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JEJ v Queensland Police Service[2021] QDC 64

JEJ v Queensland Police Service[2021] QDC 64

DISTRICT COURT OF QUEENSLAND

CITATION:

JEJ v Queensland Police Service [2021] QDC 64

PARTIES:

JEJ

(appellant)

v

QUEENSLAND POLICE SERVICE

(respondent)

FILE NO/S:

607 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 Justices Act 1866

ORIGINATING COURT:

Magistrates Court of Queensland

DELIVERED ON:

23 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2021

JUDGE:

Judge Loury QC

ORDER:

  1. The appeal is allowed.
  2. The conviction for the offence of assault occasioning bodily harm whilst armed is set aside. 
  3. A retrial is ordered. 

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Where the appellant was convicted of assault occasioning bodily harm – where provocation was raised on the evidence - whether the learned Magistrate erred in her consideration of the defence of provocation - whether the learned Magistrate erred in not considering whether section 270 of the Criminal Code, Prevention of repetition of insult, provided a defence to the appellant

COUNSEL:

Ms T Thorp for the appellant

Mr T O’Brien for the respondent

SOLICITORS:

Murray Torcetti Lawyers for the appellant

The Office of the Director of Public Prosecutions for the respondent

  1. [1]
    On 28 January 2020 the appellant was convicted, after a trial in the Magistrates Court, of assault occasioning bodily harm whilst armed (a domestic violence offence). It was not disputed that he struck his wife with a phone charger cord after she had hit him with the same cord. The appellant contends that proper consideration was not given by the learned Magistrate to whether the prosecution had excluded provocation because she did not turn her mind to the threshold, objective test. That test requires consideration be given to whether the complainant’s conduct was of such a nature that it could or might cause an ordinary person of the appellant’s age with powers of self-control within the range of what is ordinary for a person of that age, to do what the appellant did. The appellant further contends that no consideration was given to whether the prosecution had excluded that the appellant was acting in order to prevent a repetition of a wrongful act or insult.
  1. [2]
    For the reasons which follow, I am of the view that the learned Magistrate erred in her consideration of the defence of provocation and erred in failing to consider whether the prosecution had excluded that the appellant was acting to prevent a repetition of an insult.
  1. [3]
    Because of the limitations in the evidence led in the trial I am unable to make my own determination on the evidence before the learned Magistrate. A retrial must be ordered.

Grounds of appeal

  1. [4]
    The grounds of appeal are as follows:
  1. The learned trial Magistrate was required to consider the provocation from the viewpoint of the accused in order to determine the gravity of the provocation and erred in law by failing to do so.
  1. The learned trial Magistrate was required to consider provocation and proportionality in light of the ordinary person test and erred in law by failing to do so.
  1. The learned trial Magistrate erred by failing to provide adequate reasons for her findings in relation to provocation and the striking by the appellant.
  1. The Magistrate erred in law in not considering whether section 270 of the Criminal Code provided a defence to the appellant.

The nature of the appeal

  1. [5]
    The appellant appeals pursuant to s 222 of the Justices Act 1886.  Such an appeal is by way of rehearing on the evidence below,[1] that is, a review of the record of proceedings below rather than a fresh hearing, together with any new evidence that I allow to be admitted.   I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference and placing a good deal of weight on the Magistrate’s view.[2] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[3]

The evidence at trial

  1. [6]
    At the trial the prosecution called three witnesses: the complainant and two police officers who responded to the complaint. The appellant did not elect to give or call evidence at the trial.
  1. [7]
    The complainant was married to the appellant. She said that approximately six days prior to the incident she had undergone surgery for endometriosis and to examine why she had been unable to fall pregnant, prior to undertaking IVF treatment. The complainant described feeling upset by the appellant’s lack of support following her surgery.
  1. [8]
    On 3 February 2019 the complainant said that the appellant returned home at around 1 am. He was “very intoxicated” and she observed him as “slurring his words” and being “wobbly”. Upon entering their home, the appellant immediately lay down on the couch in the lounge room and proceeded to watch television on his phone. The complainant was in their bedroom. They had been arguing on Facebook messenger, Instagram and verbally throughout the evening. The appellant, at home, was ignoring the complainant. He messaged her and asked her to leave him alone. She sent him a message demanding that he talk to her.
  1. [9]
    The complainant approached the appellant on the couch and grabbed some nuts out of his hand and threw them at the opposite wall. The appellant kicked his leg out and it struck her in the right hip.[4]  The complainant then leaned over and picked up a phone charger cord from the coffee table, and flicked it at the appellant.  She did not know where it hit him.  The appellant sat up and grabbed the cord out of the complainant’s hand. He stood up and said to the complainant, “If you’re going to hit me, I’m going to hit you”, to which the complainant responded, “You’ve just kicked me”. The complainant lay on the couch with her hands over her head.  The appellant struck her with the cord to the right thigh and buttocks.   The complainant estimated that the appellant struck her with the cord six to eight times and that immediate welts and bruises appeared on her skin.[5]  When the appellant stopped hitting her she went outside and called 000.  The appellant locked her outside. 
  1. [10]
    Images of the complainant’s injuries taken at 9 am that morning were admitted.
  1. [11]
    During cross examination the complainant accepted that she had been arguing with the appellant over Facebook and Instagram leading up to the incident, and conceded that she was barraging the appellant with messages from their shared bedroom before approaching him on the couch. The complainant was angry that the appellant had downloaded an application called “Sex Tracker” and was upset with the lack of support he was providing her.
  1. [12]
    The complainant was shown an image said to depict an injury to the appellant’s hand. She agreed that the photograph depicted a small mark but when it was specifically put to her that the photograph depicted the injury caused to the appellant as a result of her flicking him with the cord, she said “I don’t know”. Nonetheless the image was tendered and all parties as well as the learned Magistrate acted on the basis that the image depicted the injury caused by the complainant in flicking the appellant with the cord.
  1. [13]
    Two police officers who responded to the 000 call also gave evidence. Constable Adam Keyssecker saw welts to the complainant’s right buttock and leg. He accepted that the appellant told him “my wife attacked me”.
  1. [14]
    Senior Constable Mark Anthony Bath attended with Constable Keyssecker. He confirmed that the injuries depicted in the images tendered of the complainant were consistent with the injuries he observed to the complainant upon arrival at her home.

The reasons of the learned trial Magistrate

  1. [15]
    In her reasons, the learned Magistrate said that the defences of self-defence and provocation were raised on the evidence, that there was no onus on the appellant to satisfy the Court that he was provoked or acting in self-defence, and instead it was for the prosecution to prove beyond reasonable doubt that he was not.[6]   Relevantly, she went on to say:

“Therefore, the prosecution must satisfy me beyond reasonable doubt that the defendant was not subject of a wrongful act or insult by the complainant; or that there was no provocation in terms of how an ordinary person was likely to react; or that the defendant was in fact not deprived by the provocation of the power of self-control; or that the defendant did not act upon the sudden and before there was time for his patience to cool; or the force used by the defendant was out of proportion to the provocation. If any of these apply, then provocation is excluded.”[7]

  1. [16]
    The learned Magistrate in finding that the appellant was not acting under provocation said “I find that the assault on the complainant was disproportionate to the injuries suffered by the defendant and I reject the defence of provocation raised by the defence.”[8]  Ultimately, in rejecting the defence of provocation, the learned trial Magistrate found that the appellant “retaliated with excessive force by striking the complainant multiple times with the phone charger cord without her consent”.[9] In making this finding the Magistrate had regard to the exhibits which included the image of the single mark on the appellant’s wrist and compared that with the images depicting welt marks across the complainant’s right buttock and thigh areas. The Magistrate found that the injury suffered by the appellant was not similar to those suffered by the complainant and that the assault on the complainant was disproportionate to the injuries suffered by the appellant. She rejected the defence of provocation on this basis.[10]
  1. [17]
    In similarly rejecting that the appellant acted in self-defence, the Magistrate did not accept that the appellant used force which was reasonably necessary to make an effectual defence against an assault.[11]  She further said that irrespective of the exact number of strikes, the exhibits and police testimony showed the injuries suffered by the complainant were more severe than that suffered by the appellant.[12] 

Grounds 1 and 2: The Magistrate was required to consider the provocation from the viewpoint of the accused in order to determine the gravity of the provocation and erred in law by failing to do so; and

The Magistrate was required to consider provocation and proportionality in light of the ordinary person test and erred in law by failing to do so.

  1. [18]
    The appellant contends that although the learned Magistrate cited both sections 268 and 269 of the Criminal Code 1899 and the Supreme and District Court Benchbook, there was nothing in her reasons which suggests she actually took the step of turning her mind to the ordinary person test, or engaging with it in a meaningful way.
  1. [19]
    The first step in a consideration of the defence of provocation is identifying the wrongful act or insult. The complainant agreed in cross-examination that she sent a message on Facebook messenger from their bedroom to the appellant on the couch which said “Your actions make people like this. No. Come talk. You won’t come. I’ll come to you. Choose.” She then approached the appellant on the couch and took the packet of nuts out of his hand and threw them at the wall. It was suggested to her that she tried to grab the appellant’s phone out of his hand to which she said that she could not remember doing this. She agreed that she did not get a reaction from the appellant. It was also suggested that as she went to grab something further out of the appellant’s hand that she leant over him and he raised his leg to stop her. The complainant could not recall that occurring. She accepted that she was quite angry and that she picked up the phone cord and hit the appellant. It was only then that the appellant grabbed the phone cord from her and struck her with it as she protected herself on the couch.
  1. [20]
    It was not suggested to the complainant in cross-examination that she was not struck multiple times by the appellant with the charger cord. Nor was it suggested that she was not kicked by the appellant before she struck him with the charger cord. It was not disputed that the appellant said to the complainant immediately before grabbing the phone charger from her hands “if you’re going to hit me, I’m going to hit you.”
  1. [21]
    The learned Magistrate accepted the complainant’s evidence on the critical points, in particular that she was kicked in the hip area where she was recovering from recent surgery, that she flicked the cord at the appellant and that he retaliated with excessive force by striking her multiples times with the same cord.
  1. [22]
    The appellant argues that the evidence before the Magistrate in terms of the kick only went so far as to prove that the appellant kicked out and his kick hit the complainant in the hip. The complainant’s evidence-in-chief tended to suggest that the kicking was not intentional. The cross-examination of the complainant suggested that the appellant put his leg out as the complainant leaned over him however it was not put to the complainant that she was not kicked. It is apparent from the submissions of the appellant’s representative at trial that he thought that he had put to the complainant that she was not kicked. It is not clear from the cross-examination if what was being put to the complainant was that, nonetheless, the appellant made contact with her stomach when putting his leg out towards her. The learned Magistrate appears to have acted on the basis that because the allegation of kicking was not challenged by the appellant in cross-examination she took that into account in determining that there had been a kicking of the complainant in the stomach. She specifically referred to Browne v Dunn[13] and said “in relation to the rule in Browne v Dunn, there was nothing said in relation to the kick, so the kick stays”.  The appellant’s legal representative said that he had put to the complainant that she wasn’t kicked and that she had denied it.  That was incorrect.  He did not put to the complainant that she was not kicked.  The learned Magistrate said in response “So the evidence stands as is, that there’s a kick”. 
  1. [23]
    In MWJ v The Queen[14] Gleeson CJ and Heydon J said:

The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at a criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.” (Citations omitted)

  1. [24]
    It was not a forensic choice of the appellant’s legal representative to not give the complainant an opportunity of responding to the suggestion that she was not kicked. If such a course had of occurred and if the appellant’s instructions were properly put to the complainant it may have become apparent whether the complainant was saying that she was deliberately kicked or otherwise. I find that I am handicapped in making a finding about the kick and the circumstances of it because insufficient evidence has been elicited about it due to the failure to cross-examine. This in turn means that my own determination of the matter is also handicapped.
  1. [25]
    The learned Magistrate ultimately found that the assault on the complainant was disproportionate to the injuries suffered by the defendant and rejected the defence of provocation on that basis. She also found that the defendant did not use force which was reasonably necessary to make an effectual defence against the assault. She found that the appellant retaliated by striking the cord on the complainant causing her injuries. He continued to strike her when she was curled upon the lounge in fear and did not desist. She considered that the injuries the complainant suffered were more severe than those suffered by the appellant. She made no finding as to the number of strikes that the appellant inflicted on the complainant.
  1. [26]
    Whilst the learned Magistrate did refer to section 268 and 269 she did not make any specific findings other than that the assault was disproportionate to the injuries suffered by the appellant. That was perhaps because the defence submissions focused almost exclusively on self-defence and did not identify what provocative acts were relied upon.
  1. [27]
    The defence of provocation, once raised had to be excluded by the prosecution. If the assault was excused by law because the appellant was acting under provocation as defined, he was entitled to an acquittal. Provocation is defined as “any wrongful act or insult 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 person by whom the act or insult is done or offered”.[15]  The appellant was not criminally responsible if he was in fact deprived by the provocation of the power of self-control; and acted on the sudden before there was time for his passion to cool; and if the force used was not disproportionate to the provocation and was not intended nor likely to cause death or grievous bodily harm. 
  1. [28]
    The submissions made at trial and the reasons of the learned Magistrate do not disclose what was or should have been taken into account in terms of the wrongful act or insult. The appellant argues that the wrongful act or insult encompasses the barrage of text messages that the complainant sent to the appellant, her grabbing the nuts out of his hand and throwing them at the wall and her taking the phone charger cord and striking him with it. There was no detail elicited as to the content of the text messages that the complainant sent to the appellant. Other than the message referred to at paragraph [19] there is nothing in the evidence as to the content of the messages. The appellant argues that I could infer that the messages amounted to a “wrongful act or insult” because the complainant was upset, frustrated and angry. I do not consider that I can so infer. It is not wrongful to engage in an argument with a person’s spouse via text message. I am unable to infer that the messages that the complainant sent, in the absence of some information about the content of them, would of themselves amount to a wrongful act or insult. The appellant did ask the complainant to leave him alone in a message, after which she immediately confronted the appellant on the lounge.
  1. [29]
    The complainant’s grabbing of the nuts, the throwing of the nuts and the striking with the charger cord are all acts that amount to a “wrongful act or insult”. For those wrongful acts or insults to amount to provocation they must be of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. It is only if that test is satisfied that it becomes necessary to consider whether the appellant was, in fact, subjectively deprived of his self-control. In that way it is a threshold test. As the appellant argues there is nothing in the reasons of the learned Magistrate which indicates that she took the step of turning her mind to this objective, threshold test.
  1. [30]
    The question posed by the objective test cannot be answered without some identification of the content and implications of the wrongful acts or insults and an objective assessment of the gravity of them to the appellant. The personal characteristics or attributes of the appellant are relevant to a consideration of these factors.[16]  Whilst the complainant’s act of approaching the appellant after being asked to leave him alone and snatching the nuts from the hand of the appellant may not of their own have been particularly provocative, when viewed with the other conduct of throwing them against the wall and striking the appellant with the cord, assessed from the viewpoint of the appellant, who had been harangued by the complainant during the night and who, upon returning home had not entered the bedroom, but rather, lay on the couch and tried to ignore the complainant, might suggest that the complainant’s conduct was quite provocative and intentionally so.   
  1. [31]
    The High Court in Stingel v The Queen said that it has generally been accepted[17] that it would be unduly harsh to require of an immature accused the minimum standard of self-control possessed by the ordinary adult.  Consequently age, in the sense of immaturity, is a relevant factor in setting the standard of self-control required by the ordinary man. 
  1. [32]
    At most I know that the appellant and complainant had been together for four years and married for eight months of those four years. The complainant was a woman of child-bearing age. No inference can be drawn from that material as to whether the appellant was a young, immature man or a middle-aged man. In the circumstances of this case, I consider the absence of any indication in the reasons or the evidence as to the age of the appellant, means that it is impossible for me to assess this threshold test.
  1. [33]
    Assuming the appellant was not a young, immature man, it is then necessary in considering whether the provocation in fact deprived the appellant of the power of self-control, to consider the gravity of the provocative act/s to him. The appellant was married to the complainant. She had recently had an operation which was seemingly directed at a decision made to have children. There is evidence to suggest that the complainant was suspicious of the appellant as she had accessed his phone in the days leading up to the incident to discover an application “The Sex Tracker” on the appellant’s phone. There was no cross-examination directed to what that application involved or what the complainant understood it to be, but it was clear that the complainant was upset by the appellant having the application and it is clear that the appellant knew of his wife having pried into his phone. Such conduct by her reveals a lack of trust in the relationship.
  1. [34]
    On the evening in question the appellant had gone out on his own despite his wife still recovering from surgery. She was arguing with him over Facebook messenger, Instagram and verbally. It appears that the appellant was uncaring of his wife’s recovery from surgery. Upon returning home he did not speak to the complainant or go to bed but rather lay on the couch. The complainant continued barraging the appellant with messages immediately prior to her approaching him on the couch. The appellant was ignoring the complainant and asking her to leave him alone. The appellant did not react when the complainant took the nuts out of his hand and threw them at the wall. She then leant over to reach for the phone charger at which point the appellant kicked his leg out. It struck her in the stomach. The complainant then flicked the appellant with the phone cord and said “You’re an idiot, you’re an arsehole”. The appellant sat up, reached to grab the cord out of her hand, stood up and said the words “if you’re going to hit me, I’m going to hit you” before striking her with the charger cord “really fast”.
  1. [35]
    The prosecutor at trial argued that the words uttered by the appellant were not the words of someone who was deprived of a loss of self-control but rather spoke of an intention to deliver a vicious and sadistic punishment. Despite the uttering of those words, the snatching of the cord out of the complainant’s hand immediately after she had struck him and the striking of her quickly, tend to suggest that the appellant acted on the sudden and before there was time for him to reflect. In that sense, the evidence suggests to me that the appellant was in fact deprived of the loss of self-control. The evidence also suggests that the appellant retained control of himself despite the arguing that continued when the appellant tried to ignore the complainant and the barraging of text messages and despite her own violent conduct in the grabbing and throwing of the nuts. The appellant still did not react until he was struck with the cord. He reacted immediately and quickly, seemingly before there was time for his passion to cool.
  1. [36]
    The final factor which required consideration by the learned Magistrate was whether the appellant’s response was proportionate to the provocation offered. The appellant’s response was sudden and he used the same instrument that the complainant had introduced into their dispute. He did not pursue the complainant or continue his assault upon her after he had struck her with the charger cord. She was able to leave the residence at which time he locked her outside. By the complainant’s own account she was still very angry and tried to kick the door in. The learned Magistrate rejected the submission that the injury suffered by the appellant was similar to that of the complainant. She ultimately found that the assault on the complainant was disproportionate to the injuries suffered by the appellant.
  1. [37]
    It was not the injuries against which the appellant’s loss of self-control had to be considered, but the provocation offered. That provocation included the grabbing of the nuts and the throwing of them and the taking of the cord and striking the appellant with it. The proportionality of his response fell to be considered against the complainant’s physical attributes of which the only matter I am aware is her recently having had surgery and her appearance in the photographs taken of her injuries. It also fell to be considered against the nature of the attack itself. There was a dispute about the number of strikes by the appellant with the cord, although what was put to the complainant does not make clear what the appellant’s case was in so far as the number of strikes. The submission made was that the injuries shown in the photographs did not accord with the complainant’s evidence that she was struck six to eight times with the cord. The learned Magistrate said that she accepted the evidence of the complainant on the crucial points however considered it unnecessary to make a finding as to the number of strikes by the appellant with the cord.
  1. [38]
    The learned Magistrate considered that the complainant’s account was corroborated by the injuries she suffered. The complainant accepted in cross-examination that the photographs depicted three or four marks on her leg. Senior Constable Bath said that the injuries depicted in the images showed three injuries and they were the injuries he saw on the complainant on the evening in question.
  1. [39]
    I have viewed the exhibits. The images (which are printed on paper) depict parallel, linear abrasions/bruises to the thigh and buttocks of the complainant. There are three distinct sets of parallel, linear abrasions consistent with the striking of a phone cord three times. There is some limitation involved in considering the images as they are not printed on photographic paper. However, I do not consider, in the absence of some expert medical evidence, that the images support the complainant’s account that she was struck six to eight times with the cord.
  1. [40]
    The learned Magistrate’s finding was that there were multiple strikes with the cord by the appellant. She considered that irrespective of the number of strikes the injuries suffered by the complainant were more severe than that suffered by the appellant.
  1. [41]
    The appellant argues that there was a necessity for a finding as to the number of strikes the appellant made with the cord in order to consider the proportionality of his response. The appellant also argues that relevant to his response is that he used the same weapon that the complainant had used on him, he did not try to punch or kick her and that after the three strikes with the cord, the appellant did not further attack the complainant or try to do so. The appellant did not pursue the complainant and did not stop her calling the police. He let her leave the house and locked her outside. It is argued that when the appellant’s response is considered against the provocative conduct of the complainant, it can be seen to amount to a loss of self-control for a very short period of time during which the appellant responded in a like manner to the complainant’s attack.
  1. [42]
    A consideration of the proportionality of the appellant’s response involved a consideration of the provocative act/s or insult/s as against his response. It did not involve a simple exercise of comparing the injuries each party received. The appellant’s response was required to be considered against the complainant having grabbed his nuts, thrown them at the wall and striking him with the cord. It was only if his response to her provocative conduct was considered disproportionate that the prosecution had excluded that the appellant was acting under provocation.
  1. [43]
    I consider that error has been established by the appellant in the learned Magistrate’s consideration of the defence of provocation, firstly, in not turning her mind to the objective, threshold test and secondly, for assessing the proportionality of the appellant’s response as against the complainant’s injuries, rather than her provocative conduct.
  1. [44]
    The consideration of the ordinary person test is a threshold question. In the absence of proper evidence upon which I can make an assessment of the ordinary person’s response to the provocation offered it is not appropriate to circumvent that consideration and leap to, only a consideration of the proportionality of the appellant’s response. The failure to cross-examine on crucial matters means that my ability to substitute my own decision for that of the learned Magistrate is hampered. There must be a retrial.

Ground 3:The learned trial Magistrate erred by failing to provide adequate reasons for her findings in relation to provocation and the striking by the appellant.

  1. [45]
    It is unnecessary to consider this ground given my determination that there must be a retrial.

Ground 4: The learned trial Magistrate erred in law in not considering whether section 270 of the Criminal Code provided a defence to the appellant.

  1. [46]
    A further matter which arises which will be relevant to any re-trial is the operation of section 270 of the Criminal Code.  That provision makes the use of force lawful if the force is used to prevent repetition of an act or insult of such a nature as to be provocation for the assault; the force is reasonably necessary to prevent the repetition of the act or insult; and the force used is not intended and not likely to cause death or grievous bodily harm.  That provision was not raised by either party before the learned Magistrate.  Consequently no consideration was given to its potential operation.  The appellant argues that on the whole of the evidence the operation of section 270 arose and therefore required consideration of whether it had been excluded beyond reasonable doubt by the prosecution.  On the evidence before me the complainant had grabbed the nuts and thrown them and picked up the cord and struck the appellant.  Section 270 did arise for consideration despite there being no threat by the complainant to repeat the insult or act.[18]  A consideration of whether the prosecution had excluded the reasonable possibility of repetition of the provocative act or insult required an assessment of all of the circumstances.  The complainant had confronted the appellant when he asked her to leave him alone, had grabbed and thrown the nuts and picked up the cord and struck the appellant.  There was, in my view evidence that the complainant’s conduct was escalating such that there was a reasonable possibility of the provocative act or insult being repeated.  I do not consider that the prosecution excluded therefore that there was no reasonable possibility of the provocative act or insult being repeated. 
  1. [47]
    An assessment of whether the force used was reasonably necessary is not simply a matter of comparing the injuries. It requires an objective consideration of the entirety of the circumstances to determine what degree of force was reasonably necessary. The appellant’s ignoring the complainant did not stop her, nor did his positioning himself in another room to the complainant, stop her. His foot coming into contact with her stomach in the area of the hip, whether it was a kick or otherwise did not stop her. It was only after she struck him with the cord that he retaliated. The respondent argues that once the appellant disarmed the complainant of the cord there was no risk of a repetition of the insult because the very object used to effect the insult was no longer a threat. Whilst there is some force in that submission it does not take into account that the provocative acts included the grabbing and throwing of the nuts and that the complainant’s conduct was escalating. Relevant to an assessment of what degree of force was reasonably necessary also required a consideration of whether the appellant actually kicked the complainant or unintentionally his foot came into contact with stomach. Relevant too is the vulnerability of the complainant given her recent surgery. After being disarmed she immediately placed herself prone on the couch in a protective position. Ultimately however whether the prosecution has excluded that the force used was not reasonably necessary is a matter for the tribunal of fact to determine at a retrial, given the necessity for the matter to be returned for a retrial.
  1. [48]
    The appeal is allowed. The conviction for the offence of assault occasioning bodily harm whilst armed is set aside. A retrial is ordered.

Footnotes

[1] Justices Act 1886 s 223.

[2] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].

[3] Allesch v Maunz (2000) 203 CLR 172.

[4] Transcript of Magistrates Court Proceedings, Page 1-13, lines 9-11.

[5] Transcript of Magistrates Court Proceedings, Page 1-16, lines 19-24.

[6] Transcript of Magistrate’s Decision, Page 5, lines 8-33.

[7] Transcript of Magistrate’s Decision, Page 6, lines 39-45.

[8] Transcript of Magistrate’s Decision, Page 8, line 33

[9] Transcript of Magistrate’s Decision, Page 8, lines 17 – 19.

[10] Transcript of Magistrate’s Decision, Page 8, lines 32-35.

[11] Transcript of Magistrate’s Decision, Page 8, lines 35-36.

[12] Transcript of Magistrate’s Decision, Page 8, lines 40-42.

[13] (1893) 6 R 67 (HL).

[14] (2005) 80 ALJR 329 at [18].

[15] Section 268 Criminal Code 1899.

[16] Stingel v The Queen (1990) 171 CLR 312.

[17] Ibid at 331.

[18] R v Major [2013] 2 Qd R 307 at [6].

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Editorial Notes

  • Published Case Name:

    JEJ v Queensland Police Service

  • Shortened Case Name:

    JEJ v Queensland Police Service

  • MNC:

    [2021] QDC 64

  • Court:

    QDC

  • Judge(s):

    Judge Loury QC

  • Date:

    23 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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