the appellant was with the appellant’s consent.

66. [66]
    Therefore, there could be, in those circumstances, no assault, provoked or unprovoked, which could give rise to the defences of self-defence. Those defences were rightly rejected.

Provocation

67. [67]
    The learned Magistrate found that the prosecution had negatived provocation beyond reasonable doubt. In doing so, her Honour accepted that there was an altercation at the IGA, but found that the appellant had been the aggressor in that incident. Her Honour found that Mr Sergi, having told the appellant to “fuck off” and that he would be around in a couple of minutes, may have given rise to some apprehension in the appellant, however her Honour appears to have found, because the appellant left his premises upon the arrival of Mr Sergi or did not go back into his house and lock the door, as he later did, that these matters did not leave open a finding of provocation. Her Honour said:

“I accept there was an altercation at the shopping centre, but I also accept that the defendant caused that, being the aggressor.  Mr Sergi admitted that he told him to ‘fuck off’, and that he’d be around in a couple of minutes.  This alone may have given rise to some apprehension, but given that when Mr Sergi arrived, Mr Murray in fact left his home, or didn’t go back to his home and lock the door as he did later, given that Mr Sergi also said words to the effect, which I accepted, “You don’t even know me.  Let’s talk about this.  Put the bar down.”  This was after Mr Murray didn’t retreat to the safety of his home but in fact came armed to approach Mr Sergi.

Even if the comment at the shopping centre would be sufficient to induce a reasonable person to lose self-control, which I am not satisfied, the lapse in time would be sufficient for Mr Murray to exercise his powers of self-control.  I am satisfied beyond reasonable doubt that provocation has been excluded in relation to the incident at the shopping centre.”^[11]

68. [68]
    In my opinion, the appellant’s failure to retreat did not mean that a finding of provocation was not open. Indeed, failing to retreat may be entirely consistent with a finding of provocation. I am also of the opinion that even accepting that Mr Sergi said the words encouraging calm after the appellant approached him carrying the iron bar does not result in provocation not being open.

69. [69]
    Her Honour found that even if the comment at the shopping centre would be sufficient to induce a reasonable person to lose self-control (a fact of which her Honour was not satisfied) the lapse of time between that insult would have been sufficient for the appellant to exercise his powers of self-control. Thus, the learned Magistrate found provocation in relation to the incident at the IGA had been negatived.

70. [70]
    In respect of the events which occurred upon Mr Sergi arriving in the appellant’s street, the learned Magistrate found that Mr Sergi suggesting that he and the appellant talk about it, saying words to the effect: “Let’s talk. Put the bar down. We can sort it out. You don’t even know me”, negatived provocation beyond reasonable doubt. Her Honour found that the only act which could have provoked the appellant was Mr Sergi’s arrival. She found that, given the circumstances of Mr Sergi saying what she had accepted him to have said, no reasonable person “could have been induced to attack with an iron bar on that act alone”. Her Honour found that the evidence established beyond reasonable doubt that there was no other threat or act done by Mr Sergi other than his alighting from his motorcycle when he himself had been threatened by the appellant with the iron bar.

71. [71]
    The appellant complains in the appeal that the learned Magistrate erred in considering the circumstances which transpired separately. It is said that her Honour should have considered all of the alleged provocative behaviour together. It is said that all of that behaviour comprised: Mr Sergi having told the appellant to “fuck off” when at the IGA; Mr Sergi having said that he would be at the appellant’s house in two minutes; that upon his arrival Mr Sergi was yelling and aggressive towards the appellant; that Mr Sergi advanced towards the appellant; and that Mr Sergi’s friends also arrived.

72. [72]
    In my opinion, the learned Magistrate did err in separating out the acts or insults in the manner which she did. In Stingel v The Queen the court said:

“Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively.”^[12]

73. [73]
    Their Honours approved the statement by Gibbs J (as his Honour then was) in Moffa v The Queen that:

“In any case, in deciding whether there is sufficient evidence of provocation, it is necessary to have regard to the whole of the deceased person’s conduct at the relevant time, for acts and words which considered separately could not amount to provocation may in combination, or cumulatively, be enough to cause a reasonable person to lose his self-control …”^[13]

74. [74]
    Having concluded that the learned Magistrate erred in this way, I must consider whether the defence of provocation was negatived by the prosecution taking into account all of the acts and insults to which the appellant points. In my opinion, it is not necessary to consider, under s 268(1) of the Criminal Code, whether those acts or insults were such as to be likely to deprive an ordinary person of the power of self‑control, and to induce the ordinary person to assault Mr Sergi with an iron bar.  It is unnecessary to do so because I am satisfied that the prosecution established beyond reasonable doubt that the appellant was not in fact deprived by those alleged acts of provocation of his power of self-control. 

75. [75]
    In my opinion, a finding that the appellant was deprived of self-control was excluded beyond reasonable doubt by the version of events which he himself gave to police as recorded in Exhibit 4.^[14]  There is no indication or suggestion in that version that the appellant was at any time throughout the incident deprived of self‑control.  The defence of provocation must be rejected.

Conclusions on the Appeal against Conviction

76. [76]
    Because the prosecution failed to negative that Mr Sergi consented to fighting the appellant, including being struck with the iron bar, the appellant’s conviction for assault must be set aside.

Sentence

77. [77]
    The learned Magistrate initially sentenced the appellant to six months’ probation. The sentence was subsequently reopened due to concerns that the appellant could not comply with that order as a result of personal circumstances surrounding an illness suffered by one of his children and his desire to pursue qualifications in commercial fishing. He was then sentenced to one month’s imprisonment, wholly suspended for an operational period of six months.

78. [78]
    In my opinion, it could not be said that a short custodial sentence, wholly suspended for a relatively short operational period, was manifestly excessive. Had I dismissed the appeal against conviction, I would not have upset the sentence imposed by the learned Magistrate.

Disposition

79. [79]
    The appeal is allowed.

80. [80]
    The conviction is set aside.

81. [81]
    The charge is dismissed.