Middleton v Speirs - [2008] NTSC 5

Middleton v Speirs [2008] NTSC 5
PARTIES:MIDDLETON, Tracy Dale

v
SPEIRS, Glen Edward

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 57 of 2007 (20615236)
DELIVERED:  12 February 2008
HEARING DATES:  1 February 2008
JUDGMENT OF:  RILEY J
CATCHWORDS:

PROVOCATION – Appeal against decision that provocation was available – application of s 34(1) of the Criminal Code – ex tempore decision – indirect provocation – appeal allowed
Applied:
Gadd v Middleton [2008] NTSC 3;
Masciantonio v The Queen (1995) 183 CLR 58;
Mehemet Ali v The Queen (1957) 59 WALR 28;
Cited:

Caine (1990) 48 A Crim R 464;
Jabarula v Poore (1989) 96 FLR 34;
Peach v Bird (2006) 17 NTLR 230;
R (1981) 4 A Crim R 127;
Semple v Williams (1990) 156 LSJS 40
REPRESENTATION:
Counsel:
Appellant:G McMaster
Respondent:  I Rowbottam
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Withnalls
Judgment category classification:    B
Judgment ID Number:  Ril0802
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Middleton v Speirs [2008] NTSC 5

No JA 57 of 2007 (20615236)
BETWEEN:

TRACY DALE MIDDLETON

Appellant

AND:

GLEN EDWARD SPEIRS

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 12 February 2008)

On 9 October 2007, in the Court of Summary Jurisdiction, the respondent was found not guilty of the offence of aggravated assault of Scott Saunderson. There was no dispute that he had delivered blows to Mr Saunderson and caused him bodily harm however the learned magistrate ruled that the Crown had not negatived provocation as provided for in s 34 of the Criminal Code as the section applied at the time. The section has subsequently been repealed.
The Crown has appealed on two grounds. Firstly asserting that the learned magistrate erred in law in holding that provocation was available for consideration when there was no evidence of any wrongful act or insult by the victim in the presence of the defendant and, secondly, that the learned magistrate erred in law in the application of s 34(1) of the Criminal Code in all the circumstances.
The Crown case was that on the night of 22 April 2006 Mr Saunderson was at home with his family. He had a shower and was sitting wearing only a towel when his dog began barking. He and his wife went outside and saw some young people, including the daughter of the respondent, seated near his front fence. He said he told the young people in strong terms to move on and the daughter of the respondent responded in equally strong language. He then jumped the fence and grabbed the girl by the shirt and “helped” her to her feet. There was “a bit of a kerfuffle” and the girl left. She went to her home a short distance away and told her mother and father that she had been assaulted by a naked man. She was hysterical and described a serious assault. The respondent then went with his wife to the home of Mr Saunderson to confront him. In his record of interview the respondent said that he asked whether Mr Saunderson had touched his daughter and Mr Saunderson responded that "it wasn't me". The respondent said that the person was "yelling abuse and carrying on and threatening my daughter as well". The respondent asked his daughter whether this was the man who had assaulted her and she said "yes". He said in his record of interview:
"But I did approach the guy. I didn't like fly off the handle and straight into him. But when he denied doing anything…”.
Thereafter the respondent acknowledged that he "flew at him with a flurry of punches ... and then I can remember him being down on the ground, me on top of him with my hands around his throat and I was punching him." There were other descriptions of the retaliation provided by other witnesses.
In her reasons for decision, which were ex tempore and brief, the learned magistrate stated that the defence had discharged the evidential burden raising the issue of provocation and noted the onus then rested upon the Crown to prove beyond reasonable doubt that provocation did not apply. She went on to say:
“In my view a person in the situation of (the respondent) might well react -- and hearing that his daughter had been punched -- and I think as I have said, it is open on the evidence that he was told that was by a man who was naked -- that would not react in that way. Provocation doesn't have to be, of course, reacting in precisely the way in which the defendant acted, not doing exactly the same physical action. But I think it is the case that a father, a parent perhaps -- perhaps we won't just confine this to male parents -- but that a parent informed that their child has just been assaulted by a naked man might well react in the way in which occurred, that is to go down and confront the situation and that when it was suggested to him that she was lying -- and I think that is the effect of the evidence, that the denials, in fact the denial that he assaulted Ms Speirs, is in effect suggestive that she wasn't telling the truth, would then result in that parent erupting into some form of physical acting against the person.
I am therefore not satisfied beyond a reasonable doubt that the charge of aggravated assault has been made out and I find him not guilty of that count."
The reasons for decision delivered by her Honour can be seen to be brief and without elaboration. The delivery of such circumscribed reasons necessarily makes the task of reviewing the decision on appeal difficult and is not to be encouraged. However I bear in mind the observations I recently made in Gadd v Middleton [2008] NTSC 3 that the proper approach to ex tempore reasons of the kind here under consideration, is that it is necessary to take a broad view and ascertain the essential thrust of the reasoning process applied without being unduly critical of the precise modes of expression used or according them a degree of definitiveness which was never intended: see Semple v Williams (1990) 156 LSJS 40 and Peach v Bird (2006) 17 NTLR 230.
The first complaint of the appellant was that, in holding that provocation was available for consideration, her Honour failed to appreciate that there was "no evidence of any wrongful act or insult by the victim in the presence of the defendant". The submission was that her Honour relied upon the information conveyed to the respondent by his daughter and his wife as the source of the provocation. It was submitted that the respondent did not see Mr Saunderson assault his daughter and did not see him naked or witness the conversation between the daughter and Mr Saunderson. The information available to him was a recounting of what had happened at a different place and a different time. It was submitted that so called "hearsay provocation" is not provocation such that the person should be excused from criminal responsibility.
The Criminal Code, as it applied at the relevant time, excused a person from criminal responsibility for an act or its event if the act was committed because of provocation upon the person or the property of the person who gave him that provocation. Provocation was defined to mean 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 deprive him of the power of self-control. It is clear that the relevant conduct must take place in the presence of the person provoked. However that does not mean that earlier conduct is not relevant to the issue. In the case of Mehemet Ali v The Queen (1957) 59 WALR 28 Jackson J said (at 39):
"On such matters, the past history of the relations between the deceased and the accused could well be of great importance. The final wrongful act or insult might, of itself, be comparatively trifling, but when taken with what has gone before, might be the last straw in a cumulative series of incidents which finally broke down the accused’s self-control and caused him to act in the heat of passion."
See also R (1981) 4 A Crim R 127 (at 132-133); Caine (1990) 48 A Crim R 464 (at 473 – 475).
In the present case the learned magistrate relied upon the information provided to the respondent at the earlier time in order to determine the impact upon the respondent of the denial by Mr Saunderson of the version of events provided by the daughter. Her conclusion was that the suggestion that the daughter lied was the “final straw” in all the circumstances. The denial occurred in the presence of the respondent.
The real issue in this case is whether her Honour correctly applied the provisions of s 34(1) of the Criminal Code. That section provides:
34.Provocation, &c.
(1) A person is excused from criminal responsibility for an act or its event if the act was committed because of provocation upon the person or the property of the person who gave him that provocation provided –
(a)he had not incited the provocation;
(b)he was deprived by the provocation of the power of self-control;
(c)he acted on the sudden and before there was time for his passion to cool;
(d)an ordinary person similarly circumstanced would have acted in the same or a similar way;
(e)the act was not intended and was not such as was likely to cause death or grievous harm; and
(f)the act did not cause death or grievous harm.
The circumstances of the incident as revealed in the evidence of the various witnesses and accepted by her Honour reveal an evidentiary basis for the findings that I infer she has made being that the respondent did not incite the provocation, that he did act on the sudden and before there was time for his passion to cool and that he was deprived of self-control. Although I may not have reached the same conclusion there is a basis for her finding that it was the final comment that amounted to the "last straw" which broke his self-control. However her Honour did not discuss whether an ordinary person similarly circumstanced could have acted in the same or a similar way as the respondent. She observed that in the circumstances a parent may "erupt" into "some form of physical acting" without more. There were various descriptions of the attack by the respondent upon Mr Saunderson but there was no finding by her Honour as to the nature of the retaliation. There was no consideration of whether the response which in fact occurred was proportionate to the provocation or whether an ordinary person similarly circumstanced could have committed an assault of the kind described in the evidence. The observation that a parent may have erupted into "some form of physical acting" is a long way from determining that such a person could react in the way in which the respondent did on this occasion or in a similar way.
As the majority in the High Court observed in Masciantonio v The Queen (1995) 183 CLR 58, it has been said on a number of occasions that it is an element of provocation that retaliation should be proportionate to the provocative incident. The Court observed (at 67) that, having assessed the gravity of the provocation, it is "then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions". The element of proportionality is to be "absorbed in the application of the test of the effect of the provocation upon the ordinary person". Whilst the precise form of the physical reaction is not the important consideration the reaction of the respondent to the provocation must not exceed what could have been the reaction of a reasonable man. To adapt the words of the majority in Masciantonio (at 69), in the circumstances of this case and as a result of the identified provocation, could an ordinary person similarly circumstanced form an intention to inflict bodily harm and act accordingly? This issue was not addressed by her Honour and, in my view, should have been. There is a real question whether the retaliation was proportionate to the provocative incident as found by her Honour. It follows that the appeal must be allowed and the matter referred back to a different magistrate in the Court of Summary Jurisdiction for retrial.
A further issue which arises for consideration in this matter is whether "indirect provocation" is available as an excuse under the Criminal Code of the Northern Territory. In his judgement in Jabarula v Poore (1989) 96 FLR 34 (at 40) Kearney J expressed the view that indirect provocation is not open as an excuse under the Criminal Code. He reached that conclusion by contrasting the words in the Northern Territory Code with those from the Queensland Criminal Code. Although mentioned before me counsel did not address any argument to this issue and I therefore do not address it. It is clear that any magistrate dealing with the issue at first instance will be bound by the ruling in Jabarula v Poore.
This is not a case for the application of s 177(2)(f) of the Justices Act. The appeal is allowed and a retrial ordered.