R v DCE

This case considered the proper construction of the word “insult” for the purpose of whether, as a matter of law, the defence of provocation available under ss 268 and 269 Criminal Code 1899 should be left to a jury. The word “insult” is a non-technical term with a broad meaning which can include “something having the effect of an affront” which is an offence to one’s dignity, self-respect or sensibilities. However, whether words and/or gestures amount to an insult for the purpose of the defence of provocation must be determined objectively and will depend on the context and the relevant circumstances of the word and/or gesture which is said to amount to an insult. Part of the context and circumstances includes the characteristics of the accused. The trial judge erred in declining to leave the defence of provocation to the jury in the circumstances of this case. The appeal was allowed, the convictions were set aside and a retrial was ordered.

Dalton, Flanagan JJA and Kelly J

6 September 2024

Background

The accused was convicted after trial of assault occasioning bodily harm while armed. [3]. The accused was alleged to have assaulted two child safety officers during a meeting to discuss the accused reconnecting with her two children who she had not seen for two years. [3]–[6]. During the course of the meeting one of the child safety officers disclosed that the father of her two children, who is serving a term of imprisonment for manslaughter, had been permitted to have supervised contact. [6]. Defence counsel asked the trial judge to leave the defence of provocation to the jury on the basis that what one of the child safety officers had disclosed to the accused was “insulting” because, in context, it implied that the accused was less worthy of supervised contact than the father. [40]–[43]. The trial judge ruled that the defence of provocation should not be left to the jury. [43]–[45]. The disclosure did not amount to an “insult” for the purpose of ss 268 and 269 of the Criminal Code 1899 (“Criminal Code”). [43]–[45].

Whether the defence of provocation should have been left to the jury

Whether the defence of provocation arises for consideration by a jury is a question of law for a trial judge, however, this task must be approached with caution: see Stingel v The Queen (1990) 171 CLR 312, 326 and Masciantonio v The Queen (1995) 183 CLR 58, 67–68. [67]–[68]. The question must be resolved by reference to the version of events most favourable to the accused, and if there is any doubt, the defence should be left to the jury. [69]. Whether the defence of provocation should have been left to the jury in this case turned on the proper construction of the meaning of the word “insult” in the context of ss 268 and 269 Criminal Code. [57]. The word “insult” is a non-technical word with a broad meaning. [60]. Whether words or gestures can be characterised as “insulting” depends entirely on the circumstances. [59]–[62]. As Flanagan JA (with whom Dalton JA and Kelly J agreed) observed:

“Whether words and/or gestures constitute an insult is to be determined objectively and will depend on context and the relevant circumstances. An insult is not constituted merely by the use of what may be considered normally rude or offensive words. Such words may be used in a jocular fashion. Similarly, statements of fact or words imparted in the course of one’s employment may, depending on context and the circumstances, constitute an insult. As the word ‘insult’ is not a technical word and has a broad meaning, it would ordinarily be a question for the jury whether particular words and/or gestures constitute an insult. This is particularly so where it is incumbent on the prosecution to exclude the defence of provocation beyond reasonable doubt …”. [63].

Justice Flanagan (with whom Dalton JA and Kelly J agreed) also observed that when considering whether relevant words and/or gestures constitute an insult, the context and circumstances include the characteristics of the accused. [64]. In this case, the accused was the mother of two children who she had not seen for over two years. [71]. The accused was being asked to establish contact with her children by writing letters, rather than through supervised contact. [73]. One of the child safety officers also maintained direct eye contact with the accused which left her with an impression that they were judging her. [73]. There was at least some evidence that words and/or gestures amounted to an insult in the sense that they could be considered by a reasonable jury to amount to an affront to the dignity, self-respect or sensibilities of the accused. [73]. Whether or not these words and gestures amounted to an insult was a question of fact that ought to have been left to the jury. [74].

Disposition

The appeal was allowed, the convictions were set aside, and a retrial was ordered. [1]–[2], [75].

D Kerr of Counsel