Mether v Queensland Police Service
[2022] QDC 53
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- Unreported Judgment
- Mether v Queensland Police Service[2022] QDC 53
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Mether v Queensland Police Service[2022] QDC 53
Mether v Queensland Police Service[2022] QDC 53
DISTRICT COURT OF QUEENSLAND
CITATION: | Mether v Queensland Police Service [2022] QDC 53 |
PARTIES: | STEVEN LEE METHER (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 213 of 21 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 |
ORIGINATING COURT: | Magistrates Court of Queensland |
DELIVERED ON: | 16 March 2022 |
DELIVERED AT: | Southport |
HEARING DATE: | 14 March 2022 |
JUDGE: | Holliday QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – where the appellant was convicted of common assault – where provocation and prevention of repetition of insult were raised on the evidence – whether the learned Magistrate failed to properly consider and apply the defence of provocation and repetition of insult – whether the learned Magistrate failed to provide any adequate reasons for the finding that the assault charged was an excessive response to the provocation found to exist |
LEGISLATION: | Justices Act 1886 (Qld), ss 222 and 223 Criminal Code Act 1899 (Qld), ss 268, 269 and 270 |
CASES: | Allesch v Maunz (2000) 203 CLR 172 JEJ v Queensland Police Service [2021] QDC 64 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Stingel v R [1990] 171 CLR 312 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | Mr B Reilly for the appellant Mr B Scarrabelotti for the respondent |
SOLICITORS: | Jacobson Mahony Lawyers for the appellant The Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]On 25 May 2021 the appellant was convicted, after a trial in the Magistrates Court, of common assault. The issue in the trial was whether the assault, particularised as the appellant throwing a folder in the direction of the complainant which struck the complainant in the head,[1] was unlawful.
- [2]The amended grounds of appeal are as follows:
- (a)The learned Magistrate failed to properly consider and apply the defence of provocation and/or the defence of prevention of repetition of insult.
- (b)The learned Magistrate failed to provide any adequate reasons for the finding that the assault that was charged was an excessive response to the provocation found to exist.[2]
- (a)
The nature of the appeal
- [3]The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). Such an appeal is by way of rehearing on the evidence below.[3] In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[4] 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 learned Magistrate’s view.[5]
The evidence at trial
- [4]The prosecution called two witnesses: the complainant and a police officer through whom an electronically recorded interview with the appellant was tendered. The exhibits in the trial consisted of the electronically recorded interview and “dash cam” footage of the incident. The appellant did not elect to give or call evidence at the trial.
Evidence of complainant
- [5]The complainant and appellant were tow-truck operators. On 12 September 2020, they were waiting in their respective tow-trucks at an area off the M1 near Dreamworld. They each received a notification that an accident had occurred and proceeded to drive along the M1 towards the accident site near exit 60. The tow-truck being driven by the appellant was in front of the tow-truck being driven by the complainant.
- [6]The complainant saw the appellant “slam his brakes on”.[6] He could not stop his tow-truck in time, and it collided with the rear of the appellant’s tow-truck. The complainant could not see any damage to the appellant’s tow-truck, and both continued driving to the accident site. The appellant pulled up on the left shoulder of the road and the complainant pulled up in front of him. Both got out of their tow-trucks and checked the damage to the vehicle which was involved in the accident. There was not enough damage to require towing.
- [7]The appellant started “mouthing off” at the complainant in relation to hitting his tow-truck. Both proceeded to the back of the appellant’s tow-truck to check the damage. The appellant started “mouthing off again” and hit the complainant twice with his folder.[7] The complainant said the “mouthing off” consisted of the appellant saying “[you are] a fucking dickhead, you’re an idiot, learn how to drive all these other things to that effect”,[8] and lasted for “probably between two to five minutes”.[9] The complainant said that he was “pretty sure” he said a “few words back to him as well, called him an idiot for doing what he did, saying that he brake checked me”.[10]
- [8]The complainant said that the appellant called him a “fucking idiot” and out of nowhere the appellant, who had a black folder in his hand, swung and hit him in the side of the head from a distance of approximately two feet.[11]
- [9]The complainant left the scene a short time later and attended the police station later the same day. The complainant said that he was struck to the left-hand side of the face and that he suffered “no major injuries, [a] swollen left ear, and just red marks on the side of the face.”[12]
- [10]In cross-examination the complainant accepted that:
- (a)the appellant headed off to the accident scene first and the complainant followed him down the highway;[13]
- (b)he was travelling “directly behind” the appellant and “he was probably about one or two car-lengths” from the appellant’s tow-truck;[14]
- (c)the tow-truck he was driving was not quite as high as the appellant’s tow-truck and was an older model, weighing about two tonnes;[15]
- (d)the tow-truck the appellant was driving was worth about $180,000.00;[16]
- (e)he was aware that he should keep a sufficient distance between himself and the vehicle in front, such that he could avoid a collision if they had to break suddenly, but “I left enough – sufficient room for braking, not a complete stop on a motorway at 80,90 kilometres an hour”;[17]
- (f)he ran into the back of the appellant’s vehicle and then it was about a minute before they pulled over at the scene of the car accident;[18]
- (g)he agreed that after he exited his vehicle he said: “Mate, you’re a fucking idiot, you did that on purpose”;[19]
- (h)they both exited their vehicles and yelled obscenities at each other, but he could not recall what the appellant said as he was extremely upset;[20]
- (i)the appellant said that the complainant had run into the back of his truck, that he was concerned about the damage and wanted the complainant to look at it;[21]
- (j)they were both upset and walked to the back of the appellant’s truck to look at the damage;
- (k)the gist of the conversation that was still occurring was the complainant saying it was the appellant’s fault and the appellant was saying that the complainant ran into the back of his truck;[22]
- (l)he and the appellant have never been formally introduced;[23]
- (m)when they went back to the rear of the truck he pushed at the appellant and the appellant again threw the folder;[24]
- (n)in total they would have been in the vicinity of the truck for only a minute or two, and over that time the appellant became progressively angry with the complainant and it was clear that the appellant was angry at the complainant before he first struck the complainant with the folder;[25] and
- (o)he did not say in his statement that he had suffered any injuries and the police did not take any photographs of injuries.[26]
- (a)
- [11]In cross-examination, the complainant said that:
- (a)the reason he collided with the appellant’s tow-truck was because the appellant was travelling too close to him and he “brake checked me” ,[27] and “he applied his brakes that hard he pretty much stopped on the highway… at a speed of around 80 to 90 kilometres an hour, he just stopped dead. He’s got ABS and all this fancy technology”;[28]
- (b)he could not see that the rear tail assembly of the appellant’s tow-truck was knocked out of alignment and that he “could not see that much damage”;[29]
- (c)
- (d)the appellant said that he did not know who the complainant was or who he worked for “which was a lie. He does know who I am and who I work for”.[32]
- (a)
The dash cam footage
- [12]The events of 12 September 2020 were captured on dash cam footage. It depicts the complainant wearing a yellow high-vis shirt and the appellant wearing a black T-shirt. The complainant and appellant are shown walking to the back of the tow-truck. The appellant proceeds to thrust his clipboard at the complainant, which makes contact with the side of his face. The complainant reaches out towards the appellant in response. Some finger pointing and a verbal altercation appears to follow.
- [13]There is also other footage contained on the Exhibit, but I am informed that it was only the above footage that was shown to the learned Magistrate and relied upon by the prosecution.
The electronically recorded interview
- [14]The learned Magistrate was not given the benefit of being provided with a transcript of the interview. In my view, any court – but particularly a busy court such as the Magistrates Court – should be given as much assistance as possible by the prosecution as model litigant. That includes providing a transcript of the electronically recorded interview as an aid to assist the learned Magistrate, especially in a case such as the present which required the learned Magistrate to make findings of fact as between the versions of the complainant and the appellant and detail those in his decision.
- [15]I was provided with a transcript of the interview which the parties agreed was accurate.[33]
- [16]The appellant relevantly states in his interview with police that:
- (a)the traffic was very heavy on the highway and people were stopping in a hurry. He had to come to a stop and the complainant ran into the back of his truck;[34]
- (b)it was hard for the complainant to stop as he was in an “old 1980s model truck and he hasn’t been able to stop and run into me. I did put a report in about it…”;[35]
- (c)the complainant pulled up at the accident scene in front of his truck, got out of the truck and was abusing him, saying: “Why did I stop of the highway?” He was “mouthing off to me and carrying on”;[36]
- (d)the complainant would not give him his details at the accident and that is why he was so angry with him;[37]
- (e)“I went to look at the back of the damage on my truck and he has followed me there and I’m trying to tell him look give me your details or whatever cause he’s having a go at me and I’m having a go at him. And he’s told me he’s not giving me his details and it’s my fault and I told him to wait for the police to come and he goes no I’m goin…”;[38]
- (f)“If he hadn’t have run into me nothing would have happened. I wouldn’t be sitting here right now. And if he had have exchanged details, we wouldn’t be sitting here right now. It’s preventable…”;[39]
- (g)
- (h)that when the folder hit the complainant, he (the appellant) wasn’t touching the folder. It was a throw;[42]
- (i)he went over the guard rail to get his folder back and kept asking him for his details;[43]
- (j)he did not know the complainant personally, but he’s known as a “troublemaker”;[44]
- (k)he knew the complainant by his first name but did not know his last name or any details;[45]
- (l)you have to exchange details when you have an accident;[46]
- (m)he knew that the complainant worked for Mid Coast Towing;[47]
- (n)
- (o)when asked whether the complainant provoked him prior to the use of the black folder, the appellant said: “he was because at the start he was blaming me for the accident, telling me that I’m the one that’s paying for it and like its… I can’t exactly remember the things that were said two to three months ago now but… I’m not gonna be upset for nothing… for no reason.”;[50]
- (p)when asked whether the force used was proportionate to the situation, the appellant said that it didn’t knock the complainant over and was “more of a frustration thing… To be forceful is him landing on his backside or over the guard rail or getting injured from him… I don’t see it as a forceful thing. No.”;[51]
- (q)after the incident with the folder, the appellant approached the complainant’s passenger side window and asked if he was going to give the appellant his details. The complainant laughed at him and said: “no you can go and get fucked and took off”;[52]
- (r)the complainant has previously accused him and his father of being paedophiles and they can’t do anything about it;[53] and
- (s)that he was not fearing for his life.[54]
- (a)
The reasons of the learned trial Magistrate
- [17]The learned trial Magistrate commenced his reasons with a summary of some of the prosecution evidence. This included the following:
“Then questioning went on – or cross-examination went on to the complainant about whether he was being asked of his full name, address and details and he refused to give them. He [the complainant] said:
“Yes I would not give the defendant my address.”[55]
- [18]The learned trial Magistrate summarised the electronically recorded interview as follows:
“…the complainant hit his truck; pulled up at the accident scene. The complainant pulled up in front of me; was abusing him. After making sure that everybody was good in the collision the complainant was then mouthing off at him. He advised that the defendant – the complainant – sorry – would not give him details that is why he was so angry with him. He was asked if the complainant provoked him and he said: “I’m not going to be upset for no reason”. He was asked “Did [he] give permission for you to throw the folder at him?”. He replied “No”. He was asked “was the complainant acting in a threatening manner?”. He advised: “He was throwing his arms up.” Most relevantly when he was asked “was the complainant aggressive?” He said “I wasn’t in fear””[56]. (underlining added)
- [19]The learned Magistrate said that he considered that both witnesses gave their evidence openly and honestly and that he accepted the evidence of the complainant and the police officer.[57]
- [20]The learned Magistrate then stated:
“Further to that oral testimony, my viewing of the video footage obtained from the traffic response unit, and provided at Exhibit 1, clearly evidences the defendant followed by the complainant attending to the rear of the defendant’s tow truck. Only seconds after arrival at the rear of the tow truck, in a more open position, the defendant at the time was holding a black folder in his right hand, strikes the complainant in the face with the back of his hand or that folder. When viewing that footage, and hearing from the complainant that he suffered swelling to his face and marks to his face, I am satisfied that the assault has occurred”.[58]
- [21]The learned Magistrate said that “counsel for the defence raised the defences of provocation or prevention of repetition of insult”. The learned Magistrate then set out section 269 of the Code as well as sections 268(3) and (4) of the Code. Next, the learned Magistrate stated:
“I also have regard to the District Court and Supreme Court bench book which further provides:
“An assault is unlawful if it is not authorised, justified or excused by law… An assault is excused by law if, at the time of the assault, the defendant was acting under what our law defines as provocation. Provocation, as defined in our law, is a defence to the assault”.
The bench book goes on further to say:
“The defence of provocation operates in this way: A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault if the person is, in fact, deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely to cause death or grievous bodily harm.
It is not for the defendant to establish the defence by proving that he or she was provoked to assault the complainant. It is for the prosecution to exclude the defence by satisfying beyond a reasonable doubt that it does not apply.”[59]
- [22]The learned Magistrate then made reference to the decision of JEJ v Queensland Police Service [2021] QDC 64 and included paragraph 29 of that decision in his reasons:
“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. That is the threshold test.”
- [23]The learned Magistrate then said:
“[Judge Loury QC] goes on to state – and she is referring to the authority of Stingel v R [1990] 171 CLR 312:
“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 those factors.”[60]
- [24]Finally, the learned Magistrate states:
“I have considered the evidence in respect of the incident between the parties on the 12th of September and the trading of insults and accusations resulting from initially that incident that occurred where the complainant’s vehicle has struck the rear of the defendant’s vehicle. I have also considered that in line with the evidence by way of the record of interview where the defendant stated he was not in fear, together with the video evidence which clearly makes out the act of the assault, and I find that the assault of the complainant was disproportionate to the conduct of the complainant as in evidence before this court.”[61]
- [25]He then turned to consider “the possible defence of prevention of repetition of insult” and firstly set out section 270 of the Code. The learned Magistrate said:
“I note I have already found that the defence of provocation has not been made out in that the act of the defendant was disproportionate to the alleged conduct of the complainant at the time, and I further find that the use of force was not reasonably necessary to prevent the repetition of an act or insult in the occasions (sic).”
Ground 1: The learned Magistrate failed to properly consider and apply the defence of provocation.
Ground 2: The learned Magistrate failed to provide any adequate reasons for the finding that the assault that was charged was an excessive response to the provocation found to exist.
- [26]The appellant contends that the learned Magistrate failed to identify the nature and content of the particular wrongful acts or insults, identify their implications, and then consider their gravity from the viewpoint of the accused. Further, twice in the reasons for decision, the learned Magistrate referred to the fact that the appellant said he was not in fear of the complainant which was irrelevant to any assessment of the defences relied upon in the trial. Recognising that there is overlap between the first and second grounds of appeal, the appellant repeats and relies in ground 2 on the failures relied upon for ground 1, and submits that there was also a failure to articulate why the evidence of the complainant was accepted in full and there was no indication as to what was accepted or rejected of the matters raised in the interview between the appellant and the police.
- [27]The respondent conceded in oral submissions, when confronted by the submissions of the appellant and being taken to the learned Magistrate’s decision, that the grounds of appeal were made out. The concession of the respondent was appropriate.
- [28]It is well established that the first step in considering the defence of provocation is to identify the wrongful act or insult. The learned trial Magistrate did not, in his reasons, identify the wrongful act or insult. The learned trial Magistrate did not consider the matters in evidence potentially constituting the wrongful act or insult, nor did he make any findings of fact as to what evidence was accepted to the requisite standard which would have then led to identification of the wrongful act or insult.
- [29]The primary submission of the prosecutor below was that there was no wrongful act or insult “that would raise provocation on the evidence.”[62] Relying on the appellant’s interview with police, defence counsel submitted that the wrongful act or insult was the complainant (wrongly) stating that the collision which caused significant damage to the appellant’s expensive tow-truck was the fault of the appellant, and the complainant’s refusal to provide his personal details as is required by legislation.[63]
- [30]Whilst the learned Magistrate said that he “accepted” the evidence of the complainant, he did not engage at all in a process of considering what, if any, of the version of the appellant in the electronically recorded interview was accepted and why the complainant’s evidence should be accepted to the requisite standard.
- [31]The complainant’s evidence that the appellant was “at fault” for the collision is unconvincing. The complainant ran into the back of the appellant’s tow truck. The appellant said he slowed due to the traffic in front of him. The complainant denied this to be the case. However, given the positioning and height of the complainant’s vehicle, he could not have been in a position to know what caused the appellant to slow. In any event, the dash cam footage evidences a heavy flow of traffic at the relevant time.
- [32]There was an error by the learned trial Magistrate in identifying what the complainant said in cross-examination in relation to whether there had been a request for his personal details. The complainant denied that the appellant asked him to remain at the scene and give his personal details.[64] When it was suggested again to the complainant in cross-examination that he had refused to provide his personal details, all the complainant said was: “I would not give Steven Mether my address”. The learned Magistrate said, in his reasons, that the complainant had agreed that he had been asked for his particulars. This was not his evidence. This was an important issue relevant to the complainant’s credibility and reliability, as the evidence actually given may well have resulted in a finding adverse to the complainant.
- [33]The learned trial Magistrate, when summarising the electronically recorded interview,[65] said that it was “most relevant” that the appellant stated he was not in fear and repeated this later in his reasons when finding that the assault of the complainant was disproportionate to the conduct of the complainant. It is unknown why the learned Magistrate found that this was relevant in all the circumstances of the case when the only defences raised were provocation and prevention of repetition of insult.
- [34]Next, whilst the learned Magistrate referenced paragraphs 29 and 30 in JEJ v Queensland Police Service [2021] QDC 64, similar to that case, there is nothing in the reasons of the learned Magistrate here which indicated that he took the step of turning his mind to the objective threshold test,[66] nor are there any indications that there were any findings of fact made relevant to the test.
- [35]As is said by her Honour Judge Loury QC at [30] in JEJ v Queensland Police Service:
“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 consideration of these factors.” (footnote omitted)
- [36]There is also nothing in the reasons of the learned Magistrate to indicate that he took the next step (if the threshold test was satisfied) of turning his mind to whether the appellant was, in fact, subjectively deprived of the power or self-control nor any indications that there were any findings of fact relevant to this step. Nor is there anything in the reasons of the learned Magistrate to indicate that he turned his mind to whether the appellant, in response to the provocation, acted on the sudden and before there was time for his possession to cool, nor any indications that there were any findings of fact relevant to this issue.
- [37]Finally, whilst the learned Magistrate said that the “assault of the complainant was disproportionate to the conduct of the complainant as in evidence before this court”, as already detailed there is no consideration of the versions of the complainant and the appellant (in the interview) and what was accepted to the requisite standard which led to this finding. The complainant’s evidence in relation to his injuries is unconvincing. The complainant in his police statement said that he did not suffer any injuries, but in his evidence said that he suffered a swollen side of the face and ear. The learned Magistrate does not provide any reasons as to why he accepted the evidence of the complainant.
- [38]I need not consider in detail the defence of prevention of repetition of insult given its elements and the errors identified above.
- [39]Both parties submitted that the appropriate course, in the event the appeal was allowed, was to order a retrial before a different Magistrate. Counsel for the appellant explained that there had been some confusion during the trial, which is not apparent from the transcript, as to which of the appellant’s acts with the clipboard was particularised as constituting the assault. As a result, the focus in the trial for a period of time, including during cross-examination of the complainant, was on the second act. Matters were put to the complainant including whether the complainant had refused to provide his personal details around the time of the second act. It was never put to the complainant that he had refused to provide his personal details relevant to the timing of the first act with the clipboard. This is a matter which will turn on the credibility and reliability of the complainant. As such, this is not a case where the evidence is in a state where I am able to substitute my own decision for that of the learned Magistrate. I am satisfied that the appropriate order is as per that submitted for by the parties.
Order
- [40]The orders are as follows:
- The appeal is allowed.
- The conviction for the offence of common assault is set aside.
- A retrial is ordered to be heard before a different Magistrate.
Footnotes
[1] Transcript of Trial, page 3 lines 16-17.
[2] The third ground of appeal that “the finding of guilt was unreasonable and against the weight of the evidence” was abandoned by the appellant on the hearing of the appeal.
[3] Justices Act 1886 (Qld) s 233.
[4] Allesch v Maunz (2000) 203 CLR 172; White v Commissioner of Police [2014] QCA 121 at [6]-[8].
[5] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].
[6] Transcript of Trial, page 7, line 29.
[7] Transcript of Trial, page 8 lines8-17.
[8] Transcript of Trial, page 8 lines 18-20.
[9] Transcript of Trial, page 8 lines 26-27.
[10] Transcript of Trial, page 8 lines 21-24.
[11] Transcript of Trial, page 9 lines 22-32.
[12] Transcript of Trial, page 10 lines 22-27.
[13] Transcript of Trial, page 11 lines 1-10.
[14] Transcript of Trial, page 11 lines 15-17,
[15] Transcript of Trial, page 11 lines 27-36.
[16] Transcript of Trial, page 12 line 6.
[17] Transcript of Trial, page 13 lines 5-10.
[18] Transcript of Trial, page 13 lines 10-20.
[19] Transcript of Trial, page 13 line 46.
[20] Transcript of Trial, page 14 lines 30-45.
[21] Transcript of Trial, page 15 lines 1-10.
[22] Transcript of Trial, page 15 lines 17-25.
[23] Transcript of Trial, page 16 line 30.
[24] Transcript of Trial, page 17 lines 1-10.
[25] Transcript of Trial, page 17 lines 12-19.
[26] Transcript of Trial, page 17 lines 25-45.
[27] Transcript of Trial, page 11 line 45.
[28] Transcript of Trial, page 12 line 15.
[29] Transcript of Trial, page 15 line 30-36.
[30] Transcript of Trial, page 16 line 15.
[31] Transcript of Trial, page 17 lines 1-5.
[32] Transcript of Trial, page 16 lines 17-20.
[33] Exhibit 1 on the Appeal.
[34] Transcript of Interview, page 5.
[35] Transcript of Interview, page 6. See also page 8 where the appellant says that he reported that the complainant refused to exchange details and left without giving any details.
[36] Transcript of Interview, page 6.
[37] Transcript of Interview, page 6.
[38] Transcript of Interview, page 6.
[39] Transcript of Interview, page 12.
[40] Transcript of Interview, pages 7, 8 and 9.
[41] Transcript of Interview, page 16.
[42] Transcript of Interview, page 9.
[43] Transcript of Interview, page 9.
[44] Transcript of Interview, page 5.
[45] Transcript of Interview, page 7.
[46] Transcript of Interview, page 7.
[47] Transcript of Interview, page 7.
[48] Transcript of Interview, page 8.
[49] Transcript of Interview, page 12.
[50] Transcript of Interview, page 10.
[51] Transcript of Interview, page 10.
[52] Transcript of Interview, page 11.
[53] Transcript of Interview, page 11.
[54] Transcript of Interview, page 13.
[55] Transcript of Magistrate’s Decision, page 4 lines 15-20.
[56] Transcript of Magistrate’s Decision, page 4 line 37 to page 5 line 20.
[57] Transcript of Magistrate’s Decision, page 5 lines 30-32.
[58] Transcript of Magistrate’s Decision, page 5 lines 32-42.
[59] Transcript of Magistrate’s Decision page 6 line 29- page 7 lines 6.
[60] Transcript of Magistrate’s Decision, page 7 lines 20-25
[61] Transcript of Magistrate’s Decision, page 7 lines 29-40.
[62] Transcript of Trial, page 25 line `1.
[63] Transcript of Trial at page 27 lines 40- page 28 line 45.
[64] Transcript of Trial, page 16 line 15.
[65] Transcript of Magistrate’s Decision, page 5 line 13.
[66] For the wrongful acts or insults to amount to provocation they must be of such a nature as to be likely, if done to an ordinary person, to deprive the ordinary person of the power of self-control.