R v TM
[2018] QDCPR 56
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- R v TM[2018] QDCPR 56
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R v TM[2018] QDCPR 56
R v TM[2018] QDCPR 56
DISTRICT COURT OF QUEENSLAND
CITATION: | R v TM [2018] QDCPR 56 |
PARTIES: | The Queen V TM |
FILE NO/S: | 2471/2017 |
DIVISION: | Criminal |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 19th September 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19th September 2018 |
JUDGE: | Smith DCJA |
ORDER: | Ruling that a defence under section 270 of the Criminal Code is not available on a charge of choking contrary to section 315A of the Criminal Code. |
CATCHWORDS: | CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – Defence of repetition of insult – whether it applies to an offence of choking Criminal Code 1899 (Q) ss 268, 270 Kapronovski v R (1973) 133 CLR 209 R v Major [2015] 2 Qd R 307 |
COUNSEL: | Ms O'Connor for the Crown Mr Eberhardt for the defence |
SOLICITORS: | Office of the Director of Public Prosecutions for the Crown Potts Lawyers for the defence |
- [1]The defence has submitted that the defence of prevention of repetition of insult under section 270 of the Criminal Code applies to count 3, which is a count of choking.
- [2]In this case, it is alleged that on the 26th of August 2016, there was an argument between the complainant and the defendant, who were in a domestic relationship. The argument began upstairs in the bedroom at their house in Paddington. It continued down to the garage. In the garage, the defendant’s car was parked and his intention was to drive away. The complainant did not want the defendant to leave. There is a dispute about the reason for that, but regardless, there was a struggle over the car keys and it is common ground that the defendant exited the car, grabbed the complainant by the throat and applied pressure to her windpipe.
- [3]The defendant alleges that acts or insults were offered to him prior to this, and he grabbed her by the throat and applied pressure to prevent the repetition of these. Mr Eberhardt on behalf of the defendant relies on alleged threats, assaults, the grabbing of the car keys and her repeated attempts to stop him leaving the garage in his car.
- [4]Section 270 of the Code relevantly 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 an assault, if the force used is not intended and is not such as is likely to cause death or grievous bodily harm.”
- [5]Section 315A of the Code sets out the offence of unlawfully choking a person, and subsection (2) provides:
“An assault is not an element of an offence under subsection (1).”
- [6]Now, reference has been made to the explanatory notes concerning section 315A, which state:
“Assault is not an element of this offence. The consequence of this is that the defence of provocation under sections 268 and 269 of the Criminal Code have no application to the new offence.”
- [7]Mr Eberhardt submits that 270 is not referred to. He also submits, in reliance of the case of R v Major [2015] 2 Qd R 307, that the defence should be available.
- [8]It seems to me that the key here are the words “as to be provocation to the person for an assault”. It my view that means one must refer back to the definition of provocation in section 268(1), which provides:
“The term “provocation” used with reference to an offence of which assault is an element means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another 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.”
- [9]It was been held by the High Court in Kaporonovski v R (1973) 133 CLR 209 that because of the definition of provocation in section 268 of the Code, provocation is not available, for example, to a count of wounding or unlawfully doing grievous bodily harm, because assault is not an element such an offence.
- [10]In my respectful view if one imports the definition of “provocation” from 268 into 270, the defence only applies to an offence of which assault is an element. In that situation, it does not apply to the offence choking.
- [11]My view is fortified because the words “for an assault” are used in 270, which to my mind clearly contemplates that the defence applies to an assault. Such a term is not used in the other defence provisions in Chapter 26 of the Code (such as 271, 272, 273, 274, 275, 276, 277, 278 or 279).
- [12]In my view, the only reasonable interpretation is that this defence applies to a charge of which assault is an element. Choking is not such an offence.
- [13]I appreciate Major may be thought to decide differently, but in that case, both parties conceded it applied to manslaughter.
- [14]It also seems to me it would make not much sense for provocation to be specifically excluded, and yet a very similar defence is included.
- [15]For those reasons, I rule that section 270 is not available as a defence with respect to count 3, the count of choking.