Meyers v Doust - [2008] WASC 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MEYERS -v- DOUST [2008] WASC 112

CORAM: JENKINS J

HEARD: 21 MAY 2008

DELIVERED : 24 JUNE 2008

FILE NO/S: SJA 1023 of 2008

BETWEEN: BARTHOLEMEW JAMES MEYERS
Appellant
AND
PHILIP GEORGE DOUST
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E K LANGDON
File No  :PE 39348 of 2007

Catchwords:

Criminal law - Aggravating assault - Provocation - Prosecution appeal - Whether magistrate's decision to acquit accused was consistent with findings of fact - Failure to find that the complainant's words and actions constituted a wrongful act or insult

Legislation:

Criminal Appeals Act 2004 (WA), s 8(1), s 14(3)
Criminal Code (WA), s 221(1), s 245, s 246

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms N Eagling
Respondent: Mr M R Hall

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: Hall & Hall Lawyers

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

Ellis v Ellis [1999] WASCA 30
Hart v The Queen (2003) 27 WAR 441
House v The King [1936] 55 CLR 499
Roche v The Queen [1988] WAR 278
Stingel v The Queen (1990) 171 CLR 312
Verhoeven (1998) 101 A Crim R 24

JENKINS J:

The decision under appeal

This is an appeal from the decision of a magistrate sitting in the Magistrates Court at Perth 14 February 2008. The prosecutor (the appellant) appeals against the decision of the magistrate to acquit the respondent of one count of aggravated assault.

Grounds of appeal

The appellant was given leave to appeal on four grounds. They are:
The learned Magistrate erred in acquitting the [respondent] of the charge on the basis that the prosecution failed to negate the defence of provocation beyond a reasonable doubt in that she:
1.Erred in fact and law, as the actions of the complainant, as the learned Magistrate found them to have occurred, were not an act or insult as to be likely to deprive an ordinary person of the power of self‑control, to induce him or her to assault the person offering the act or insult, pursuant to Criminal Code s 246; and,
2.Erred in fact and law, as the force used by the [respondent] was disproportionate to the act or insult that the learned Magistrate found to have been offered by the complainant, pursuant to Criminal Code s 246; and
3.Erred in law, as the learned Magistrate did not find, and there was no evidence before her Honour on which it could have been found, that the [respondent] was in fact deprived of his self control, pursuant to Criminal Code s 246; and
4.Erred in law, as the learned Magistrate did not find, and it would not have been open to her Honour to find, that the complainant's actions constituted a wrongful act or an insult, pursuant to Criminal Code s 246.

Details of charge and proceedings

The prosecution notice alleged that on 19 March 2007 at Perth the respondent unlawfully assaulted Peter Stuart Murray under circumstances of aggravation namely, the complainant was over the age of 60 years, contrary to the Criminal Code s 221(1).
The respondent, who was represented by counsel, entered a plea of not guilty and his trial took place before the magistrate on 14 February 2008.
The prosecution's first witness was the complainant, Mr Murray. Mr Murray is a solicitor who was over the age of 60 at the relevant time. Mr Murray gave evidence that on 19 March 2007 he was at the Perth Central Law Courts taking a decision from a magistrate in respect to a matter in which he had represented Ms Laura Kazmirowicz, who had been charged with a number of counts of fraud. The present respondent, effectively, was the complainant in respect to those charges. Ms Kazmirowicz was present at court, accompanied by her parents. Also, present in the courtroom were the respondent and his wife.
The magistrate delivered his decision which was to acquit Ms Kazmirowicz, Mr Murray's client, of the fraud charges. Mr Murray, his client and her parents then made their way outside of the courtroom. Outside the courtroom Ms Kazmirowicz's mother embraced Mr Murray. As the embrace finished he became aware of the respondent and his wife also leaving the courtroom. Mr Murray heard the respondent speaking loudly in the direction of Mr Roman Kazmirowicz, Ms Kazmirowicz's father. Mr Murray said that the respondent looked agitated and was mentioning something about baby Jesus. He said that he looked at him and told the respondent to go away but the respondent moved towards him, put both hands on Mr Murray's chest and pushed him backwards for a distance of about two metres. Mr Murray said he was pushed back onto a settee and he was in a half sitting, half reclining position. The respondent was on top of him and 'clawing' at his face. Other persons dragged the respondent off him. He said that as the respondent was pulled away from him he yelled that Mr Murray had lied to the court. He also made discreditable remarks of the magistrate. Mr Murray said that as a result of the assault he received abrasions on the right side of his face and a small open wound at the end of his right eyebrow. His eye glasses were damaged.
A photograph of Mr Murray taken shortly afterwards showed him with red abrasions to the right side of his face and a small wound at the end of his right eyebrow. The injuries do not look serious but they are evident.
The second prosecution witness was Ms Laura Kazmirowicz. Ms Kazmirowicz gave evidence regarding the background to the incident. She then said that as the respondent came out of the courtroom he started making comments directed towards her. She said that the respondent said something like 'well thank you baby Jesus'. She said he repeated that comment several times and made some other derogatory comments about Christianity and her religion. She said that she did not respond and was in a bit of shock. She said that the respondent then walked past her and it looked like he was going to walk towards her father. At that point Mr Murray stepped in between the respondent and her father and said something along the lines of 'just leave it'. She said that the respondent pushed Mr Murray with both his hands on Mr Murray's chest. He then grabbed hold of Mr Murray by the front of his clothing, again with both hands, turned him around and pushed him down onto the chairs that were in front of the waiting area outside of the courtrooms. Ms Kazmirowicz said that at that point the respondent looked like he was trying to punch Mr Murray. Some men who were in the waiting area came over and dragged the respondent off Mr Murray.
She said that prior to Mr Murray intervening he had been talking to her parents. At the time Mr Murray stepped in front of the respondent and said something to the effect of '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'.
The third prosecution witness was Mrs Judith Kathleen Kazmirowicz, the mother of Ms Kazmirowicz. She gave evidence that Mr Murray, her daughter, her husband and she were standing in a group and shaking hands, outside the courtroom. The respondent and his wife came out of court and the respondent came up to their group immediately. He began to shout in a very loud voice directed at her husband and her daughter. She said he began to yell out 'Thank you, baby Jesus. Oh, thank you, baby Jesus' at least four times.' She said 'He followed that with other religious comments'. She said that suddenly, and without any provocation whatsoever, the respondent began yelling at Mr Murray. He lunged at him and grabbed hold of him by his lapels. He was then face to face with Mr Murray and he 'yanked' him around and started shoving him with 'great force'. Mrs Kazmirowicz said that she could see that Mr Murray was having difficulty keeping his balance because he was being shoved backwards. At that time the back of Mr Murray's legs came into contact with the front of a couch in the waiting area, he was shoved down onto the couch and the respondent fell on top of him. A man in the waiting area then jumped up and grabbed the respondent by the arms and dragged him off. As the incident occurred, the respondent shouted at Mr Murray something like 'you lied about me' followed by 'what kind of judiciary is this?' She said that after the respondent was restrained he yelled out 'He attacked me'. Mrs Kazmirowicz said that she did not see what Mr Murray was doing just prior to the respondent grabbing him.
In cross‑examination Mrs Kazmirowicz denied that Mr Murray had spoken to the respondent prior to the assault. She said that she could not hear anything over the respondent's yelling. At that time she had her eyes on the respondent. She was not looking at Mr Murray.
The fourth witness called by the prosecution was Mr Roman Kurt Kazmirowicz, the father of Ms Kazmirowicz. Mr Kazmirowicz said that when they were leaving the courtroom, the respondent began yelling at him and his family 'Thank you, baby Jesus' and he did this several times. He said that his anger was directed at Ms Kazmirowicz and he continued yelling the words 'Thank you, baby Jesus' and some other words which Mr Kazmirowicz had forgotten. Mr Murray was standing next to Ms Kazmirowicz and in a matter of moments the respondent directed his anger at him. He said he turned on Mr Murray and 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. He said that the respondent then landed on top of Mr Murray. A few seconds later somebody grabbed the respondent and pulled him off Mr Murray.
The fifth witness called by the prosecution was Mr Robert Graham Haswell. Mr Haswell gave evidence that on the relevant morning he was sitting on some couches in the Central Law Courts with his son. Adjacent to the back of the couch that he was sitting on was another couch, which faced the opposite direction.
Mr Haswell heard a door open and a group of people come out of a courtroom. He was sitting with his back to these people but they were so noisy that he turned around to observe what was going on. He saw that there was one person in particular, who was being 'a bit abusive about the justice system'. Mr Haswell said that that person seemed to be quite annoyed. There is no doubt that the man Mr Haswell referred to was the respondent and I will refer to him by that name. He said that the respondent came towards him with a group of people and then turned back into the crowd who were standing by the door. He said the next thing he saw was the respondent tussling with a man. There is no doubt that this was Mr Murray and I shall refer to him by that name. He said that the respondent dragged Mr Murray towards him, Mr Haswell. He said that Mr Murray landed on the seats behind him. He said that the respondent had Mr Murray 'by the throat, or by the face, obviously very annoyed' and Mr Murray 'seemed to be suffering quite a bit'. He said that at that stage the two men were very close to him. He said he jumped up and tried to restrain the respondent. He held on to him until a police officer arrived. He said the respondent was still struggling trying to get away from him 'as if he still wanted to inflict some pain' on Mr Murray. Mr Haswell said he did not see the commencement of the incident. He said that when he grabbed the respondent off Mr Murray he saw that Mr Murray's face was 'a bit scratched up and his neck was a bit red and he was very distressed'. He said 'obviously to me he was getting the rough end of the stick. He wasn't fighting back. He was just sort of subdued underneath [the respondent]'.
Under cross‑examination, Mr Haswell said that he first saw the respondent walking towards him. He said that at that time he was noisy, abusing the justice system and using pretty abusive language. He said 'to me he sort of lost the plot. He just lost control'. Mr Haswell said that he would not have a clue as to whether anybody in the group in which Mr Murray was in had done anything to cause the respondent to turn back towards them. He said that as far as he could make out that group was just standing talking. He repeated his view that the respondent appeared 'really irritated and he seemed out of control'. He said that he was concerned that the respondent was going to hurt Mr Murray and that was why he got up and restrained him.
The prosecution's final witness was Detective First Class Constable Paul Justin Vojkovich. Detective Vojkovich gave evidence that he was waiting to give evidence in a matter outside another courtroom. He heard loud shouting coming from another side of the building. He heard an anguished or painful cry and somebody shouting out something like 'Baby Jesus', 'Sweet Jesus', 'Liar' and a few other expressions he could not recall. He said that the yelling continued. Detective Vojkovich walked down to the Hay Street side of the Central Law Courts and he saw the respondent being held down by an older gentleman and another man. It appears that these two people were Mr Haswell and his son. Initially, the respondent appeared anxious and then he relaxed. He said that the respondent stood up after awhile and lunged at Mr Murray. He said he had his hands out and he looked like his hands were going towards Mr Murray's face. He said that his hands came within about 10 cms of Mr Murray's face. He did not see any contact between the respondent and Mr Murray. He said that at this time the respondent was shouting out something like 'Beyond reasonable doubt'. He also alleged to Mr Murray that he 'lied in court'.
The respondent gave evidence in his own defence. He said that after the magistrate delivered his decision, Mr Murray left the courtroom. He then followed his wife out of court and saw Ms Kazmirowicz standing outside the courtroom door. He 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'. He said that he then said in a very much softer voice 'What sort of people are you and where do you come from and where do you go?'
The respondent testified that Ms Kazmirowicz, her parents and Mr Murray stood, 'pretty much dumbfounded'. He said that he had hardly finished that statement when all of a sudden there was a hand in his face with a finger almost placed up his nose. He said that it was Mr Murray's hand and he thought that the first thing Mr Murray said to him was 'Leave those people alone' and he then said "I am going to get you'. The respondent said that he 'instinctively' pushed Mr Murray's hand away and told him to 'Fuck off'. He said that there was then a bit of a jostle and both Mr Murray's arms went for his face. He said that it happened very quickly and he was 'more reacting than thinking'. He said that he grabbed both Mr Murray's arms and swung him around. He said that he had no idea that there was a bench close by and he fell over the bench and on top of Mr Murray. The respondent said that his goal was to put Mr Murray to one side and then go down towards St Georges Tce; that is to move as far away as he could from the incident. He said that while they were on the couch he gave Mr Murray quite an amount of abuse along the lines of 'You fool. You silly idiot'. He said that there were many issues which had arisen during the prior proceedings that he then brought up. He said that Mr Murray had a sort of a smirk on his face and that was when he 'completely …, very closely almost lost it'.
The respondent was asked how Mr Murray got the abrasions to his face and he replied:
I think that is when I had both of his hands because both the hands went up and I had hold of both of his hands. I think all that fell over ‑ I noticed when he was laying down his glasses were on a diagonal side on his head.
The respondent denied that he walked towards Mr Haswell and then turned back towards Mr Murray before the incident occurred. In cross‑examination the respondent said:
'Until I saw the finger almost up my nose and he was ‑ I was giving a little bit of a speech. I wasn't overly happy but at that stage I certainly wasn't out of control. Mr Murray was almost - his face was red and the finger was almost up my nose and he said first, 'Leave those people alone' and then he said, 'I am going to get you'.
The respondent said 'that was enough'. He said he wanted to get away as quick as he could and so he pushed or 'flicked' Mr Murray's hand away. He said that the thing he recalled the most was Mr Murray's hands coming up towards his neck. He said that it was then that he grabbed Mr Murray by both hands and swung him around. He said had the couch not been there he probably would have placed Mr Murray against the wall, given him another verbal assault and then left. The respondent said that whilst he was holding Mr Murray he had called out for the police.
The respondent said that he was disappointed and angry after the decision to acquit Ms Kazmirowicz was delivered by the magistrate. He said that when he finished his 'little speech', which were his initial comments to the Kazmirowicz family, that he was 'very much in control'.
The second and final defence witness was the respondent's wife, Mrs Lisa May Doust. Mrs Doust gave evidence that when the magistrate delivered his decision, she turned to her husband and noticed that he was very pale. They then got up to go. She said that she was first out the door. When the Kazmirowicz family and Mr Murray, who were already outside the courtroom, saw her coming they dispersed, with Mr Murray going to the left and the Kazmirowicz family going to the right. She said that Mr Murray walked off. Her husband joined her. She said that her husband was 'very agitated and angry with the decision. He yelled out 'Baby Jesus, I have sinned. Baby Jesus I have sinned. Whoops, baby Jesus I have sinned again'. He then said "I don't know where you people come from or where you go'. She said that he raised his voice as he said these words and he was obviously very angry. She said that she was also angry and upset and she remembered saying to Ms Kazmirowicz 'Where did all those papers go, Laura? They couldn't have just disappeared'.
Mrs Doust said she then noticed Mr Murray who 'stormed up' to her husband, with his finger waving in her husband's face, and said "Leave these people alone or I will sue you'. She said that it was all very quick. She said her husband pushed Mr Murray's hand away. She said that there was then jostling, pushing and shoving. She said that neither of the men were hitting one another. She noticed her husband manoeuvre Mr Murray round to push him away. She said that Mr Murray went backwards, fell onto a lounge and her husband fell on top of him. Mrs Doust said that her husband was very angry. He said 'You lied. You lied' and a lot of other things. Mrs Doust said that she noticed Mr Murray smile and say something like 'I will get you. I will sue you for assault'. She said that her husband then got even angrier and more words were exchanged. She said that someone then separated the two men.
Under cross‑examination, Mrs Doust said that her husband had grabbed Mr Murray to push him away. She denied that it was just her husband that was doing the pushing. She said that both men were both pushing and shoving one another. She noticed a scratch on her husband's hand and a bit of blood afterwards. She agreed that her husband was very angry at Mr Murray.
At the conclusion of the evidence, the prosecutor and the respondent's counsel made submissions. The respondent's counsel submitted that the respondent had been provoked and that his reaction to the provocation came within the definition of provocation. Thus, he should be acquitted. Her Honour then reserved her decision.

Later that day her Honour delivered her reasons for decision. She noted that essentially the case was a factual dispute that turned on the credibility of witnesses. She found that another magistrate's decision to acquit Ms Kazmirowicz resulted in the respondent 'feeling aggrieved in the sense of being angry and upset'. By contrast she noted that the Kazmirowicz family were elated. Her Honour noted that it was 'important to appreciate the impact of [the] judgment on the parties, particularly the accused, as he was the complainant in the matter'.
As to the variances between the accounts of each of the witnesses, both for the prosecution and the defence, the magistrate said that they 'may 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'.
After summarising the evidence the magistrate said:
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. I find that in the course of Mr Murray falling onto the couch and the accused falling onto him, Mr Murray's glasses grazed the side of his face and his cheek, resulting in a scratch and some redness.
I find, based on the testimonies of all the witnesses, save and except for Mr Murray, that no‑one saw the accused strike or claw at Mr Murray's face. I find that Mr Murray was mistaken in his recollection of the incident in the context in which it all happened so quickly, and I find that the accused did not claw the face of Mr Murray. 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.
I find the force used by the accused was proportionate to the degree of provocation and was not intended nor as such was it likely to cause death or grievous bodily harm. I therefore find that the prosecution has failed to negate the defence of provocation. The accused's response was none other than a proportionate response towards Mr Murray's action. The assault was not unlawful, the charge is therefore not proven and is dismissed.

Ground of appeal 1 - the magistrate erred in fact and in law in finding that the acts of the complainant were an act or insult as to be likely to deprive an ordinary person of the power of self control

The first ground of appeal alleges that the magistrate erred in fact and in law in finding that the acts of the complainant were an act or insult as to be likely to deprive an ordinary person of the power of self control.
The Criminal Code s 246 provides:
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 term provocation is defined in the Code s 245 which states:
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, … 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.
The appellant acknowledges that 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 offered, is a question of fact.
However, the appellant says that the requirement that the wrongful act or insult be of such a nature as to be sufficient to deprive of an ordinary person of the power of self control involves an objective threshold test.
The appellant relies upon Stingel v The Queen (1990) 171 CLR 312, 324 where the High Court said:
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. It is only if that test is satisfied that it becomes necessary to consider whether the accused was, in fact, subjectively deprived of his or her self‑control. As Wilson J pointed out in Reg v Hill (54), the 'rather cryptic statutory language requires interpretation in order to achieve the presumed purpose of the legislature in requiring the accused's conduct to be measured against that of the "ordinary person"'. Wilson J went on to identify 'the rationale underlying the objective test' in words (55) which are, in our view, applicable to the corresponding test in s 160 of the Code:
'The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self‑control against which accuseds are measured. The governing principles are 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.'
As will be seen, however, 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 serve to identify the implications and to affect the gravity of the particular wrongful act or insult.
The appellant also relies upon the following passage in Stingel's case at 331:
In the light of what has been written above, the effect of the threshold objective test of s 160(2) can be stated in summary form. It is to pose for the jury the question whether, in all the circumstances of the case, the wrongful act or insult, with its implications and gravity identified and assessed in the manner we have indicated, was of such a nature that it could or might cause an ordinary person (or, when appropriate, an ordinary person of the age of the accused), that is to say, a hypothetical or imaginary person with powers of self‑control within the limits of what is ordinary (for a person of that age), to do what the accused did. A consideration of that question will almost inevitably involve projecting the hypothetical ordinary person of s 160(2) into the position of the accused at the time of the killing. There is nothing objectionable about that so long as it is remembered that the reference to the ordinary person of s 160 is not a reference to a person of precisely identifiable powers of self‑control but a reference to a person with powers of self‑control with the range or limits of what is 'ordinary' for a person of the relevant age.
The High Court was concerned in Stingel's case with the construction of the Tasmanian Criminal Code. Steytler J, as he then was, applied those comments to the provisions of the Western Australian Criminal Code in Hart v The Queen (2003) 27 WAR 441. I will not quote the whole summary of the law of provocation in Western Australia which Steytler J there set forth. It is sufficient for me to say that the objective threshold test must be satisfied before it becomes necessary to consider the subjective question of whether the accused was in fact deprived of his or her self‑control. That does not mean that the objective test is to be applied in a vacuum and 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. In order to answer the central question posed by the objective test, 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. The content and extent of the provocative conduct must be assessed from the view point of the particular accused taking into account the accused's attributes or characteristics. Whilst personal characteristics or attributes of the accused may be taken into account for the purpose of assessing the content and extent of the provocation, 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 those personal characteristics or attributes.
These matters of law are not disputed by the respondent.
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.
The Criminal Appeals Act 2004 (WA) s 8(1) permits an appeal to be brought on a ground that the magistrate made an error of fact. As I have said, a decision as to whether the objective threshold test has been met is a question of fact. However, it requires the fact finder to do more than determine what facts have been proved. It requires the fact finder to make a judgment, over which different minds may differ. As I have said, if I had been the fact finder I would not have adjudged the relevant question of fact in the manner in which the magistrate adjudged it. It is implicit in the appellant's ground of appeal and submissions that he says that it was not open to the magistrate to adjudge the facts in the manner in which she did.
However, it is not enough for me to find that I would have exercised the discretion in a different manner. Judges on appeal should not disturb a magistrate's finding on such a discretionary issue, unless the finding is unreasonable or plainly unjust: House v The King [1936] 55 CLR 499, 505. To do otherwise would undermine the magistrate's role.
Despite my reluctance to interfere in the exercise of the magistrate's discretion, I have decided that I must do so, given my view about ground of appeal 4. Later in these reasons I allow that ground of appeal on the basis that it was not open to the magistrate to find that Mr Murray's words and actions constituted wrongful acts or insults as required by Criminal Code s 245. It would be inconsistent with that finding for me to permit to stand the magistrate's finding that the same words and actions were of such a nature that they could or might cause an ordinary person to do what the respondent did. The magistrate's decision in this respect was unreasonable. I allow ground of appeal 1.

Ground of appeal 2 ‑ the magistrate erred in fact and law and in finding that the force used by the appellant was proportionate

The second ground of appeal alleges that the magistrate erred in fact and law in finding that the force used by the respondent was proportionate to the provocation offered to him by Mr Murray.
The appellant concedes that the question as to whether the force used by an accused is proportionate to the provocation offered is a question of fact: Ellis v Ellis [1999] WASCA 30 [12] per Templeman J.
The issue of proportion is to be ascertained by having regard to the actual force used and by looking to the proportion between it and the act or insult as evaluated by reference to the characteristics of the accused person: Verhoeven (1998) 101 A Crim R 24, 32.
It does not seem to me that the respondent's actions, as found by the magistrate, 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, as found by the magistrate, to have been given to the respondent.
However, this was a matter which required the exercise of the magistrate's discretion. I have determined that, given I am of the view that the ground of appeal 4 ought to be allowed, I should not interfere with the exercise of the magistrate's discretion in respect to this issue.

Ground of appeal 3 ‑ the magistrate erred in law in failing to find (and there was no evidence before her Honour on which it could have been found) that the appellant was in fact deprived of his power of self control

The third ground of appeal alleges that the magistrate erred in law in failing to find (and there was no evidence on which it could have been found) that the appellant was in fact deprived of his power of self control.
It is trite to say that the prosecution may prove that a person did not act in response to an allegedly provocative act or insult if it proves that the accused did not in fact lose the power of self control.
The magistrate did not expressly find the respondent had lost his power of self control at the time he assaulted Mr Murray. Her Honour only said that the respondent acted 'in a quick response' to Mr Murray's action. Her Honour also found that the respondent was 'upset and angry' prior to Mr Murray's actions.
The Criminal Appeals Act s 14(3) states that this court is not required to set aside a decision of a magistrate because the court omitted to make any necessary finding of fact if the facts or evidence in substance support the decision or justify the finding. It is not possible for me to say that if I had been the judicial officer at first instance that I would have found that the respondent lost control. However, there was evidence that could have, in substance, supported what appears to have been the decision of the magistrate to the effect that the respondent lost control. This evidence came from Mr Haswell, rather than the respondent. It also came from the nature of the respondent's actions which supported a finding that he had lost the power of self control. In these circumstances it would not be appropriate for me to allow this ground of appeal.

Ground of appeal 4 ‑ the magistrate erred in failing to find (and it would not have been open to her Honour to find), that the complainant's actions constituted a 'wrongful act or insult'

The fourth ground of appeal alleges that the magistrate erred in failing to find (and it would not have been open for her Honour to find) that the complainant's actions constituted a 'wrongful act or insult'.
Again, the relevant law is not in dispute between the parties. The question is whether the actions of the complainant amounted to a 'wrongful act' or an 'insult': Hart v The Queen [40]; Stingel (323 ‑ 324). Each of those terms import an element of offensiveness of either the act done or the words said. Those words should be given their ordinary meaning: Stingel, 321.
The appellant acknowledges that the word lawful in the third paragraph of s 245 does not simply mean free from prohibition but means positively declared to be lawful under the Criminal Code. For example, acts of self defence or arrest could not be provocation for an assault: Roche v The Queen [1988] WAR 278, (170) (Burt CJ). Thus, Mr Murray's words and actions could amount to a 'wrongful act or insult' even though they were lawful in a broad sense.
The magistrate does not appear to have turned her mind to whether the actions of Mr Murray amounted to a 'wrongful act or insult' as required by s 245 of the Code. If the magistrate had turned her mind to this question, it seems to me without doubt that, on the facts as found by her, she would have had to find that Mr Murray's acts did not amount to a wrongful act or insult.
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'.
Given that the respondent was found by the magistrate to be angry and upset when he was outside the courtroom, and that he then in an angry voice loudly criticised either Ms Kazmirowicz or her religious beliefs, 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 respondent's counsel submitted that I should take the view that the magistrate found that Mr Murray was an untruthful witness and that she found the facts as asserted by the respondent. Counsel relied on the magistrate's comment where she said:
I find, based on the testimonies of all the witnesses, save and except for Mr Murray, that no‑one saw the accused strike or claw at Mr Murray's face. I find that Mr Murray was mistaken in his recollection of the incident in the context in which it all happened so quickly, and I find that the accused did not claw the face of Mr Murray.
I am unable to deduce from that comment that the magistrate did not believe all of Mr Murray's evidence. In that passage, the magistrate referred solely to Mr Murray's evidence to the effect that the respondent clawed at his face. Even in that respect, the finding seems to have been based on an incorrect view of the evidence. Mr Haswell, an independent witness who viewed that part of the incident from a very close position, said that the respondent had Mr Murray by the throat or by the face. Ms Kazmirowicz said that when the respondent was on top of Mr Murray he looked like he was trying to punch Mr Murray. Those witnesses may not have used the word 'clawing' as Mr Murray did but they supported his evidence that the respondent had his hands close to or on Mr Murray's face.
The respondent's counsel submits that the magistrate came to a poor view of the credibility and reliability of Mr Murray's evidence because he was not a disinterested witness. The respondent said that there was conflict between he and Mr Murray in respect to evidence that was presented in the previous trial. During the prosecution of the respondent there was evidence that Mr Murray, after giving his evidence, sat at a bar table to observe the remainder of the proceedings. This was noted by the respondent's counsel and at his request the magistrate asked Mr Murray to return to the public gallery. There was also evidence that during the course of the respondent's trial Mr Murray approached the bar table and passed a note to the prosecutor. At the request of the respondent's counsel, Mr Murray was reprimanded by the magistrate for doing this. Those events, together with Mr Murray's alleged demeanour during the course of his evidence, caused the respondent's counsel to observe to me that Mr Murray was not an impressive or objective witness. Counsel suggested that the magistrate must have come to a similar view. The magistrate did not make any findings in that regard and it does not seem to me that I can assume that the magistrate came to such a view.

The Criminal Appeals Act s 14(3) does not apply to the magistrate's omission of a finding of fact that Mr Murray's acts or words were wrongful acts or insults. I am satisfied that in this respect, the facts as found by the magistrate and the evidence in support of them do not support the magistrate's decision.
I acknowledge that the situation the respondent found himself in was upsetting and that an ordinary person in his position may well have been angry. However, it would be going a step too far for the law to absolve the respondent of liability for his assault on Mr Murray who, according to her Honour, conducted himself in a non‑violent manner and said only non‑threatening words in an apparent attempt to stop the respondent from insulting his clients. In hindsight, it may have been preferable for Mr Murray to have ushered his clients out of the respondent's presence or to have sought the assistance of a security or police officer. Nevertheless, the wisdom of Mr Murray's action is not the relevant issue for my determination. The issues for me are twofold. First, did the magistrate fail to make a finding that Mr Murray's words and action amount to a wrongful act or insult? I answer that question in the affirmative. This failure amounts to an error of law warranting the grant of the appeal unless the error did not affect the magistrate's decision or, even if it did, the facts support the magistrate's decision. As to the first of these options, I find that the magistrate's error did affect her decision. As to the second of these options I find that given the magistrate's omission, her decision, in substance, was not supported by the facts or the evidence as found and accepted by her Honour.

Conclusion

For the reasons I have given, the first and fourth grounds of appeal have been made out. The appeal is allowed. The issue of provocation being the only matter that was alive in the trial, the respondent ought to be convicted of the offence as charged. The matter should now be remitted to the magistrate for sentence according to law and in conformity with these reasons.