Di Latte v SANTANGELLO
[1999] WASCA 223
•25 OCTOBER 1999
DI LATTE -v- SANTANGELLO [1999] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 223 | |
| Case No: | SJA:1088/1999 | 25 OCTOBER 1999 | |
| Coram: | MILLER J | 25/10/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Appeal against sentence allowed Conditional release order substituted for fine | ||
| PDF Version |
| Parties: | ANTONIO DI LATTE SALVATORE SANTANGELLO |
Catchwords: | Criminal law Appeal Provocation Whether considered by Magistrate Turns on own facts Sentence Minor assault Case for conditional release order |
Legislation: | Criminal Code, s 246 Sentencing Act 1995, Pt 7, s 49 |
Case References: | Van Den Hoek v The Queen (1986) 161 CLR 168 Masciantonio v R (1994-1995) 183 CLR 58 Stingel v R (1990) 171 CLR 312 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
SALVATORE SANTANGELLO
Respondent
Catchwords:
Criminal law - Appeal - Provocation - Whether considered by Magistrate - Turns on own facts - Sentence - Minor assault - Case for conditional release order
Legislation:
Criminal Code, s 246
Sentencing Act 1995, Pt 7, s 49
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Conditional release order substituted for fine
(Page 2)
Representation:
Counsel:
Appellant : Mr A Metaxas
Respondent : Mr D J Matthews
Solicitors:
Appellant : Arthur Metaxas
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Van Den Hoek v The Queen (1986) 161 CLR 168
Case(s) also cited:
Masciantonio v R (1994-1995) 183 CLR 58
Stingel v R (1990) 171 CLR 312
(Page 3)
1 MILLER J: The appellant was charged in Petty Sessions that on 13 December 1997 at Perth he unlawfully assaulted one William Robert Edgar. The matter was heard before Mr W Tarr SM on 6 May 1999. It was a simple case, in which there were differing accounts of the circumstances of the incident in which Edgar claimed to have been assaulted. It was in every respect a matter in relation to which the learned Magistrate's assessment of the credibility of witnesses was vital to the outcome.
2 The facts revealed that the appellant and Edgar were business rivals, operating boat cruises from the Barrack Street No 2 jetty. Each apparently had a vessel on a different side of that jetty. On 13 December 1997 Jeanette Ruth Bannister, a self-employed caterer, arrived at the Barrack Street No 2 jetty for the purpose of doing a catering job on one of Edgar's vessels. She drove a Daihatsu van onto the jetty and stopped near Edgar's vessel. The facts as found by the learned Magistrate were that the appellant then approached Mrs Bannister and requested her to move the vehicle forward, which she did. Shortly thereafter, for a reason which was not clear, Mrs Bannister then moved the vehicle back to where it had initially been. The learned Magistrate found that it was then on the eastern side of the jetty (the side nearest to Edgar's vessel) or perhaps near the centre. The appellant then approached Mrs Bannister's van and it was found by the learned Magistrate that he did so extremely aggressively. Mrs Bannister contended that the appellant opened the door of her van, moved the handbrake and pushed the car forward to within a metre of the edge of the jetty. The learned Magistrate accepted Mrs Bannister's conclusion that the appellant was concerned that the vehicle was going to fall off the jetty into the river, and for that reason he jumped into it and pulled on the handbrake with such force that he bent it. Mrs Bannister did not know the appellant but found him to be an extremely aggressive person. She said that he came towards her after the incident with the van and as he did so, a man whom she did not know (but who was Edgar) stepped between Mrs Bannister and the appellant and asked what was wrong. According to Mrs Bannister the appellant then spun Edgar around and pushed him into her. In cross-examination she stated that Edgar had been pushed towards her and "fell into" her.
3 The incident was witnessed by an independent person who was intending to take a boat cruise on the night in question. He was John Nicolopoulos. He described the actions of the appellant in relation to Mrs Bannister's vehicle as opening the door of it and pushing it quite forcibly towards the edge of the jetty and then slamming on the handbrake and forcibly talking to the person who owned the van. He too described
(Page 4)
- the appellant's behaviour as aggressive and said that the appellant was verbally abusing Mrs Bannister about parking on the jetty. He said that Edgar had stepped between Mrs Bannister and the appellant with his back towards the appellant, in response to which the appellant had grabbed Edgar and turned him around and pushed him. Nicolopoulos then stepped in and restrained the appellant by holding his wrists and asking him to calm down. It was put to Nicolopoulos that Edgar had thrown a punch at the appellant, but Nicolopoulos said he saw no such thing, and had observed the entire incident. It does not appear that it was specifically put to Mrs Bannister that Edgar had thrown a punch at the appellant.
4 William Robert Edgar's version of the incident was that he had stepped between Mrs Bannister and the appellant, and was facing Mrs Bannister when he was spun around and shoved in the chest by the appellant. This, he said, caused him to stumble backwards a number of steps into or almost into Mrs Bannister. He denied saying anything to the appellant and denied vehemently that he had swung around and punched the appellant in the throat.
5 The appellant gave evidence. He testified that Mrs Bannister's van had been parked in the middle of the jetty and that he had requested her to move it to one side because he had a vessel returning from Rottnest. This was done, but shortly afterwards he observed that the van was back in its original position. He moved the vehicle himself to within a metre of the jetty and was in the course of speaking to her when Edgar suddenly came between Mrs Bannister and himself. According to the appellant, Edgar came running off one of his boats and stood between Mrs Bannister and himself with his back to him. He put his hand on Edgar's left shoulder and was in the course of speaking to him when Edgar spun around and punched him in the throat. He denied that he had at any time pushed Edgar in the chest.
6 A police officer named Santangello gave evidence that he had on 8 January 1999 spoken with the appellant and invited him to take part in a video record of interview which he declined to do. The learned Magistrate pointed out that the appellant had in his evidence said that he had tried to report to the police the fact that he had been punched in the throat by Edgar, but had given up because the police were too busy on the night in question when he endeavoured to speak with them. The learned Magistrate did, however, make an unfortunate comment about the video record of interview. He said:
(Page 5)
- "But on the 8th of January when this matter was being investigated, he had an opportunity then to give his version and to make the report that he claims he wanted to. Now it would seem on the evidence that I've heard, that there was no - - he wasn't - - he declined to give a version on video and he also declined to make a statement. But I would have thought if he was punched in the throat as he said, that was an opportunity of some 3 weeks later to say that. But he, at that stage, decided not to."
7 There was, of course, no obligation on the appellant to give any explanation to the police officer with whom he spoke on 8 January. It was quite wrong of the learned Magistrate to conclude that if it was the case that the appellant had been punched in the throat one would have expected him three weeks later to have said so to investigating police.
8 The Magistrate's conclusions on the facts were in the following terms:
"The defendant is saying that even if there was an assault, which he denies, there was some provocation for his actions. Now it seems to me in all the circumstances, the person who was behaving in a provocative manner on this day was Mr Dilatte. There'd been ill feelings between the parties. The Department of Transport, as I've heard, even went to the extent of putting a line down the middle of the jetty for some reason. Now I accept that passengers would not be phased (sic) by the line and they would - - and have a right to travel anywhere or walk anywhere they like on the jetty.
But for Mr Dilatte to get involved to the extent he did on this day with a delivery van - a van that was delivering food to the opposition - I would have thought was fairly provocative, particularly the way he took things into his own hands and moved the van the way he did. He said that he moved the van because he had a concern for his passengers. But I would have thought with the history of this matter as I've heard only in court today, then to get involved with anything that was happening in relation to another boat, an opposition boat, was provocative.
Mrs Bannister and Mr Nicolopoulos are almost independent witnesses. Mrs Bannister said she hadn't seen either men before
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- this day and she found the whole incident quite distressing and that was her evidence. She said it was very stressful.
I accept the version of events on this day as that being the version of the prosecution. I find that Mr Dilatte was the aggressor and that he did spin Mr Edgar around and then push him and I find the charge proven. The defendant will be convicted."
9 After hearing a plea in mitigation from counsel for the appellant the learned Magistrate imposed a fine of $500 with costs of $135.
10 On 22 June 1999 Owen J gave leave to the appellant to appeal the decision of the learned Magistrate on the following grounds:
"1.1 the learned Magistrate misdirected himself in law in finding that the failure of the applicant to explain his conduct to the Police on 8 January 1998 was a relevant consideration in deciding whether the defence of provocation was available;
1.2 the learned Magistrate misdirected himself in law by failing to make any assessment as to whether the conduct of William John Edgar on 13 December 1997 amounted to provocation;
1.3 the penalty imposed of a $500 fine was manifestly excessive in the circumstances."
11 In relation to ground 1 I have already expressed the view that the learned Magistrate's comment on the failure of the appellant to make a full explanation in a video record of interview was unfortunate. It was indeed an erroneous approach by the learned Magistrate. However, it does not seem to me that the learned Magistrate made any specific finding against the appellant by reason of his failure to make a full explanation to the police. To the contrary, the learned Magistrate seems to have decided the case on the question of credibility of the witnesses, and in particular those whom he described as "almost independent" but who were in truth completely independent. The finding of the learned Magistrate was that the version of events put forward by the prosecution witnesses was that which was acceptable, and not the version which was put forward by the appellant. There was no statement by the learned Magistrate in relation to either the onus or standard of proof, but it can be taken from his Worship's reasons that he understood the obligation of the Crown to prove the case
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- and to prove it beyond reasonable doubt. This he found proven and proven to the required standard by accepting the version of events put forward by prosecution witnesses.
12 The real question on the appeal is whether the learned Magistrate erred in failing to consider whether or not the action of Edgar in stepping between Mrs Bannister and the appellant raised the issue of provocation: Criminal Code s 246.
13 It is, of course, necessary that if there is material on the evidence capable of constituting provocation, that issue must be determined by the Court. In Van Den Hoek v The Queen (1986) 161 CLR 168 (at 161) it was put this way:
"The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self-control, nor the fact that counsel in effect told the learned trial judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration. In Bullard v The Queen (11) Lord Tucker, delivering the reasons for the judgment of the Judicial Committee, said:
'It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.'
That statement is amply supported by authority: see Mancini v Director of Public Prosecutions [1942] AC 1; Kwaku Mensah v The King [1946] AC 83; Lee Chun-Chuen v The Queen [1963] AC 220; Parker v The Queen (1964) 111 CLR 665; Da Costa v The Queen (1968) 118 CLR 186; Pemble v The Queen (1971) 124 CLR 107; Sreckovic v The Queen [1973] WAR 85.
(Page 8)
- The question that then arises is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation."
14 In the present case the learned Magistrate did address his mind to the question of provocation. He pointed out that the appellant's case was that even if there was an assault (which he denied) "there was some provocation for his actions". The learned Magistrate however, took the view that the person who acted provocatively was the appellant. That is, the learned Magistrate made an implicit finding that it was not Edgar who behaved provocatively in any way but the appellant who himself was the provocative party. In truth, the learned Magistrate was correct. On the evidence, all that Edgar had done was step between the appellant and Mrs Bannister, with his back to the appellant, who on any view of it was creating an issue over the position of Mrs Bannister's vehicle on the jetty. I find it difficult to see how it could be said that Edgar's conduct raised the defence of provocation. I cannot see that there was any wrongful act or insult offered by Edgar in the action he took of stepping between Mrs Bannister and the appellant. It is unnecessary for me to consider whether a test of provocation set out in s 246 of the Code could be met. There is much to be said for the Crown's argument that even if there was a wrongful act or insult, it could not be said to be of sufficient gravity to be provocative, and nor could it be said (if provocative) to be such as to cause a person with ordinary powers of self-control to lose that control and act in the manner in which the appellant did. I interpret the learned Magistrate's decision as a conclusion that there was no wrongful act or insult on the part of Edgar, but only provocative and/or aggressive behaviour on the part of the appellant in circumstances in which the appellant spun Edgar around and pushed him towards Mrs Bannister, not himself having been struck at any time by Edgar or otherwise provoked by him. In these circumstances I find no substance in the second ground of appeal raised by the appellant.
15 The appellant contends that the penalty of $500 by way of a fine was manifestly excessive in the circumstances. The penalty that could have been imposed was imprisonment for 18 months or a fine of $6000, but the assault was clearly at the bottom end of the range of seriousness. The learned Magistrate seems to have viewed it somewhat differently, making the following observations when sentencing the appellant:
"Now it's my view that your behaviour on this day was the provocative behaviour. I don't know what has gone on in the
(Page 9)
- past, but when considering how serious an assault is, one looks at the circumstances of the assault.
On this occasion, I've heard evidence that you were arguing with Mrs Bannister. I found that you pushed her. She had some concern that she was going to go for a swim, in her words. It was a provocative action, or incident as far as I'm concerned; provocative on your part and while the actual action of pushing is - - there was no injury or - - it was no more than a push. But in all the circumstances, it was more serious than it would normally have been.
I propose to impose a fine. You'll be fined $500 with costs of $135."
16 It appears that the learned Magistrate regarded the assault as serious, describing the circumstances "more serious (than normal)". The prosecutor had conceded that the assault was at the lower end of the scale, although disputing defence counsel's submission that it was trivial. Although the fine imposed was only one twelfth of the maximum that could have been imposed, it seems to me that this was not a case for a fine at all. It was a case ideally suited to the imposition of a conditional release order under Pt 7 of the Sentencing Act 1995. That in my view would be the appropriate disposition of the case when regard is had to the fact that the assault involved only a push. I would therefore uphold the appeal against penalty and substitute in lieu of the fine of $500 a conditional release order for a period of six months. There are not, in my view, any requirements (Sentencing Act 1995 s 49) which need to be imposed upon the order.
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