Doust v Meyer
[2009] WASCA 65
•24 MARCH 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DOUST -v- MEYER [2009] WASCA 65
CORAM: WHEELER JA
BUSS JA
MILLER JA
HEARD: 3 MARCH 2009
DELIVERED : 24 MARCH 2009
FILE NO/S: CACR 99 of 2008
BETWEEN: PHILLIP GEORGE DOUST
Appellant
AND
BARTHOLOMEW JAMES MEYER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :JENKINS J
Citation :MEYERS -v- DOUST [2008] WASC 112
File No :SJA 1023 of 2008
Catchwords:
Criminal law - Appeal from single judge - Whether judge correct to overturn appellant's acquittal in Magistrates Court - Whether reasons of magistrate adequate - Whether existence of a hand gesture conclusion open to magistrate - Whether gesture constituted wrongful act or insult - Whether defence of provocation open in circumstances of case - Criminal Code s 245, s 246
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 221(1)(d), s 222, s 245, s 246, s 313(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M R Hall
Respondent: Ms C J Thatcher
Solicitors:
Appellant: Hall & Hall Lawyers
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Censori v The Queen [1983] WAR 89
de la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Johnson v The Queen (1976) 136 CLR 619
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Meyers v Doust [2008] WASC 112
Moffa v The Queen (1977) 138 CLR 601
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Sreckovic v The Queen (1973) WAR 85
Stingel v The Queen[1990] HCA 61; (1990) 171 CLR 312
WCW v The State of Western Australia [2008] WASCA 232
WHEELER JA: I agree with Miller JA.
BUSS JA: I agree with Miller JA.
MILLER JA: The appellant seeks leave to appeal from a decision of Jenkins J (Meyers v Doust [2008] WASC 112) in which the respondent's appeal from the decision of a magistrate was allowed and the decision of the magistrate set aside. There were consequential orders that the appellant be convicted on a charge of assault in circumstances of aggravation and that the charge be remitted to the magistrate for the appellant to be sentenced according to law.
The question of leave to appeal from the decision of Jenkins J (the single judge) has been referred to this court for determination with the appeal. There is an application for leave to adduce further evidence by way of an affidavit of the appellant sworn 30 October 2008. That application has also been referred to this court for determination at the hearing of the appeal.
Grounds of appeal
The grounds of appeal relied upon by the appellant challenge the conclusions of the single judge in the following way.
1The learned Judge erred in law and in fact in giving a literal interpretation to the actions of the complainant as the learned magistrate found them to have occurred when such a literal interpretation was not supported by the evidence.
2The learned Judge erred in law and in fact in failing to hold that the actions of the complainant as found by the learned Magistrate and properly interpreted were an act or insult such as was likely to deprive an ordinary person of the power of self control and to induce him or her to assau1t the person offering the act or insult, pursuant to Criminal Code s 246.
Particulars
The learned magistrate stated in her findings that the complainant 'held up his hand to the accused' but there was no prosecution evidence to support a description in such simple terms or any other similar action by the complainant as would exclude the evidence given on behalf of the defence by the accused viz: '...all of a sudden I had a hand in my face with a finger almost placed up my nose' and by the accused's wife 'He stormed up to my husband with his finger waving in my husband's face and saying ...'
3The learned Judge erred in law in holding that the learned Magistrate did not find, or that it would not have been open to her Honour to find, that the complainant's actions constituted a wrongful act or insult, pursuant to Criminal Code s 246.
To understand these grounds, it is necessary to review the trial in the Magistrates Court.
Proceedings in Magistrates Court
The appellant was charged by complaint that, on 19 March 2007 at Perth, he 'unlawfully assaulted Peter Stuart Murray under circumstances of aggravation, namely complainants is [sic that the complainant was] over the age of 60 years according to Section 221(1) Criminal Code' contrary to the provisions of s 313(1)(a) of the code.
Section 313(1)(a) provides that any person who unlawfully assaults another is guilty of a simple offence and is liable, if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine of $36,000.
Circumstances of aggravation are defined in s 221 of the Criminal Code. The relevant circumstance of aggravation in this case was s 221(1)(d), which provides that 'circumstances of aggravation' mean circumstances in which the victim is of or over the age of 60 years.
The meaning of 'assault' is contained in s 222 of the Criminal Code. Relevantly, the definition is as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The appellant pleaded not guilty to the charge of assault and his trial was heard before Magistrate Langdon in the Magistrates Court at Perth on 14 February 2008. At the conclusion of the hearing, the magistrate ruled that '[t]he assault was not unlawful, the charge is therefore not proven and is dismissed'.
The prosecution evidence
At the trial of the appellant there were a number of prosecution witnesses called. The first was the complainant, Peter Stuart Murray (Mr Murray). He testified that he was a 64‑year‑old legal practitioner who was at the Magistrates Court at 9.30 am on 19 March 2007. He took judgment in a case that had been heard by a magistrate. His client was Laura Knox Kazmirowicz (Ms Kazmirowicz), who had been charged with six counts of fraud. The case against her was dismissed.
Mr Murray testified that, when he left the courtroom, he was in company with Ms Kazmirowicz and her parents, Roman and Judith Kazmirowicz. He said that they were standing outside court 36. At that time, he became aware of the presence of the appellant, who was speaking loudly in the direction of Roman Kazmirowicz. Mr Murray's evidence was to the following effect:
He looked agitated. He was mentioning something about baby Jesus. I looked at him and I told him to go away. I made that statement and he simply moved towards me, put both of his hands in my chest and pushed me backwards. As he pushed me backwards he continued, if you like, following me. He continued pushing me. It was a relatively short distance, probably in the order of two metres.
...
[T]here was a settee or a bench seat located outside the court. I was pushed back onto that settee and I was in a half sitting, half reclining position. Mr Doust was on top of me and he was pushing and clawing at my face.
Mr Murray said that the appellant was dragged off him by others and was restrained. He said that the appellant was yelling out that Mr Murray had lied to the court. The appellant also said things which were not favourable to the magistrate who had given the decision.
Mr Murray was vigorously cross‑examined. It was put to him that, on the morning in question, he had a number of loose files in his hands, but he denied that this was so. He was certain that he had what was described as a 'pilot's case'.
The relevance of the holding of files was that counsel for the appellant suggested to Mr Murray that if he was holding files, they would have gone everywhere when he was attacked. Mr Murray said that they would have, but denied emphatically that he was holding files.
The cross‑examiner suggested to Mr Murray that he had been walking down the corridor when he heard the appellant call out and that he had turned to put his files on a seat and come back to where the appellant was. It was put to Mr Murray that he had waved his fingers in the appellant's face and told him that he would get him. This, Mr Murray denied. It was then put to Mr Murray that the appellant had pushed his hand away and Mr Murray had stumbled and ended up on the couch. Mr Murray described this proposition as 'absolute nonsense'.
Ms Kazmirowicz gave evidence that she had been in court 36 on the third level at the Central Law Courts on the morning of 19 March 2007. She had walked out of the courtroom with her family and with Mr Murray. She had stopped outside the courtroom with them and, at that time, the appellant and his wife had come out. The appellant was making comments directed towards her. She described these comments as follows:
'Well, thank you, baby Jesus' and he repeated that several times and was making some other derogatory comments about Christianity and my religion.
Ms Kazmirowicz said that she did not respond and the appellant walked past her. It looked to Ms Kazmirowicz as if the appellant was going to walk towards her father. She then said:
At that point Mr Murray stepped in between him and my father and said something along the lines of, 'Just leave it.' That was when Mr Doust pushed Mr Murray with both hands to the chest and then he grabbed Mr Murray by his front with both hands, turned him around and pushed him down onto the chairs that were in front of the waiting area in the courtroom - sorry, outside the courtroom.
Ms Kazmirowicz was asked the following question:
When Mr Murray said, 'Just leave it' do you recall if he did anything else other than say, 'Just leave it'?‑‑‑He may have just raised a hand up just, you know, as a kind of placating gesture but he certainly didn't do anything that would have instigated being pushed.
Ms Kazmirowicz was cross‑examined about the incident. She was asked about Mr Murray's files. She said that he had a pile of files and he put them into a briefcase, which he took outside. Cross‑examining counsel put to Ms Kazmirowicz the appellant's case, the details of which were denied by Ms Kazmirowicz:
Well, I put it to you that what happened was you and Mr Murray and your parents came out. You were standing there talking. We have been told by Mr Murray that your mother gave Mr Murray a hug. Everyone was quite happy. Then Mr Murray turned to walk out via the other entrance then Mr Doust came out and made his comments about baby Jesus in a very loud voice and when he made those Mr Murray was not there?‑‑‑No. That is not what happened.
Mr Murray came back and shook his fist at Mr Doust?‑‑‑That is not what happened. Definitely did not shake his fist at Mr Doust.
That is when the trouble started?---He was standing talking to my parents and he stepped in front of my father. The only thing he may have done would have been to put his hand up, open palmed, and say something to the effect of, 'Leave it.' He did not shake his fist and he was not walking back towards us.
Judith Kathleen Kazmirowicz (Mrs Kazmirowicz) gave evidence that she had been at the Perth Magistrates Court on the morning of 19 March 2007. She was with her husband and her daughter, Laura. She said that, when the three of them were outside the court with Mr Murray, the appellant came up to their group and began shouting in a loud voice, directed at her husband and daughter. She, too, said that the appellant made disparaging remarks about religion. She said that they were as follows:
He began to yell out, 'Thank you, baby Jesus. Oh, thank you, baby Jesus' at least four times. He followed that with other religious comments. I believe at one time he said something about, 'All God's angels.' That is all I remember what he said at that time.
What happened after he was yelling that out?‑‑‑Suddenly and without any provocation whatsoever Phillip Doust began yelling at Mr Peter Murray. He lunged at Mr Peter Murray. He grabbed hold of Mr Peter Murray by Mr Murray's - I believe it was the lapels of his suit. So he grabbed hold of Mr Murray on the top part of Mr Murray's clothing - quite a secure hold. He was yelling. He was face to face with Mr Murray. Mr Phillip Doust then yanked Mr Murray around and started shoving Mr Murray with great force.
Cross‑examining counsel put to Mrs Kazmirowicz that, when the appellant came out of the court, Mr Murray had spoken to him. This was denied by Mrs Kazmirowicz. It was suggested to her that Mr Murray had said, 'Shut up', or 'Go away', or something similar, but Mrs Kazmirowicz denied that and said that it was the appellant who began yelling and shouting.
Mrs Kazmirowicz said that Mr Murray was with her group for the entire time they stood outside the court. She denied the proposition that he had left and walked down the corridor, but that he had returned when the appellant emerged from the courtroom and remonstrated with the appellant.
Roman Kurt Kazmirowicz (Mr Kazmirowicz) gave evidence that he was in company with his wife and daughter at the Perth Magistrates Court on the morning in question. He said that, when the group was leaving the court, the appellant began yelling at them. He said that the words used included, 'Thank you, baby Jesus', and that these words were directed at his daughter. He then said:
Mr Murray was standing next to Laura and in a matter of moments Mr Doust directed his anger at Mr Murray. He turned on him and he grabbed him on the upper part of his body with sufficient force that it caused Mr Murray to fall backwards onto some couches that were behind him ...
Mr Kazmirowicz was adamant in cross‑examination that the appellant had grabbed Mr Murray and pushed him back without any provocation whatever. The issue of files was raised and Mr Kazmirowicz said that Mr Murray had his files with him, but he was unable to recall whether they were in his arms.
Robert Graham Haswell (Mr Haswell) was a 56‑year‑old maintenance supervisor who was at the Central Law Courts building on the morning in question. He was sitting on level 3 with his son. He described what he saw in the following terms:
There was one person in particular was being a bit abusive about the justice system and you could see - you could tell he wasn't very happy. He seemed to be quite annoyed. As he was coming towards me with the group of people that he was with he turned and went back into the crowd that was beside the door. The next thing you know this guy was tussling with another guy. He dragged him towards me. I was sitting with my back - three seats facing one way. There is three seats behind me. The guy - this other guy landed on the seats behind me. One had the other guy by the throat, or by the face, obviously very annoyed and the other guy seemed to be suffering quite a bit.
Mr Haswell intervened and restrained the person who was attacking the other man. He described the assailant as struggling and trying to get away from him, as if he 'wanted to still inflict some pain on this other guy'. He identified the appellant as the assailant.
When cross‑examined, Mr Haswell described the appellant as having walked down the corridor and then turned around and gone back to the group. He said that '[h]e dashed back to the group and grabbed ... He went back quite quickly. He wasn't just walking. You could see he sort of lost it and turned around and went back'. When asked whether anybody in the group had done anything to cause him to turn back, Mr Haswell said that he saw nothing and, as far as he could make out, the group was just standing talking.
Paul Justin Vojkovich (Mr Vojkovich) testified that, on the morning of 9 March 2007 [sic 19 March], he was outside court 36 waiting to give evidence in a matter. He heard yelling and heard someone shouting out things like, 'Baby Jesus' and other expressions. He walked down the corridor and saw the appellant being held down. He said that Mr Murray was standing near the door leading into the court, where he was talking to two women. He then said:
[The appellant] stood up and after about four or five seconds he lunged - Mr Doust lunged at Mr Murray. He like had his hands out and was trying to - looked like his hands were going towards his face and his hands came within about 10 centimetres of Mr Murray's face.
The case for the defence
The appellant gave evidence that he had been at the Central Law Courts on the morning of 19 March 2007 because he was the complainant in a charge which had been brought against Ms Kazmirowicz. He heard the reserved decision given in the case and then left the court. He described Mr Murray as having picked up about six files as he left.
The appellant said that, outside the court, he saw the Kazmirowiczes and he did make some observations. He said they were to the following effect:
... I said, 'Oh, baby Jesus. Thank you, oh baby Jesus. We have sinned. Oops, baby Jesus, we have sinned again. Oops, baby Jesus. We have sinned again.' Then I said in a very much softer voice - I said, 'What sort of people are you and where do you come from and where do you go?'
He testified that what then happened was as follows:
Well, I had hardly finished that statement when all of a sudden I had a hand in my face with a finger almost placed up my nose. It was Mr Murray and I think the first thing he said was, 'Leave those people alone' and then he started with, 'I am going to get you.'
The appellant said that he instinctively pushed Mr Murray's hand away and told him to '[f]uck off', but that there then was a jostle and 'both Mr Murray's arms went for my face'. He said that he grabbed both Mr Murray's arms and swung him around, and that he fell over on a bench on top of Mr Murray. He denied striking Mr Murray at all. When cross‑examined, the appellant was adamant that Mr Murray had threatened him and had pushed him.
Lisa May Doust (Mrs Doust) also gave evidence. She is the wife of the appellant and she was present with him on the morning in question. She said that, outside the court, her husband was very agitated and angry at the decision which had been given. He made a number of adverse comments about religion, following which Mr Murray appeared. She described his actions in the following way:
He stormed up to my husband with his finger waving in my husband's face and saying, 'Leave these people alone or I will sue you.' It was all very quick. My husband pushed his hand away.
Mrs Doust said that there was a jostle, pushing and shoving and Mr Murray fell backwards onto a lounge, with her husband falling on top of him.
The magistrate's decision
The magistrate reviewed the evidence. She said that the respective accounts of the witnesses varied as between the prosecution and defence witnesses, and also between each other as to what occurred outside the courtroom. Her Honour said that this variation could be accounted for 'in the context of the incident occurring in a confined period of space and time and it would be difficult to recall with any clarity or consistency exactly what happened'.
The magistrate reviewed the evidence of Ms Kazmirowicz. Her Honour said that Ms Kazmirowicz had testified that Mr Murray had raised his hand up and, at that point, the appellant had pushed Mr Murray in the chest, turned him around and pushed him down onto a couch. This conclusion was clearly a reference to Ms Kazmirowicz's statement that '[t]he only thing he [Mr Murray] may have done would have been to put his hand up, open palmed, and say something to the effect of, "Leave it"'.
At the hearing of the appeal, counsel for the appellant contended that the magistrate could not have concluded that this was Ms Kazmirowicz's evidence at all. His submission was that, because Ms Kazmirowicz had said that 'he may have ... put his hand up, open palmed', this was pure conjecture and not evidence that he had done so at all.
I interpret Ms Kazmirowicz's evidence as being that Mr Murray had, in fact, put up his hand, just as the magistrate held. What the witness was saying was that Mr Murray had not shaken his fist at the appellant, but that he may have had his hand up, open palmed, as he said, 'Leave it'. This was a concession by the witness that Mr Murray had his hand up, but a denial that he had it in the form of a fist.
The magistrate's conclusions from the evidence were (relevantly) in the following terms:
Based on the evidence I find that the accused was upset and angry with the magistrate's verdict on the relevant date, and as he came out of the courtroom, having heard the verdict, remarked to Laura Kazmirowicz something about 'baby Jesus' and other religious comments. That caused Mr Murray, then acting as Laura Kazmirowicz's legal representative, to intervene by standing in between Laura and the accused. I find, based on the evidence that Mr Murray held up his hand to the accused as he uttered to the accused, 'Leave those people alone.'
In a quick response to Mr Murray's action the accused pushed Mr Murray's hand away and simultaneously grabbed hold of him to push him away, leading in the ensuing few seconds to Mr Murray losing his balance against the nearby couch and I find that Mr Murray slumped onto that couch with the accused falling on top of him.
The finding that Mr Murray held up his hand to the appellant reflects an acceptance by the magistrate of Ms Kazmirowicz's testimony in the way in which I have described it.
The magistrate then added:
I find that the hand gesture by Mr Murray, coupled with the simultaneous utterance by him to the accused to leave those people alone, in my opinion would be likely to deprive an ordinary person of the power of self control and induce him to act upon it suddenly by pushing away the person giving him provocation.
The magistrate went on to conclude that the force used by the appellant was 'proportionate to the degree of provocation and was not intended nor as such was it likely to cause death or grievous bodily harm', and found that the prosecution had failed to negative the defence of provocation.
The reasons of the magistrate are plainly inadequate, in that they fail to deal with the preliminary issue vital to a consideration of the defence of provocation; namely, whether the action of Mr Murray (as it was found to be) constituted a wrongful act or insult.
However, there is no ground of appeal which contends that the inadequacy of reasons is itself an error on the part of the magistrate (cfMount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 (at [26] ‑ [29]).
There is no contention that, by reason of inadequate reasoning on the part of the magistrate, the appeal should be allowed and the matter remitted to the Magistrates Court for a rehearing. The appellant seeks only that the judgment of the single judge be set aside.
The single judge's decision
The respondent appealed from the decision of the magistrate, contending that the magistrate erred in acquitting the appellant for the following reasons:
(1)the actions of the complainant, as the magistrate found them to have occurred, were not an act or insult likely to deprive an ordinary person of the power of self‑control, and to induce him or her to assault the person offering the act or insult;
(2)the force used by the appellant was disproportionate to the act or insult that was found to have been offered;
(3)there was no evidence on which it could have been found that the appellant was, in fact, deprived of his self‑control; and
(4)the magistrate did not find, and it would not have been open to have found, that the appellant's actions constituted a wrongful act or an insult within the meaning of the term 'provocation', as defined in s 245 of the Criminal Code: see also s 246 of the Criminal Code.
The single judge summarised the evidence in the case and concluded that grounds 1 and 4 had been made out. The single judge declined to interfere with the exercise of the magistrate's decision in relation to grounds 2 and 3.
The single judge found ground 4 to have been made out because (a) the magistrate did not appear to have turned her mind to whether the actions of Mr Murray amounted to a 'wrongful act or insult' within the meaning of the term 'provocation' as defined in s 245 of the Criminal Code and (b) if the magistrate had turned her mind to this question, there was no doubt on the facts found by her that she would have had to have found that Mr Murray's acts did not amount to a wrongful act or insult.
The single judge concluded, at [57]:
... it could not amount to either a wrongful act or insult for Mr Murray to step between the respondent and Mr Kazmirowicz, to hold up his hand and to say 'leave these people alone'. Mr Murray's actions were not unjust, unfair or harmful and his words were not contemptuous.
The single judge found ground 1 to have been made out, at [39], because:
Even accepting that the respondent was angry and disappointed immediately after he had received the news of the acquittal of Ms Kazmirowicz, I would not have accepted that the words and actions of Mr Murray, as they were found to have been by the magistrate, were of such a nature that they could or might cause an ordinary person with powers of self control within the limits of what is ordinary to do what the respondent did.
Appeal from decision of the single judge
Ground 1
This ground contends that the single judge erred in law and in fact in giving 'a literal interpretation to the actions of the complainant' as the magistrate had found them to have occurred, when such a literal interpretation was not supported by the evidence. The essential contention of this ground is contained within par 6 of the appellant's submissions:
The learned magistrate having found a 'hand gesture' (118D) thereby did not accept the evidence of Murray or by implication the other prosecution witnesses in so far as their evidence related to the initial incident.
The complaint is that the single judge erred in reading the magistrate's findings 'literally', when it was clear from the evidence that the 'hand gesture' must have been a wagging by Murray of his index finger, with the other fingers closed in a fist.
This raises the question of the additional evidence on which the appellant seeks to rely. That evidence is in the form of an affidavit of the appellant to the effect that, when he gave evidence, he demonstrated the action of Mr Murray as being 'an extended index finger of a closed fist being wagged in my face'. It is complained that there is no description or notation of that demonstration to the magistrate.
The court does have the power to admit 'any other evidence' on the hearing of the appeal (Criminal Appeals Act 2004 (WA) s 40(1)(e)), but it is not a power that will be lightly exercised. Normally, other evidence will take the form of fresh or new evidence, but this will not necessarily be so. A full review of the issue is to be found in de la Espriella‑Velascov The Queen [2006] WASCA 31; (2006) 31 WAR 291 per Pullin JA at [146] et seq. The conclusions reached by his Honour (at [150]) are as follows:
(a)The discretion to receive further evidence is unconfined by anything within s 40 and so the discretion is confined only by the subject matter of the legislation and by the requirement that it be exercised judicially and consistent with the judicial process: (CDJ v VAJ per Gaudron J (at [52], [53]), McHugh, Gummow and Callinan JJ (at [110]) and Kirby J (at [186])).
(b)In particular the discretion to admit further evidence is not restricted by the need to show 'special grounds' or the procedural requirement of 'special leave'. The almost fixed rules at common law which govern the admission of further evidence on an appeal do not apply (per McHugh, Gummow and Callinan JJ (at [104]) and Kirby J (at [186])).
(c)The power to admit further evidence exists to serve the demands of justice (McHugh, Gummow and Callinan JJ (at [111])).
(d)It is however, highly unlikely that Parliament, in conferring jurisdiction on the Court of Appeal to hear appeals, intended that s 40 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellant jurisdictions (McHugh, Gummow and Callinan JJ (at [111])).
(e)The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial (McHugh, Gummow and Callinan JJ (at [111])).
(f)Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Court of Appeal is satisfied that the further evidence would have produced a different result if it had been available at the trial (McHugh, Gummow and Callinan JJ (at [111])). [150]
In the present case, I would refuse the application to adduce further evidence. The magistrate was well aware of the differences in the descriptions given by the various witnesses about the way in which it was contended that a hand had been held up. Her Honour reviewed the evidence of the appellant and his wife and appreciated that they were saying that Mr Murray had put his hand in the appellant's face with his finger close to or even 'up at' the appellant's nose. The magistrate's conclusion was that this had not occurred, but there had been a hand gesture as described by Ms Kazmirowicz. In these circumstances, it is unnecessary and inappropriate for the court to receive further evidence from the appellant about the manner in which he testified before the magistrate.
In my opinion, the magistrate was entitled to distil the evidence from the testimony of the various witnesses and to conclude that Ms Kazmirowicz's account of Mr Murray holding up his hand ('a hand gesture') was what had occurred. This did not mean that the magistrate had to totally believe or totally disbelieve any one or more witnesses. The magistrate was in the position of a jury and may have accepted part, but not all, of the appellant's version of events and part, but not all, of other versions of events as they were given in evidence. As Buss JA said in WCW v The State of Western Australia [2008] WASCA 232, at [14]:
Where a criminal trial is conducted before a judge and jury, the jury is, of course, the tribunal of fact. The jury is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ). Also see Stevens v The Queen (2005) 227 CLR 319 [29]; R v Soloman [2006] QCA 244 [33] ‑ [35]; R v SAX [2006] QCA 397 [18] - [23]; [R v Watt [2006] QCA 539 [25] (Keane JA, Williams and Jerrard JJA agreeing)] [30]. [14]
In my opinion, the conclusion reached by the magistrate and that which was repeated by the single judge - that Mr Murray held up his hand to the appellant ('a hand gesture') - was a conclusion that was open on the evidence. I would therefore dismiss ground 1 of the grounds of appeal.
Ground 2
This ground contends that the single judge erred in law and in fact in failing to hold that the actions of Mr Murray, as found by the magistrate and properly interpreted, were an act or insult such as was likely to deprive an ordinary person of the power of self‑control and induce him or her to assault the person offering the act or insult. The particulars to the ground repeat the essence of the first ground of appeal; namely, that there was no prosecution evidence to support a description of Mr Murray's actions in such simple terms as holding up his hand to the appellant.
At the hearing of the appeal, counsel for the appellant accepted that if all that Mr Murray had done was hold up his hand in the way described by Ms Kazmirowicz, it would be impossible to describe that action as a wrongful act or insult.
For reasons I have already given, I consider that it was open to the magistrate (and to the single judge) to conclude from the evidence that Mr Murray had made a hand gesture which involved him holding up his hand to the appellant as he said, 'Leave these people alone'.
That being so, it seems to me that Mr Murray could not have offered a wrongful act or insult.
The defence of provocation is contained in s 246 of the Criminal Code. The term 'provocation' is defined in the preceding section, s 245. Section 245 and s 246 are (relevantly) in the following terms:
245. Provocation, meaning of
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.
...
A lawful act is not provocation to any person 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.
The words 'wrongful act or insult' involve a deliberate departure from the common law approach that the kinds of conduct which could, as a matter of law, constitute provocation reducing murder to manslaughter did not generally include a case of 'mere words': see discussion in Stingel v The Queen[1990] HCA 61; (1990) 171 CLR 312 at 322.
The word 'insult' is not restricted by reference to earlier common law doctrine and can denote an insulting word or gesture which is neither accompanied by, nor in the context of, physical violence or the conveyance of information (Stingel at 322). The word 'wrongful' does not qualify the word 'insult'. Nor is the phrase 'wrongful act or insult' intended to be confined by requirements of gravity or proportion (Stingel at 323). That confinement is to be found in the requirement of the following words of the subsection, to the effect that the wrongful act or insult must be of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control (Stingel at 323). (See also Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 per Steytler J at [37] ‑ [40] for a detailed discussion on the meaning of 'wrongful act or insult' in the context of s 245 of the Criminal Code.)
The single judge made reference, at [56], to the dictionary definition of 'wrongful' and of 'insult'. Her Honour said:
The Shorter Oxford English Dictionary (3rd ed, Vol 2, 1991) defines wrongful when referred to actions to mean 'performed, executed or done unjustly, unfairly or harmfully'. The same dictionary defines insult to, relevantly, mean 'injuriously contemptuous speech or action; an affront'.
Whether the dictionary definition takes the matter any further is questionable. Whichever way it is looked at, in the present case, a mere hand gesture as found by the magistrate could not be said to constitute a wrongful act or insult. So much was conceded by counsel for the appellant.
In my opinion, it was open to the magistrate to conclude that Mr Murray had made a hand gesture, but no more. Unfortunately, the magistrate failed to consider whether or not this gesture constitute a wrongful act or insult. Had she done so, she would have been bound to have concluded that it did not.
Although it is strictly unnecessary to consider the question whether there was an act or insult such as was likely to deprive an ordinary person of the power of self‑control and induce him or her to assault the person offering the act or insult, it is my view that under no circumstances could the act found by the magistrate (even if properly described as a wrongful act or insult) have been such as to be likely to so deprive an ordinary person of the power of self‑control.
In Stingel (where the court was considering the proper construction of s 160 of the Criminal Code (Tas)), the court made it clear (at 324) that 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. At the same time, this 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 serve to identify the implications and to affect the gravity of the particular wrongful act or insult' (Stingel at 324).
In Hart, Steytler J (McLure J concurring, with Pullin J in agreement on this point) said (at [49]) that the concept of an ordinary person was extensively discussed in Stingel (at 324 ‑ 332) and from that discussion the following propositions, which can be said to apply in Western Australia, emerge:
(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 (at 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' (R v Hill [1986] 1 SCR 313 at 343, per Wilson J) (at 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 (at 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 (at 325 and 326): See also Moffa (at 616) per Gibbs J; (at 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 (at 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 (at 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 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 (at 616 ‑ 617) per Gibbs J; Parkerv 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' (at 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 (at 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 (at 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'.
A number of these propositions relate to the question of provocation in the context of reduction of a charge of murder to one of manslaughter, and, to that extent, the propositions are largely irrelevant to the present case. Nevertheless, the distinction between the objective threshold test and the subjective question whether the accused person was, in fact, deprived of his or her self‑control is a vital one.
The facts of Stingel are instructive. The appellant contended that he had been the recipient of provocative words and conduct, which consisted of the remark, 'Piss off you cunt' viewed with, and in the context of, sexual activities in which the deceased and a woman with whom he had had a previous relationship were allegedly engaging in a parked car, late at night. The court said, at 335 ‑ 336:
If the question of provocation had been left to the jury and on the assumption that the jury may have reasonably found that the deceased's conduct involved both insult and wrongful act, the ultimate question for them in relation to the objective test would have been whether they were persuaded beyond reasonable doubt that the relevant words and conduct of the deceased were not of such a nature that they could or might cause an ordinary nineteen‑year‑old, that is to say, a hypothetical or imaginary nineteen‑year‑old with powers of self-control within the range or limits of what is ordinary for a person of that age, to do what the accused did. The provocative words and conduct consisted of the remark 'Piss off you cunt' viewed with, and in the context of, the sexual activities in which the deceased and A were allegedly engaging in a parked car late at night. The jury would have been entitled to identify the implications and to assess the gravity of that provocative conduct in the context of relevant attributes and relationships, present and past, of the appellant. That being so, the jury might have viewed the remark made to the appellant as an insulting, profane and dismissive comment made to a person who had had a past relationship with A, who obviously (and to the knowledge of the deceased) remained infatuated with her, who had assumed, and was maintaining, a protective attitude to her and who was convinced that she had been, and was then being, 'used' by the deceased for his own sexual gratification. So to say seems to us to put the implications and the gravity of the provocative conduct at its highest from the accused's point of view.
The critical question is whether the jury might, if it accepted that view of the gravity and implications of the provocative conduct, have entertained a reasonable doubt about whether the objective test was not satisfied. In our view, no jury could have entertained such a reasonable doubt. The appellant's infatuation with - and associated jealousy in relation to - A was something which itself inevitably detracted from his actual powers of self-control. That being so, while the infatuation could be relevant to assessing the gravity of the insult involved in the profane and dismissive comment made to him, it cannot be seen, for the purposes of the objective test, as diminishing the power of self-control of the hypothetical ordinary person.
Applying the test as it is set out in Hart (at [49]), it seems to me that, in the circumstances of the present case, it is impossible to suggest that even if Mr Murray's action in holding up his hand towards the appellant was a wrongful act or insult, it was such as to deprive an ordinary person of the power of self‑control and induce him to assault the person offering that act or insult.
The objective threshold test cannot be satisfied. No ordinary person (ie, no ordinary person of the appellant's age, which was 56 at the time of the alleged offence) with the power of self‑control within the limits of what is ordinary for a person of his age could have been provoked to lose his self‑control as he did.
In point of fact, the evidence established that the appellant had lost his power of self‑control before Mr Murray put up his hand, telling him to 'leave these people alone'. He was yelling and demonstrating anger before any incident with Mr Murray occurred.
The single judge found it unnecessary to deal with the question whether the force used by the appellant was proportionate to the provocation offered, but expressed the view, at [46], that it did not seem to her that the appellant's actions in pushing Mr Murray's hand away and simultaneously grabbing him and pushing him with a force which caused him to move backwards, lose his balance and fall onto the couch, could be described as proportionate to the provocation found to have been given.
Although it is again strictly unnecessary to determine the matter, it does seem to me that under no circumstances could the actions of the appellant, in pushing Mr Murray over and forcing him backwards onto a couch, have been proportionate to any provocation (if it was provocation) which was offered.
The requirement that the mode of retaliation should bear a reasonable proportion to the act of provocation is not a separate element which an accused person must establish, but is absorbed in the application of the test of the effect of provocation upon the ordinary person: see Hart per Steytler J at [67] and cases cited, including Sreckovic v The Queen (1973) WAR 85; Johnson v The Queen (1976) 136 CLR 619; Moffa v The Queen (1977) 138 CLR 601; Censori v The Queen [1983] WAR 89; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58.
In the circumstances of this case, all that was required was that the appellant push Mr Murray's hand away. Although the magistrate concluded that the force used by the appellant was proportionate to the degree of provocation offered and was 'none other than a proportionate response towards Mr Murray's action', such a conclusion does not marry with the facts found by the magistrate. Her Honour concluded that there was a hand gesture, coupled with an utterance to leave the people alone. If (which, in my opinion, it was not) this constituted a wrongful act or insult which was such as to be likely to deprive an ordinary person of the power of self‑control, and to induce him or her to assault the person offering that act or insult, what the appellant did was out of proportion to the alleged provocation. I have already quoted the magistrate's conclusion about what happened. It was that, in a quick response to Mr Murray's action, the appellant pushed Mr Murray's hand away and simultaneously grabbed hold of him to push him away, leading to him losing his balance and falling onto the couch, with the appellant falling on top of him. All of that, in my opinion, was entirely disproportionate to any alleged provocation offered. No ordinary person would have reacted in the manner in which the appellant did.
I should add that even if, contrary to my opinion, the magistrate held or should have held that Mr Murray's 'hand gesture' involved Murray wagging his index finger, with the other fingers closed in a fist, and even if such an action constituted a wrongful act or insult, the action would not, in my view, be such as to deprive an ordinary person of the power of self‑control and induce him to assault the person offering the act or insult. I am of that opinion for the reasons I have given in the context of deciding that Mr Murray's action in holding up his hand towards the appellant and telling him to 'leave these people alone' (even if, contrary to my opinion, that conduct was a wrongful act or insult), was not such as to deprive an ordinary person of the power of self‑control and induce him to assault the person concerned.
I would dismiss ground 2.
Ground 3
This ground contends that the single judge erred in concluding that it would not have been open to the magistrate to have found the complainant's actions to have constituted a wrongful act or insult. I have already dealt with the ground and it is unnecessary to say anything further about it. I would dismiss this ground of appeal.
Conclusion
The appellant's grounds of appeal are without merit. I would refuse leave to appeal. The orders made by the single judge in relation to the conviction of the appellant and the remission of the matter to the magistrate should stand. So should the orders in relation to costs below. The question of costs of this appeal has yet to be determined.
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