Police v Bowen
[2009] QMC 19
•21 September 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Bowen [2009] QMC 19
PARTIES:
POLICE
(prosecution)
v
ROBERT ERROL CLIVE BOWEN
(defendant)
FILE NO/S:
MAG45149/09(9)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Mareeba
DELIVERED ON:
21 September 2009
DELIVERED AT:
Mareeba
HEARING DATE:
3 September 2009
MAGISTRATE:
Braes T
ORDER:
Defendant found guilty as charged
CATCHWORDS:
CRIMINAL LAW – ASSAULT – defence of provocation – defence of self defence
COUNSEL:
Hafner (sergeant) for prosecution
McIlwraith for defendant
SOLICITORS:
Prosecution appeared on own behalf
The defendant Robert Errol Clive Bowen appears before me charged that on 4 April 2009 at Millaa Millaa he unlawfully assaulted Kenny Robert Mason and thereby did him bodily harm. To this charge he says he is not guilty. He was legally represented by Mr McILwraith Solicitor. Sergeant Haffner appeared for the prosecution.
In order for me to find the defendant guilty of the charge I must be satisfied that all of the elements of the charge have been proved to the standard required that being beyond a reasonable doubt. The onus of proving those elements and of negativing any excuse raised to such standard is of course upon the prosecution. Should the prosecution fail to prove those elements to the standard required then I must of necessity acquit the defendant of the charge.
The prosecution must prove:
1. the defendant assaulted the complainant ; any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without that persons consent is said to assault that other person;
2. the assault was unlawful, that is, it was not authorised, justified or excused by law;
3. the defendant thereby did the complainant bodily harm; that is, any bodily injury which interferes with health or comfort.
At the commencement of the hearing I was informed that the elements of:
· date,
· time,
· place,
· the identity of the defendant,
· that the complainant was the victim,
· that the defendant hit the complainant,
· that the result would amount to bodily harm,
were admitted.
What is in dispute is whether the application of force by the defendant to the complainant, being two punches to the head was unlawful. The defendant did not deny that he hit the complainant. Why he hit him is the issue. The defendant says he was provoked into hitting the complainant. He also says he feared for his life and raises self defence.
The issues to be determined by me are:
1. did the complainant consent to being punched by the defendant; if not
2. was the defendant provoked to assault the complainant; if not
3. was the defendant acting in self defence.
On the night of Friday 13 February 2009 a good crowd was in attendance at the Millaa Millaa Hotel. The complainant was there with his wife and their 3 month old daughter. They were part of a larger group celebrating a friend’s birthday. The defendant was there with his brother Stafford Bowen, Anton Ford, Eric Ford, and Ronny Wilson. They had been to the Malanda Hotel where they had had some drinks before arriving at the Millaa Millaa Hotel. There were other parties at the hotel particularly a group from Ravenshoe. There appears to have been some aggravation between some of the defendant’s party (not including the defendant) and the complainant and his friends about the complainant and his friend’s monopolising the only pool table at the hotel. The defendant did not himself play pool. Others in his group would have liked to have had a game of pool that evening but were denied the opportunity. Members of the defendant’s party including the defendant were aggressive to one of the bar attendants which caused the Licensee to keep an eye on what was going on, and for a degree of concern amongst some of the complainants party, including the complainant and the bar attendant’s boy friend. It is clear that the complainant and the defendant were affected by alcohol as were a number of the other witnesses. The defendant alleges that around 11:00pm the complainant called him a black cunt, spat in his face, grabbed him by the collar, pulled him towards him, then spun him around through a doorway onto the verandah of the hotel whereupon the defendant, fearing for his life punched the complainant twice to the head. The complainant fell heavily striking his head on the brick wall and tiled floor. The complainant has little memory of the event. He was knocked unconscious by the first blow and remained unconscious for what appears to have been about fifteen minutes. He was hospitalised for nine days and required two further check ups with the neurosurgeon before being given the all clear. He does not suffer any lasting injury.
THE EVIDENCE
DETECTIVE SENIOR CONSTABLE FINCHAM
Detective Senior Constable Fincham was the investigating officer who attended the Millaa Millaa Hotel with a Scenes of Crime Officer. After speaking with Mr. Santowski, the licencee of the Millaa Millaa Hotel, Detective Fincham directed the Scenes of Crime Officer to take a number of photographs which were admitted into evidence and marked Exhibit 1.
THE COMPLAINANT KENNY MASON
The complainant is a 27 year old man who had on 13 February worked during the day time and then left his utility at a mates place before heading to the Hotel to celebrate a friend’s birthday. He was drinking XXXX Gold and then rum. He has a limited memory of the event. His memory of the evening is of little assistance in determining the sequence of events. As a consequence of the two punches he received to the face he suffered a fractured eye socket, a split to the back of his head, bruising around the face and a broken tooth. He was hospitalised for nine days and had to go back twice for brain scans. He initially lost a fortnight’s work and then a further two days when he was required to visit the neurosurgeon.
AARON JENSEN
Aaron Jensen is a contract musterer who knew both the complainant and the defendant prior to the incident. Mr. Jensen went to the Millaa Millaa Hotel at about 8:00pm just before dinner. He had dinner and a few drinks and played a couple of games of pool. He saw Stafford Bowen and the defendant Robert Bowen who is also known as Bobby, together with a couple of other indigenous men. He said that during the night the complainant had asked him to watch his back as some of the fellows were starting to stir up. The defendant and two of his companions were at the bar getting loud. They went outside but he stayed at the bar. He then heard the complainant yell out “what’s your fucking problem” he then heard a big whack. He ran out to the verandah of the hotel to find the complainant knocked out on the ground, and the defendant “pretty fired up”. He said he gave Stafford a hand to move the defendant away. He said they took the defendant up the street toward the café and then he returned to the scene. The defendant then also returned to the hotel. He said the defendant felt bad, and that he was still agitated but sorry for having hit the complainant. He said the defendant had no shirt on and that he was wearing mine worker pants with reflective striping. Although the defendant wanted to get in to where the complainant was lying he said they didn’t let him in as they didn’t know what he was going to do. He was still agro. He and Stafford again took the defendant up the road prior to the ambulance turning up. Under cross examination he confirmed his evidence particularly that the defendant had been wearing the mining pants with reflective stripes and that he was able to identify the defendant because he had met him previously. The defendant’s allegations that the complainant had called him a black cunt, spat on him, grabbed him and spun him around were not put to Mr Jensen.
BEN JENSEN
Ben Jensen is 24 years of age. He is not related to Aaron Jensen. He had been working during the day and attended the Millaa Millaa Hotel to celebrate a friend’s birthday. At about a quarter to eleven he was outside on the verandah of the hotel with the complainant when the complainant said to him that one of the fellows at the pool table was getting agro with him and was accusing him of cheating at the pool table. The complainant then returned inside while he remained outside. He said that later the complainant came out for a smoke. He said about five minutes later the defendant came out and walked over to the complainant, and although he couldn’t hear what was being said he observed that the two were arguing. He said they were arguing for a bit before the complainant’s wife came over and stood between them. He said the complainant pushed his wife out of the way and that the two were still arguing. He said the defendant said to the complainant “you want to fight me” to which the defendant replied “no I don’t”. He then said that the complainant turned away from the defendant as if to walk back inside. The defendant hit the complainant from the side with a right hand punch to the mid face temple area. He saw the complainant’s eyes roll back in his head and he was stumbling a bit. The defendant then hit him again. The complainant fell to the floor and hit his head on the bricks. He said that he did not see the complainant provoke the defendant in any way prior to his being punched. Under cross examination he said that he had heard the defendant say “come on you want to fight”, that he had a clear view of the two of them as he was sitting at the table on the right hand side of the main entrance door. Mr. McILwraith put to him that it was the other way around, that the complainant said to the defendant “come on you want to fight” the witness did not accept that proposition. He said that prior to being hit the complainant had assisted his wife in moving the baby pram two or three metres away from where it was positioned. It was immediately after that event that the defendant offered to fight the complainant. Mr Jensen said that he did not see the complainant spit on the defendant, he did not see him shape up to fight the defendant, and he did not see him pull at the defendant. He said that from what he had seen after the complainant was asked if he wanted to fight and said that he didn’t, he was turning back to the main door of the pub when he was hit. Mr McILwraith asked him about what had happened after the pram was moved, he replied that the complainant was walking back over, not to the defendant but to the entrance to the bar, the defendant asked the complainant if he wanted to fight to which the complainant said no he did not. As the complainant turned to walk to the entrance to the hotel the defendant hit him. He also added that it would have been necessary for the complainant to walk past the defendant to get back into the bar.
GRAHAM JENSEN
Graham Jensen is a 28 year old contract musterer who had gone to the Millaa Millaa Hotel on 13 February 2009 about 7:00pm to celebrate a friend’s birthday. He was driving that night and only had four XXXX Gold beers over the course of the evening. He said that he had seen a couple of fellows inside the bar giving the bar attendant Nicole a hard time. He was not sure whether the defendant was one of them although they were part of the defendant’s group. He said that Darren Barr, Nicole’s boyfriend, had gone inside the hotel to keep an eye on things. He was not aware what had happened when Daren went inside but he saw him shaking hands with one of the group. He assumed everything was OK. One or more of the group then came outside and said that the hotel had stopped serving alcohol to them, after only about a minute they returned back into the bar area. He said that the complainant walked outside onto the verandah of the hotel and that the defendant was behind him. The defendant came to the front of the complainant to face him. The complainant said “what’s your fucking problem” the complainant was swaying a bit, he was drunk. The complainant’s baby was in the pram nearby, the complainant’s partner came over and said something and took the pram away. The complainant then turned to look towards his partner and the defendant punched him with a right and left hand, at the time the complainant was looking toward where his partner was going. The first blow struck the complainant on the chin. The second in the eye nose area. He said that the first blow knocked out the complainant and that his eyes rolled back in his head. His arms were by his side. The complainant just fell backwards onto the floor and he heard this gross noise as the complainant’s head hit the floor. The complainant’s partner then came over and grabbed the defendant who was still standing and leaning over the complainant. He and others went to the aid of the complainant and rolled him on his side, he was bleeding from the head. His eyes were still rolled back. There was a bit of a scuffle on the footpath as other people took the defendant away. He was asked whether he heard anything that would provoke the assault by the defendant on the complainant. He said that he had not and that the complainant was looking to this left to see where his partner was. He also said that at the time the complainant’s hands were by his side, not in a fighting stance. Under cross examination he described the hit as a king hit as the complainant was not looking at the defendant at the time when the blow was delivered. He also said under cross examination that he had not seen the defendant spit at the defendant or shape up as if to fight him. This was further explored in re-examination when he again confirmed that he did not see the complainant spit on the defendant, he did not see the complainant shape up to the defendant, and he did not see the complainant grab at the defendant.
REBECCA MASON
Rebecca Mason is the complainant’s wife. At about 7:15pm she had gone to the Millaa Millaa Hotel to meet with friends for a birthday party. When she arrived she ordered her dinner. She was not drinking. Throughout the evening she was sitting in the bar area watching the complainant play pool. She saw the defendant and noticed that he came into the bar with his mates. They were drinking at the bar. She continued to sit around watching the boys play pool and talking with Troy who was the singer at the hotel that evening. At some point the defendant wandered over and was speaking to her and Troy. She said he was just rambling on and on and on about a Kiwi guy who had accused him of being something, but he wasn’t he was from Queensland, but worked in Western Australia. She said that he used the female toilets and that Mr. Santowski came over and told him not to use those toilets. She said that he was very drunk. She was thinking everything was getting a little bit out of control, and that it was getting late. She was uncomfortable about how drunk the defendant was, and with sitting in the bar/pool table area when most of the people she knew were on the dance floor or had left or gone outside. She pushed the baby and the pram through the bar and went out the front of the hotel to the verandah where there were more people who she knew. On the verandah she overheard people talking about what the defendant had been doing, they thought he was leaving, and that it was likely someone was going to fight with him as he had been rude to Nicole behind the bar. At about 10:45pm the complainant walked out of the bar area rolling a smoke and stood near the pram. The defendant walked out at the same time. She heard him say to the defendant “Look mate, I don’t know what your problem is you have had a problem with me all night”. The defendant looked very angry and was pumped up. She didn’t know what was going to happen. She jumped up from where she was sitting and grabbed the complainant with one arm, and the pram with the other. She pulled the complainant away and said to him “what are you doing that guy will kill you”. She pulled the complainant away a good metre or so. She said to the complainant “why don’t you go and stand near the pram”. She said she was giving the complainant a bit of a tune up. The complainant was looking at her. The defendant walked up. She then heard “whack whack” he was very very quick, there were three sounds of smack, smack, smack the third one being the complainant hitting the cement. The complainant was on the ground out cold. She said that when she first heard the complainant ask the defendant what his problem was he was rolling his smoke and looking down. After the complainant fell to the ground the defendant stood over the top of him with his back to her. She grabbed him from behind and pulled him away from the complainant. She said that the defendant’s mates were trying to keep him out of the hotel, that he had taken off his shirt and was just wanting to offer himself out to whoever wanted to fight him. She said that the defendant had been wearing blue pants with a silver stripe around the knee and a red shirt. Her evidence was not challenged in cross examination. Mr. McILwraith said in his address to me that once she said the fellow who hit the complainant was wearing the mining trousers he could not question her further. The mining trousers were an issue raised by Mr. McILwraith. I don’t think it is necessary for me to make a finding as to who was wearing what. Anton Ford said that he was wearing mining trousers. The defendant said that he had changed out of his mining clothes. Mrs. Mason and Aaron Jensen both said that the defendant was wearing what might be regarded as mining trousers. The fact is; it is not denied that the defendant hit the complainant. The result is that Mrs. Mason’s evidence is not challenged in any way before me. The allegations that the complainant called the defendant a black cunt, spat on him, grabbed him and spun him around were not put to Mrs Mason. These allegations are completely inconsistent with the evidence of Mrs Mason.
NICOLE BUTLER
Ms. Butler was working behind the bar at the hotel on the evening of 13 February 2009. At about 10:45pm she said that she was behind the bar when the defendant and his friends came inside and that one of the group wanted to buy $80 worth of shots but she said no. The biggest of the group knocked over a shot glass and then a beer as well. As a result she refused further service to all four of them including the defendant. She said that she finished her shift not long afterwards and went outside the hotel on the verandah for her knock off drink. She said the complainant and the defendant walked outside on to the verandah as if they were going to have a fight. Mrs. Mason moved the baby and as the complainant was looking around he got hit. She clarified that Mrs. Mason was moving the pram and that the complainant had walked away and as he was turning around he got hit by the defendant. She was about to go and get Stafford Bowen just prior to this occurring fearing that there was going to be a fight. Under cross examination she said that the complainant had come out of the bar area onto the verandah area first and that the defendant followed him as if they were going to have a fight. They both looked angry. The allegations that the complainant called the defendant a black cunt, spat on him, grabbed him and spun him around were not put to Ms Butler.
MR. SANTOWSKI
Mr. Santowski was the licencee of the Millaa Millaa Hotel. He said that his wife had asked him to come back into the bar area and keep an eye on the bar as the boys were starting to party. He referred specifically to the defendant and Stafford Bowen. He confirmed that the group had just before then been refused further service. He was asked whether he had seen any altercation between the complainant and the defendant inside the bar to which he replied “no not really”.
STAFFORD BOWEN
Stafford Bowen is the defendant’s older brother. He, the defendant, Anton Ford and Eric Ford had gone to the Malanda Hotel at about 3:00pm where they started drinking. Later they decided to go to the Millaa Millaa Hotel arriving there around 7:00pm. When asked about how many drinks he’d had he said four or five cans “I was a bit lost”. He was asked about the behaviour of the other boys and said that they were real friendly that they had tried to have a game of pool but couldn’t get on to the table.
He didn’t see anything relevant to the assault at all. He appeared to know nothing about it at all. He gave no evidence of any involvement with the defendant after the assault. The event was apparently not discussed by his group afterwards on the way home. Generally there does not appear to have been any discussion between the defendant, Stafford, and Anton about the incident at all. Eric Ford was not called to give evidence. Stafford said that when he came out of the hotel he had seen a big crowd of people and the defendant was standing near the vehicle. Under cross examination he said that earlier in the evening he and Eric and Anton were outside on the grass having a cigarette when the complainant came out, he formed the view that the complainant wanted a blue as he was mumbling something to the effect of “what are you black bastards doing here”. He said to Eric and Anton that they should go back inside which they did and the complainant disappeared. Because he was worried there was going to be a blue he said to the group including the defendant that they should go home. As he was known to the people in Millaa Millaa and at the hotel he carried a degree of responsibility for the behaviour of his group. He said that he had attempted to quieten things down by saying to the two bar maids not to bother with anymore drink that they would just finish that which they had and then they were going. He was asked under cross examination whether there had been any trouble inside the bar around the pool table area with the complainant. He said that he was not sure who there had been trouble with before, that there was a big mob of people there on the evening and that Peter Farquarsen had said to him that there was going to be a blue with the mob from Ravenshoe.
DARREN BARR
Darren Barr was the boyfriend of the bar attendant Nicole Butler. He had started drinking about 8:30am that day and said that he had twenty or so rum and coke. He also was at the hotel celebrating a friend’s birthday. At around 11:00pm he was out the front of the hotel having a smoke and a drink. He said that there were a whole swag of them out there. He saw the complainant and the defendant come out the front of the hotel. They were arguing, he believed that they had been arguing before they came out. The complainant was talking to his wife and turned around and on the way back he got hit. He said that the complainant’s wife had said to them to stop fighting that the complainant had turned around to say something and got hit. He was knocked out cold. The allegations that the complainant called the defendant a black cunt, spat on him, grabbed him and spun him around were not put to Mr Barr.
EVIDENCE CALLED ON BEHALF OF THE DEFENDANT
ANTON FORD
Mr. Ford was one of the group of indigenous men with the defendant who had attended at the Malanda Hotel before going to the Millaa Millaa Hotel. He had had a lot of money on him on the day and was looking to spend a lot. He had been drinking Jim Beam, rum and XXXX. He was asked if there was any reason to fear that someone wanted to fight to which he replied “yeah”. He was then asked who that was he replied “Ken” (the complainant). He said that he had been outside having a smoke when the complainant had come up to him and wanted to fight him. The complainant had had clenched fists and was ready to go. He was with Stafford Bowen and Eric at the time. He said to the complainant that he was only there to have a happy time and walked away from him. He said that Stafford then called them inside and they cruised inside. Under cross examination he confirmed that he was “pretty smashed” having had quite a lot to drink. This was he said about 10:00. When asked if there had been any further hostility he replied “nothing”. He had not observed any altercation between the defendant and the complainant.
THE DEFENDANT ROBERT (BOBBY) BOWEN
The defendant Robert (Bobby) Bowen was residing in Cooktown and working in Western Australia on a mine site. It appears from submissions made at the end of the trial that he may no longer work at that mine site in Western Australia. He said that he had flown into Cairns from Perth at 5:00am and that he had gone shopping with his partner until about 4:30 or 5:00pm. His partner then dropped him at the Malanda Hotel where he met Ronny Wilson, Stafford Bowen, Anton Ford and Eric Ford. He said that he only had a couple of drinks at Malanda and that they then went to Millaa Millaa where he spent the evening around the bar area and talking to Troy the entertainer. He said that he doesn’t play pool. He was asked whether he had smelt any trouble in the pool area and to which he said that he smelt trouble, like when the boys went outside and the complainant followed them outside. He said that Stafford told him to go outside as Tanya was coming to pick them up. He was walking on his way out to the door when he found the complainant there. He said the complainant pulled him towards him called him a black cunt and spat in his face, the spittle hitting him on the nose and eye. This occurred inside the bar area before leaving through the door entrance onto the verandah. He said that the complainant had grabbed him and spun him around to him. He feared for his life so gave him a couple. He said that the complainant had shaped up to him that it was a fair fight. After he just wanted to grab him and hug him up and apologise. He was sorry that he had done it. It would not have occurred he said if the complainant had not spat on him. He said that he had used his shirt to wipe the spit from his face, that he took his shirt off and left it in the car on the way home. Under cross examination he said he had met the complainant earlier in the evening and that there had been no trouble. He said that he was heading towards the door out of the bar area to the verandah area of the hotel with the complainant in front of him, that he and the complainant were having an argument, that the complainant was being rude to him in the first place and that he was taking him to be Anton. He had called him a black cunt and spat in his face. This had occurred inside the hotel. Outside the complainant grabbed him by the collar and pulled him towards him. This happened as they were going out the door. He agreed that the complainant had asked him what his problem was although he said this occurred after the complainant had spat in his face and all that. He agreed that the baby’s pram was nearby and that Mrs. Mason had come over and moved the pram. He did not speak to any of his group about the insults made to him at any time after the event as he said it was shameful to do so. It was necessary for me to ask for the defendant’s evidence to be further clarified. He said that he was about one arm’s length away from the complainant, that he had tried to walk around the complainant, to get to the doorway but before that the complainant had called him a black cunt and spat in his face. The complainant then grabbed him. He was already out of the door when the complainant grabbed him. He also confirmed that the complainant had held his hands up in a fighting position.
PROVOCATION
In order to convict the defendant I must be satisfied that the assault was unlawful. An assault is unlawful unless it is authorised justified or excused by law. An assault is justified or excused if, at the time of the assault the defendant was acting under provocation. Provocation is defined as “any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive the person of the power of self-control and to induce the person to assault the person by whom the act or insult is done or offered”. Our law provides that: “when such an act or insult is done or offered by one person to another, the former is said to give the latter provocation for an assault”. At the outset, there must be a wrongful act or insult by the complainant. The wrongful act or insult by the complainant to the defendant must be of such a nature as to be likely if done to an ordinary person to deprive the person of the power of self control. Whether any particular act or insult is such as likely to provoke the person who offers it is a question to be decided in light of the facts and circumstances as I find them to be.
An ordinary person in this context is expected to have the ordinary human weaknesses and emotions common to all members of the community and to have the same level of self-control as an ordinary person of the defendant’s age. It means an ordinary person in the position of the defendant who has been provoked to the same degree of severity and for the same reason as the defendant.
I must consider the gravity of the provocation to the particular defendant. His race, colour, habits and relationship to the complainant may all be part of this assessment. Conduct which might not be insulting to one person may be extremely insulting to another because of the person’s age, race, ethnic or cultural background, physical features, personal attributes, personal relationships or past history. The defendant made mention of how disgusting the act of spitting in the face of a person is; he said that in Aboriginal Law people who do that get speared in the head. The act of spitting on the person of another is I am sure regarded by all of humanity as a disgusting and degrading act which would often give rise to an immediate and justified response from the person spat upon.
If I am satisfied or I am left in a reasonable doubt about whether there was a wrongful act, or insult of such a nature as to be likely, when done to a reasonable person, to deprive the ordinary person of the power of self control, I must consider whether that act or insult induced the defendant to assault the complainant.
A person is not criminally responsible for an assault committed on a person who gives the defendant provocation for the assault if the person 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 the persons passion to cool and if the force is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.
The prosecution must satisfy me beyond reasonable doubt that provocation does not apply. There is no burden on the defendant to satisfy me that he was provoked.
In considering whether the defendant was deprived of the power of self-control, I must view the words or conduct in question as a whole and also in light of any history or disputation between the defendant and the complainant, since particular acts or words which, considered separately, could not amount to provocation, may, in combination or cumulatively be enough to cause the defendant to lose self control in fact.
The defendant must have acted upon the provocation and before there is time for his passion to cool.
The force used by the defendant must not be disproportionate to the provocation.
If the prosecution satisfies me beyond reasonable doubt:
1. That the defendant was not the subject of a wrongful act or insult by the complainant; or
2. That there was no provocation in terms of how an ordinary person would be likely to act; or
3. That the defendant was in fact not deprived by the provocation of the power of self control ; or
4. That the defendant did not act upon the sudden or before there was time for his passion to cool; or
5. That the force used by the defendant was out proportion to the provocation;
then provocation is excluded.
There is no onus on the defendant to satisfy me that he was provoked. The prosecution must satisfy me beyond reasonable doubt that he was not.
Provocation is raised by the defendant on the evidence.
SELF-DEFENCE
If the prosecution cannot to my satisfaction beyond reasonable doubt exclude the possibility that the assault occurred in self defence as the law defines it that is the end of the case. The defendant’s use of force would be lawful and I should find him not guilty.
The criminal law does not only punish; it protects as well. It does not expect citizens to be unnaturally passive especially when their safety is threatened by someone else. Sometimes an attacker may come off second best but it does not follow that the one who wins the struggle has committed a crime. The law does not punish someone for reasonably defending himself or herself. The law is drawn in fairly general terms to cover any situation that may arise.
Each court has to apply it to a particular situation according to the facts or particular case. No two cases are exactly alike, so the results depend heavily on common sense and community perceptions.
There are four matters to consider in respect of this defence:
1. There must have been an unlawful assault on the defendant.
2. The defendant must not have provoked that assault. “Provocation” means 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.
3. The force used by the defendant was reasonably necessary to make effectual defence against the assault.
4. The force used was not intended and was not such as to be likely to cause death or grievous bodily harm.
The burden remains on the prosecution at all times to prove that the defendant was not acting in self defence, and the prosecution must do so beyond reasonable doubt before I can find the defendant guilty.
The first matter that arises is whether the defendant was unlawfully assaulted by the complainant. If I conclude the complainant did not assault the defendant, self defence is not open.
The second matter that arises is that, if there was such an assault, whether the defendant provoked it.
If I conclude that the defendant provoked the assault then this particular defence is not open to him. On this basis the prosecution has properly excluded the defence and I need not consider it further.
The prosecution may also seek to exclude self defence by arguing that the force used was not reasonably necessary to make effectual defence against the assault. In considering this I bear in mind that a person defending himself cannot be expected to weigh precisely the exact amount of defensive action that may be necessary. Instinctive reactions and quick judgements may be essential. I should not judge the actions of the defendant as if he had the benefit of safety and leisurely consideration.
When considering this question, whether the degree of force used was reasonably necessary to make effectual defence against an assault is a matter for objective consideration and does not depend upon the defendant’s state of mind.
Whether the force the defendant used was not intended and was not such as was likely to cause death or grievous bodily harm. “Grievous bodily harm” means any bodily injury of such a nature that, if left untreated, would endanger or would be likely to endanger life or cause or be likely to cause permanent injury to health. The fact that the force used did cause death or grievous bodily harm is not the point. The question is whether it was likely to happen in all the circumstances.
Therefore, if the prosecution satisfies me beyond reasonable doubt:
1. That the defendant was not unlawfully assaulted by the complainant; or
2. That the defendant gave provocation to the complainant for the assault; or
3. That the force used was more than was reasonable necessary to make effectual defence; or
4. That the force used was either intended or was likely to cause death or grievous bodily harm;
then the prosecution has proved that the defence does not apply.
There is no burden on the defendant to satisfy me that he was acting in self defence. The prosecution must satisfy me beyond reasonable doubt that he was not.
The defendant has on his evidence raised the defence of self defence.
CONCLUSION
It is necessary to look at the whole situation. Although the defendant did not react immediately to the abuse and being spat on, those actions could amount to provocation. A person who was grabbed, and spun around, particularly if the assailant was in a fighting stance might have a reasonable apprehension of being further assaulted and might successfully raise the defence of self defence. The fact is that not one other witness gave evidence to support this version of events. Evidence was received from witnesses who were inside the bar area and those who were on the verandah. Everyone was within close proximity of each other, especially those who were on the verandah. No one gave evidence of seeing the defendant being spun around on, or onto the verandah. No one gave evidence of seeing the complainant shape up to the defendant as if to fight him. No one gave evidence of seeing the complainant spit on the defendant. No one gave evidence of hearing the complainant call the defendant a black cunt. No one gave evidence of seeing any altercation between the complainant and the defendant inside the bar. The highest the evidence appears to be is that there is some evidence: the defendant and the complainant were exchanging words, that one or both appeared angry, that it appeared they may fight.
Whatever happened between the complainant and the defendant inside the bar it was not sufficient to; and indeed on the defendant’s evidence did not induce an immediate physical reaction from him. He does not appear to have then, or later, lost the power of self control. He said that after being grabbed and spun around he feared for his life so he “gave him a couple”. He did not say he was so enraged by the abuse and assault that he lost the power of self control. He did say that after the abuse and the assault of being spat on he tried to walk around the complainant. The weight of evidence is that at the time the defendant struck the complainant the complainant was looking away from the defendant, and was not in a fighting stance. The evidence supports a finding that the first punch from the defendant knocked out the complainant. If the defendant had prior to then been in any danger at all from the complainant that ceased once the complaint was knocked unconscious.
If the defendant’s evidence is accepted the complainant called the defendant a black cunt and spat on him inside. The defendant then went to walk around the complainant; he did not react violently in face of the abuse and being spat on. When the defendant was trying to walk around the complainant the complainant grabbed him and spun him around which sent him onto the verandah. No one else gave this evidence. None of the witnesses were asked and none gave any evidence of seeing the defendant lift his shirt to wipe spit from his face.
There is a level of consistency between the evidence of the prosecution witnesses, some of whom were affected by alcohol and some of whom were not, sufficient to conclude beyond reasonable doubt:
· that the complainant and the defendant walked from the bar area of the hotel through the doorway on to the tiled verandah area of the hotel at about the same time;
· that the complainant asked the defendant what his problem was;
· that the complainant did not call the defendant a black cunt, spit on him or spin him onto the verandah;
· that the complainant refused an offer to fight the defendant;
· that the complainant while looking towards his wife and baby was struck two times by the defendant causing him to fall heavily to the tiled floor.
In answer to the issues identified at the commencement for determination:
1. did the complainant consent to being punched by the defendant; if not
2. was the defendant provoked to assault the complainant; if not
3. was the defendant acting in self defence.
I find that the complainant did not consent to being punched by the defendant; the complainant had in fact refused an offer to fight the defendant.
I find that the defendant was not provoked to assault the complainant.
I find that the defendant was not unlawfully assaulted by the complainant; therefore the defendant was not acting in self defence.
I find that the Prosecution has negatived the defences of provocation and self defence raised by the defendant.
The defendant’s assault upon the complainant was not authorised, justified, or excused by law.
I find the defendant guilty as charged.
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