Police v Cassidy
[2010] QMC 20
•23 August 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Cassidy [2010] QMC 20
PARTIES:
POLICE
(prosecution)
v
KYESHA JAMIL CASSIDY
(defendant)
FILE NO/S:
MAG140583/09(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Innisfail
DELIVERED ON:
23 August 2010
DELIVERED AT:
Innisfail
HEARING DATE:
31 May 2010, 6 August 2010
MAGISTRATE:
Brassington J
ORDER:
Defendant is acquitted
CATCHWORDS:
CRIMINAL LAW – ASSAULT – assault occasioning bodily harm – defence of provocation
COUNSEL:
Buchanan for prosecution
A Dennison (solicitor) for defendant
SOLICITORS:
Prosecution on own behalf
ATSILS for defendant
INTRODUCTION
On 10 July 2009 Kyesha Cassidy (the defendant) punched Jolene Sells (the complainant) in the face a number of times causing injuries to the complainant that are admitted to amount, in law, to bodily harm. As a consequence the defendant was charged with one count of assault occasioning bodily harm. To that charge she pleaded not guilty. The trial proceeded before me on 29 April 2010 with submissions on 6 August 2010. These are the reasons for my decision.
In determining these matters the usual onus and standards of proof in criminal proceedings apply: the defendant is entitled to the presumption of innocence. The burden rests on the prosecution to prove the guilt of the defendant. The Defendant gave evidence and called two witnesses in the trial. This was her choice and by exercising this choice she assumed no burden of proof. There is no burden on her to establish any fact, let alone her innocence. She may be convicted only if the prosecution establishes that she is guilty of the offences charged. For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that she is guilty. This means that in order to convict him I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. The issue to be decided by me was whether the assaults of were unlawful – that is that it was not authorised, justified or excused by law. The issues of whether the fight was consensual were also raised on the evidence. Once a defence is raised by the evidence then the onus is on the prosecution to exclude the defence or excuse to the same standard that it must prove the guilt of the accused – beyond reasonable doubt.
Mr Dennison, for the Defendant, submits that she should be acquitted of the charge of assault occasioning bodily harm because the prosecution cannot prove to the requisite standard that the admitted striking was an unlawful assault. Before turning to the issue as to the unlawfulness of the assault it is necessary to make certain findings of facts as to whose version I accept as to what actually occurred on the 10 July 2009. In making my findings I will refer to some of the evidence to explain my findings but I have considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight, nor because matters have been mentioned does it follow they have been given undue weight.
FINDINGS OF FACTS
The defendant and complainant are known to each other. The defendant was the mother of the complainant’s brother’s (Clinton) baby. The relationship between Clinton and the defendant had recently ended. At about 7am on 10 July 2009 Ms Cassidy had gone to the complainant’s sister’s home and broken a window by throwing a cask threw one window and a plant through another window. She admitted doing this because of an argument the night before when Ms Sell’s sister (Angela) had called her an offensive and racist name.[1]
[1]Interview with defendant - exhibit 2
The complainant testified that she and her partner, Jacob DeBrincat, had driven to the defendant’s house for the purpose of checking on the welfare of her nephew (Kyun) after she learned of the incident at her sister’s house. She knocked on the door of Ms Cassidy’s flat and when there was no response she moved to leave but then Ms Cassidy came out to the window. She then said
I asked her where Clint and the baby were - Clint wasn't there and she said he didn't live there any more. And then I asked her what the deal was with smashing up my sister's place and then a few other words were said and I said, "Oh, fine the cop's can deal with you. I'm" - and then I started walking out of the driveway.[2]
[2]Transcript 9
Ms Sells said she then returned to the car and got in. Then there was a confrontation with a young man she said she had seen when going into Ms Sell’s house. She attempted to drive around this young man and then braked. Another woman, recognised as the lady from next door,[3] came out and Ms Sells described what happened next as
And then the lady from next door, Jacqui, started yelling out, "Fuck off you" - something like, "Fuck off, you junkie slut" and I've jumped out of the car to show her - the inside of my forearms to prove that I'm not a junkie and, you know, trying I'm hard to get stuff together and going to school and working[4]
[3]Jacqueline Tomarra
[4]Transcript 10
Ms Sells said she then jumped out of the car and confronted Jacqui about what she had said. The defendant then came out and stood beside Jacqui and started pushing her with an open palm on her shoulder. She pushed her three times before Ms Sells told her to stop pushing and then pushed her back. She then testified that as I've pushed her back she's come over the top of Jacqui and hit the top of my right eyebrow.[5] That punch in her words caused her to retaliate.[6] She went to grab the Defendant and pull her to the ground and she was saying she did not want to fight while she was being punched. When they fell to the ground she was sort of on top[7] and was punching at her but unclear whether the punches actually found their target. She then heard her partner, Jacob de Brincat grabbing at her back to pull her off. As he pulled her off a she was hit a couple of more times and then in the cheek bone. She said she was hit with a closed fist. She then walked away while Jacqui continued to yell insults at her. She said she gave no permission for the Defendant to hit her. When asked whether she was engaging in a consensual fight she said “a struggle” and she was “sticking up for herself”.[8] The fight took place in the defendant’s driveway.[9]
[5]Transcript 12
[6]Transcript 12
[7]Transcript 12
[8]Transcript 12
[9]Transcript 11
The complainant’s partner, DeBrincat, essentially supports her account.
The defence called three witnesses: the Defendant, Jacqueline Tomarra and Floyd Tomarra.
The defendant said the complainant came to her house upset and angry about the incident between herself and the complainant’s sister. She asked her to leave a number of times but when she did not she went to her next door neighbour’s house, the Tomarras’, and asked them to get her to leave. Her description of what occurred is as follows:
So I was inside and Jacqui went outside to tell her to leave and I didn't really see what was going on outside, I wasn't really watching and I heard swearing coming from outside. So I went outside and they were - Jolene had called Jacqui Casey "an alcoholic b," so Jacqui called Jolene "a junkie c" and yeah, that's when them two started - like, arguing. So I went over to break it up because the whole point that Jolene was there was to go off at me and when I did, I - I pushed Jolene away and Jolene responded with a palm - open palm to the chest and I responded with a punch to the face with my left hand. And then after that we - she kind of rushed at - we - we were rushing - she rushed at me and we were kind of - throwing punches at each other and we ended up on the floor which she was on top of me and she was trying to punch me while I was on the ground, so - and she had me by the hair, so I had her by the hair and I was punching her back and when we'd gotten up from the floor, she walked off to her car, which was at the front by then. Yeah, she jumped in her car and they drove off.[10]
[10]Transcript 37 - 38
In cross- examination she reiterated the sequence of events: When they were arguing, Jolene had pushed Jacqui and that's why I went over because I thought they were going to fight. So I went over there to break it up and then I pushed Jolene away and that's when she hit me with the - with a closed fist to the - open palm to the chest and I hit - I responded with a closed fist to the face.
Then the two women scuffled and went to the ground:
So it wasn't because she had the upper hand, it was just that when you fell she just fell on top of you?‑‑ Yeah. And then she started punching me while I was on the ground and she was on top of me.
And you have punched her back?‑‑ Yes. We had each other's hair.
And then it's true to say that Jacob has pulled Jolene off you?‑‑ Yes.
And he had his hand around her shoulders?‑‑ I wasn't really looking at where his hands were, sorry.
And then when he has - so you agree that he has pulled you - pulled Jolene off‑‑‑‑‑?‑‑ Yes.
‑‑‑‑‑you?‑‑ Yeah.
And then you got up and then you've punched Jolene again?‑‑ I - yeah. I suppose so. But I think that's when - Jacob let her go because she was rushing at me. The only time she didn't rush at me was when she was - running towards the car or power walking towards the car and took off. That was‑‑‑‑‑
Sorry, what was that, sorry?‑‑ The - the only time she wasn't rushing at me was when she got up and she like, power walked, ran, to her car and got in and drove off. That was the only time she didn't retaliate with me. It was - yeah.[11]
[11]Transcript 41
Jacqui Tomarra, who lived next door, supports the defendant’s version that there was an angry exchange at the defendant’s house when the complainant arrived. She said she heard yelling and screaming and then the defendant came to her house and sought her assistance to tell the complainant to go. Ms Tomarra says she went outside and, in her words, told the complainant to ‘f off’.[12] Ms. Tomarra agrees with the complainant that she did yell insulting words at her when telling her to go and telling her “Just piss off 'cause youse are nothing but junkies. She also agrees the complainant jumped out of her car to then confront her and deny the allegation of being a ‘junkie’. Clearly this insult very much upset the complainant who displayed her arms to Ms Tomarra to show her the lack of needle marks. Ms Tomarra says the complainant called her an “alcoholic” and pushed her and then “Kyesha pushed her out of the way away from me”[13] At this point Ms Tomarra’s evidence becomes somewhat confused as to whether there were two fights but she does concede[14] that this might have been where the fight started as then Jolene has pushed Kyesha and Kyesha has then punched Jolene.
[12]
[13]Transcript 47
[14]Transcript 48
This sequence of events is corroborated by the evidence of Damien Tomarra, Ms Tomarra’s husband. He supported the account of the defendant and his wife that the defendant came to their flat for assistance and his wife went outside to confront the complainant. His account is that:
She was just telling real - real loud - loud sort of in Jacqui's face. Kyesha was standing on this side of Jacqui. She sort of just - and pushed her away and at that time Jolene's just reacted and just swung back at Kyesha and then they sort of just had a big fight sort of at that time, yeah.[15]
[15]Transcript 54
He then said they were then rolling around on the ground wrestling and punching each other and then ‘Jake’ pulled ‘ripped Jolene off’[16] and told her to get in the car.
[16]Transcript 55
Mr Tomarra said he never saw the complainant push his wife but that she was “right up in her face” when the defendant pushed her away [17] and Jolene's just swung straight back at Kyesha then.[18] Mr Tomarra also described the fight on the ground in the following terms:
That was when they were fighting 'cause a lot of like missed punches and - there would only have been probably five, six hits in it all 'cause a lot of them were just swinging and they were just grabbing and wrestling more - more or less.[19]
[17]Transcript 57
[18]Transcript 57
[19]Transcript 58
Mr Tomarra’s account of the fight on the ground appears largely consistent with the evidence of the complainant and the defendant.
With respect to Mr DeBrincat’s testimony I was less impressed with his account then with the other witnesses, including the complainant. His account omits any detail that might be thought to reflect badly on the complainant. For example, he denies that she ever pushed the defendant before she was punched:
Did you see Jolene take any swings or push back at Kyesha when Kyesha was, sort of, pushing her away at all did you or ? No. No, not at all.[20]
[20]Transcript 29
This evidence is contradicted by the complainant who admitted she did push the defendant after she was pushed. It may be, as Mr. DeBrincat readily admitted, that he simply was distracted by his concern with what Kyran Tomarra (Mr and Mrs Tomarra’s young son who had come outside with his mother) was going to do and missed significant parts of the confrontation and relied on what the complainant had told him to essentially fill in the gaps.[21]
[21]Transcript 31
As is plain on consideration of the evidence account of the events given by all the witnesses is largely consistent. The significant differences in the accounts of the complainant and defendant are:
(1) the complainant was angry and aggressive in the initial confrontation and would not leave as requested by the defendant;
(2) the defendant says the complainant pushed Jacqui Tomarra when they were arguing and the defendant then pushed the complainant who retaliated with a punch with an open palm to her chest while the complainant denies pushing Tomarra and says she pushed the defendant in the chest only when she was pushed away two or three times by the defendant;
(3) the defendant says the complainant ‘rushed at her’ and they exchanged punches and fell to the ground together and punched at each other on the ground while the complainant says she was scuffling to try and restrain the defendant, saying she did not want to fight but admits throwing punches while on the ground but could not say if they connected[22]
[22]Transcript 12
With respect to the first issue I am satisfied there was an angry confrontation between the complainant and the defendant at the defendant’s flat. Given the defendant’s earlier behaviour this is unsurprising. I accept that the complainant may well have been motivated by real concern for her brother’s child in going to see the complainant. I accept the defendant’s evidence that the complainant would not leave when asked and she went to Jacqui Tomarra’s for assistance. Logically, the defendant must have sought the assistance of Jacqui Tomarra for Mrs Tomarra to come outside. I also accept the defendant’s testimony that she missed the first part of the confrontation between Jacqui Tomarra and the complainant. Again, logically this was because she had gone inside the Tomarra’s flat.
I accept that the complainant was leaving the residence when Jacqui Tomarra came out to her confront her. I accept both her and Ms Tomarra’s testimony that she came back into the complainant’s yard to confront Ms Tomarra about her insults because she was upset. I accept Ms Tomarra’s testimony that there was an angry confrontation with both her and the complainant insulting each other. With respect to the second issue in contention I accept Ms. Tomarra’s testimony that the complainant pushed her in the chest.
The prosecutor submitted that Ms. Tomarra’s confusion as to what occurred essentially made her an unreliable witness. However, she presented as a very frank witness who admitted many elements of the confrontation that did not put herself in a particularly good light. She admitted insulting the complainant in the way the complainant testified and she admitted, once the fight commenced, to telling the defendant “to get into her.”[23]
She was clearly confused as to what sequence events happened but this is unsurprising given the time lapse and the fast nature of the events. What I do accept is truthful and accurate in her evidence is her account of the initial confrontation between herself, the complainant and the defendant. That is that the defendant came to seek her aid, she went outside and told the complainant, who was in the car preparing to leave, to leave, that she insulted the complainant and the complainant then got out of the car essentially to refute the allegation. There was then a confrontation between the complainant and herself where insults were exchanged and then the complainant pushed her, the defendant then pushed the complainant away from her, the complainant pushed the defendant in the chest and the defendant punched the complainant.
[23]Transcript 48
A witness can be expected to remember accurately if they were struck during a confrontation. While Mrs Tomarra was clearly confused about the sequence of events I am satisfied she was an honest witness and am satisfied beyond reasonable doubt that she told the truth when she said she was pushed in the chest. Significantly, neither she nor the defendant, tried to assert that the complainant punched or hurt Mrs Tomarra. Rather they both testified to what might be described as a fairly innocuous push. I do not consider the evidence of Mr. Tomarra establishes there was no push. Rather, I am satisfied while he saw some of the confrontation but simply did not see the push seen by the witnesses who were closer to what was occurring. It follows that I then reject the complainant’s evidence that she did not push Jacqui Tomarra.
With respect to the third issue I accept the defendant’s testimony that after the push to Jacqui Tomarra she pushed the complainant who pushed her hard back to the chest and the defendant retaliated by punching the complainant. I then accept that both rushed at each other and struggled and wrestled to the ground exchanging some punches and that the fight ended when DeBrincat pulled the complainant off the defendant. Given the melee I accept that as DeBrincat pulled off the complainant the defendant continued to punch out at her and struck her cheek bone.
I do not accept that the complainant was yelling she did not want to fight. The complainant’s evidence in chief was that I was trying to pull Kyesha to the ground, you know, "I don't want to fight you. I don't want to fight you," and as I was being pulled to the ground I was being punched.”[24] Neither Mr nor Mrs Tomarra testifies that the complainant ever called out that she did not want to fight. Their accounts support the sequence of events as narrated by the defendant in her interview and in testimony. Significantly, DeBrincat also testifies to not hearing the complainant yelling during the fight:
And did you hear any conversation taking place between any, Jolene, Jacqui or Kyesha? No, just that - no, when they were into it I just saw yelling out, "Give it to her, Kyesha" - smash, yeah.[25]
[24]Transcript 12
[25]Transcript 27
Rather I accept the testimony of the defendant that after her initial punch to the complainant both rushed at each other wrestling each other to the ground and they exchanged punches on the ground.
THE LAW
Having found the facts it is necessary then to apply the law to determine whether the prosecution have proved their case beyond a reasonable doubt. To convict the Defendant of the offence of assault occasioning bodily harm I must be satisfied beyond a reasonable doubt that
§ the defendant assaulted the complainant at the date and time alleged
§ the assault was unlawful, that is not authorised, justified or excused by law
§ the defendant did the complainant bodily harm, that is a bodily injury that interferes with her health and comfort .
It is convenient to approach the matter in this sequence:
(1) Was there an assault?
(2) Was that assault unlawful?
The final element has, as noted, been admitted.
Was there an assault?
With respect to the first element to be proved assault is (relevantly) defined in s 245 of the Criminal Code:
A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.
Obviously there was an application of force by the defendant to the complainant. The issue is was that application of force without the complainant’s consent. The complainant, when asked by the prosecutor, testified she did not give not give any permission for the initial punch and that after that punch she was asked if she was engaging in a consensual fight and she said a scuffle and went on to say I was in one way sticking up for myself.[26] She denied ever saying she wanted to fight.
[26]Transcript 13
I accept that in this case there was no verbal agreement to fight. In these sorts of matters there rarely is what might be characterised as an agreement to settle issues by violent fighting. Consent can be signalled by actions as much as words. This proposition is discussed in R v Robinson[1994] QCA 224 where the Court said
In some circumstances, a consent to fight may be inferred from a complainant's conduct, which may include striking or attempting to strike an accused, and this may lead in turn to an inference that (i) the complainant consented to the retaliatory blow struck by the accused or (ii) an honest and reasonable but mistaken belief by the accused in the existence of such consent. However, a complainant's consent to a blow by an accused which forms the basis of a charge of assault occasioning bodily harm will not always be a possible inference whenever the complainant strikes, or attempts to strike, first. Nor will the circumstance that the complainant struck, or attempted to strike, first, necessarily give rise to a possible inference that the accused honestly and reasonably but mistakenly believed in the existence of such consent.
The protagonists in this case were both upset and angry and had resorted clearly too consensual pushing of each other and as found the final push to the defendant by the complainant was hard, although an open palm not a punch, and the defendant escalated matters further by retaliating by punching the complainant.
As I understand Mr Dennison’s submission is that the complainant’s hard push to the defendant amounted to an inference that she wanted to fight and the defendant then struck her. I do not accept the submission that the complainant consented to a fist fight by pushing the defendant back. Clearly she was very angry. The defendant was also angry. The complainant had the opportunity to retreat and she did not do so when she must have known she was not wanted on the defendant’s premises. However, the mutual pushing each engaged did not, I am satisfied by the prosecution, signify the consent of the complainant to engage in a fist fight involving such force as was inflicted by the defendant. The punch of the defendant significantly escalated the fight from what can be described as mutual pushing to a fight. There was no evidence that the complainant had made any move to punch the defendant or Ms Tomarra. Her own evidence is she did not consent to the fight. Accordingly, I am satisfied she did not consent to the first blow.
However, the issue of the application of s 24 of the Criminal Code is also raised on the evidence. Section 24 provides that a person who does [or omits to do] an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act [or omission] to any greater extent than if the real state of things had been such as the person believed to exist.
The evidence raising s 24 is firstly in the circumstances of the complainant being aggressive and angry to the complainant, refusing to leave the premises, pushing Jacqui Tomarra and then when pushed by the defendant retaliating with a much more forceful push. However, in neither the recorded interview nor her evidence does the defendant assert that she struck the complainant because she considered the complainant was consenting to fight. Rather her evidence is, in the record of interview, that when she was pushed hard by the complainant she became ‘got really angry’[27] and punched the complainant. Her evidence, in the trial, already quoted was similar.[28] The question I must ask myself is that set out in Lergesner v Carroll [1991] 1 Qd R 206 (at 216):
“Can I be satisfied beyond reasonable doubt that the appellant did not have an honest and reasonable belief that the complainant was consenting to the appellant fighting him?” and in answering that question the Stipendiary Magistrate as a tribunal of fact would of course have to have had regard to the extent of the bodily harm caused by that first blow and decide whether or not that bodily harm exceeded the assault consented to. As I have already said, there was no evidence as to the nature of the bodily harm caused by the first blow and therefore the Stipendiary Magistrate’s task, had he addressed the s 24 defence, was made more difficult.”
[27]After the 10 minute mark on the recording to which there is no transcript
[28]“ Jolene responded with a palm - open palm to the chest and I responded with a punch to the face with my left hand. And then after that we - she kind of rushed at - we - we were rushing - she rushed at me and we were kind of - throwing punches at each other and we ended up on the floor which she was on top of me and she was trying to punch me while I was on the ground.”
Unfortunately, in this case there is too no evidence as to what injury the first blow caused only that the conglomeration of blows caused the bodily harm. Focusing then on the first blow I am satisfied that, given the evidence of the defendant as to the reasons she struck the complainant, which was anger rather then a belief that the complainant wanted a consensual fight, the prosecution has excluded s 24 and the defendant did not have an honest, reasonable but mistaken belief that the complainant was consenting to being punched.
Accordingly, I am satisfied upon the evidence that the prosecution has proved beyond reasonable doubt the defendant assaulted the complainant. I turn to the issue of lawfulness.
(2) Unlawfulness
An assault will be unlawful if it is not authorised, justified or excused by law. Upon the evidence the defence of provocation is raised. Section 269 of the Criminal Code provides for the defence of provocation:
(1) A person is not criminally responsible for an assault committed upon a person who gives the person 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 person’s passion to cool, and if 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.
(2) 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 the ordinary person 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.
Provocation is defined, relevantly, in the preceding s 268:
(1) In this section-
“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…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.
(2) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give the latter provocation for an assault.
(3) A lawful act is not provocation to any person for an assault.
In this case I am satisfied that the complainant’s remaining on the premises despite the repeated requests of Ms Tomarra, and the defendant, for her to leave, her insults to Ms. Tomarra, her unjustified assault on Ms. Tomarra and her assault upon the defendant were sufficient evidence to raise the defence of provocation.
Once raised it is for the Prosecution to exclude the defence by persuading me beyond a reasonable doubt that:
1. That the accused was not the subject of 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 react; or
3. That the defendant was in fact not deprived by the provocation of the power of self-control; or
4. The defendant did not act upon the sudden and before there was time for his passion to cool; or
5. At the force used by the defendant was out of proportion to the provocation;[29]
[29]The formulation adopted from that suggested in the District and Supreme Court Benchbook No. 84.4
It is convenient to address each issue in turn.
Firstly, the issue of whether the defendant was subject of a wrongful act or insult by the complainant. When the defendant and complainant had their confrontation I am satisfied that the complainant had been repeatedly told to go. She was upset and chose to remain to argue with Ms Tomarra and then became so upset she pushed Mrs Tomarra. In those circumstances the defendant was entitled to push the complainant to encourage her to leave in the way described by the defendant and the complainant. That push (by the defendant) did not amount to an unlawful assault because it was excused by s 277 of the Criminal Code. Section 277 provides, relevantly, that:
(1) It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or in order to remove there from a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.
(2) It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person acting by his or her authority, to use the force that is reasonably necessary in order to remove there from any person who conducts himself or herself in a disorderly manner therein, provided that he or she does not do the person grievous bodily harm.
The Court of Appeal has said “the crucial aspect of s 277 of the Criminal Code for present purposes is that it renders it lawful for a person to use such force as is reasonably necessary to remove there from a person who wrongly remains there..”[30].
[30]Pavolovic v Commissioner of Police [2006]QCA 134
Given the intransigence of the complainant in choosing to stay and argue the defendant was entitled to use such force to remove her. As her push was lawful the responding, harder push to the defendant’s chest by the complainant was an unlawful assault. Thus, the Prosecution have not excluded the element of provocation that the defendant was subject to a wrongful act or insult.
Secondly, I am satisfied that an ordinary person confronted by the complainant’s refusal to leave the premises, despite the repeated requests of Mrs Tomarra and the defendant, and her insults to Mrs. Tomarra followed by her unjustified assault on Ms. Tomarra and her unlawful assault upon the defendant were such wrongful acts that would deprive an ordinary person in the situation of the defendant of her self – control and induce them to assault the complainant. Further I am satisfied that the provocation did indeed deprive the defendant of the power of self-control as evidenced by her own testimony and the testimony of the witnesses. The evidence of all the witnesses also establishes beyond reasonable doubt that the defendant acted upon the sudden without time for her passion to cool.
The real issue is whether the prosecution have persuaded me whether the force used by the defendant was disproportionate to the provocation offered. That question is complicated by the lack of evidence pointing to the source of the complainant’s injuries. On the complainant’s evidence she was struck first near the right eye. The photographs of the complainant show some bruising and a significantly blackened and swollen eye. The photographs are consistent with Doctor Lesslie’s admitted statement as to the injury observed.
Once on the ground the complainant testified she was punched a couple more times and, as Jacob pulled her off the defendant, punched in the cheekbone.[31]
[31]Transcript 12
While on the ground I am satisfied that the complainant punched at the defendant and scratched her. The photographs of the defendant show three marks, consistent with deep scratches, to the defendant’s face. I accept some of the complainant’s punches did not connect and the injuries sustained by the complainant were worse then the defendant. However, the issue of disproportionate force must be considered in light of the entire transaction between the defendant and the complainant.
I am satisfied upon the evidence that the complainant was escalating the force used when she finally pushed the defendant. The final push to the defendant by the complainant was significantly harder then the earlier push. While it was described as a push the defendant testified it felt like a hit:
I - I wouldn't say she pushed me away. I'm - it felt more like a hit. A push is just a - kind of moving me, but she kind of hit me, yeah. Felt like a hit to the chest and then I retaliated with a closed fist, yeah.[32]
[32]Transcript 40
I accept this description by the defendant. I was impressed by her testimony on this point particularly in that she made no attempt to say that the hit was a closed fist punch but repeatedly testified it was a significant hit to her chest.
The complainant’s response was a punch to the defendant that in the circumstances was clearly a spontaneous response. It was hard but did not disable the complainant. Rather the complainant then ‘rushed’ the defendant and they engaged in further wrestling and sparing where the complainant and defendant both went to ground with the complainant over the top of the defendant. Both were then involved in an exchange of blows some of which did not meet their target. Again clearly this is not a case where the complainant desisted and the defendant continued the application of force. Nor was it a case where the defendant continued the attack on a disabled complainant. Rather the fight continued until the complainant was essentially lifted off the defendant by Mr DeBrincat.
The issue of force is a finely balanced. The injuries to the complainant are concerning as they indicate at least one or more forceful blows by the defendant. However, it is for the prosecution to exclude the defence beyond a reasonable doubt. In the circumstances of this case they have not satisfied me that the force used was disproportionate to the ongoing provocation offered by the complainant. As the prosecution have not excluded the defence of provocation the defendant is entitled to be acquitted.
Given my findings with respect to the issue of provocation it is unnecessary to consider the other defences (s 277 of the Criminal Code and self-defence) raised upon the evidence.
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