Henderson v Bolger

[1997] QCA 184

[1997] QCA 184

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

BYRNE J

CA No 555 of 1996
WILLIAM THOMAS HENDERSON
v.

GLEN PHILIP BOLGER Appellant

BRISBANE
..DATE 04/03/97
040397 T5-6/SJ3 M/T COA32/97
THE CHIEF JUSTICE: This appeal challenges the finding of a
Magistrate that the appellant unlawfully assaulted a man called
Davis in August 1995 at Capalaba. The incident giving rise to
the charge arose out of traffic matters. Davis gave evidence
before the Magistrate but the appellant did not.

The circumstances appearing from the evidence of Davis were that when he was driving in the area his vehicle was impeded by some action taken by Bolger who was driving another car. There may also have been another vehicle again involved at that stage but it is unnecessary to deal further with that. A little later Davis believed that something had been thrown against his car. Perhaps it had but whether or not that is so he stopped his car and the appellant came to a halt in his vehicle in the near vicinity. There was then an exchange of insults and obscenities, Davis commencing by blaming the appellant for what had happened.

The appellant responded equally aggressively and at one stage was using his body to shove and push against Davis. After the insults and obscenities had continued for a certain time there was some break in proceedings not necessarily very long and then came a threat issued by the appellant to strike Davis and then a punch by the appellant to Davis' mouth.

The Magistrate hearing this version was obliged to deal with a submission that had been raised that the appellant had been provoked and had acted in a way which excused him from criminal liability.

040397 T5-6/SJ3 M/T COA32/97
The Magistrate said that there was sufficient raised to require
him to consider the defence of provocation and he proceeded to
do so. He, in his reasons which were delivered, indicated that
he accepted that it was up to the prosecution to exclude the
possibility of provocation and to do so beyond reasonable doubt.

The essential finding he then made was, in his words, that the action by Davis was not provocation for the assault committed by the appellant. The Magistrate continued in these words:

"It did not happen on the sudden and in any case when it is considered that insults were being traded the assault was not reasonable in all the circumstances and this applies to both defences including the defence under, or the exculpatory provision under, section 270."

I think there is no need to say more. The Magistrate had a matter of fact for his decision and he was conscious of the need to apply the onus and he stated it correctly. In the words he used describing the assault as being not reasonable it is clear enough that he considered that the blow was disproportionate to any provocation that might have been offered. That appears to me as the central finding.

The Magistrate also referred to the fact that there was a break in proceedings although in the circumstances it appears to have been brief and this would have been an additional reason for a finding that provocation in its full ambit had not been established. The reference to section 270, it seems to me, does not add a great deal in the present circumstances to the section 269 considerations.

It seems clear enough that the Magistrate was entitled to
040397 T5-6/SJ3 M/T COA32/97
consider whether the exchange of insults that had occurred up to
a certain point provided justification or possibly provided
justification for the blow struck by the appellant. He was
quite entitled, in my opinion, to conclude that there was no
justification for that conduct; that it was disproportionate and
that provocation had not been established. For myself I do not
see any need to add more and I would dismiss the appeal.
DAVIES JA: I agree.

BYRNE J: The response to the angry, offensive things said by the complainant to the appellant was a punch to the mouth. The Magistrate considered that that forceful reaction was unreasonable in the circumstances, by which he appears to have found that it was both disproportionate to the provocation (see section 269 of the Code) and not reasonably necessary (see section 270).

In my opinion, it was open to the Magistrate to be satisfied beyond reasonable doubt that the prosecution had negatived both sections 269 and 270.

I agree with the reasons of the Chief Justice and with the order which he proposes.

THE CHIEF JUSTICE: The appeal is dismissed.

-----