Lewis v Dickinson - [2001] WASCA 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: LEWIS -v- DICKINSON [2001] WASCA 95

CORAM: SCOTT J

HEARD: 12 OCTOBER 2000

DELIVERED : 12 OCTOBER 2000

PUBLISHED : 23 MARCH 2001

FILE NO/S: SJA 1138 of 2000

BETWEEN: GARRY NORMAN LEWIS
Appellant
AND
DALE MCINTYRE DICKINSON
Respondent

Catchwords:

Appeal - Criminal law - Assault occasioning bodily harm - Provocation - Findings of fact open on the evidence - Correct test applied - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr S D Hall
Respondent: Ms V R Campbell

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Director of Public Prosecutions

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

Verhoeven (1998) 101 A Crim R 24

Case(s) also cited:

Chu v Hampson, unreported; SCt of WA; Library No 980487; 28 August 1998

SCOTT J: This is an appeal against a conviction in the Magistrates Court in relation to a complaint which alleged that on 31 December 1999 at Perth, the appellant unlawfully assaulted Arie De‑Niet and thereby did him bodily harm. The matter was tried in the Court of Petty Sessions I presume at Perth before Magistrate Mr Moore SM, a very experienced and senior Stipendiary Magistrate in this State.
The prosecution case was that, broadly speaking, a taxi driver had taken the appellant and other people to a particular destination in Perth and it appears that after the passengers alighted from the taxi, there was a request of the taxi driver to explain or to indicate the whereabouts of what was called the Chequexchange. The taxi driver apparently did not know where the Chequexchange was and testified that to this day or to the date of giving evidence that he had no knowledge of the whereabouts of that place.
He was approached in that respect by a lady who had been in the taxi at the time and according to the Magistrate's findings, there was then an altercation that developed between the two of them. The Magistrate's findings of fact in relation to those issues are that he says that this woman had got into the face, as it is expressed, of the taxi driver or at least, as I say, an altercation had developed between the two of them and he says that in response the taxi driver, on his findings, eventually called the woman concerned either, "You black bitch" or, "You black slut" but relevantly, I think, for the purposes of this appeal, which of those two versions is used is not particularly important.
His Worship also finds that before that comment was made, a racist remark or some sort of remark had been made to Mr De‑Niet the taxi driver as well. In dealing with the position of the appellant, his Worship says at page 44 of the appeal book:
"Now, Mr Lewis says that he heard none of what the person he says is his niece said. All he heard was, 'You black slut,' and that caused him to lose his cool to the extent where he struck one blow on Mr De-Niet's face. I don't believe that the position here is such that what Mr De-Niet said warranted that type of assault. Mr Lewis was not in a position to have heard the thing. He didn't know what had happened. And here he is hearing the tail end of a conversation. He decides on something which he only heard part of, and he then rushes out and assaults the person without knowing exactly what the position was.
I consider that that is not - - there is no defence there. An assault was not caused, or it was not of such a nature as would have caused him to take immediate action or reflex action or what it was or to deprive him of his self‑control. He should not have lashed out as he did. I believe that what Mr De-Niet said is what happened, and I find the defendant guilty."
Now, in relation to those findings and those conclusions, the grounds of appeal are, firstly, in finding that the words, "You black bitch" or alternatively, "You black slut" said to the applicant's niece by the complainant in the presence of the applicant did not constitute provocation to the applicant within the meaning of s 245 of the Criminal Code by reason or prior incitement given to the complainant by the applicant's niece out of the presence and hearing of the applicant and of which the applicant was unaware was one of the errors and, secondly, in finding insofar as he did that (i) the words spoken were not sufficient to deprive an ordinary person of self-control and to induce an ordinary person to assault the speaker, and (ii) the force used by the applicant, that is, a punch to the head, was disproportionate to the provocation, it is said that the learned Magistrate erred.
In my view, I am unable to conclude that the learned Magistrate did err in relation to either of those two aspects of the appeal under consideration. I perhaps should add that there is now a third ground of appeal that has been added in the course of these proceedings and that is that the learned Magistrate failed to apply the onus and burden of proof and the prosecution had failed to prove beyond reasonable doubt that the appellant was not provoked.
In dealing with those grounds of appeal, I think it is quite clear that the Magistrate does accept that what is said to have been said was said in the course of the events but it seems to me that, effectively, what his Worship is saying is that the response of the appellant was in all the circumstances disproportionate to the insult that he heard that was being offered to the woman with whom he was.
In Verhoeven (1998) 101 A Crim R 24 the test is set out and it seems to me that it has been rightly applied by his Worship and in Verhoeven's case at 25, the headnote in headnote 3 in the judgment of Wheeler J says:
"The gravity of the provocation was to be assessed by reference to particular characteristics of the accused which may have been relevant such as age, race, sex, personal history and other factors."
The next question involved an assessment of how an ordinary person could have responded to the provocation of that particular degree of gravity. It seems to me that whilst it is not expressed in those terms, that is the test which his Worship was applying and in applying that test, it seems to me that his Worship's conclusion was that the appellant's reaction to the comment as he heard it to be taking into account all of the circumstances in which it occurred was in his view disproportionate to the insult which he heard being offered to the companion with whom he then was.
It seems to me that in the passage to which I have referred, his Worship has applied the right test. There is no doubt in his Worship's view and in my view correctly, that the words which were used by Mr De-Niet could be provocative. It was clearly, in my view, a wrongful act or insult and those words which were used by Mr De-Niet should not have been used to this woman in all the circumstances in which they were used.
Whilst his Worship says that the appellant only heard the tail-end of the conversation and that is a finding which was open to his Worship, I do not think that alters the situation. The appellant heard the words which were used and which, in my view, were a wrongful act or insult and the issue that was really falling for consideration by his Worship was whether the appellant's response, having heard those words, were in all the circumstances a reasonable response in the circumstances and it is my view that it was open to his Worship to find that the response by the appellant was not in the circumstances a reasonable response or the response of an ordinary person with reference to the particular characteristics such as age, race, sex, personal history and other factors that applied in this case.
It seems to me that the Magistrate has applied the correct test in this case and come to a conclusion which was open on the evidence and when I say that, I take into account in addition the evidence which was not included in the appeal book but which has been provided to me.
Now, in relation to the third ground of appeal, whilst there is no express reference to the onus and standard of proof, it is clear from the appeal book that the onus and standard of proof was put to his Worship and the defence counsel has made that quite clear at page 41 of the appeal book when he says:
"The prosecution has not negatived the defence beyond a reasonable doubt and that the onus is on them."
That was made clear to his Worship shortly before he delivered his decision. In addition to that, as I have made clear, his Worship was a very experienced Magistrate and I do not think he would have had the slightest doubt as to where the onus of proof lay and as to what the standard of proof was that he was required to apply and although he did not expressly refer to it, I am not persuaded in this case that an error in that respect has been demonstrated.
His reasons would have been better had they referred to it and, indeed, his reasons could have been more comprehensive than they were. Magistrates' Courts are busy Courts and they are not expected to refer to all of the aspects of the evidence or all of the aspects of the law and I cannot conclude that there is a miscarriage of justice in this case because his Worship did not refer to the onus and standard of proof.
In my view, the conclusions to which his Worship came were conclusions that were open to him and I am not persuaded that any of the grounds of appeal are made out. It follows, in my view, that the appeal should be dismissed.