Peters v May
[2018] WASC 154
•25 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PETERS -v- MAY [2018] WASC 154
CORAM: CHANEY J
HEARD: 6 FEBRUARY 2018
DELIVERED : 25 MAY 2018
FILE NO/S: SJA 1044 of 2017
BETWEEN: ADAM DAVID PETERS
Appellant
AND
BETHANY KATE MAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT
Coram: MAGISTRATE P MALONE
File Number : FR 14065 of 2016
Catchwords:
Criminal law - Assault - Provocation - Assault consisting of continuum of assaultive behaviour - Whether magistrate failed to make findings that alleged provocation resulted from incitement by offender - Alleged act of provocation occurring after events comprising of the charge commenced
Legislation:
Criminal Code (WA), s 245, s 246
Criminal Procedure Act 2004 (WA), sch 1, cl 8(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S M Walker |
| Respondent | : | Mr T E Pontre |
Solicitors:
| Appellant | : | Western Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Nil
CHANEY J:
On 13 July 2017, the appellant was convicted in the Magistrates Court on a charge that on 16 December 2016 he unlawfully assaulted Ms Hulya Candemir in circumstances of aggravation, namely that a child was present when the offence was committed. The appellant seeks leave to appeal against his conviction. On 29 September 2017, Martino J ordered the application for leave to appeal be heard with the appeal.
There were initially two grounds of appeal, but the second was abandoned shortly prior to the hearing. The sole remaining ground of appeal is as follows:
The learned magistrate erred in law by failing properly to consider the issue of provocation, in particular by failing to consider and make findings as to whether:
(a)the act of Hulya Candemir in swinging a bag at the upper torso of the applicant was provocation to him for his subsequent assault on her; and
(b)whether her act in so swinging a bag at him was done in consequence of incitement given by the applicant in order to induce her to that act and thereby to furnish an excuse for him committing an assault on her.
That ground needs to be understood in the context of the defence of provocation found in s 246 of the Criminal Code (WA) and the definition of the term 'provocation' found in s 245. Section 246 of the Criminal Code provides:
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 provisions of s 245 of the Criminal Code which are relevant for present purposes are as follows:
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, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, 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.
An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
(This last paragraph is referred to later in these reasons as the fourth paragraph of the definition).
The prosecution case as opened
In opening, the prosecutor outlined that the evidence would be that as the appellant sat outside the Coles supermarket at the Beeliar Village Shopping Centre (shopping centre), drinking beer, on the night in question, the complainant, Ms Candemir, walked out of the shopping centre. There was an exchange of words. The prosecutor continued:
The complainant at this stage was walking away from the situation, but she has turned around to question the comments being directed to her, and at this stage … we say that [the appellant] has then turned aggressively, jumped over a bench and moved rapidly towards her.[1]
[1] ts 2, 11 July 2017.
The prosecutor said that the appellant had been charged 'as three applications of force' on the one prosecution notice. The first was the rapid movement towards the complainant in an aggressive nature, accompanied by words of a threatening nature which, he said, 'constitutes an assault in itself'.[2] He said the matter then escalated and the appellant is alleged to have thrown a stubby with beer in it at the complainant towards the head or body area and it hit her as she turned her body. The complainant then rang the police, and followed the appellant from the scene in order to keep an eye on him. At that stage, the prosecution case was that the appellant picked up some rocks and threw them towards the complainant although they did not hit her. The prosecutor said that that was where the matter ended.
[2] ts 3, 11 July 2017.
CCTV footage
The prosecution tendered a video from CCTV which shows the appellant seated on a bench outside the shopping centre for some 20 minutes whilst his partner and her children were in the shopping centre. After his partner and children emerged from the shopping centre, the complainant can be seen walking past. Having walked past the appellant and his group, at which point some exchange of words apparently occurred, the complainant can be seen coming back towards the appellant. At that point, the appellant steps over the bench upon which he had been sitting and moves aggressively towards the complainant. The appellant came close to the complainant and the complainant can be seen to swing a shopping bag at the appellant's upper torso. The appellant continues to advance on the complainant who proceeds to back away until both are out of the frame of the picture.
Complainant's evidence
The prosecution called the complainant. She said that after doing some shopping, she came out of the shopping centre and walked past the appellant and his group. She was wearing a head scarf. As she walked past the appellant, she noticed that he was 'egging his daughter on to say Merry Christmas' which the young girl did. The complainant said that she responded 'You too, sweetheart. Happy holidays'. She said that the appellant gave her a 'death stare' saying 'No, Merry Christmas'.[3] She said that she then responded 'You too, Merry Christmas' and walked away at which point the appellant said 'That's right, you fucking Muslim cunt'. She said that she turned around and said 'What did you say to me?' to which he responded 'You fucking heard me'. She said that she took a step or two back towards him and that 'then he got up and started coming up to me, like, arced up and chest up and intimidating, trying to like get into my face and start a fight'. A verbal exchange then occurred after which the appellant threw a beer bottle which hit the complainant's back and shoulder spilling beer over her back and clothing. She said there was pushing and shoving in the course of which her scarf came off. She said at that point she tried to defend herself, trying to punch the appellant.[4] The complainant said that the appellant picked up her scarf and began to move it but dropped it a few metres away. She said that the appellant continued threatening that he was going to kill her or bash her, but when someone suggested calling the police, the appellant gathered the young girls who were with him and left. The complainant called the police and began to follow the appellant. She followed him to a track through the bushes, but the appellant noticed her as she spoke to the police, at which point he turned around, picked up rocks and began running towards her and throwing rocks at her.
[3] ts 8, 11 July 2017.
[4] ts 12, 11 July 2017.
Application to require prosecution to elect
At the conclusion of the complainant's evidence‑in‑chief, counsel for the appellant referred to the prosecutor's references in opening to three separate instances of assault and applied to have the magistrate require the prosecution to elect which of the three assaults if relied upon to make out its case.
The magistrate rejected that application, having regard to cl 8(1) of sch 1 of the Criminal Procedure Act 2004 (WA) which provides:
If it is alleged that a person committed more than one assault on one other person during one incident, the person may be charged with one offence of assault, or of which assault is an element, in respect of the other person.
In the course of those submissions, the prosecutor reiterated that the 'aggressive leaping over the bench, accompanied by … what he was saying at the time, does amount to an application of force' which was in such close proximity to the throwing of the bottle that that could be charged as one offence.[5]
[5] ts 23, 11 July 2017.
There is no challenge in this appeal to the magistrate's refusal to require the prosecution to elect.
The complainant's cross‑examination
The complainant was cross‑examined at some length. She clearly took a combative attitude to cross‑examination. She was asked several times whether she had hit the appellant with her shopping bag. She accepted that she did but said 'That was after quite a bit of verbal things were going on' where he was 'threatening to kill me and bash me and smash my face'[6] and that 'he was coming up at me. I was scared he was going to hit me'.[7]
[6] ts 35, 11 July 2017.
[7] ts 38, 11 July 2017.
When pressed on the sequence of events, the following exchange took place:
So, in all, what I'm suggesting to you, Ms Candemir, is that you definitely hit [the appellant] with the bag. That's the first thing. Do you agree or not?‑‑‑No, I don't fully agree to that, because I don't remember hitting him with a bag. And if I did swing it, I don't remember it landing on him. I tried - I remember swinging. I don't remember landing on him.
And the second ‑ ‑ ‑?‑‑‑Okay.
‑ ‑ ‑ thing is that you did that before he threw the beer bottle towards you?‑‑‑That I can't remember. Obviously did it when I already felt intimidated by him and threatened by him.[8]
[8] ts 49, 11 July 2017.
Other prosecution witnesses
The prosecution called three other witnesses, Ms Ljubica Petrovic, and two police officers, Senior Constable Michael Pepper and Constable Gordon Black.
Ms Petrovic arrived with her husband at the shopping centre at about 8.45 pm on 16 December 2016. On alighting from her car she noticed 'a man and a woman engaged in what appeared to be a dispute'.[9] She described events as follows:
I noticed that he started - the man started walking towards the woman, who we now know as [the complainant]. He was walking a steadfast manner, with purpose. As he approached her, she hit him two times on the torso. He then slightly changed direction and started walking really a little bit past her. He then approached a broken beer bottle on the floor and he placed it upright. He then walked from the bottle back to the Coles side of the street, at which point he called to the four young girls to come with him.[10]
[9] ts 50, 11 July 2017.
[10] ts 50, 11 July 2017.
She said that in response to the complainant shouting at the appellant, the appellant said 'The next time I see you, I'm going to kill you. You're fucking dead'.[11] She reiterated that evidence in cross‑examination.[12]
[11] ts 50, 11 July 2017.
[12] ts 56, 11 July 2017.
The two police officers gave evidence that they attended at the complainant's home in the early hours of 17 December 2016 following her complaint being made earlier that night. Their evidence was generally to the effect that the complainant was vague in her answers to questions which generally related to her complaint that a bottle had been thrown at her, where it had struck her and whether she had been injured by it.
The appellant's evidence
The appellant gave evidence. He said that he sat outside the shopping centre on a bench drinking a mid‑strength beer for about 15 minutes. He had arrived there with his girlfriend, her two children and his two children, all of whom had gone into the shopping centre. They had returned and were talking to him when the complainant emerged from the shopping centre. He said that he said Merry Christmas to her to which she responded 'Happy Holidays'. He denied that it was his daughter who had said Merry Christmas to the complainant at his urging.[13] He said that he responded 'No, Merry Christmas'. He said that he returned to his conversation with the other people present, and that he heard the complainant yelling. He said that she pulled off her hair scarf and started saying 'Do you want to see my hair? Do you want to see my butt?'. He denied that he referred to the complainant as a 'fucking Muslim cunt', and that all he said was 'No, Merry Christmas'.[14]
[13] ts 68, 11 July 2017.
[14] ts 71, 11 July 2017.
The appellant described how the complainant then walked quickly back towards him and he stepped over the bench and that he and the complainant were then facing each other 'just on the other side of the bench' where the complainant hit him with her shopping bag which he said hit him on the left side of his head. He said that she then stepped back a couple of metres and he threw the beer, which was about three‑quarters full, at her using an action akin to a backhand tennis motion. He said that he threw the bottle 'because she just hit me over the head with her shopping bag'.[15] He said that the bottle hit her on the left side of her body. Thereafter, he said things happened quite quickly and his girlfriend attempted to calm the complainant down. He then picked up the broken bottle and placed it on the median strip, and picked up the complainant's scarf and put it back with her bag which she had left on the other side of the crosswalk.[16] He denied saying that he was going to kill her or that she was 'fucking dead'. He did acknowledge swearing but denied calling her a 'Muslim cunt'.[17] The appellant said that he then gathered the children and left, and walked to a bush track where he heard the complainant yelling behind him. He said that he dropped his shopping bag and said 'just fuck off' before picking up a handful of gravel and throwing it at the complainant, following which she crossed back across the road.
[15] ts 73, 11 July 2017.
[16] ts 75, 11 July 2017.
[17] ts 76, 11 July 2017.
In cross‑examination, the appellant said that when the complainant responded 'Happy Holidays' to his wishing her a Merry Christmas, he corrected her 'because it's Merry Christmas'. He said that he found her response 'a little bit annoying … because it's Christmas'. The appellant was cross‑examined at some length as to the sequence of events after the complainant came back towards him after the initial exchange. He said that 'She came charging up at me as soon as I stood up. And over the bench, she hit me over the head with a shopping bag'.[18] He said that after she hit him with the shopping bag, he did not keep moving towards her.[19] He described throwing the beer bottle at the complainant as 'just a reaction' to being hit with a shopping bag[20] and that he almost lost control of himself but managed to keep control.
[18] ts 91, 11 July 2017.
[19] ts 92, 11 July 2017.
[20] ts 93, 11 July 2017.
Other defence witnesses
The appellant also adduced evidence from his girlfriend, Ms Bridget Crane, and another witness, Mr John Armstrong.
Ms Crane said that after she and the children came out of the shops and re‑joined the appellant, they chatted for some time. She said that during that time, the appellant was 'saying Merry Christmas to everybody' and 'Come on, girls, say Merry Christmas. It's Christmas time'.[21] Ms Crane said that when the complainant was walking past, she heard the appellant say 'Merry Christmas' and the complainant respond 'Happy Holidays' before the appellant said 'Yes, Merry Christmas'. She said that the complainant then became upset and accused them of being racist.[22] She said that at no time did she hear the appellant refer to the complainant as a Muslim and said that both parties were using abusive language towards each other.
[21] ts 108, 11 July 2017.
[22] ts 109, 11 July 2017.
Mr Armstrong gave evidence that he arrived at the car park when the altercation between the appellant and the complainant was underway. He said that he thought a cool drink bottle was thrown by 'the young woman' being a reference to the complainant.[23] He said that he heard the complainant swearing at the appellant and trying to hit him. Relevantly for present purposes, Mr Armstrong said that he did not see either the beginning of the altercation or the end of the altercation.[24]
[23] ts 123, 11 July 2017.
[24] ts 126, 11 July 2017.
The prosecution's closing
The closing addresses were delivered two days after the evidence was completed. In relation to an anticipated defence of provocation, the prosecutor said:
And on that, obviously the definition of provocation has to be a wrongful act or insult. So if we accept that what you can rely on is that the hitting with the handbag was a wrongful act, then you may get to the stage where the definition of provocation is made out and then the defence enlivened. I don't think it gets that far, your Honour. And I will address you on even if it does, what I say about that.
But in the sequence of events, as your Honour says, it doesn't appear that there's any provocation or cause itself (indistinct) at the initial parts, but he does say he feels the need to confront her, he said, to find out what's going on. And it's quite clear from the CCTV that he stands up rapidly, crosses over the seat, approaches her rapidly. I think he - it appeared to me he was in an aggressive posture, with his arm at one stage slightly cocked and his chest pushed out and he rapidly approaches the complainant. Now, on her version at that stage, your Honour - and I say that constitutes, technically, a threatened application of force in this situation, at least subjectively, but I say objectively as well.
You've got a male versus a female; he has been drinking beer and he's rapidly over the seat. I say that is - in these particular circumstances constitutes an alleged threatened application of force. And if nothing else, I'm sure the complainant would have felt it. That's backed up by the video. You can see her at one stage, she does use her handbag, I think - I thought it was on his body. She's stepping back and he's continually moving forward. So my point being also for an act to be provocation, it has to be an unlawful act. A lawful act cannot constitute provocation.
…
We say he was - from the word go - the instigator of this. But he has already moved angrily over the bench, the words are in dispute what he's saying, he's by this stage now starting to at least call her a cunt. So he's already angry, he's already upset, I would say. So he then - she then hits him with the handbag. Now, your Honour, I say by that stage he's already committed himself to a course of action. That's a lawful act by her, in any event. And then he then reacts by throwing a bottle at her.[25]
[25] ts 6 ‑ 7, 13 July 2017.
During the course of the prosecution's closing, the learned magistrate referred to his earlier ruling in relation to the application for the prosecution to elect which act they relied upon as constituting the charged assault. His Honour said:
And I didn't require the prosecution to elect. I don't see it as a case where you would say, okay, where is the initial approach, that's an assault, is that justified or excused by law, the throwing the bottle, was that justified or excused by law, then there's the throwing of the gravel. I see it as being a continuum of what you describe as assaultive‑type behaviour.[26]
[26] ts 9, 13 July 2017.
Counsel for the appellant relied solely on the defence of provocation to answer the charge. His submissions focussed on the aspect of the assault comprising throwing the beer bottle. He submitted that 'the proper conclusion is either positively that [the complainant] assaulted him, [the appellant], before he assaulted her and she did that by hitting him in the head with a bag, a shopping bag' and 'that that happened prior to the assault with a bottle'.[27]
[27] ts 11, 13 July 2017.
Counsel addressed the proposition that by stepping over the bench and approaching the complainant in an aggressive and threatening manner, that was sufficient to constitute an assault. He submitted if that conclusion were drawn, then a defence of self‑defence would come into play given the evidence as to the manner in which the complainant approached the appellant and his children after the initial exchange of words.
Magistrate's reasons
The magistrate delivered his reasons for decision immediately at the conclusion of the addresses by the prosecutor and defence counsel. After outlining the context in which the case arose, the magistrate made some observations concerning the CCTV footage and its limitations given obstructions to the view from the cameras and the distance of the cameras from the relevant events. Accordingly, he identified the evidence of the witnesses as being most important, and turned to questions of credibility of the individual witnesses. His Honour described the complainant as a 'terrible witness' who spoke very quickly despite being urged to speak more slowly, adopted a combative approach in cross‑examination and showed arrogance in expecting unqualified acceptance of her evidence.[28] He described her as disinhibited despite counsel's urging to simply answer questions and 'embroidered her evidence with the use of swear words'. He did not, however, entirely reject her evidence, finding that it was in part supported by other evidence, including in some respects being supported by admissions by the appellant. Overall, the magistrate concluded that the complainant's evidence should be approached with caution but not entirely rejected.
[28] ts 33, 13 July 2017.
The magistrate found Ms Petrovic to be a credible witness. He found the evidence of the two police officers to be credible, but of little significance to the case.
As to the appellant, the magistrate found that his explanation as to why he challenged the complainant's 'Happy Holidays' reply with 'No, Merry Christmas' lacked credibility.[29] In particular, he preferred the evidence of the complainant that the appellant had called her a 'fucking Muslim cunt' and threatened her. The magistrate concluded that Ms Crane's evidence lacked credibility and was designed to assist the appellant with whom she was in a continuing relationship.
[29] ts 37, 13 July 2017.
The magistrate concluded that there were so many inconsistencies in the evidence of Mr Armstrong with the other evidence at the hearing that, although it was given sincerely, Mr Armstrong's evidence should be disregarded.
The magistrate then proceeded to make specific findings. He found that:
(i)When the complainant emerged from the shopping centre she was wished a Merry Christmas, to which the complainant replied 'Happy Holidays', prompting the appellant to say 'No, Merry Christmas'.[30]
(ii)The appellant's explanation for his response was dishonest and the appellant could not possibly have been delivering those words in some innocuous way, but rather was delivering the words provocatively.[31]
(iii)The appellant, whilst seated on the bench, said to the complainant 'You are a fucking Muslim cunt', and he said those words in the company of his four children.[32]
(iv)The complainant reacted angrily to those remarks and turned around and headed back to where the appellant was seated.[33]
(v)The appellant then stood up and stepped over the bench and confronted the complainant who said 'What did you say to me?' to which the appellant replied 'You fucking heard me'.[34]
(vi)The complainant then swung her shopping bag at the appellant's upper torso.[35]
(vii)At that stage, the appellant threw his bottle of beer at the complainant in a backhanded underarm way, hitting the complainant and then breaking on the ground, but not significantly injuring the complainant.[36]
(viii)The appellant then said to the complainant that he was going to kill her and that she was 'fucking dead'.[37]
(ix)After the appellant left the scene, the complainant followed him into a bush path area where the appellant then threw some gravel or rocks at the complainant.[38]
[30] ts 40, 13 July 2017.
[31] ts 40, 13 July 2017.
[32] ts 40, 13 July 2017.
[33] ts 41, 13 July 2017.
[34] ts 41, 13 July 2017.
[35] ts 42, 13 July 2017.
[36] ts 42, 13 July 2017.
[37] ts 43, 13 July 2017.
[38] ts 43, 13 July 2017.
Having made those findings, the magistrate continued:
Now, it does seem to me that this admitted behaviour by [the appellant] also strengthens my reasons for concluding that [the appellant] had started this whole incident in particular by using the 'fucking Muslim cunt' words to [the complainant]. It seems to me that [the appellant] was accompanied by Ms Crane and it would have been obvious that [the complainant] presented no immediate threat to the children. She was some way off.[39]
[39] ts 43 ‑ 44, 13 July 2017.
Before turning to the provocation defence, the magistrate reiterated that the prosecution case was that there were effectively three episodes of assaultive behaviour in the charge, being the appellant advancing on the complainant in a way that could be interpreted as an assault, the throwing of the beer bottle, and then the throwing of the rocks. After referring to his findings as to the verbal exchange which took place, and concluding that 'these events happened' because of the appellant's comments to the complainant, the magistrate continued:
But, in my view and with the greatest respect, Mr Walker has taken a far too narrow view to say, well, as long as the hitting of the bag occurred after - sorry - before the throwing of the beer bottle, that somehow provides provocation.
To me, I've got to look at the whole circumstances. I've got to have regard to the fact that the events were started, as I've indicated, by [the appellant] and he kept saying what he had to say, and in my judgment the defence of provocation has, notwithstanding and I respect Mr Walker's submission, it has been negatived by the prosecution. Now, in my judgment, [the appellant] made it clear that he had been confronted by [the complainant]. At the very least, he certainly wasn't backing down, stood up then went over to the - over to her where she was, and of course the incident persisted despite children being present and despite the obvious attempts by Ms Crane to have the parties desist.
He even persisted with his angry behaviour and issuing a threat, as I've talked about earlier, to [the complainant] towards the end of the incident at the shopping centre. Now, in my judgment, the reason why under cross‑examination [the appellant] struggled to explain why he threw the bottle is, at the end of the day, there was no appropriate explanation. He certainly wasn't provoked into it. He in fact had started the whole incident but had been met with a - however, surprisingly, a very robustly confrontation with [the complainant], but [the appellant] matched her confrontation with aggressive actions of his own.
Now, in my judgment, although - this is the way that I've characterised it - the initial confrontation and the final throwing of rocks were all part of what I would call the one incident, in my judgment the appropriate focus is the throwing of the bottle because that, in my judgment, was the most significant part of this charge and it was unquestionably an assault within the meaning of the Criminal Code and, in my judgment, it wasn't excused by law and, as I say, I'm satisfied that the defence - the only defence that really had to be thoroughly considered, that of provocation, has been negatived.[40]
Accordingly, the magistrate found the charge proven.
[40] ts 45 ‑ 46, 13 July 2017.
The appellant's submissions
The appellant submits that, although there were no express findings by the magistrate, there was no room to doubt that the striking of the appellant by the complainant with a shopping bag was a wrongful act of such a nature as to be likely to deprive an ordinary person of the power of self‑control and induce that person to assault the complainant. On that basis, the appellant submits that, subject only to the fourth paragraph of the definition, the act of the complainant in striking the appellant gave him provocation for his subsequent assault on her. The appellant contends that the magistrate in his reasons made no express reference to the fourth paragraph of the definition and made no finding that the appellant had incited the complainant in order to induce her to assault him and thereby to furnish him an excuse for committing an assault on her.
In my view, the premise upon which the appellant contends that the magistrate erred, namely that the relevant assault consisted only of throwing the beer bottle, is incorrect. The prosecution case, which the magistrate clearly understood and upheld, was that the assault consisted of a continuum of events commencing with the appellant stepping over the bench seat and then rapidly moving towards the complainant in an aggressive manner. That occurred before the complainant swung her shopping bag at the appellant's torso and could not therefore constitute provocation for that first element of the assault.
The appellant argues that the magistrate's conclusions cannot be viewed in that manner given his references to the verbal exchange being the initial cause of events, and his reference to the 'appropriate focus' on the throwing of the bottle because that 'was the most significant part of this charge'. I do not accept, however, that the magistrate's observations as to the altercation originating from the appellant's offensive words suggest that the magistrate had in mind the fourth paragraph of the definition when rejecting that defence. Rather, that observation was merely by way of explanation as to how events transpired. The magistrate observed in the passage set out above, the appellant 'started the whole incident' with his words, but when met with a robust confrontation by the complainant the appellant 'matched her confrontation with aggressive actions of his own'. That was clearly a reference to what was described by the prosecutor as the first element or component of the assault.
Nor do I consider that the reference by the magistrate to the throwing of the bottle being 'the most significant part of this charge' undermines the proposition that the magistrate accepted the manner in which the prosecution put the charge, and on which the trial proceeded. Indeed, that expression appears in a paragraph of the magistrate's reasons where he expressly concludes that the initial confrontation and the final throwing of rocks were all part of one incident.
For that reason, the sole ground of appeal cannot be made out.
The respondent submitted that, although his findings are less explicit in this respect, the magistrate's reasons can be construed as an acceptance of the submission by the prosecution that the defence of provocation was not open because the appellant did not lose the power of self‑control as a result of being hit with the bag. That is said to flow from the magistrate's conclusions as to the appellant starting the whole incident and responding as he did when confronted about his offensive remark. There is merit in that submission, but it is not necessary to consider it further given I am of the view that as the ground of appeal is based on an incorrect premise, it has no prospects of success.
For those reasons, leave to appeal should be refused, and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
ASSOCIATE TO THE HONOURABLE JUSTICE CHANEY25 MAY 2018
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