Shaw v Dunham[2014] QDC 44

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal pursuant to s 222 of the Justices Act 1886 (Q) (“JA”). An appeal under this section is by way of re-hearing 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. In doing so the court should give due deference and attach a good deal of weight to the views of the learned Magistrate, but it remains for the appellate court to draw its own conclusions on the evidence.^[2] 

The charge

2. [2]
   On 1 October 2013 the Appellant was convicted of common assault on Shaun David Tull which offence was alleged to have occurred on 27 December 2012. The court did not record a conviction and ordered pursuant to s 19(1)(d) of the Penalties and Sentences Act 1992 (Q) that he be released upon entering into a recognisance in the sum of $600 to be of good behaviour for a period 12 months.

3. [3]
   Originally he was charged with assault occasioning bodily harm but the learned Magistrate amended the charge to one of common assault.

Grounds of appeal

4. [4]
   The grounds of appeal are as follows:

1. The learned Magistrate erred in finding there was a lack of evidence to support the defence of prevention of repetition of insult.
2. The learned Magistrate failed to have regard to all the evidence raised with respect to the defence of provocation.
3. The learned Magistrate erred in fact and in law in finding that the defence of provocation had been negatived having regard to all of the evidence.
4. The learned Magistrate erred in misdirecting himself with respect to the defence of provocation in finding that the circumstances would set a dangerous precedent.
5. The learned Magistrate erred in misdirecting himself on the question of self defence.
6. The learned Magistrate otherwise erred in fact and in law in convicting the Appellant.

The evidence

Constable Barrow

5. [5]
   Kirsty Barrow a constable of the police gave evidence that the complainant attended the police in January 2013 to report the alleged assault. She observed an injury to his right leg namely a scar which ran across his shin (T1-5). Photographs of this injury were tendered. When he first came into the station she did not observe the injury (T1-6).

The complainant

6. [6]
   The complainant Shaun Tull was 42 years of age. On 27 December 2012 he was working at BRS Engineering in Bororen assembling a shed with his boss Ludo Beres (T1-8). The Appellant and his son turned up to talk to Mr Beres and decided to help. He alleged that the Appellant was offended by the fact that some pieces were in the wrong place and he “proceeded to grab me by the throat and assault me.” (T1-8.26). He later said that two bits of metal were in the wrong spot and when he said they were in the wrong spot the Appellant “took it upon himself to feel offended and grabbed me by the throat and proceeded to choke me” (T1-9.37). Immediately prior to the throat being squeezed the Appellant said “don’t talk to me like that” (T1-10.5). After this, the complainant tried to kick and punch and defend himself and tried to trip him over. That’s when they went down (T1-10.17). They ended up going down with the Appellant on top of him (T1-10.30). His leg was cut at this stage. He went into the town to get some stitches after this (T11-5). After the incident the Appellant tried to apologise, but the complainant told him to go away and leave him alone (T1-11.15). He said that the throat was grabbed for about a minute (T1-13.45). He alleged that it was hard to breathe whilst the hands were around the throat (T1-14.4). He alleged his throat was sore for a few weeks after this (T-14.19). He did not recall being cranky that day (T-15.18).

7. [7]
   In cross-examination he accepted he might have forgotten some of the details of the conversations prior to the incident (T1-16.37). He did not recall saying to Ludo Senior and Junior (“fuck me, fuck me you pair of dumb arse cunts”) (T1-16.42). He did not recall saying to Ludo Senior that morning concerning an air compressor “it’s your machine you dumb arse you should fucking know how to start it again” (T17.12). He denied saying to Jason Shaw “you fucking dumb cunt” (T1-17.27). He did recall Jason Shaw walking away from him (T1-17.37). He agreed the Appellant came over to try and give him a hand (T1-18.4). He did not recall being aggressive to the Appellant and denied abusing him and denied calling him a “dumb cunt fucking bastard” (T1-18.15-35). He denied saying to the Appellant, while he was getting a further piece of material, “over in the fucking pile you dumb cunt” (T1-19.7). He accepted that after the Appellant went for his throat he possibly “got” a couple of punches in (T1-19.15). He agreed that he went straight back to the ground with the Appellants on top of him (T1-20.3). He agreed the ground at that point was uneven. He denied kicking at the Appellant and kicking Jason Shaw on the head but admitted kicking (T1-20). At one point he may have said to Jason Shaw “let go of me you big fat cunt” (T1-21.33).

8. [8]
   In re-examination he said he did not recall calling anybody a “cunt or bastard or fucking bastard” but he may have said the word “cunt or bastard” that day (T1-22-T1-23). He also said he was struggling to breathe when his throat was held (T1‑23.5).

Mr Beres Junior

9. [9]
   Ludovit Beres Junior gave evidence that on 27 December 2013 he, his father and the complainant started working at his father’s property at about 6.00 am (T1‑23.45). The complainant was in quite a bad mood that day and got into several arguments (T1-24.1). The complainant was aggressive and argumentative saying “fuck me, fuck this”. The Appellant and Jason Shaw turned up at about 10.00 am and decided to help out around the shed (T1-24.15). The complainant was rude to Mr Beres Senior about the compressor calling him a “fucking dumb arse bastard or something like that” (T1-24.35). They were “a bit upset”. They continued working and then the complainant was rude to Jason – Jason walked away (T1-24.41). At this point the Appellant went to help to complainant, something was said, the Appellant got upset and said “I’m going to give you a warning” and then the Appellant grabbed the complainant around the neck and shook the complainant (T1‑24.45). At this stage the witness ran in to try and separate them and a struggle started (T1-24.46). They fell to the ground with the Appellant on top of the complainant. At one point the Appellant was pulled off. At one point the complainant kicked Jason in the head (T1-25.5). The complainant had a cut to his leg and the Appellant and his son were asked to leave. The Appellant was apologising (T-25.12). When the Appellant said he was going to give him a warning, they were face to face, about a metre apart (T1-26.5). After this the Appellant held him around the neck shaking him. The Appellant did not have his hands around the complainant’s neck for very long (T1-26.25). It was a matter of seconds (T-26.30). The complainant was often in this sort of mood and no-one had assaulted him during the previous two years (T1- 27.39). In cross-examination the witness said that the complainant was in one of the worst moods he had seen. He was very short tempered and agitated using a lot of swearing (T1-29.24-34). He did not recall the complainant saying “fuck me, fuck me you pair of dumb arse cunts” to both Mr Beres Senior and Junior but he recalled the complainant insulting his father saying “fuck me you dumb arse bastard” (T1-29.35-45). He also called Jason “fuck, fucking cunt” (T1-30.21). He did not however hear the conversation between the Appellant and the complainant immediately before the incidents (T1-30.25). When he got over to break them up the Appellant was trying to punch (T1-31.21). The complainant was trying to punch the Appellant as well (T-31.37). They fell to the ground. The Appellant was on top of the complainant (T-32.20). The witness said that the complainant’s behaviour that morning made him angry and upset and he considered punching him himself (T1-33.26).

Mr Beres Senior

10. [10]
    Ludovit Beres Senior gave evidence that the complainant was one of his employees (T1-34).The Appellant was his friend (T1-35.14). They started work at about 6.00 am constructing a shed (T1-35.21). The complainant was trying to put purlins in the wrong way and when he was confronted about this he became angry and was in a bad mood and aggressive to everybody (T1-35.45). This involved a lot of swearing (T1-36.16). The Appellant came around with his son about 10.00 am and started to help (T1-36). He saw that the Appellant was upset because of how the complainant was talking to him but didn’t know exactly what happened (T1-37.5). He heard the Appellant saying something like “I gave you a warning” and then he saw them falling to the ground (T-37.15). During the fall the Appellant was holding the complainant around the neck (T1-37.4). Shortly after this they were separated. The Appellant later tried to apologise and said he didn’t know what happened to him, but he was so upset and he could not help it and he just lost control (T1-38.37). Mr Beres Senior recalled the complainant calling him a “dumb arse bastard” (T1-39.5). He didn’t grab him by the throat because he was about 20 metres away.

11. [11]
    In cross-examination Mr Beres Senior said the complainant was very intolerant towards others (T1-40.10). On the day of the incident the complainant was in a bad mood (T1-40.25). He was angry and was worse than he usually was and was swearing a lot (T1-40.35). He recalled the complainant saying to the Appellant “fuck me, fuck me you pair of dumb arse cunts” (TI-41.20). The hold to the neck by the Appellant was near the collar bone (T1-42.5). He said that he and his son however restrained the Appellant (T1-42.27). Mr Beres Senior was very angry and upset because of the complainant’s behaviour and said “well I was that angry that if he wasn’t my employee I would punch him too” (T1-43.37).

No case submission

12. [12]
    The defence submitted there was no case to answer submitting that provocation and the prevention of repetition of insult had not been excluded by the prosecution beyond reasonable doubt.

13. [13]
    The prosecution in response argued that the apology was a formal admission showing a consciousness of guilt and submitted there was no evidence of any specific wrongful act or insult immediately prior to the assault.

14. [14]
    The learned Magistrate in ruling there was a case to answer agreed that provocation had been raised. He was not sure that prevention of repetition of insult had been raised although in the circumstances ruled there was a case to answer.

15. [15]
    The decision of the learned Magistrate in refusing the no case submission was correct.^[3]

The Appellant

16. [16]
    The Appellant gave evidence that he was 51 years old, an electrician by occupation. On 27 December 2012 he went to Ludo Beres Senior’s house at about 10.00 am (T1-51.20). After he arrived he noticed the complainant there and a short time later the complainant started using expletives such as like “fuck me, fuck me you pair of dumb arse cunts etc” (T1-51.45). At one point Mr Beres Senior came over a bit upset and embarrassed. The Appellant said he was dumbfounded as he did not know what was going on. At this stage the Appellant offered to give Mr Beres a hand with the shed and Jason his son helped as well (T1-52.20).The complainant was continuing to swear, was angry, loud and his body language aggressive (T-52.32). At this stage the complainant started to swear at Mr Beres Senior about some rubbish. Mr Beres Senior was very embarrassed and ignored him so the Appellant was upset as to Mr Beres copping such abuse. Later when an air-compressor was to be used the complainant yelled at Mr Beres some expletives such as “your fucking machine you dumb arse it’s not rocket science” (T1-53.20). After this the Appellant’s son Jason went over to assist the complainant holding up a frame at which time the Appellant was helping Mr Beres Junior and Senior on another one. They were about six to seven metres apart. The complainant swore at Jason using words something like “you dumb arse” or something similar. The Appellant felt hurt and upset (T1-53.32). After this the Appellant walked to a corner of the shed where the complainant was located and said he would give the complainant a hand. The Appellant picked up a piece of purlin. The complainant said “it’s not the right fucking one”. At this stage the complainant had a raised voice, an aggravated voice with fierce body language. Later the Appellant asked the complainant “well where’s the right material”. The complainant said “over in the fucking pile cunt”. The Appellant said “what, what did you say”. The complainant said “over in the fucking pile cunt”. The Appellant said “I’m going to give you a warning Shaun don’t talk to me like that”. The Appellant walked towards the complainant. At this stage the Appellant put his hands on to his shoulders stating “you’ve got to learn respect”. At this point the complainant took a swing, hitting a glancing blow onto the Appellant’s cheek bone and then the Appellant restrained him (T1-54.15). After this the Appellant put his hands around the complainant’s neck. The complainant was punching him into the ribs and they started falling. They hit the ground. The complainant was kicking. Later the complainant kicked Jason in the head which was the end of the scuffle. The Appellant admitted that he landed on top of the complainant (T1-55.12). The Appellant denied that it was simply a case he did not like the way that the complainant spoke to his friends. He denied he choked him (T1-57.27).The Appellant said at the start he put his hands on his shoulders to tell him not to speak to him so rudely and disrespectfully. He said he was provoked by being sworn at in the manner he did (T1-57.37).

17. [17]
    He could not answer the question why he did not just walk away (I-57.40). He apologised out of decency for what happened (T1-59.7).

Jason Shaw

18. [18]
    The Appellant’s son Jason Shaw gave evidence that he was a fuel service engineer. He confirmed that on 27 December 2012 he and his father (the Appellant) travelled to the Beres’ resident. After they arrived the complainant was cursing in the distance as he was picking up pieces of steel to be used in the construction of the shed (T1-61.1). The complainant was extremely agitated. Shortly after this the Appellant and Jason Shaw gave the Beres a hand with the shed. The complainant after this point called Mr Jason Shaw a “fucking dickhead” because the piece of steel at one end was at one height and his end was at another. Mr Jason Shaw politely said to him that he did not like being spoken to like a dog and for him to desist in talking to him in that manner (T1-61.25). On another occasion he was required to blow some dust out of the holes and Mr Beres Senior went to town on the compressor and the truck but was struggling to start this. The complainant went across to him calling him a “fucking dumb cunt for not being to start his own compressor” (T1-61.45). Jason Shaw was taken a little bit aback with this and was not going to participate in any more assistance (T1-62.10). At this point the complainant proceeded to abuse the Appellant regarding a piece of steel they were trying to fix. He could not recall the exact words (T1-62.27). He then heard a bit of a scuffle and turned around and the Appellant was walking towards the complainant saying “there’s something you need to learn and that’s respect” and he put his hands on the Appellant’s shoulders and then went to the throat and they went to the ground (T1-62.45).

19. [19]
    Jason Shaw stayed out of the incident until they had fallen onto the grounds (T163.15). There was no cross-examination by the prosecutor.

Defence submissions

20. [20]
    The defence counsel submitted that there was broad agreement between the evidence of the Beres’ and the Shaws which contradicted the evidence given by the complainant. It was submitted the complainant’s evidence should be treated with some scepticism. It should be accepted that there was an atmosphere of verbal abuse going on which explained why people were getting hot under the collar. It was accepted the Appellant had approached the complainant and it was generally agreed that the Appellant touched the complainant near the throat area (T1-65.30). The defence then submitted on the question of accident which is not relevant to this appeal.

21. [21]
    It was conceded that an assault had taken place (T1-66.30) but the question is whether the issue of provocation had been negatived. It was submitted the complainant acted abusively both to the Beres and to the Appellant’s son. Whilst it is true there were hands laid on the complainant there was no medical evidence to suggest there was protracted bruising or severe bruising to the throat (T1-67.30). Certainly the hands were around the throat but not excessively (T1-67.40). The defence also submitted that the defence of repetition of insult was also available (T1-68.1). The court could easily draw a determination the Appellant was upset and he wanted to stop the insult (T1-68.15). There was an initial loss of control but it was quickly re-established (T1-68.18). The defence did not argue the question of self defence (T1-68.32). In the circumstances the Appellant should be found not guilty.

Prosecution submissions

22. [22]
    The prosecutor submitted that the Appellant by his own admission had grabbed the complainant around the shoulders. The complainant said it was the neck which was supported by other evidence. The neck was squeezed and shaken. Both the complainant and the Appellant fell to the ground. There were submissions made about bodily harm which is not relevant to this appeal.

23. [23]
    As to the issue of provocation the prosecution submitted that there was no provocation directly or insult directly made to the Appellant because the complainant denied making the comments “over in the fucking pile cunt.” (T1-70.15). But even if those words were said the prosecution submitted that this insult was not likely to deprive an ordinary person of the power of self control (T1- 70.37). It was submitted an ordinary person in the position of the Appellant should not have reacted in the way he did. None of the other persons present reacted that way (T1-71.20). It was submitted that it was not uncommon to have bad language on a worksite. It was submitted that also the force used disproportionate (T1-72.10).

Decision

24. [24]
    The learned Magistrate reserved his decision until 1 October 2013.

25. [25]
    The learned Magistrate considered the Appellant had raised the issue of provocation and that provocation must be negatived by the prosecution beyond reasonable doubt. The learned Magistrate referred to the principles expressed in R v Stingel (1990) 171 CLR 312. The learned Magistrate found there was no dispute that the Appellant had assaulted the complainant. The main issue was whether the assault was unlawful. The learned Magistrate then summarised the evidence given in the trial. The learned Magistrate at (R8.40) found the complainant not to be an entirely credible witness. He preferred the evidence of Mr Beres Senior and Junior than that of the Appellant and his son. He did not accept his evidence that he did not swear at Mr Beres Senior and Junior and the Appellant’s son. The Magistrate found it at (R9.1) “I have no doubt that Tull was using profanity towards all parties who were on the work site on 27 December 2012.”

26. [26]
    The Magistrate found that just before the assault the complainant was swearing at the Appellant and said “it’s over in the fucking pile cunt.” At this stage the Appellant said “I’m giving you a warning Shaun don’t speak to me like that you need to learn respect.” The Magistrate was not satisfied that any injury to the leg was caused during the assault and amended the charge under s 48 of the JA to one of common assault (R9.22).

27. [27]
    The Magistrate then considered whether it was likely it was going to be a repetition of insult and secondly whether the insult was sufficient for provocation. The learned Magistrate was not satisfied that there was going to be any repetition of insult offered by Tull. He found that there was no evidence there was going to be any such repetition (R9.35). On the issue of provocation the learned Magistrate agreed with the prosecution’s submission that the words “over in the fucking pile cunt” were not likely to deprive an ordinary person of self control. Whilst he accepted the Appellant was upset about the way the complainant had spoken to other persons in the site, no-one else had assaulted him. He found that the words said to Jason Shaw and Mr Beres Senior and Junior could not amount to provocation. The Magistrate said “in my opinion it would set a dangerous precedent to find the words said to the Appellant amounted to provocation and the courts do need to be careful in not lowering the bar too far in relation to so called provocative comments. To do so could lead to many persons trying to hide behind this shield for any type of bad behaviour.” The Magistrate said “in my opinion the insult offered was not such of such a nature as to be likely to deprive an ordinary person the power of self control”. He added that the Appellant had no answer why he did not walk away. He found that by placing his hands on the complainant the Appellant had committed an assault. He also found that if he was incorrect the act of choking somebody was disproportionate to the insult offered.

28. [28]
    On all the evidence he found that the prosecution had proved all the elements of the amended charge and the defence properly raised had been negatived beyond reasonable doubt.

Submissions

29. [29]
    The Appellant and the Respondent relied on written and oral submissions.

30. [30]
    I take these into account in reaching my decision.

31. [31]
    Both parties agreed that it was appropriate for this court to determine the outcome of the matter if error was shown rather than to remit the matter to the Magistrates Court for retrial.

32. [32]
    The Appellant submitted:

1. (a)
   It was incorrect to find there was no evidence of likelihood of repetition of insult.

2. (b)
   It was incorrect to find that the words spoken to the son could not be a wrongful act or insult.

3. (c)
   The whole of the circumstances should be considered on whether wrongful acts or insults are provocative.

4. (d)
   The comment that courts need to be carefully from “lowering the bar” is an irrelevant consideration.

5. (e)
   The self defence test was incorrect.

33. [33]
    The Respondent submitted:

1. (a)
   No error had been demonstrated.

2. (b)
   The prosecution had met the onus of disproving provocation and prevention of repetition of insult.

3. (c)
   Self defence was not raised on the evidence.

4. (d)
   The assault was unlawful.

34. [34]
    The Respondent in oral argument conceded that the reference to “public policy” matters concerning the defence of provocation (ground 4) was an error but argued that the Magistrate did return to the facts of the case at R10. However it was conceded that when reading the passage as a whole it may be the Magistrate’s conclusion was affected by the error.

35. [35]
    On grounds 2, 3 and 6 the Respondent submitted that the Magistrate was entitled to accept parts and reject parts of the complainant’s evidence but also conceded it appeared insufficient reasons had been given to find there had been a choking.

36. [36]
    On ground 1 the Respondent conceded in light of the pattern of behaviour of the Respondent it was open to draw the inference that the insults may have been repeated.

37. [37]
    Finally on the issue of proportionality the Respondent submitted that the court was entitled to accept the complainant’s evidence of a sustained choking but conceded there was contrary evidence.

Discussion

38. [38]
    In my respectful opinion there is merit in the grounds of appeal.

39. [39]
    Firstly it was found that there was no evidence of there was going to be any repetition of insult. Section 270 of the Criminal Code provides:

“It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to the person for insult. That the force used is not intended, but it is not such as is likely, to therefore cause therefore grievous bodily harm.”

40. [40]
    In R v Major [2013] QCA 114 at [6] Fraser JA held agreeing with Peter Lyons J that it is not necessary for the person to threaten to repeat the act or insult before the defence is raised. The prosecution must exclude any reasonable possibility of repetition of the provocative act or insult.

41. [41]
    In my view upon consideration of all of the evidence it could be reasonably inferred (or it could not be disproved) that by reason of the complainant’s conduct on the day in question he was going to continue swearing in an insulting fashion, in particular at the Appellant. In those circumstances it is my view that s 270 was raised on the evidence and the prosecution was required to exclude this defence beyond reasonable doubt. Ground 1 is therefore upheld.

42. [42]
    With respect to the defence of provocation s 268, inter alia provides that the wrongful act or insult may be done to a person in a parental relationship i.e. the Appellant’s son in the Appellant’s presence. In those circumstances the words spoken to the Appellant’s son could amount to provocation to the Appellant contrary to the finding of the learned Magistrate. Ground 2 is upheld.

43. [43]
    I also consider the learned Magistrate erred when he found “however, no-one else followed through with their thoughts of assaulting Tull” as somehow determinative of the matter. The fact is the High Court in Stingel v The Queen (1990) 171 CLR 312 found that the central question is whether an ordinary person in the Appellant’s shoes was provoked.

44. [44]
    The court held at [19]:

“The central question posed by the objective test - i.e. of such a nature as to be sufficient - obviously cannot be answered without the identification of the content and relevant implications of the wrongful act or insult and an objective assessment of its gravity in the circumstances of the particular case. Conduct which may in some circumstances be quite unprovocative may be intensely so in other circumstances. Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively… [20] Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult”.

45. [45]
    This test ought to have applied in its terms. Ground 3 is upheld.

46. [46]
    I also consider it was an error to find it would be a dangerous precedent to find the words amounted to provocation and the courts need to be careful in not lowering the bar too far in relation to provocative comments. Such matters were irrelevant considerations. The issue to be considered by the court was whether on the facts of the particular case provocation had been excluded. Upon reading the entire paragraph it cannot be said that the court below was not influenced by such irrelevant considerations. Ground 4 is upheld.

47. [47]
    Finally I consider that more fulsome reasons should have been given on whether the initial assault (the particularised act T1-69) was a sustained choking or a touching or grabbing for a more limited period in light of the conflicting evidence on this point. Ground 6 is upheld.

48. [48]
    As to ground 5 for the reasons I express at [63] and [65] self defence was relevant at that stage of the incident. However it may have been unnecessary to deal with the matter in light of the fact that the particularised assault was the initial application of force. Perhaps this is why defence counsel did not seek to raise self defence.

49. [49]
    In those circumstances the Appellant being deprived of the chance of an acquittal should have the conviction quashed.

Should there be a retrial?

50. [50]
    The next question is having quashed the conviction, whether a retrial should be ordered. It is my opinion that this court can appropriately reach conclusions and draw inferences on the evidence. As noted earlier both parties contended for this course.

51. [51]
    Courts have in the past cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (see Fox v Percy (2003) 214 CLR 118 at [31]).

52. [52]
    Having considered the evidence and giving due weight to the learned Magistrate’s factual findings it is my opinion that the complainant was clearly engaging in abusive and derogatory language towards all persons present at the premises on 27 December 2012. In particular he used derogatory and abusive language towards the Appellant’s son and used such language to the Appellant. This included calling Jason Shaw a “fucking dickhead” or “Fucking dumb arse” and saying to the Appellant “Its not the right fucking one” and “[it’s] over in the fucking pile cunt” twice.

53. [53]
    There was the following evidence tending to indicate that the Appellant lost the power of self control and acted on the sudden before there was time for his passion to cool:

1. (a)
   The complainant said Bill was offended (T1-8.23 and T1-9.37).

2. (b)
   Mr Beres Junior said that Bill was upset (T1-24.42).

3. (c)
   Mr Beres Senior said Bill was upset (T1-37.5) and Bill apologised and said he had “just lost control” and was upset (T1-38.37).

4. (d)
   The Appellant himself said that he did not like being spoken to like a dog. He felt cranky and upset (T1-53.28) and it escalated because he witnessed abuse to everybody else including his son (T1-55.40). He also said he was provoked by the swearing (T1-57.37)

5. (e)
   Jason Shaw gave evidence he was called a “fucking dickhead” (T1-61.23); he told his father this; there was abuse towards his father (T1-62.25) and it was heated (T1-63.5).

54. [54]
    In all the circumstances I find on the evidence that there was a wrongful act or insult of such a nature as to be likely when done to an ordinary person in the Appellant’s shoes or to an ordinary person’s son to deprive an ordinary person in the Appellant’s shoes of the power of self control and to induce the person to assault the person by whom the act or insult is done, or at least this could not be excluded beyond reasonable doubt.

55. [55]
    I also find on the evidence that the prosecution did not exclude the fact that the Appellant was in fact deprived by the provocation of the power and self control and acted upon it on the sudden before there was time for his passion to cool.

56. [56]
    The next question is whether the prosecution proved that the force used was disproportionate to the provocation.

57. [57]
    The evidence bearing on this question was:

1. (a)
   The complainant alleged he was choked (T1-9.36) and his throat was squeezed (T1-10.5). He also said he was “struggling for his life” (T1-14.12). It was for about a minute (T1-14.7). He said that the throat was sore for a few weeks but did not allege there were injuries around the throat (T1-14.17). Thereafter the complainant tried to kick and punch the Appellant (T1-10.15).

2. (b)
   Mr Beres Junior said that Bill grabbed the complainant around the neck and shook him (T1-24.45). It was for a matter of seconds (T1-26.30). He said they were trying to punch each other when they were standing (T1-31.40).

3. (c)
   Mr Beres Senior said that the hands were on the lower neck near the collarbone (T1-37.45 and T1-41.45).   

4. (d)
   The Appellant said his hands were initially on the shoulders (T1-54.10 and T1-57.35). He did not choke him (T1-57.27). Shortly after he put his hands on him the complainant swung at him (T1-54.15) which struck him on the cheekbone.

5. (e)
   Jason Shaw (who was not challenged in cross examination) said that he saw his father walk towards the complainant after abusive words were spoken and put his hands on his shoulders it was after this that the hands went to the throat and they fell to the ground (T1-62.42).

58. [58]
    After considering all of the evidence and the findings made by the learned Magistrate against the complainant’s credit, I do not accept the complainant’s evidence. I find it was exaggerated. There was no medical evidence to support the contention that he was fighting for his life. There was no bruising to support the contention there was a sustained choking.

59. [59]
    I prefer the evidence of the Appellant as he was generally supported by the other witnesses (aside from the complainant). Any differences between his version and the other witnesses are explained by the fact that the other witnesses may not have seen the entire incident or were some distance away and at different angles. None of the other witnesses support the contention of sustained choking.

60. [60]
    I have read the Appellant’s evidence and consider his version was not undermined in cross examination. On the point of why he could not answer why he did not walk away, any answer in reality required a degree of reconstruction and hindsight. He did not walk away because he was insulted and lost self control.

61. [61]
    At worst the Appellant’s account cannot be excluded beyond reasonable doubt.

62. [62]
    In my opinion on all of the evidence (excluding the complainant’s version) it could not be excluded beyond reasonable doubt that the Appellant placed his hands at or near the bottom of the complainant’s throat at the start in response to the provocative words for a short time prior to the complainant punching the Appellant. The action of the Appellant was a lawful act because that was not disproportionate to the abusive and derogatory language used or at least this could not be disproved beyond reasonable doubt.

63. [63]
    At that point on the evidence it could not excluded that the complainant started to swing punches towards the lawful assault by the Appellant. It was at this point that a more significant shaking may have taken place and they then fell to the ground. It could not be excluded that that choking was in response to an unlawful assault by the complainant.

64. [64]
    The events thereafter were not of much relevance because the learned Magistrate decided that there was insufficient evidence that any injury after the fall was caused by the Appellant.

65. [65]
    In those circumstances having conducted a review of the evidence as required and given due weight to the learned Magistrate’s findings (aside from those which were in error) it is my respectful view that provocation could not be excluded, nor could the defence of repetition of insult and nor could self defence after the punches by the complainant were thrown.

66. [66]
    In those circumstances I decline to order a re-trial and find the Appellant not guilty on the charge of common assault.

Costs

67. [67]
    No costs can be ordered with respect to the appeal (s 232 (4) of the JA) as this was an indictable offence dealt with summarily.

68. [68]
    On the issue of costs below I take into account ss 158 and 158A of the JA and the submissions of the parties.

69. [69]
    In my opinion the police cannot be criticised for bringing the matter before the court. I have been informed that the Appellant declined an interview. I have been informed no submission was made by the defence to seek to have the charges discontinued. There was in my view a case to answer. The complainant did in fact suffer an injury to his leg in the altercation.

70. [70]
    In the exercise of my discretion I decline to order costs in favour of the Appellant.