Anderson v Malcolm - [2010] WASC 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ANDERSON -v- MALCOLM [2010] WASC 308

CORAM: HALL J

HEARD: 8 SEPTEMBER 2010

DELIVERED : 1 NOVEMBER 2010

FILE NO/S: SJA 1052 of 2010

BETWEEN: WARREN PERRY ANDERSON
Appellant
AND
ROBERT IAN BRUCE MALCOLM
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HOGAN
File No  :FR 10230 of 2009, FR 10231 of 2009

Catchwords:

Criminal law - Assault - Provocation - Whether defence evidence taken into account - Whether objective test properly applied - Whether conviction unreasonable or unsupported by evidence - Meaning of provocative words understood in context

Legislation:

Criminal Appeals Act 2004 (WA), s 14(3)
Criminal Code (WA), s 245, s 246

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr L M Levy SC
Respondent: Mr C S Bydder

Solicitors:

Appellant: Evan Shackleton
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Doust v Meyer [2009] WASCA 65
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Verhoeven v Ninyette (1998) 101 A Crim R 24

HALL J: On 27 April 2010 the appellant, Mr Warren Anderson, was convicted in the Fremantle Magistrates Court of unlawfully assaulting his wife contrary to s 313(1)(a) of the Criminal Code (WA) (the Code). The conviction followed a hearing which occurred over three days, being 11 and 12 January and 27 April 2010. Mr Anderson now appeals against that conviction.
At the hearing, the defence of provocation pursuant to s 245 of the Code was raised. It was submitted on Mr Anderson's behalf that in the course of an argument at their former matrimonial home, his wife had used insulting words which caused him to lose his self‑control.
The magistrate considered the defence of provocation and concluded that whilst insulting words had been used and they had caused Mr Anderson to lose self‑control, the insult was not of such a nature as to deprive an ordinary person of the power of self‑control. The requirement that the insult be of such a nature is stipulated by s 245.
On this appeal, it was argued that her Honour erred in two respects in coming to that conclusion. First, that in determining the effect of the insulting words on an ordinary person, her Honour only had regard to the prosecution evidence. Second, that her Honour's conclusion that the insulting words were not of a nature as to deprive an ordinary person of self‑control was not supported by the evidence and was unreasonable.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned Magistrate erred in law by failing to properly consider the defence of provocation in light of all the evidence, including the evidence called by the defence, and consequently misdirected herself in relation to the onus and standard of proof in a criminal trial.
Particulars
a)in considering the defence of provocation raised by the appellant, the learned Magistrate said:
'there is really no basis in the evidence led by the prosecution that if the accused did misinterpret this [the insult] to be an actual allegation of paedophilia, there's just no evidence in the case put forward by the prosecution, is what I'm trying to say; that there was any basis in the context of in which this insult came out that an ordinary person could reasonably believe that that was what was being said about him. In terms of that being the case, I'm satisfied that the prosecution has negatived the defence of provocation (ts 68).'
b)The appellant had given evidence (accepted by the learned Magistrate) that:
i.The complainant had insulted him by calling him a 'fucking paedophile' who was 'rooting all the young girls around town'; and
ii.As a consequence of the insult, the appellant had lost his self control and assaulted the complainant (ts 68).
2.There has been a miscarriage of justice in light of the learned Magistrate's finding 'that the prosecution [had] negatived the defence of provocation' when such a finding was not supported by the evidence and was unreasonable.
Particulars
The learned Magistrate's findings of fact included the following:
a)The complainant had insulted him by calling him a 'fucking paedophile' who was 'rooting all the young girls around town';
b)As a consequence of the insult, the appellant had lost his self control and assaulted the complainant;
c)The assault had occurred in the heat of the moment;
d)The force used by the appellant was the grabbing of the complainant's arm and although that caused a bruise, the force used need not have been 'strong' (ts 66);
e)That since there was no evidence led by the prosecution about it, the appellant could not have thought the allegation by the complainant was one that he was actually a paedophile (ts 68);
f)That since he could not have thought the allegation was an actual allegation that he was a paedophile, the prosecution had negatived the defence of provocation (ts 68).

Facts

Much of the facts are not in dispute, however I will provide a short summary of them in order to provide context for this appeal.
Following 42 years of marriage, Mr and Mrs Anderson separated and proceedings in the Family Court were commenced. In June 2009 Mrs Anderson returned to Western Australia from Sydney where she had been living. She had a key to the former matrimonial home in Peppermint Grove as the Family Court had ordered that she could attend the house to collect personal property.
On 4 June 2009 Mr Anderson, who was then staying at the house, noticed that some glassware and ivory statuettes were missing. A laptop computer was also missing. He formed the belief that Mrs Anderson had taken these items.
On 5 June 2009 Mrs Anderson went to the house with a friend, Mrs Bell. As they entered, they were confronted by Mr Anderson. A heated exchange occurred during which Mr Anderson accused Mrs Anderson of taking the laptop computer. At this point, Mrs Anderson called Mr Anderson 'a fucking paedophile' and said that he had been 'rooting all the young girls around town'.
Following this, Mr Anderson grabbed Mrs Anderson by the right arm with the intention of forcibly removing her from the property. Mrs Anderson tripped on a rug in the process of being marched to the door and fell to the floor. There was evidence of bruising to her arm.

Magistrate's reasons

The magistrate provided detailed reasons and found that the act of grabbing Mrs Anderson, turning her round and marching her to the door constituted an assault. No issue is taken with that finding on this appeal. Her Honour then turned to the question of defences. In regard to provocation, she said:
The defences: there have been a number of defences raised in relation to this grabbing and turning around and marching out. As I said, that is an assault. The question now is whether that is an unlawful assault. The primary defence relied on really is that of provocation. The term 'provocation' is referred to in section 245 of the code and it means and includes any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him of the power of self‑control and to induce him to assault the relevant person giving the insult.
The first question here is whether the accused lost self‑control and if so then at what point he did so. The accused's case is that he was angry with Mrs Anderson, as he suspected she had taken his computer containing certain important information. He also believed that she had taken the items from the cabinets, the glassware and the ivories, and that's why he asked her to leave.
He says when she called him a 'fucking paedophile' and saying he was rooting all the young girls in town, effectively, his evidence is that that's what caused him to lose self‑control, grab her and march her towards the door. As has been pointed out, it's for the prosecution to prove that the defence of provocation has not been made out.
On the evidence, it's clear that the accused lost self‑control, given that he did physically manhandle Mrs Anderson, and having heard all the evidence, including the evidence of Mr de Mestre today, I've no reason to disregard the accused's evidence that the physical assault upon Mrs Anderson followed the point where she had called him a 'fucking paedophile' and accused him in relation to all the young girls around.
The next question then is whether that insult, or allegedly provocative conduct or comment was sufficient to deprive an ordinary person of the power of self‑control and that must be examined both subjectively and objectively. To call someone a paedophile, rooting all the young girls around town is, of course, insulting. How insulting depends upon the circumstances in which the insult is given.
There would be circumstances in which it might be said maliciously. Where it could be taken as an actual allegation where the person is actually saying, 'This is what you are and this is what you have actually done. You have committed this crime.' There could be circumstances where it's made in a public venue. Many different occasions where it could be said and which is why the court needs to look at both subjectively and objectively that the circumstances in which it has happened.
Here the context was a situation where Mrs Anderson comes to the home. Mr Anderson is upset. The computer has gone missing. He believes she has taken it. He's only the previous evening found other valuable items missing from cabinets. Believes she has taken them and has effectively accused her of being a thief and asking her to leave the house as soon as she ‑ well, not long after she sets foot in the door.
After his allegation is made and his demand that she get out is made, they become involved in a heated exchange. I've got no doubt about that. Mr de Mestre supported that and Mrs Anderson spoke about that, as did Mrs Bell. In the context of that exchange, Mrs Anderson makes this allegation. In her evidence she made reference to it being in the context of her assertion or belief that the accused was or had been going out with a woman 47 years his junior.
Whether or not that's true doesn't matter, and also really whether or not Mrs Anderson had stolen the computer or not or the ivories or not doesn't matter. The fact is that there's an allegation of stealing, responded to with an allegation of being a paedophile. Looked at in that context, the court then needs to ask, 'What is the possible effect of such an insult upon the self‑control of a hypothetical ordinary person in those circumstances?'
There's no doubt that the insult coming from Mrs Anderson was made in the heat of this unhappy exchange between the parties. There were other things being said. Mr de Mestre talked about someone ‑ it may have been Mrs Bell ‑ it doesn't matter ‑ saying that, you know, 'You should have settled the property by now.' Or, 'She needs a house to live in. She needs money,' whatever. All sorts of things being said.
In terms of this insult coming from Mrs Anderson, there's really nothing to indicate on the evidence before me that it was made in a context where it could be interpreted as an actual allegation that that is what her husband, or estranged husband was. That he was, in fact, a paedophile.
It seems to me that there is really no basis in the evidence led by the prosecution that if the accused did misinterpret this to be an actual allegation of paedophilia, there's just no evidence in the case put forward by the prosecution, is what I'm trying to say; that there was any basis in the context of in which this insult came out that an ordinary person could reasonably believe that that was what was being said about him.
In terms of that being the case, I'm satisfied that the prosecution has negatived the defence of provocation (ts 67 ‑ 68).

The defence of provocation

Sections 245 and 246 of the Code relevantly provide as follows:
245. Term used: provocation
The term provocation used with reference to an offence of which an 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 who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.
When such an act or insult is done or offered by one person to another, or in the presence of another, to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
…
246. Defence of provocation
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he 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 his passion to cool; provided that 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.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‑control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.
There is no doubt that words alone can constitute provocation: Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 322. The quality of the words is crucial in determining both their effect upon the accused person and their likely effect upon an ordinary person in the same circumstances.
The requirement that the wrongful act or insult be of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control is clearly intended to involve an objective threshold test: Stingel (324). That does not mean that the objective test was intended to be applied 'in a vacuum or without regard to such of the accused's personal characteristics, attributes or history as served to identify the implications and to affect the gravity of the particular wrongful act or insult': Stingel (324); Doust v Meyer [2009] WASCA 65, 71 (Miller JA).
In Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 Steytler J (McLure J concurring, with Pullin J in agreement on this point) summarised the propositions relating to the concept of an ordinary person:
The concept of an ordinary person was extensively discussed by the High Court in Stingel at 324 - 332. A number of propositions emerge from that discussion. While the Court was there concerned with s 160 of the Criminal Code (Tas), these points are, in my opinion, of application, also, in Western Australia. They might be set forth as follows:
(a)It is only if the objective threshold test is satisfied (that of whether or not the wrongful act or insult was sufficient to deprive an ordinary person of the power of self‑control) that it becomes necessary to consider the subjective question whether the accused was, in fact, deprived of his or her self-control (page 324).
(b)The objective standard exists so as to ensure that 'there is no fluctuating standard of self‑control against which accuseds [sic] are measured', with the governing principles being 'those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard' (Reg v Hill [1986] 1 SCR 313 at 343, per Wilson J) (page 324).
(c)However, the objective test is not to be applied in a vacuum or without regard to such of the accused's personal characteristics, attributes or history as served to identify the implications and to affect the gravity of the particular wrongful act or insult (page 324).
(d)In order to answer the central question posed by the objective test, that of whether the wrongful act or insult be of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control, the content and relevant implications of the wrongful act or insult must be identified and an objective assessment of its gravity in the circumstances of the particular case made (pages 325 and 326). See also Moffa, above, at 616, per Gibbs J, and 606, per Barwick CJ.
(e)The content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused and, in that regard, none of the attributes or characteristics of that accused will necessarily be irrelevant to an assessment of the content and extent of the provocation. Age, sex, race, physical features, personal attributes, personal relationships, past history and even, in some circumstances, mental instability or weakness of an accused may be among the relevant attributes or characteristics (page 326).
(f)The function of 'the ordinary person' for this purpose is that of providing an objective and uniform standard of the minimum powers of self-control which must be observed before the defence of provocation can reduce what would otherwise be murder to manslaughter (page 327).
(g)While personal characteristics or attributes of the particular accused may be taken into account for the purpose of assessing the content and extent of the provocation or, as their Honours put it at page 327, 'for the purpose of understanding the implications and assessing the gravity of the wrongful act or insult', the ultimate question posed by the threshold objective test relates to the possible effect of the wrongful act or insult, so understood and assessed, upon the power of self-control of a truly hypothetical ordinary person, unaffected by the personal characteristics or attributes of the particular accused, age aside. In considering what is the extent of the power of self-control of that hypothetical ordinary person, the Court will be affected by contemporary conditions and attitudes (see also Moffa, above, at 616 - 617, per Gibbs J and Parker v The Queen (1963) 111 CLR 610 at 654, per Windeyer J).
(h)The 'ordinary person' is not the 'reasonable man' in the law of negligence as 'it is all but impossible to envisage circumstances in which a wrongful act or insult would so provoke the circumspect and careful reasonable man of the law of negligence that, not acting in self‑defence, he would kill his neighbour in circumstances which would, but for the provocation, be murder' (page 328).
(i)The assumption underlying the objective test is not that to do an act which would otherwise be murder may be an ordinary or reasonable reaction to a wrongful act or insult, but that a wrongful act or insult may be such as to be sufficient to provoke an ordinary person to lose his or her self-control to the extent that that person does the unreasonable and extraordinary (page 329).
(j)The principle of equality before the law requires that differences between different classes or groups be reflected only in the limits within which a particular level of self-control can be categorised as ordinary. The lowest level of self-control which falls within those limits or that range is required of all members of the community, subject to the qualification that, in at least some circumstances, the age of the accused should be attributed to the ordinary person (page 329). This exception could be justified, the Court said (at 330), 'since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness' [49].

While some of those propositions refer to provocation in the context of the former partial defence which had the effect of reducing murder to manslaughter, the content of the ordinary person test is essentially the same in respect of assault. Furthermore, the distinction between the objective threshold test and the subjective question of whether an accused person was in fact deprived of his or her self‑control is essential in the context of an assault: Doust v Meyer [73] (Miller JA).
The objective test does not require that the alleged provocative words be considered in the abstract. As was said in Stingel:
… Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For example, it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is 'mad' to know that that person has, and understands that he has, a history of mental illness. As Wilson J commented in Hill [65], the 'objective standard and its underlying principles of equality and individual responsibility are not ... undermined when such factors are taken into account only for the purpose of putting the provocative insult into context' (326).
Similarly the High Court observed in Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58:
Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions (67).
In Verhoeven v Ninyette (1998) 101 A Crim R 24, 29 Wheeler J said that it was necessary to take into account contemporary conditions and attitudes in assessing the likely effect of provocative words upon an ordinary person. Any objective assessment of the gravity of the provocation also had to have regard to the particular circumstances of the accused. In that case her Honour held that a racial taunt needed to be considered in the context of notorious facts and community attitudes in order to be properly understood. Those considerations assisted in understanding how the words used affected the particular accused in that case. Her Honour said:
A focus on what is 'said' by words - what ideas and stereotypes they invoke, and what their significance is as understood by reference to history, community attitudes, and the characteristics of the person to whom the words are addressed - will in my view often be required if provocative words are to be adequately evaluated (30).
Wheeler J went on to say that reference to the circumstances can reveal a significant difference in the message and hence in the gravity of the provocation. Because the nature of insulting words may vary depending on the circumstances, a detailed description of all the surrounding circumstances is often to be found in the cases.
Sometimes the context may require consideration not of cultural or racial characteristics, but of personal circumstances known to those involved. This may particularly arise in the context of people well known to each other for whom words may have a particular meaning that relates to shared experiences or to personal information known only to the people involved: Stingel (335 ‑ 336).
In Verhoeven (33) Wheeler J referred to the article by Professor Ashworth, "The Doctrine of Provocation" (1976) 35 Cambridge Law Journal 292 in which the view is expressed that in order to be meaningful the gravity of provocation must be expressed in relation to persons in a particular situation and for that reason it was inevitable that the accused's personal characteristics should be considered by the court. Her Honour described the logic of this position as unassailable. However, she said, it did not necessarily assist in the choice between a focus upon what the accused understood and a focus upon what, in all the known circumstances of the case, the provoker could objectively be thought to be saying or doing.
As Wheeler J recognised, there are important public policy considerations that would stand in the way of any test that would simply ask what the alleged provocative conduct meant for the accused. Those considerations are particularly pointed in respect of assaults where provocation can provide a complete defence. Her Honour summarised those considerations as follows:
Broadly, my concerns, none of which are original, are that: an inquiry into what the provocation meant for the accused is liable to result in an abuse of the defence; an inquiry of this kind, particularly in the context of a complete defence to assault, may unduly interfere with the freedom of individuals and to the value of equality before the law; and such an inquiry leads one into a wilderness of subjectivities in which any logic is difficult to preserve (35).
The concern to determine the real meaning and significance of the words used has usually arisen where context elevates the offensive nature of the words. However, context may also operate to reduce the apparently offensive nature of words. Whilst rarely used as an insult today, to call someone a 'bastard' may be offensive if used in anger by a stranger but be a term of endearment if used by an old friend.
Furthermore, words that may be insulting on any view can vary in their degree of offensiveness. This, too, will depend on the context in which the words are used and the manner in which they are delivered. Insults often involve the use of analogy or metaphor such that they have an offensive quality independent of their literal meaning. Words that might be thought to easily meet the objective test when considered literally may not do so when their true meaning is determined. For this reason it is essential to ensure that the ordinary person test is applied to the true meaning of the words as determined by the context and not merely to the literal meaning of the words.

Ground 1 - defence evidence

This ground asserts that the magistrate made an error in failing to properly consider all of the evidence relevant to the defence of provocation. The passage which forms the basis of this ground is referred to in the particulars of the appellant's submissions and is also included in the extract from the magistrate' reasons which I have referred to earlier. For ease of understanding I will repeat it here:
It seems to me that there is really no basis in the evidence led by the prosecution that if the accused did misinterpret this to be an actual allegation of paedophilia, there's just no evidence in the case put forward by the prosecution, is what I'm trying to say; that there was any basis in the context of in which this insult came out that an ordinary person could reasonably believe that that was what was being said about him.
It is, of course, important to not draw the conclusion too readily that an error has occurred on the basis of a passage extracted from reasons which extend over many pages of transcript. The passage must be seen in its proper context in order to understand its meaning and the part that it plays in the reasoning process. Sometimes what appears on its face to be an error may not be so when all of the reasons are taken into account. It is also important to recognise that the reasons here were being delivered orally extempore therefore some allowance must be made for infelicities of expression.
The passage in question is, however, and with respect to the magistrate, difficult to understand. On one view, it appears that her Honour is stating that when the evidence of the circumstances was taken into account, there was no reason to believe that Mrs Anderson was accusing Mr Anderson of actually being a paedophile, that is, of being guilty of committing sexual offences against children. In that respect, there appears to have been no dispute between the parties. It was accepted at the hearing, and on the appeal, that what Mrs Anderson intended to convey by the insulting words was that Mr Anderson was engaging in sexual relationships with women who were much younger than himself.
In assessing the provocative quality of the words it was necessary for the magistrate to take into account not only their intended meaning but the way in which they would be understood in context. Of course to accuse a person of being a paedophile would in many circumstances be a highly offensive accusation. However, it was not suggested that Mr Anderson believed that such an accusation was being made, rather it was accepted that Mrs Anderson was making a disparaging reference to his relationship with an adult but much younger woman. Counsel for the appellant submitted that the words were, nonetheless, insulting in character.
If her Honour's only purpose in the passage in question was to point out that the literal meaning of the word paedophile, which in other circumstances might be highly provocative, was not germane in the circumstances of this case, her comment would be unremarkable. That is not to say that the use of the word is totally irrelevant. Besides its literal meaning a word may have derogatory connotations. The word paedophile in this context, whilst not intended to be understood literally, might be intended to convey that the relationship in question was shameful or socially unacceptable. The word might have been used as an analogy or, perhaps, a metaphor based upon a difference in age and the comparative youth of the woman referred to.
However, the appellant suggests that the fault in this passage lies in the reference by the magistrate to 'the evidence led by the prosecution'. It is submitted that this shows that the magistrate fell into error insofar as she only considered the evidence led by the prosecution in determining whether the insult was one that would cause an ordinary person to lose self‑control. If this is what the magistrate did then she would have failed to have proper regard to significant evidence regarding the alleged provocation that was adduced as part of the defence case.
There appears to be no doubt that the magistrate correctly directed herself about the onus and standard of proof. This is reflected in her Honour's conclusion that the prosecution had negatived the defence of provocation. Furthermore, her Honour found that the words used were an insult and properly identified that a question that needed to be answered was what effect such an insult would have upon the self‑control of an ordinary person in the circumstances. However, any suggestion that her Honour confined her consideration of the circumstances only to that evidence which was led by the prosecution is belied by the fact that she refers in her reasons to evidence that formed part of the defence case.
In particular, her Honour refers to the evidence of Mr Anderson in regards to the words that were used. Indeed, it is apparent that she accepted that evidence and his evidence that he lost self‑control. She also referred to the evidence of Mr de Mestre, another witness called by the defence. She accepted the evidence of Mr Anderson that the physical assault followed immediately after the words were said by Mrs Anderson and in doing so appeared to accept that those words had caused a loss of self‑control. On the face of the reasons it is not evident, therefore, that her Honour failed to have regard to the appellant's evidence when considering the defence of provocation. Indeed, it would seem that she relied substantially upon that evidence in determining the surrounding circumstances, what had been said and what had occurred thereafter.
For these reasons ground 1 cannot succeed.

Ground 2 - miscarriage of justice

Where it is asserted that a conviction should be set aside on the ground that it is unreasonable or cannot be supported by the evidence the test to be applied is that set out by the High Court in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King, Isaacs J said:
'If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.'
And as the Court observed in Davies and Cody v The King, the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers:
'not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled'.
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The appellant particularises a number of findings of fact made by the magistrate. The implication is that the appellant agrees with these findings and submits that in light of them it was not reasonably open to the magistrate to conclude that the defence of provocation had been excluded beyond reasonable doubt. However a ground of this type requires the court to make its own independent assessment of the evidence and I will do so.
As I have pointed out earlier, there was no dispute regarding the circumstances in which Mrs Anderson had come to attend the home. In cross‑examination she was asked about the alleged provocative words:
… You then accused him of being a paedophile?‑‑‑I can't remember what was said.
You said, 'You are a fucking paedophile and you are rooting all the young girls around town. It's disgusting'?‑‑‑Well, we could bring in the 18‑year‑old girlfriend.
No, no, don't worry about it, don't worry about it at this stage?‑‑‑Okay.
Did you say, 'You are a fucking paedophile and you are rooting all the young girls around town'?‑‑‑I can't remember the exact words I used.
Does that sound about right?‑‑‑I can't remember what I said exactly, so you could have ‑ I can't say yes or no to that.
Mr Anderson got pretty upset when you ‑ well, you say ‑ let's go back a step. Did you call him a paedophile?‑‑‑I said I can't remember whether I called him a paedophile. I could have or I couldn't have.
Whatever words that you used at that stage, did Mr Anderson become upset?‑‑‑Mr Anderson became upset at the slightest thing.
Sorry?‑‑‑You didn't need to provoke Mr Anderson for him to get upset.
Well, you know Mr Anderson. If you called him a paedophile, that would get him upset, wouldn't it?‑‑‑Probably.
You know that, though, don't you?‑‑‑Well, I know that he was taking out a girl 47 years younger than him.
Right. And to a degree, that's what a lot of this is about, isn't it?‑‑‑No.
The Family Court proceedings?‑‑‑That's part of what it's about (ts 24 ‑ 25).
The prosecution also called Mrs Bell, the friend of Mrs Anderson who had been present during the incident. In cross‑examination the following evidence was given:
And in response to being accused of taking the computer and glasswares, I'd suggest, Mrs Anderson said to Mr Anderson, 'You are a fucking paedophile and you are rooting all the young girls around town. It's disgusting'?‑‑‑Yes, she may have said words to that effect, because they were both violently verballing, Mr Anderson included (ts 50).
The appellant gave evidence in his defence. In regard to what was said by Mrs Anderson he gave the following evidence:
Did you say anything - ‑ ‑?‑‑‑I said ‑ I said, 'You have to leave, Cheryl.' She said ‑ that's when she shook her finger at me and called me an 'Effing paedophile,' and, 'I was doing other things to young girls around town.'
Okay. Now, up to this point in time while you've told Cheryl on two or three occasions that she had to leave, why were you telling Mrs Anderson who had a key to the premises that she had to leave?‑‑‑Well, because I didn't want her taking any more items out of the place.
And why was that? I mean, you may have personal reasons but was there any other reason that you were telling her she had to leave?‑‑‑Well, she had already spent three days there taking all her personal items out and also I wanted to work there and I didn't want any disruptions and I told her to leave and mainly because of these items were missing and I was afraid that she would take more.
Right. What about the court order? Did that have any bearing on your thoughts?‑‑‑It certainly did it was ‑ ‑ ‑
HER HONOUR: That could be leading, Mr Levy?‑‑‑It was in breach of court order and I was responsible for the things that were there.
LEVY, MR: Well, he's already said ‑ your Honour, he already said earlier (indistinct) understand there were court orders.
HER HONOUR: Well, all right then. If that's what you are chasing, I don't know why you are chasing it then.
LEVY, MR: Okay. Do remember the words that Mrs Anderson said to you at the point in time when you said she was shaking her finger?‑‑‑Yes, I just told you what it was. I said she called me, 'An effing paedophile.'
Right. But she used the full word?‑‑‑Yes.
Yes. Okay?‑‑‑And also about the young girls around town.
Did that have any affect on you?‑‑‑It certainly made me very angry, that combined with the fact the goods were missing I was ‑ I was upset about it (ts 13 ‑ 14).
In re‑examination Mr Anderson gave the following evidence about the context of the insult:
Mr Anderson, you were asked about at the time you marched Mrs Anderson to the door what actually happened and then you were also asked shortly after that that there was a shouting match going on and you agreed, yes?‑‑‑Yes.
The way in which you and Mrs Anderson were speaking (indistinct) had it changed at all at the point when you marched her to the door?‑‑‑Yes, Mrs Anderson was very angry and shaking her finger at me because I remember her finger. She has got something wrong with her finger that makes it very pointy and she was pointing it right at me and accusing me of these other vile things that I supposed to have done (ts 29 ‑ 30).

The defence also called Mr de Mestre, a lawyer engaged by Mr Anderson to represent him in the Family Court proceedings. Mr de Mestre was not present but had been engaged in a telephone conversation with Mr Anderson at the time Mrs Anderson and Mrs Bell arrived. The telephone had not been hung up and Mr de Mestre was able to hear parts of the dispute. He gave the following evidence:
Okay?‑‑‑And so I heard sort of muffled conversations and I heard him accuse Cheryl of taking the computer and then as best as I could hear deteriorated into what I call a shouting match ‑ ‑ ‑
Right?‑‑‑Between ‑ it sounded like three people. After a brief period of time it sounded to me like Cheryl and the person who I refer to as Pam left the home. Warren then actually came back onto the phone to me and I had a brief conversation with him and then it sound like ‑ it sounded to me like the two women Cheryl and Pam came back into the property and there was further arguments ‑ well, further ‑ it sounded to me like the parties were trading accusations with each other.
Right?‑-‑And then I heard Mr Anderson firmly clearly say, asking them to leave and I could overhear sort of noise but I assume that they then ‑ the other two then left.
Okay. Do you remember any specific words by any of the parties?‑‑‑I can remember words ‑ I can remember the effect of the conversation. The effect of the conversation was when Mrs Anderson first came in and Mr Anderson accused her of taking the computer. She didn't admit or deny that but she was quite heated with him. I can recall her accusing him ‑ in fact, look, I heard her say the words which I remember, she accused him of being a paedophile. She said that, 'You're rooting around with all the young girls in Perth,' and I - then I heard some scuffles and then they ‑ and it was after that that they left.
Okay?‑‑‑Mr Anderson then spoke to me and I said to him ‑ I said to him to the effect, 'It sounds to me like they might be baiting you.'
Okay. Perhaps we don't have to get your opinion about what your interpretation was, but can I just ask you about ‑ can I ask you firstly when you first ‑ ‑ ‑?‑‑‑That's what I recall saying to him.
Right. Okay?‑‑‑Yes.
Can I ask you about when you first heard Mr Anderson speaking to Cheryl, who you thought was Cheryl Anderson?‑‑‑Yes, yes.
Are you able to say anything about Mr Anderson's tone initially?‑‑‑I think with anything he just sounded surprised. The effect of was that he was surprised that she was there and my impression was he just wanted some time ‑ he wanted some explanation as to where the computer was.
Okay. Can I ask you this, in relation to the conversations that you heard involving Mr Anderson and Cheryl Anderson?‑‑‑Yes.
Did the tone of Mr Anderson's voice change at any stage?‑‑‑The tone didn't necessarily change although there was some shouting about ‑ I think Pam said words to the effect of, 'You've been married 40 years. You have to give Cheryl something.' Warren raised his voice back to the effect of, 'I made an offer some time ago,' then I think either Pam or Cheryl said, 'You shouldn't have involved the children,' and then Warren raised his voice over the top of the two of them saying, 'Well, I didn't involve the children, you did,' so some of the ‑ there was shouting both ways.
Okay. You told the court that you could recall the person who you identified as Cheryl accusing Mr Warren Anderson of being a paedophile?‑‑‑Yes.
Rooting around with young girls in Perth?‑‑‑Yes.
Yes. Did you hear if Mr Anderson said anything in response to that?‑‑‑I can't specifically recall. I'm sure he would have but I just can't recall specifically what he said.
Okay. In terms of what you heard the person you call Cheryl saying ‑ accusing Mr Anderson of being a paedophile, was that at the start of the conversation, the end, whereabouts in terms of hearing the interaction between Mr Anderson, Cheryl and Pam?‑‑‑It was towards the end and shortly before the end of the first ‑ what I call the first conversation or the first time it sounded to me like Cheryl and Pam were inside the house.
Right. Okay. Are you able to say how long you heard the interaction between these three voices, Pamela ‑ Pam, Cheryl and Mr Anderson?‑‑‑The two discussions combined would not have been more than 15 minutes. There was a couple of minutes the first one, a couple of minutes where they weren't in the property and then a couple of minutes after that (ts 33 ‑ 34).
On the basis of this evidence it is properly open to conclude that the words used by Mrs Anderson would not have been understood as an actual allegation that Mr Anderson was a paedophile. What was actually conveyed and understood was that Mrs Anderson was saying that Mr Anderson was engaged in one, or possibly more than one, sexual relationship, with women significantly younger than himself. Those words were used in the context of a heated argument.
The actual words used also suggested that Mr Anderson's conduct in engaging in these relationships was shameful, indiscreet and socially unacceptable. The evidence suggests that Mrs Anderson's tone was angry and accusatory. According to Mr Anderson there was also some finger pointing by Mrs Anderson. That is sufficient to qualify what was said as being insulting. However, not every insult will be of such a nature as to provoke an ordinary person to physical violence.
Whether this insult was of such a nature depends not only on the particular circumstances but on the broader community standards of the present time. In other times and other cultures, to accuse a person of adultery or even extra‑marital sex may have been to suggest a high degree of immorality. I think it is fair to say that that degree of social opprobrium would not attach to accusations of this kind in Australia in 2010. There might also be moral implications in accusing a person of engaging in sexual relations with someone much younger or older. There may be a suggestion of unfair advantage being taken of one party or the other (not necessarily the younger person). Furthermore, it might be suggested that the older person is exposed to the risk of public ridicule. That such accusations are made by an estranged wife might well add to their impact. However, it is not sufficient that an insult of this type and in this context would make an ordinary person angry. It must be of a type that would be likely to deprive a person of their self‑control such that they ought not be criminally responsible for committing an assault upon another person.
The capacity of a person for self‑control when faced with an insult may vary according to their beliefs, culture and upbringing. Particular sensitivities or a predisposition to become angry cannot, however, excuse conduct that would not generally cause an ordinary person to be provoked. The question is not whether an insult is of such a nature that a physical response is understandable, rather it is whether the insult is of such a nature as would be likely to deprive an ordinary person of self‑control.
The orderly operation of civilised society assumes that people will exercise an acceptable degree of self‑control in their dealings with others. Thus it would be expected that ordinary people exercising a reasonable degree of self‑control would ignore or laugh off some insults. Alternatively, a person might respond verbally in kind. In yet other circumstances a person may leave or require the person who made the insult to leave. It is proper to consider the available alternatives that a person may have when faced with such an insult.
In my view, it is clear from the evidence that Mr Anderson was angered by the insult. The magistrate came to that conclusion. Indeed, her Honour found that the insult had caused Mr Anderson to lose his self‑control. That, however, does not assist in determining the question of the likely effect on an ordinary person. In fact, that objective question is properly the first or threshold question. The effect the insult had on the accused only becomes a relevant issue if the objective question is answered in the affirmative. The magistrate need not have dealt with the subjective effect if she considered that the insult would not provoke an ordinary person to commit an assault. However, the fact that she did so is immaterial for present purposes.
As I have stated earlier, in some circumstances a word that is otherwise innocuous may be highly offensive. On the other hand, a word that in many circumstances might be offensive can be less so when understood in a particular context. Her Honour was correct to conclude that there was no suggestion either made or understood that Mr Anderson was in fact a paedophile. The question then was whether the true implication of the words was insulting and sufficiently so to cause an ordinary person to lose self‑control.
It would have been preferable if, following the passage referred to in ground 1, and having said what the words did not mean, her Honour had gone on to say what she found the words to mean in the context. Had she done so, there would have been no doubt that her conclusions related to that meaning. Since she did not do so, the question is whether she considered that the words as understood by an ordinary person in the circumstances would have had a provocative quality. Counsel for the appellant submitted that her Honour did not give consideration to the real meaning of the words but rather simply concluded that if they did not bear their literal meaning they were not of a nature to cause an ordinary person to lose their self‑control.
From reading the reasons as a whole, it would appear that her Honour did consider whether an allegation that Mr Anderson had engaged in sexual relationships with women many years his junior was provocative. That she did so can be inferred from the fact that having referred to the true nature of the words, she continues to refer to them as being an insult. The use of that word implies that what was understood by Mr Anderson was capable of raising the defence of provocation. Indeed, if the words as understood could not qualify as an insult at all, there would have been no need to consider the objective test. Yet her Honour did consider that test and concluded that she was satisfied that the prosecution had negatived the defence of provocation.
Furthermore, after delivering her decision and during the course of submissions as to costs, the following exchange occurred (ts 76):
LEVY, MR: No. Your Honour might remember the very first occasion that I appeared in front of you in relation to this matter, in fact I raise the defences that were relied upon, particularly section 245 and 246, provocation. So it was the factual issues we never perceived were going to be a major concern. It was going to be whether in fact the defence arose. As it transpired it went ‑ ‑ ‑
HER HONOUR: I said, 'No, I don't accept that a reasonable person would have been provoked.'
This clearly implies that her Honour did more than simply reject provocation because the words were not used in their literal sense. She must have gone on to consider whether the words as understood would have caused an ordinary person to lose self‑control. I note in this respect that her Honour used the word 'reasonable' rather than 'ordinary' in this quote. Other decisions have noted that there may be an important distinction between a reasonable person and an ordinary person in that a reasonable person might behave with perfect equanimity and never be provoked: Stingel (328). Of course ordinary is the word that is used in s 245 and is to be preferred. However, that does not appear to be material to the present issue. The point is, that her Honour by this response indicates that she has considered the question of whether an ordinary person would have been provoked and she could only properly have reached that point if she accepted that the words as understood were capable of having an insulting connotation independent of their literal meaning.
The real difficulty, however, is that other than referring to the insulting quality of the words in general terms, her Honour does not state what the insulting quality exactly is. Having rejected that there was any accusation of paedophilia, her Honour does not make a clear finding of what the content and tenor of the words were.
The respondent submits that it can be inferred that the magistrate had concluded that the true meaning of the words was that Mrs Anderson was accusing her estranged husband of engaging in sexual relations with much younger women. However, given the choice of words, there are a number of additional possible connotations. For example, that the relationships were exploitative, shameful, socially unacceptable, offensive to right‑thinking people, that Mr Anderson was being indiscrete and immoral and that there were numbers of such relationships. Her Honour might have accepted that some, all or none of these connotations existed. The offensive nature of the insult could vary depending on exactly what connotations it was understood to carry. The manner and tone of the delivery of the words might also have an effect upon their offensive nature. It was necessary for the magistrate to make a finding in regard to the insulting nature of the words before turning to the objective test.
If her Honour did make a finding in this regard it was not stated. It is thus difficult to know whether she was applying the ordinary person test to a mere insult of engaging in sexual relations with younger women or a more serious insult of engaging in offensive, shameful, immoral and exploitative conduct or something between these two. What is known is that her Honour concluded that the insult did not meet the objective test. However, even if her Honour's reasons are deficient, ground 2 is not based upon such a deficiency but upon the assertion that the conclusion that provocation had been disproved was not open on the evidence. This requires that I examine all of the evidence to determine whether it was properly open for her Honour to reach such a conclusion. Furthermore, s 14(3) of the Criminal Appeals Act 2004 (WA) provides that this court is not required to set aside a decision because a magistrate omitted to make a necessary finding of fact if the evidence in substance supports the decision.
In assessing the evidence, I will assume that the words, whilst not meant literally, conveyed all of the additional connotations that I referred to earlier. That is, in the circumstances they meant that Mr Anderson was engaging in sexual relationships with much younger, though adult, women. Also, that the relationships could be viewed as socially unacceptable and possibly exploitative. This takes a view of the evidence which is most favourable to the appellant.
However, even with such connotations the insult has to be seen in the context of a heated exchange between an estranged husband and wife. Not only do things said in such a context often not have a literal meaning, there can also be resort to hyperbole. Points of difference may be exaggerated both out of anger and to increase their effect. That is something that parties to such an argument are usually well aware is occurring.
In the course of the exchange Mr Anderson had accused his wife of taking things that she was not authorised to take. That she would make some response to this must have been anticipated. Furthermore, in his evidence, Mr Anderson said it was his belief regarding the alleged taken property that 'combined with' the insult to make him 'very angry'. This was a complex confluence of events, not an unrelated or gratuitous insult. Seen in that context, the words used by Mrs Anderson were clearly spoken in anger and retaliation and would have been so understood.
In all of these circumstances, it was open for the magistrate to come to the conclusion that the insulting words were not of such a nature as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person who made the insult. Such a conclusion was not unreasonable nor unsupported by the evidence. Accordingly, ground 2 must fail.
The appeal, therefore, is dismissed.