Peros v Murray
[2023] WASC 208
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PEROS -v- MURRAY [2023] WASC 208
CORAM: ARCHER J
HEARD: 6 JUNE 2023
DELIVERED : 23 JUNE 2023
FILE NO/S: SJA 1001 of 2023
BETWEEN: JOHN PEROS
Appellant
AND
KATELYN CHRISTINA MURRAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE AJ MAUGHAN
File Number : NE 467/2021
Catchwords:
Criminal law - Appeal against conviction - Provocation - Error by magistrate - No substantial miscarriage of justice - The provocation was not such as could cause an ordinary person to act as the appellant did
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | M Perrella |
| Respondent | : | J Misso |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Doust v Meyer [2009] WASCA 65
Fujita v City of Bayswater [2022] WASC 101
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
HDS v The State of Western Australia [2015] WASCA 148
Heesom v O'Keefe [2017] WASC 362
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Men v The State of Western Australia [2020] WASCA 118
Morgan v Cramer [2019] WASC 68
Pell v The Queen [2020] HCA 12
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Thong v The State of Western Australia [2020] WASCA 182
Vucemillo v Ambrose [2019] WASC 411
ARCHER J:
Overview
The appellant Mr Peros was charged with assault occasioning bodily harm contrary to s 317(1) of the Criminal Code (WA) (the charge).
Mr Peros pleaded not guilty and the matter went to trial on 24 and 25 October 2022. During the trial, Mr Peros admitted that he had repeatedly punched the complainant, but raised three defences: self‑defence, provocation, and prevention of repetition of insult. Mr Peros alleged that the complainant had made a threat the night before the incident, was belligerent immediately prior to the incident, and had thrown the first punch.
On 9 December 2022, the learned magistrate delivered his verdict and reasons. His Honour was not satisfied that the prosecution had disproved self‑defence in relation to the first stage of the incident. He was, however, satisfied that, in relation to the latter part of the incident, each defence had been negated by the prosecution. As his Honour was not satisfied beyond reasonable doubt that the complainant's bodily harm was caused by the punches delivered in the latter part of the incident, his Honour acquitted Mr Peros of the charge, and found him guilty of the statutory alternative offence of common assault.
The learned magistrate imposed a fine of $2,000 and granted a spent conviction order.
Mr Peros seeks leave to appeal against the conviction. The application for leave to appeal was ordered to be heard at the same time as the appeal.
Grounds of appeal
Mr Peros' appeal notice contained a single ground of appeal:
There has been a miscarriage of justice as the learned magistrate's decision to convict the appellant was unreasonable or cannot be supported by the evidence.
Particulars
a)The appellant gave evidence that he was provoked to assault the complainant because of the complainant's unlawful assault upon him.
b)The magistrate found 'no reason to reject [the appellant's] evidence as being necessarily implausible or unbelievable'.
c)The magistrate ought to have entertained reasonable doubt about whether the appellant's assault on the complainant was not a reasonable response to the provocation caused by the complainant's assault.
The 'complainant's unlawful assault' referred to in this ground is a punch alleged to have been thrown by the complainant at the start of the incident. Mr Peros further alleged that, when the complainant punched him, the complainant was holding a tool in his hand. Mr Peros alleged that the contact caused a small cut on his forehead. I will refer to this alleged assault by the complainant as the 'alleged first punch'.
In relation to this ground of appeal, the respondent contends that the conviction was neither unreasonable nor unsupported by the evidence.
On 24 April 2023, Mr Peros filed an application seeking leave to add the following ground of appeal:
Ground 1
The learned magistrate erred in law by failing to consider a wrongful act when applying the defence of provocation.
Particulars:
The learned magistrate applied the defence of provocation only by reference to a wrongful insult.
The respondent does not oppose Mr Peros being granted leave to add this ground of appeal.[1] During the hearing, I granted leave to add this ground as ground 1.
[1] Respondent's Outline of Submissions and List of Authorities filed 3 May 2023 (Respondent's Submissions) [10].
The 'wrongful act' referred to in this new ground is the alleged first punch. The 'wrongful insult' is alleged insults of the complainant immediately prior to the incident, against the background of comments the complainant allegedly made the night before.[2] As will be seen, it was common ground that Mr Peros had perceived something the complainant had said the night before as a threat (perceived threat).
[2] See Appellant's Submissions filed 24 April 2023 (Appellant's Submissions) [36] and ts 15 ‑ 16.
In short, Mr Peros contends that the learned magistrate considered only the alleged insults (in the context of the perceived threat) and not the alleged first punch when considering the defence of provocation.
In relation to this ground of appeal, the respondent contends that the learned magistrate did not restrict his consideration of provocation to the alleged insults. Further, the respondent contends that, if the magistrate did make this error, the ground should nevertheless be dismissed as no substantial miscarriage of justice occurred. The respondent contends that the conviction was inevitable.
The issues
The issues are as follows:
1.In relation to the new ground (ground 1):
(a)Did the learned magistrate fail to consider the alleged first punch by the complainant when considering whether the prosecution had negated provocation?
(b)If so, was there nevertheless no substantial miscarriage of justice such that the ground should be dismissed?
2.In relation to ground 2, was the conviction unreasonable or not supported by the evidence, so as to give rise to a miscarriage of justice?
Appeals from magistrates' decisions[3]
[3] This section draws on my reasons in Heesom v O'Keefe [2017] WASC 362 and Vucemillo v Ambrose [2019] WASC 411.
The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[4]
[4] Criminal Appeals Act 2004 (WA) s 8(1).
Leave to appeal is required.[5]
[5] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[6] That means that the ground must have a real, rational and logical prospect of succeeding.[7]
[6] Criminal Appeals Act s 9(2).
[7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[8]
[8] Criminal Appeals Act s 9(3).
Further, when considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[9] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly,[10]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[9] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[10] Strahan [90].
These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.
If, despite error, no substantial miscarriage of justice
By s 14(2) of the Criminal Appeals Act 2004 (WA), even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[11]
[11] Criminal Appeals Act s 14(2).
In Morgan v Cramer,[12] Hall J[13] was considering whether a prosecution appeal against an acquittal should be dismissed on the basis that no substantial miscarriage of justice had occurred. His Honour said (citations omitted):[14]
45This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.
46Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.
…
48In the present case, unlike Burke, all of the evidence was called. There is no suggestion that the trial was unfair or that the prosecution was denied any opportunity to present its case fully. The errors only arose in the context of the magistrate referring to the relevant law and applying it to the facts in his final reasons. In my view, this is not a case where the proviso is excluded because the presuppositions of a fair trial have been breached.
49A conclusion that there has been no substantial miscarriage of justice in this case could be reached in one of two ways. Firstly, by finding that the errors were not material to the decision to acquit. Secondly, if this court is satisfied on a review of the evidence that an acquittal was inevitable. The first approach is not open here; clearly, the errors were material to the magistrate's decision.
50However, the second approach does not rely upon an analysis of the magistrate's reasoning; rather, it allows for a re appraisal of the evidence. Whilst this would generally require consideration of the evidence given by the witnesses, there were issues at the trial regarding the facts and the credibility of the witnesses. On this appeal, the prosecution did not contest any of the factual findings made by the magistrate. Accordingly, if guilt is not established on those findings together with any uncontested facts, it is unnecessary to undertake any more detailed review of the evidence.
[12] Morgan v Cramer [2019] WASC 68.
[13] As his Honour then was.
[14] Morgan v Cramer [45] ‑ [46], [48] ‑ [50].
In Fujita v City of Bayswater,[15] Hall J[16] was considering whether an accused's appeal against a conviction should be dismissed on the basis that no substantial miscarriage of justice had occurred. His Honour said (citations omitted):[17]
60In the alternative, if there was a material error by the magistrate, no substantial miscarriage of justice occurred. While there is no single universally applicable description of what constitutes 'no substantial miscarriage of justice', an appellate court is precluded from concluding that no substantial miscarriage of justice actually occurred unless the court itself is persuaded that the evidence properly admitted at trial established guilt beyond reasonable doubt. In addressing that question, it is necessary to consider the nature and effect of the error. The appellate court in such a case is not predicting the outcome of a hypothetical error-free trial but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had. Some errors may prevent the appeal court making its own assessment of the evidence because there has been a significant denial of procedural fairness at the trial.
Where a miscarriage of justice is alleged
[15] Fujita v City of Bayswater [2022] WASC 101.
[16] As his Honour then was.
[17] Fujita v City of Bayswater [60].
As noted earlier, an appeal may be brought against a conviction on the ground that there has been a miscarriage of justice. Ground 2 of this appeal is such a ground.
A miscarriage of justice will have occurred where, for example, the nature of the evidence raises a real doubt as to whether the conviction can be regarded as safe or just.[18] The test is whether the court considers that, upon the whole of the evidence, it was open to the decision‑maker to be satisfied beyond reasonable doubt that the appellant was guilty.[19] That is, whether the decision‑maker must, as distinct from might, have entertained a doubt about the appellant's guilt.[20]
[18] HDS v The State of Western Australia [2015] WASCA 148 [51], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 523. See also The State of Western Australia v Olive [2011] WASCA 25 [40] and [44] and Pell v The Queen [2020] HCA 12 [43] ‑ [45].
[19] HDS [52], quoting M v The Queen (494 ‑ 495). See also Olive [41] ‑ [42] and Pell [43].
[20] HDS [53], citing Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. See also Olive [43] and Pell [44] ‑ [45]. See also, in the analogous context of an appeal under pt 3 of the Criminal Appeals Act on the ground that the verdict was unreasonable, Thong v The State of Western Australia [2020] WASCA 182 [146] ‑ [148] and Men v The State of Western Australia [2020] WASCA 118 [403] ‑ [410].
It is apparent from this that, if ground 1 is dismissed on the basis that no substantial miscarriage of justice occurred, ground 2 must fail.
The three defences
The charge alleged that Mr Peros had contravened s 317(1) of the Criminal Code. That section relevantly provides that a person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime.
By s 223 of the Criminal Code, an assault is unlawful and constitutes an offence unless it is authorised, justified or excused by law.
Mr Peros submitted at trial that his assault on the complainant was lawful or excused because he was acting in self‑defence, or having been provoked, or in order to prevent the repetition of an insult.
Section 248 of the Criminal Code provides that harmful acts done in self‑defence are lawful. It relevantly provides that a person's harmful act is done in self‑defence if:
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
Section 246 provides that a person is not criminally responsible for assaulting a person who provoked him or her, if certain facts exist. It 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.
Section 245 relevantly defines provocation, used with reference to an offence of which an assault is an element, to mean and include (subject to qualifications not here relevant)
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.
Section 247 of the Criminal Code provides that using force to prevent the repetition of an insult is lawful in certain circumstances. It provides:
247.Repetition of insult, use of force to prevent
It is lawful for any person to use such force as is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation to him for an assault; provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
The legal principles relating to provocation
The defence of provocation involves both a subjective and an objective test. The subjective test asks whether the provocation in fact caused the accused to lose his power of self‑control. The objective test of provocation asks whether an ordinary person could have acted as the accused did. That is, the provocation must be such as could cause an ordinary person to lose self‑control and act in a manner which would encompass the accused's actions.[21]
[21] See Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 (Steytler J, with whom McLure J and, on this point, Pullin J agreed) [34] ‑ [35] and [67]. See also Doust v Meyer [2009] WASCA 65 (Miller JA, with whom Wheeler and Buss JJA, as his Honour then was, agreed) [73], [80].
In Anderson v Malcolm,[22] Hall J[23] set out the legal principles relating to the two tests. I accept, and gratefully adopt, his Honour's analysis:
[22] Anderson v Malcolm [2010] WASC 308 [13]-[18].
[23] As his Honour then was.
13There is no doubt that words alone can constitute provocation: Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 322. The quality of the words is crucial in determining both their effect upon the accused person and their likely effect upon an ordinary person in the same circumstances.
14The 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: Stingel (324). 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 served to identify the implications and to affect the gravity of the particular wrongful act or insult': Stingel (324); Doust v Meyer [2009] WASCA 65, 71 (Miller JA).
15In Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 Steytler J (McLure J concurring, with Pullin J in agreement on this point) summarised the propositions relating to the concept of an ordinary person:
'The concept of an ordinary person was extensively discussed by the High Court in Stingel at 324 ‑ 332. A number of propositions emerge from that discussion. While the Court was there concerned with s 160 of the Criminal Code (Tas), these points are, in my opinion, of application, also, in Western Australia. They might be set forth as follows:
(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 (page 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" (Reg v Hill [1986] 1 SCR 313 at 343, per Wilson J) (page 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 (page 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 (pages 325 and 326). See also Moffa, above, at 616, per Gibbs J, and 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 (page 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 (page 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 page 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, above, at 616 ‑ 617, per Gibbs J and Parker v 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" (page 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 (page 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 (page 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" [49].'
16While some of those propositions refer to provocation in the context of the former partial defence which had the effect of reducing murder to manslaughter, the content of the ordinary person test is essentially the same in respect of assault. Furthermore, the distinction between the objective threshold test and the subjective question of whether an accused person was in fact deprived of his or her self-control is essential in the context of an assault: Doust v Meyer [73] (Miller JA).
17The objective test does not require that the alleged provocative words be considered in the abstract. As was said in Stingel:
'… Indeed, even mental instability or weakness of an accused could, in some circumstances, itself be a relevant consideration to be taken into account in the determination of the content and implications of particular conduct. For example, it may be of critical importance to an assessment of the gravity of the last of a series of repeated insults suggesting that the person to whom they are addressed is "mad" to know that that person has, and understands that he has, a history of mental illness. As Wilson J commented in Hill [65], the "objective standard and its underlying principles of equality and individual responsibility are not ... undermined when such factors are taken into account only for the purpose of putting the provocative insult into context" (326).'
18Similarly the High Court observed in Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58:
'Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, 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 (67).'
The trial
Mr Peros pleaded not guilty to the charge. The trial was held on 24 and 25 October 2022 before his Honour Magistrate Maughan. The prosecution called the complainant, two eyewitnesses, the investigating officer, and the complainant's doctor. Mr Peros gave evidence himself and called no further witnesses.
His Honour delivered his decision on 9 December 2022, convicting Mr Peros of the alternative offence of common assault.
Mr Peros' personal circumstances at the time of the incident
Mr Peros gave unchallenged evidence about his personal circumstances at the time of the incident.
Prior to COVID, he had been working on a fly‑in fly‑out roster of two weeks on and one week off. At the time of the incident, he had been working at the Newman mine site for 11 weeks. This was because COVID had caused the site to be short‑staffed. He was feeling 'pretty mentally and physically drained'.
He said that his brother was dying from cancer and had about three to six months to live. This, understandably, made him very sad.
The uncontested facts
In his written submissions in the appeal, Mr Peros helpfully and fairly set out the facts that were not in dispute in the trial:[24]
21.The appellant and the complainant, … worked together at a BHP mine site and were living on site at the time of the incident.
22.The night before the incident, there was a verbal argument between the appellant and [the complainant] regarding differing views on the Black Lives Matter protests in the USA following the death of George Floyd.
23.During this argument, the appellant interpreted a comment made by [the complainant] as a threat to his family and he became upset.
24.On the day of the incident, the appellant and [the complainant] were working in a mine pit on site to deal with the breakdown of machinery on an excavator. They were both on a platform at the rear of the excavator working to fix the machine, when another verbal argument ensued, the content of which was subject of conflicting evidence at trial.
25.The verbal altercation quickly became physical, during which the appellant assaulted [the complainant]. As to who threw the first blow, and the nature and extent of the assault, [this] was the subject of conflicting evidence at trial.
[24] Appellant's Submissions [21] ‑ [25].
It was common ground that the incident began in 'the pump room' of the excavator. It concluded in the 'walkway' of the excavator.
Two sets of stairs were accessible from the walkway. From the photographs, each set of stairs appears to be narrow and made of metal. Each appears to have steps (albeit shallow steps) rather than rungs. One went to the ground, on a steep angle, of about 50 degrees. The other went from the walkway to a higher platform on the excavator. It was even steeper, appearing to be about 65 degrees.[25] Given the narrow width and shallow depth of the steps, and the steep angles, it is understandable that the witnesses sometimes referred to the stairs as 'ladders'.
[25] During the appeal hearing, Mr Peros did not cavil with this - see ts 16.
The two eyewitnesses who were called by the prosecution were Troy Verden and Robert Pascoe. They saw only the latter stage of the incident, arriving at the scene after Mr Peros and the complainant were on the walkway. The defence did not challenge their veracity or reliability. Indeed, senior counsel for the defence submitted that the two men were 'independent objective witnesses who have no axe to grind and no skin in the game', and that the magistrate should treat them 'as a reliable, objective template against which the credibility and reliability of the complainant and Mr Peros can be assessed'.[26] Senior counsel later described their evidence as 'independent and entirely credible and reliable evidence'.[27]
[26] Transcript of the Magistrates Court trial (Trial Transcript) page 175.
[27] Trial Transcript page 184. See also ts 6.
There was medical evidence, and photos, of injuries to the complainant.
The medical evidence came from a Dr Joseph Odeke who saw the complainant in Newman Hospital on the day of the incident. Dr Odeke said that, on examination,[28]
[the complainant] had a bruised, black right eye, and then he had right periorbital tender swelling with some scratches, and he had a small superficial cut wound, left eyebrow, which measured 2.3 centimetres long. He had a small bruise below the left eye. He had also a bruise on the back of his head, a bruised right knee, and a minor bruised shin, left leg.
[28] Trial Transcript page 101.
Dr Odeke also noted that a crown on the complainant's upper incisor tooth had been knocked off.[29]
[29] Trial Transcript page 101.
Dr Odeke said that a CT scan showed a fractured nasal bone.[30]
[30] Trial Transcript page 101.
Dr Odeke said that the injuries amounted to bodily harm and that they would have interfered with the complainant's comfort.[31] He said they would have required moderate force to cause - '[f]airly - some excessive force like a blow … or a punch … - or a kick'.[32]
[31] Trial Transcript page 103.
[32] Trial Transcript page 108.
As for Mr Peros, there were photos of a mark on his forehead.[33] His Honour implicitly found that it was reasonably possible that that had been sustained at the start of the incident by the alleged first punch.[34] Mr Peros said that the mark was a small cut and there was possibly a little bit of bruising.[35] He said it had bled.[36] There were also photos of some apparent injuries on Mr Peros' elbows that he said had occurred during the incident, but he said he did not know how they were sustained.[37]
Mr Peros' evidence as to the alleged provocation
[33] Exhibits 19, 24.1 and 24.2. And see Trial Transcript page 67.
[34] Reasons for Decision from Perth Magistrates Court delivered 9 December 2022 (Magistrate's Reasons) [44] ‑ [45].
[35] Trial Transcript page 123.
[36] Trial Transcript pages 119 and 161.
[37] Trial Transcript pages 120 ‑ 122 and 145 ‑ 146.
Mr Peros gave evidence that, the night before the incident, he and the complainant had been talking about the death of George Floyd. This exchange occurred:[38]
[38] Trial Transcript pages 113 ‑ 114.
And what view, if any, did he express about that?‑‑‑He said something along the lines that people are silly for protesting and - and rioting and - yes - I can't remember the exact words - stupid.
How was his tone when he was discussing those issues?‑‑‑Elevated, yes.
…
Did you express your view to [the complainant]?‑‑‑Yes.
And what did you tell him?‑‑‑I - I said some words to the effect, 'I hope the police' - what did I say - 'I hope the police die for taking another man's life', or words to that effect, or, 'I hope that they die for taking a man's life'.
How did ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ 'in' - 'on the street, while he was handcuffed, in custody, on the ground'.
All right. And how did [the complainant] react to you saying that?‑‑‑He got very upset and angry and he got loud, but - yes.
Do you remember how he demonstrated his anger towards you?‑‑‑Yes. He called me all sorts of things.
Do you remember what sort of things?‑‑‑'You're a fucking idiot. You're stupid'.
All right?‑‑‑I can't remember everything.
And do you remember how that conversation finished?‑‑‑Yes. He - just before he walked out of the room, he said, 'Well, I hope your whole family dies', and, 'They deserve to die'.
All right?‑‑‑And he stormed out of the room.
Can I stop there?‑‑‑Yes.
You said he stormed out of the room. Did you say anything back to him at that time?‑‑‑I paused and froze for a second and - and I said, 'Hey, watch your fucking mouth', and - yes.
Where was he when you said, 'Watch your fucking mouth'?‑‑‑He was pretty much out the door by that stage.
All right. How did what he said about your family at that time make you feel?‑‑‑Very sad and angry - upset. Yes.
All right. Did it have some particular significance to you, personally, that he would say that to you?‑‑‑I'm sorry. I don't understand that question.
Was there something in your personal life that made that ‑ ‑ ‑?‑‑‑Yes.
And what was that?‑‑‑My terminally ill brother, yes.
The complainant's version was very different. However, the complainant agreed that Mr Peros had interpreted a remark he had made as a threat against his family.
Mr Peros said that the next day, while he and the complainant were working in the pump room, he raised the previous night's conversation with the complainant. This exchange occurred:[39]
[39] Trial Transcript pages 117 ‑ 118 and 124.
Now, when the incident started, were you - what position were you in?‑‑‑I was kneeling down and I was - my head was pointing away from [the complainant], who was to my right.
What were you physically doing at that point?‑‑‑Installing one end of the hose.
Did you say anything to [the complainant] at that point?‑‑‑Yes.
What did you say to him?‑‑‑I said to him my - it has been bugging me about what both of our views were, the day before, and - and I was very upset about what he said about my family, and I - I couldn't sleep the night before.
All right. Did he react to that?‑‑‑Yes.
What did he say, if you can recall?‑‑‑He got pretty loud, very quick, and - I don't know. There was swear words coming out of his mouth.
Right?‑‑‑He - he mentioned something about friends of his or family members in the police force.
Yes. How was his demeanour when he was saying this?‑‑‑Angry - very, like - was loud.
And what sort of language was he using?‑‑‑There was multiple swear words, but - yes.
All right. Did you say anything in response?‑‑‑I was trying - yes, I did. Yes.
…
… Can you actually remember what you said?‑‑‑Not exactly.
All right. What happened next?‑‑‑He was still - I couldn't get a word in, almost. I went to stand up, and as I stood up, I noticed he struck me in the face.
As is apparent from this extract, Mr Peros did not identify any specific words said by the complainant immediately prior to the incident that could be characterised as insulting, aggressive, or otherwise provocative. Mr Peros' evidence was simply that the complainant was belligerent. Later, in response to a leading question by senior counsel[40] in examination in chief, Mr Peros said he thought that the complainant had repeated what he had said the previous day, but he (Mr Peros) did not have a clear recollection.[41]
[40] Not counsel in the appeal.
[41] Trial Transcript page 129.
Mr Peros went on to describe what he said happened next. This exchange occurred:[42]
[42] Trial Transcript pages 118 and 124.
So you said you felt a blow to your face. Do you know what struck you?‑‑‑It appeared to be his fist.
All right. Did he have anything in his hand when you looked at him?‑‑‑Yes.
What did he have in his hand?‑‑‑It was either a shifter or a spanner.
…
What, if anything, did you see after he struck you?‑‑‑As I opened my eyes, I - I seen his fist getting pulled back, and he had something in his hand.
How did you - do you know what it was in his hand?‑‑‑It was either a shifter or a spanner.
How did you feel at that moment?‑‑‑Shocked and - and angry.
All right. What did you do?‑‑‑I defended myself. I ‑ ‑ ‑
What did you - what did you do?‑‑‑I punched him back.
All right. What happened then?‑‑‑We engaged in a physical fight.
Mr Peros later said that he 'engaged in a fight' with the complainant because the complainant hit him.[43]
[43] Trial Transcript page 129.
Mr Peros was later asked how he was feeling when he and the complainant were on the walkway. He said he was 'angry … about what [the complainant] said about my family and - and the fact that he - well, that he hit me'.[44]
[44] Trial Transcript page 127.
Mr Peros claimed that the complainant was exchanging blows with him in the pump room and again on the walkway.[45] However, Mr Peros admitted that he had the 'upper hand' by the time Mr Verden arrived on the scene. He said that he was punching the complainant because 'he hit me and because he made threatening comments towards my family'. Mr Peros said he was very angry.[46]
The start and first stage of the incident - the pump room - unwitnessed
[45] See, for example, Trial Transcript pages 124 ‑ 125 and 127.
[46] Trial Transcript page 128.
There was a significant difference in the evidence of Mr Peros and the complainant as to how the incident began and, in particular, whether the complainant hit Mr Peros. In particular, the complainant denied throwing the first punch.
The latter part of the incident - the walkway - witnessed
As noted earlier, senior counsel for the defence described the evidence of Mr Verden and Mr Pascoe as 'independent and entirely credible and reliable evidence'.[47]
Mr Verden
[47] Trial Transcript page 184. See also ts 6.
Mr Verden was a supervisor at the time of the incident. He said he was with Mr Pascoe when he heard a 'scream - a squeal of sorts'.[48] He described the sound as a 'man in distress screaming. … It was quite high pitched'.[49] During the appeal hearing, Mr Peros' counsel accepted that this could only have been the complainant.[50]
[48] Trial Transcript page 54.
[49] Trial Transcript page 55.
[50] This was conceded by Mr Peros in the appeal hearing - see ts 17.
Mr Verden said that, when he heard the screaming, he and Mr Pascoe were leaning against a truck which was roughly 10 m from the excavator.[51]
[51] Trial Transcript page 61.
He said he moved quickly to the excavator, looked around the side of the excavator and moved to the foot of the lower set of stairs. He said this took him a couple of seconds.[52] He saw Mr Peros and the complainant on the walkway, at the top of the lower set of stairs. He said Mr Peros was holding the back of the complainant's shirt and punching the complainant.[53] He saw about four or five punches land on the complainant's face.
[52] Trial Transcript pages 54 ‑ 55 and 61.
[53] Trial Transcript pages 54 ‑ 55.
Mr Verden said 'I vaguely remember [the complainant] sort of covering his head, trying to cover his head and he was, you know, yelling, "Help me, help me", sort of thing'.[54]
[54] Trial Transcript page 56.
He said he saw fists flying. He was asked who was throwing the punches. He said 'I would say John [Peros] was throwing the punches because [the complainant] was too busy trying to guard himself'.[55]
[55] Trial Transcript page 57.
He said the complainant was yelling 'Help me. He's going to kill me. Help me, help me'.[56]
[56] Trial Transcript page 66.
Mr Verden said he then ran up the stairs and got between the two men.[57] He said that, as he was running up the '18 bouncing steps', he was trying not to fall on his face.[58] He said that he had seen the punches he described when he was still on the ground. His evidence was to the effect that, when he was running up the stairs, he was focussing on not falling.[59]
[57] Trial Transcript pages 56 ‑ 57.
[58] Trial Transcript pages 55 ‑ 56.
[59] Trial Transcript page 62.
Mr Verden said that, after the incident was over, both men were angry.[60]
[60] Trial Transcript page 66.
Mr Verden was asked if he remembered that Mr Peros had a small cut above his left eyebrow. He said 'No'. When shown a photo of Mr Peros, he said it looked like a mark, an indent, from safety glasses. He agreed that 'if you bump your head or something hits [the glasses], that could leave an indent on your face'.[61]
[61] Trial Transcript pages 67 ‑ 68.
Much of this evidence emerged in cross‑examination and none of Mr Verden's evidence was challenged by Mr Peros.
Mr Pascoe
Mr Pascoe similarly said that his attention was drawn by screaming. He said that, at that time, he and Mr Verden were next to a truck, behind the excavator.[62] He estimated the distance as about 30 m from the excavator.[63] He said that he and Mr Verden went over to the lower set of stairs of the excavator.[64] He said he could see clearly all the way up.[65]
[62] Trial Transcript page 71.
[63] Trial Transcript page 72.
[64] Trial Transcript page 71.
[65] Trial Transcript pages 72 ‑ 73.
Mr Pascoe said he saw the complainant trying to come down the lower set of stairs but that the complainant 'thought twice of it and then decided to … try and go up the [upper] set of stairs'.[66] Mr Pascoe said he saw Mr Peros grab the complainant as the complainant was trying to climb up the upper set of stairs.[67] He agreed that Mr Peros had then spun the complainant around.[68]
[66] Trial Transcript page 71 ‑ 72.
[67] Trial Transcript page 81.
[68] Trial Transcript page 82.
He said the complainant was 'hunched over, like, cowering'. Mr Pascoe demonstrated what he meant. The magistrate described what Mr Pascoe was indicating as being the complainant standing up, tilting to one side, with his hands above his head.[69] Mr Pascoe said that Mr Peros punched the complainant in the face in 'rapid fire, … maybe 10/15' times. He said Mr Peros was punching straight armed, with his fist. He said the complainant was cowering with his arms up.[70] He said that, by this time, Mr Verden was about a quarter of the way up the lower stairs.
[69] Trial Transcript page 72.
[70] Trial Transcript page 73.
Mr Pascoe was asked if he had counted the number of punches. He said he had not. He was then asked '[s]o it could have been less?' He agreed that it could have been.[71]
[71] Trial Transcript page 73.
Mr Pascoe said he saw Mr Peros do a sidekick, kicking the complainant on the top of his shoulder. He said that, at this point, Mr Verden was about half‑way up the stairs.[72]
[72] Trial Transcript page 74.
Mr Pascoe said that, during the incident, all the complainant was saying was 'Stop', that he was screaming and yelling 'Stop'.[73]
[73] Trial Transcript page 89.
Mr Pascoe confirmed that, after the incident was over, both Mr Peros and the complainant were angry, and both had to be told to move away.[74]
[74] Trial Transcript page 83.
None of this evidence was challenged in cross‑examination. In closing submissions, the only aspect that defence counsel suggested may not be reliable was Mr Pascoe's evidence of the kick.[75]
Duration of the incident
[75] Trial Transcript page 175. And see Trial Transcript page 78, where there is no direct challenge to his evidence of a kick, but rather confirmation that there was no kneeing.
Mr Peros submits that the incident lasted only a short time. As I will explain, I accept this.
In the appeal, Mr Peros referred, in particular, to:
1.Mr Peros' evidence that 'everything happened very quickly';[76]
2.the complainant's evidence that the events in the pump room lasted maybe five or 10 seconds;[77]
3.evidence that suggested that Mr Verden and Mr Pascoe arrived at the scene at the start of the events on the walkway; and
4.Mr Verden's agreement that it only took him a few seconds to get up the stairs.[78]
[76] Appellant's Submissions [29]. Mr Peros gave this evidence at Trial Transcript page 129.
[77] Appellant's Submissions [32(c)]. The complainant gave this evidence at Trial Transcript page 38.
[78] Trial Transcript page 64, the third last answer. This answered a compound question, and I would interpret the answer as referring to the time it took him to run up the stairs. This is supported by the next question.
As to the third of these matters (evidence that suggested that Mr Verden and Mr Pascoe arrived at the scene at the start of the events on the walkway), Mr Peros relied on:
1.the complainant's evidence to the effect that, when he ran out onto the walkway, he was trying to make as much noise as possible so as to attract the attention of the supervisors;[79]
2.the evidence of Mr Verden and Mr Pascoe that, when they heard the screaming, they were at a truck a short distance away from the excavator, and then moved quickly to the excavator, getting there within a couple of seconds;[80]
3.the complainant's evidence to the effect that, when he ran out onto the walkway, he first tried to go down the lower set of stairs but was worried about being kicked off,[81] combined with Mr Pascoe's evidence that he saw the complainant trying to come down the lower set of stairs but that the complainant 'thought twice of it and then decided to … try and go up the [upper] set of stairs';[82] and
4.the complainant's evidence in cross‑examination that there were only about two seconds between when Mr Verden yelled, 'Oi stop' and the two men were separated.[83]
[79] Trial Transcript page 8.
[80] Trial Transcript page 61. And see ts 5.
[81] Trial Transcript pages 8 ‑ 9.
[82] Trial Transcript pages 71 ‑ 72.
[83] Appellant's Submissions [32(d)]. The complainant gave this evidence at Trial Transcript page 44.
I do not accept that the fourth matter supports the proposition. Mr Verden did not give evidence of yelling anything. He was not asked if he had yelled anything and there is no reason to doubt the complainant's evidence that he did. However, as he was not asked, there is no evidence from him of when he might have yelled 'Oi stop'. Further, the complainant was not asked where Mr Verden was when he yelled this. It is not known whether he yelled it from the bottom of the stairs, or after arriving on the walkway. Further, even if Mr Verden yelled this from the bottom of the stairs, it is not known whether he yelled it immediately on arriving at the scene.[84]
[84] And see ts 4.
I do accept, however, that the other matters suggest that Mr Verden and Mr Pascoe arrived when, or immediately after, the complainant reached the walkway.[85] In particular, Mr Pascoe saw the complainant trying to come down the lower set of stairs and then changing course.[86]
[85] And see ts 10 ‑ 11.
[86] Trial Transcript pages 71 ‑ 72.
There was no evidence of how long Mr Verden remained on the ground before running up the lower set of stairs. I would infer, however, that immediately after seeing the four or five punches, Mr Verden began running.[87] I would further infer that the punches he witnessed did not take long to deliver.
[87] See Trial Transcript pages 55 ‑ 56. The third last answer on page 64 was to a compound question, and I would interpret the answer as referring to the time it took him to run up the stairs. This is supported by the next question.
Accordingly, I accept that the evidence established that the duration of the incident was short. The events in the pump room lasted five to 10 seconds before the complainant ran to the walkway. Mr Verden and Mr Pascoe arrived at the excavator when, or immediately after, the complainant reached the walkway. The time from Mr Verden and Mr Pascoe arriving to Mr Verden reaching the top of the lower set of stairs would have been less than 30 seconds, and likely no more than 15. Further, I accept it is reasonably possible that it was no more than 10 seconds.
Mr Peros' closing submissions in the trial
Defence counsel submitted in closing that the prosecution had failed to negate any of the defences of self‑defence, provocation or prevention of repetition of insult.
In relation to self‑defence, defence counsel submitted that, in all the circumstances, Mr Peros was entitled to fight back against the complainant by throwing punches to defend himself.[88] He submitted that the prosecution had not negated self‑defence in relation to the blows delivered by Mr Peros in the pump room. In relation to what occurred on the walkway, defence counsel said that Mr Peros' version was that he was continuing to be attacked and that the magistrate should find that this might be true. Defence counsel submitted that, if this was found, again self‑defence would not have been negated.[89]
[88] Trial Transcript pages 181 ‑ 182.
[89] Trial Transcript page 181.
The magistrate plainly found that, at least by the time Mr Verden and Mr Pascoe arrived on the scene, the complainant was not fighting back. In my view, this conclusion was inevitable in view of their uncontested evidence. The magistrate did not need to make a finding as to whether it was reasonably possible that the complainant had been throwing punches on the walkway, prior to their arrival.
Further, Mr Peros' submission in this appeal is that Mr Verden and Mr Pascoe arrived when, or immediately after, the complainant reached the walkway. Having accepted that submission, and with no challenge to the accuracy and reliability of Mr Verden's and Mr Pascoe's evidence, there is no reasonable possibility that the complainant was trying to throw punches from the point at which, or immediately after, he reached the walkway.
In relation to provocation, defence counsel submitted to the magistrate that any verbal insult made by the complainant in the pump room and the surprise blow to the face were 'highly provocative acts', especially in the context of Mr Peros:
(a)being at the end of an 11‑week swing;
(b)having a terminally ill brother; and
(c)being previously insulted the night before.[90]
[90] Trial Transcript page 182.
Defence counsel submitted that the magistrate could infer that the complainant had said something about Mr Peros' family in the pump room.[91] As noted earlier, in his evidence Mr Peros did not identify any specific words said by the complainant immediately prior to the incident that could be characterised as insulting, aggressive, or otherwise provocative. Later, in response to a leading question in examination in chief, Mr Peros said he thought that the complainant had repeated what he had said the previous day, but he (Mr Peros) did not have a clear recollection.
[91] Trial Transcript page 183.
Defence counsel further submitted that the short timeframe in which the incident occurred was consistent with Mr Peros suddenly losing his temper after hearing comments regarding his family and being struck in the face.
In relation to repetition of insult, defence counsel submitted that Mr Peros was motivated to strike the complainant, at least in part, to 'stop the complainant from repeating those types of offensive statements and stop him from assaulting him again'.[92]
[92] Trial Transcript page 183.
The magistrate's reasons
The magistrate delivered his written reasons approximately one and a half months after the trial. For this reason, I consider that I should give less weight to the observations of Martin CJ in Strahan v Brennan as referred to earlier. Nevertheless, it remains inappropriate to scrutinise his Honour's reasons with a fine‑tooth comb and some infelicity of language may be expected.
His Honour began by setting out the background facts and the general legal principles to be applied. He set out sections of the Criminal Code relating to the three defences. His Honour then summarised the evidence.
His Honour concluded as follows:[93]
[93] Magistrate's Reasons [43] ‑ [50].
43The Accused has given evidence consistent with being assaulted and acting in self-defence and/or as a consequence of being verbally provoked by the Complainant. It has been held that repetitive ringing of a doorbell with verbal taunts can enliven the provisions of s 247 - see Oxer v Grant SCL 940598. The alleged threats as Mr Peros perceived them to be towards his family are therefore, in my view, also sufficient to enliven the provision.
44I have no reason to reject Mr Peros' evidence as being necessarily implausible or unbelievable. Indeed, there is no explanation proffered for the injury to his forehead in circumstances where the Complainant has testified that at no time did he strike Mr Peros.
45Similarly, I have no reason to reject the Complainant's evidence as to how the fight was initiated. I am simply not able to make a decision on the state of evidence before me. It is not sufficient that I might prefer the Complainant's version. I must be positively persuaded to the requisite standard of its truth and reliability. Given the divergence of evidence as to how the fight started a reasonable doubt has arisen in my mind as to the issue.
46In those circumstances self‑defence is raised by the Complainant and not negatived by the Defendant, at least in relation to the commencement of the fight.
47In respect to the latter part of the fight however it appears that the Complainant was 'covering up' and seeking to protect himself while continuing to be assaulted by Mr Peros. In my view that is not a reasonable response to any insult or provocation levelled to Mr Peros and clearly at this point Mr Peros was not acting in self‑defence.
48As to the various injuries I am not able, on the state of the evidence, to ascertain whether those injuries were sustained by the Complainant in the initial parts of the fight or in the latter parts of the fight. Whilst it would be tempting, in light of the photographs of the Complainant tendered as part of the evidence, to suggest that 10‑15 blows to his face may have resulted in the facial injuries depicted therein, the current evidence does not allow me to draw that conclusion nor should I speculate.
49As a consequence, the Prosecution have failed to prove beyond a reasonable doubt that in the latter part of the assault the Complainant suffered bodily harm as alleged.
50I do however find that in the latter part of the fight the Accused was acting unlawfully and should be convicted of a common assault.
Having regard to these reasons in the context of his Honour's summary of the evidence, the evidence in the trial, and the defence's submission that Mr Verden and Mr Pascoe were credible and reliable witnesses, I would interpret his Honour's findings as follows:
1.Neither the evidence of Mr Peros nor the evidence of the complainant was necessarily implausible or unbelievable.
2.Their evidence diverged as to how the incident started.
3.This gave rise to a reasonable doubt as to how the incident started.
4.Due to the burden and onus of proof, this meant that the prosecution had failed to negate self‑defence in relation to the start of the incident (and it was therefore unnecessary to consider the other defences in relation to this stage).
5.Mr Verden and Mr Pascoe saw only the latter part of the incident, after Mr Peros and the complainant were on the walkway. They were both honest and reliable witnesses.
6.In the latter part of the incident, the complainant was covering up and seeking to protect himself (and not fighting back) while continuing to be assaulted by Mr Peros.
7.During this latter part, Mr Peros punched the complainant in the face 10 to 15 times.
Mr Peros did not challenge any of these factual findings in the appeal.
Ground 1
Did the learned magistrate fail to consider the alleged first punch when considering provocation?
It will be recalled that Mr Peros' case at trial was that he was provoked by the perceived threat the night before and further insults on the day of the incident, and by the complainant punching him at the start of the incident.
It was common ground that the complainant had made comments the night before that Mr Peros perceived to be a threat against his family. Further, in not rejecting Mr Peros' evidence as to the start of the incident, the magistrate found, in effect, that it was reasonably possible that the complainant had, as Mr Peros alleged, been belligerent immediately prior to the incident and had thrown the first punch.
However, the magistrate found that the prosecution had negated provocation in relation to the latter part of the incident.
Mr Peros' submissions in the appeal
Mr Peros submits that the learned magistrate considered only the perceived threat and alleged verbal insults, and not the alleged first punch, when considering whether the prosecution had negated provocation in relation to the latter part of the incident.
Mr Peros submits:[94]
It is apparent from the following written reasons, that the magistrate considered the assault by [the complainant] only for the purposes of the defence of self-defence, and not as a wrongful act for the purposes of the defence of provocation:
'The Accused has given evidence consistent with being assaulted and acting in self-defence and/or as a consequence of being verbally provoked by the Complainant'[95] (emphasis added).
With respect to the 'second part' or 'latter part'[96] of the assault, the learned magistrate found:
'the Complainant was "covering up" and seeking to protect himself while continuing to be assaulted by Mr Peros. In my view that is not a reasonable response to any insult or provocation levelled to Mr Peros and clearly at this point Mr Peros was not acting in self-defence'[97] (emphasis added).
This conclusion is consistent with the learned magistrate referring to 'insult' in the context of the s.247 defence and referring to 'provocation' as the defence of provocation in the context of an insult. The is also consistent with how the learned magistrate had earlier characterised 'provocation' in the context of being 'verbally provoked'.[98]
Whilst the learned magistrate concluded that in the 'latter part of the fight the accused was acting unlawfully'[99] (emphasis added), the learned magistrate gave no reason for excluding provocation on the basis of a wrongful act (either alone, or in combination with a wrongful insult).
Respondent's submissions
[94] Appellant's Submissions [15] ‑ [18].
[95] Magistrate's Reasons [43].
[96] Magistrate's Reasons [47].
[97] Magistrate's Reasons [47].
[98] Magistrate's Reasons [43].
[99] Magistrate's Reasons [50].
The respondent submits that the learned magistrate's reasons should not be narrowly construed, and that the magistrate's use of the words 'insult or provocation' should not be construed as referring to only provocation by insult.
Regarding the latter part of the incident, the respondent submits that it was unnecessary for the learned magistrate to make findings as to whether a verbal insult or physical assault occurred, and subsequently whether the subjective element of the defence of provocation had been met, as his Honour had already concluded that the continued assault was not in self‑defence or a reasonable response to any insult or provocation Mr Peros endured.
The respondent submits (citations omitted):[100]
The magistrate's use of the word 'insult' in [47] of the Reasons does not give rise to an inference that his Honour used the word 'provocation' so as to refer only verbal provocation. Rather, it may be inferred that because the word 'provocation' was used in addition to the word 'insult', the magistrate's reference to 'provocation' was intended to convey his conclusion in respect of provocation other than on the basis of an insult; that is, on the basis of a wrongful act. There is no inconsistency between this reading of the magistrate's reasons for decision, and the use of the word 'levelled' in [47], as both a wrongful act or insult are capable of being 'levelled' (that is, aimed or directed) towards a person.
Further, the section 247 defence, and the defence of provocation, both operate in respect of an 'act or insult' of such a nature as to be a provocation to a person. In the case of section 247, the Criminal Code provides that the defence is engaged where the use of force 'is reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation'.
It follows that the magistrate's use of the word 'insult' in [47] of the Reasons should not be construed as a shorthand reference to the section 247 defence. Rather, the use of the words 'any insult or provocation levelled to Mr Peros' indicates that the magistrate was making a finding applicable to both the section 247 defence and the defence of provocation, which was that the continued assault of the complainant was not a reasonable response by the appellant, for the purpose of those defences.
Conclusion
[100] Respondent's Submissions [20] ‑ [22].
The magistrate plainly understood that provocation could arise by either an act or an insult.[101] I am also conscious of the need not to infer error from infelicity of language. Nevertheless, I am satisfied that his Honour failed to consider provocation in the context of the alleged first punch, for the following reasons.
[101] Magistrate's Reasons [18].
First, his Honour did not detail the manner in which Mr Peros relied on each defence. His reasons do not expressly demonstrate that he was aware that Mr Peros' defence of provocation was based on both the alleged first punch and the perceived threat and alleged insults.[102]
[102] And see ts 19.
Second, in summarising the evidence, his Honour did not refer to Mr Peros' evidence that he was angry about being hit.[103]
[103] And see ts 19.
Third, the first sentence of the first paragraph of his Honour's conclusions, paragraph 43, suggests that his Honour considered the provocation defence to be limited to verbal provocation.[104]
[104] And see ts 19.
Fourth, when considering the latter part of the incident, his Honour said 'In my view that is not a reasonable response to any insult or provocation levelled to Mr Peros and clearly at this point Mr Peros was not acting in self‑defence'.[105] This single sentence was designed to explain why his Honour found that each of the three defences had been negated.
If so, was there nevertheless no substantial miscarriage of justice such that the ground should be dismissed?
[105] Magistrate's Reasons [47].
As noted earlier, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
The magistrate's error does not prevent me from making my own assessment of the evidence. In my view, the evidence established Mr Peros' guilt beyond reasonable doubt.
Mr Peros' submissions in the appeal
Mr Peros' primary submission in the appeal was that, given the short duration of the incident, there had been little time for his passion to cool following the alleged verbal insults and alleged first punch. Mr Peros submitted that, due to the short duration, I should conclude that he was acting under provocation throughout the entire incident.[106]
[106] See ts 4 ‑ 6.
I accept that the short duration is material to the evaluation of what Mr Peros did and what an ordinary person might do.
In oral submissions during the appeal hearing, Mr Peros' counsel further submitted that the complainant yelling for help would have been additionally provocative if it was the complainant who started the incident. It was submitted, in effect, that false claims of victimhood from the instigator would have added fuel to the fire.[107]
[107] ts 23 ‑ 24.
I do not accept this. Mr Peros did not give evidence that he had been provoked by any yells for help, or even that he had heard any yells for help.[108] Further, the defence case below was not run on the basis that it was nevertheless a reasonable possibility that the complainant's yells for help added to the provocation. Having regard to the evidence, and in particular what was happening when the complainant was yelling for help, I would not accept this was a reasonable possibility.
[108] See Trial Transcript pages 147 ‑ 149 and 160.
Again in oral submissions made during the appeal, Mr Peros' counsel submitted that the evidence did not establish that Mr Peros had punched the complainant 10 or more times on the walkway. Mr Peros' counsel referred to Mr Pascoe's evidence that it may have been less than his estimate of 10 to 15 times.[109]
[109] ts 8.
I consider that the evidence established, beyond reasonable doubt, that Mr Peros punched the complainant 10 or more times when the two men were on the walkway.
First, Mr Pascoe's evidence was that Mr Peros had punched the complainant in the face in 'rapid fire, … maybe 10/15' times. In my view, by this, Mr Pascoe was saying that he estimated that it was 10 to 15 times. Mr Pascoe conceded that he had not counted the number of punches. When asked '[s]o it could have been less?', he agreed. I consider his concession to simply reflect an honest acknowledgement that he was not able to be certain.
Second, Mr Verden's evidence was that, before he had even begun to run up the lower set of stairs, he saw Mr Peros punch the complainant in the face about four or five times.
In any event, Mr Peros' counsel conceded that the magistrate had found that Mr Peros had punched the complainant 10 to 15 times on the walkway. Counsel conceded that that factual finding had not been challenged in the appeal.[110]
Was Mr Peros guilty beyond reasonable doubt?
[110] ts 8.
Mr Pascoe saw all of the latter part of the incident. Mr Pascoe saw everything from the moment, or immediately after, the complainant arrived on the walkway. Mr Verden saw some of the latter part of the incident, to the point he ran up the stairs and took his eyes off the two men. Defence counsel described them both as credible and reliable.
In my view, the evidence of Mr Verden and Mr Pascoe established beyond reasonable doubt that, on the walkway:[111]
1.The complainant screamed.
2.The complainant was yelling 'Help me. He's going to kill me. Help me, help me' and 'Stop'.
3.Mr Peros was holding the back of the complainant's shirt and punching the complainant in the face.
4.The complainant was cowering and trying to protect his head with his hands and not fighting back.
5.Mr Peros punched the complainant in the face in 'rapid‑fire', 10 or more times.
[111] In the appeal hearing, Mr Peros did not cavil with this - see ts 15.
Accepting, as did the magistrate, that there is a reasonable possibility that the complainant was belligerent and threw the first punch in the pump room, this would enliven the defence of provocation. This would require the prosecution to prove, beyond reasonable doubt, that Mr Peros was not acting under provocation within the requirements of the defence.
For the purposes of the analysis, I will assume, consistently with Mr Peros' evidence, that:
1.the complainant said something the night before that Mr Peros perceived to be a threat;
2.shortly before the incident, Mr Peros said he was very upset about what the complainant had said the night before and that he had not been able to sleep;
3.the complainant responded belligerently;
4.the complainant threw the alleged first punch; that is, he struck the first blow while holding a tool, and this caused a minor injury; and
5.Mr Peros became very angry when he was struck.
I will further assume that, in his belligerence, the complainant made remarks that Mr Peros again interpreted as a threat against his family. I consider that this is reasonably possible, despite Mr Peros' evidence which was, at best, that he thought that the complainant repeated the earlier remarks immediately prior to the incident, but did not have a clear recollection of this.
I will refer to the perceived threat, the belligerence, and the repeated perceived threat as the 'verbal provocation'.
Making those assumptions, I would evaluate the gravity of the provocation as follows.
The gravity of the verbal provocation would be heightened by Mr Peros' sadness at his brother's terminal illness. The gravity of the first punch would be heightened by it being a surprise, that it caused a small injury, and that Mr Peros perceived the complainant to have a tool in his hand at the time.
The gravity of both would be heightened by the fact that Mr Peros was, at the time, physically and mentally tired from having worked 11 weeks without a break. The gravity of both would also be heightened by the fact that Mr Peros had told the complainant that he was very upset and had not been able to sleep and, despite this, the complainant reacted belligerently, repeating the perceived threat, and hit him.
In my view, in those circumstances, the verbal provocation and first punch could be sufficient to deprive an ordinary person of the power of self‑control. Further, Mr Peros' evidence raised a reasonable possibility that Mr Peros did in fact lose self‑control.
However, in my view, the verbal provocation and first punch could not have caused an ordinary person to lose self‑control and act in the manner Mr Peros did. I am satisfied beyond reasonable doubt that no ordinary person could have acted as Mr Peros did during the part of the incident witnessed by Mr Verden (in part) and Mr Pascoe. Even if the incident was of very short duration, the verbal provocation and first punch could not have caused an ordinary person to lose control and punch in the face, 10 or more times, a person who was cowering, who had screamed, and who was yelling out for help.
Accordingly, while I would give leave to appeal on this ground, I would dismiss this ground.
Ground 2
Was the conviction unreasonable or not supported by the evidence, so as to give rise to a miscarriage of justice?
In view of my finding that the evidence proved guilt beyond reasonable doubt, this ground cannot succeed. I would not give leave to appeal on this ground.
Conclusion
For the above reasons, I would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
23 JUNE 2023
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