Pickless v Rawnsley

[1995] QCA 510

IN THE COURT OF APPEAL	[1995] QCA 510
SUPREME COURT OF QUEENSLAND

C.A. No. 352 of 1995

Brisbane

[Pickless v. Rawnsley]

DEREK IAN PICKLESS

v.

KENNETH THOMAS RAWNSLEY

Appellant

Fitzgerald P.
Davies J.A.

Dowsett J.

Judgment delivered 17/11/1995

Joint reasons for judgment by the President and Davies J.A.; separate dissenting reasons for judgment by Dowsett J.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - assault occasioning bodily harm; whether consent to assault; whether acceptable prevention of repetition of insult.
Counsel:	Mr. T. Rafter for the appellant Mr. D. Bullock for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	31 October 1995

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered the 17th day of November 1995

The appellant was convicted in the Magistrates Court at Innisfail on 2 August 1995 of assaulting Paul d'Agata causing him bodily harm on 24 February 1995. Both were, at the time, students at the Innisfail Special School. The complainant was 14 years of age, the appellant 17.

For some time prior to the day of the alleged assault there had been friction between the complainant and the appellant and between other members of their respective families. Up to that time, however, it had taken the form only of exchange of verbal abuse.

As to the events of the day in question the versions of the complainant and the appellant differed. The learned Magistrate noted that difference and that a question of credit arose. He then set out the versions of each and it appears that in substance he accepted that of the appellant. That version was as follows.

The appellant went to the school library, he said, to look for a friend. When he entered the library the complainant, who was already there, started calling him names. As the complainant walked out the door, still abusing the appellant, the appellant pushed him with both hands on his shoulders and told him to wake up to himself. The push was apparently from behind because, according to the appellant, the complainant turned around and punched him in the right jaw. It did not hurt him but the appellant just started hitting back. He felt angry. He hit the complainant in the face. He then grabbed the complainant by the collar of his shirt and ripped it. The complainant then started punching him. The appellant then "kept going" whilst the complainant was walking back. The complainant fell to the ground. When the complainant got back up the appellant started hitting him again and he fell over again. The complainant called out and the appellant kept hitting him.

It appears from the learned Magistrate's judgment that the appellant raised the defence of provocation. In his interview with the police the appellant also raised self- defence. It does not appear from the learned Magistrate's judgment or from anything else in the record of proceedings below whether the appellant raised any other defences.

Before this Court the appellant also raised consent and prevention of repetition of insult. However Mr. Rafter, who appeared on his behalf in this Court, conceded that it was not known whether these additional offences, or for that matter self-defence, had been raised in the court below. It may well be that, for tactical reasons, none of them were. It is relevant to know, when such defences are raised on appeal, whether they have been raised below. It would be a prudent course for magistrates, in giving judgment in cases like this, to record the defences relied on.

The main grounds of appeal relied on are that the learned Magistrate misdirected himself on provocation and that he failed to consider whether the complainant had consented to the assault. As to provocation, the learned Magistrate referred to whether the force used was excessive rather than, as required by s.268 of the Criminal Code, whether it was disproportionate to the provocation. Plainly his Worship used the wrong terminology. But what was excessive was plainly also disproportionate to the provocation. There is nothing to indicate that, in substance, the learned Magistrate applied the wrong test. Nor is there any substance in the contention that the force used was not disproportionate to the provocation. Though it is arguable that, in the first place, the appellant was provoked by the complainant's insults and that the force which he then used, pushing the complainant on both shoulders, was not disproportionate to that provocation, and that the appellant's initial response to the complainant's punching him on the jaw was not disproportionate, there then occurred a continuous series of assaults by the appellant upon the complainant causing him to fall to the ground twice and involving punching of the complainant even after he had fallen. This conduct was neither proportionate to the provocation nor self-defence. And it was these assaults, plainly enough, which caused the complainant bodily harm.

The argument that the prosecution did not exclude consent must also fail. Indeed it is unlikely, given the above facts, that this would have been contended below. As already pointed out, the assaults which occasioned bodily harm occurred at a time when it appears plain that the complainant was no longer able to defend himself; that is, when he fell to the ground on the first occasion, regained his feet and once again fell to the ground. Whilst it may be argued that, by turning and punching the appellant on the jaw after the appellant had pushed him on the shoulders he consented to retaliation by the appellant, the argument that he thereby consented to the appellant continuing to assault him well after it was plain that he was no longer defending himself cannot be sustained.

It is possible, though unlikely, that the defence of prevention of repetition of insult was raised below. Whether it was or not the force used by the appellant was more than was reasonably necessary to prevent repetition of either the complainant's insults or his blows.

The appeal should therefore be dismissed.

REASONS FOR JUDGMENT - DOWSETT J.

Delivered 17/11/1995

I have had the benefit of the reasons of the other members of the Court and other than on the issue of consent, I am in agreement with them. This issue is complicated by the different accounts given by the complainant and the appellant.

The complainant, Paul Edward D'Agata was almost 15 at the time of giving evidence. In evidence-in-chief, he said that the appellant started the disagreement by making remarks about D'Agata's father. D'Agata did not respond but a little later, the appellant commenced calling him names. D'Agata walked out of the room, but the appellant pursued him, still calling him names. D'Agata told him to "stuff". The appellant then came up behind him and started hitting him. He later said that the blows were to the back and side of the head, although it is not clear whether it was the right side, the left side or both. D'Agata grabbed the appellant's hands at some stage. By this time, the appellant was hitting him in the face. The appellant tripped him, he fell to the floor and the appellant then kicked him in the face. D'Agata thought that he had kicked him "about twice", but he also said that the kicking continued over a period of about three minutes. The fight was then broken up by a third person.

In cross-examination, D'Agata said that when the appellant started to hit him, he told him to "get stuffed". He said that he also told the appellant to leave him alone. He agreed that he had, as it is said, "given him the finger", at the time that he told him to "get stuffed". In cross-examination, he also said that he was punched by the appellant whilst he was on the ground, although the evidence is a little unclear.

The appellant said that the incident had been initiated by D'Agata calling him names. When asked to be more particular, he said that D'Agata had said that his friend would put the appellant behind bars or words to that effect. D'Agata then went outside, continuing to so address the appellant. The appellant followed him and pushed his shoulder. D'Agata turned around and punched him in the right jaw. The appellant then started hitting him in the face. He denied hitting him in the back of the head. At some stage, the appellant grabbed D'Agata's shirt. D'Agata then punched him. The appellant denied tripping him but said that D'Agata lost his balance whilst punching the appellant. He fell over. The appellant denied kicking him whilst he was on the ground. D'Agata got up and the appellant commenced hitting him again. It is not entirely clear in the appellant's evidence-in-chief, but he may have fallen again. A person called Thomas Grayner separated them. In cross-examination, the appellant agreed that D'Agata had punched him once. He also said that D'Agata fell over twice. At p.37 of the record he gives this account:

"I punched him and he fell over the first time. A punch and then he was losing balance and he ... against the cement wall. I punched him again, and he kept moving, then he fell over, he fell over in the garden."

A record of interview was taken from the appellant on the day after the incident in question. When first confronted with the allegations he said, "But he punched me first, self-defence." It was then put to him that he had been harassing D'Agata and that he had pulled him by the shirt, tearing it. The appellant admitted this. He then said, "He punched me first, it was self-defence, so I hit him back and grabbed him by the shirt." He denied punching him in the back of the head. He denied tripping him but admitted that he had fallen to the ground. He denied kicking him but agreed that the fight was broken up by another person. He said that D'Agata had hit his head on the brick wall when he had been hit. When asked to give an account of the incident he said that D'Agata had told him, "to get fucked". The record indicates that the appellant then said, "So I just pushed him and punched him." However this may be a misinterpretation by the person transcribing the tape because the interviewer then said, "You pushed him so he turned around and punched you." The appellant then said that he turned around and punched him in self-defence. When asked where D'Agata had hit him, he replied, "On the side here". The next question was, "And then you punched him back, did you?" to which the answer was, "Yes." He said that D'Agata lost balance and fell to the ground.

The Magistrate, more or less accurately, recorded the two versions, identifying the differences between them. His Worship seems to have then proceeded upon the appellant's version without necessarily deciding the issue of credit. He said, "I find that on the evidence the defendant admits assaulting the complainant and I find that a question arises of whether he was provoked and was the force used excessive."

The appellant's version given by the Magistrate was as follows:-

"The defendant's version is that when he went into the library looking for Thomas, he saw the complainant and the complainant began to taunt him. He said that the taunting was an on-going thing over the last six months and on this occasion he became sick of it. The complainant during this taunting began to walk away so he pushed him. He said then that the complainant turned on him and punched him to which he then punched the complainant and a brawl erupted and continued.

He says he lost it and punched into the complainant who went down and then got up and he continued to punch into him. He went up against a wall, continued to punch him and then he fell over again in relation to proximity of a garden plot and the assault continued until Thomas intervened, after which he went to the nursery."

The charge is that the appellant assaulted the complainant occasioning bodily harm. The push, which was the first physical contact on the appellant's version, could not, under any circumstances, have caused bodily harm and so cannot, by itself, be the subject matter of the charge. What followed was either an attack by the appellant on the complainant or a fight into which both parties entered by consent. On the appellant's version, the complainant punched him in response to the push. The appellant then fought back. It is difficult to describe such an incident as other than a consensual fight. The complainant went down and then regained his feet. There is no suggestion that the complainant either offered further violence or sought to withdraw from the confrontation before the appellant resumed the attack. He again fell.

Although it is not entirely clear, it seems that both the appellant and the complainant were attending a special school and were, to some extent, intellectually disadvantaged. The evidence must be considered in that context. Had the Stipendiary Magistrate simply rejected the appellant's evidence and accepted that of the complainant, there could have been no complaint. However his Worship did not do that. Although as the other members of the Court have observed, the appellant appears to have used considerable force, I find myself unable to identify a point at which the complainant withdrew from the consensual fight. The mere fact that one of the combatants is not doing well in such a fight does not necessarily constitute a withdrawal of his consent to the application of force to his person, although I do not wish to be taken as in any way encouraging or endorsing schoolboy fights.

For the reasons which I have given, I am of the view that consent was not excluded in this case, and that the Magistrate could not therefore have been satisfied that there was an assault. In those circumstances, the question of provocation did not arise. The conviction should be quashed. No useful purpose would be served by a re-trial. I would therefore order that a verdict of "not guilty" be entered.