Police v Ireland
[2007] QMC 5
•2 March 2007
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Ireland [2007] QMC 5
PARTIES:
POLICE
(prosecution)
v
KAY DYANNE IRELAND
(defendant)
FILE NO/S:
MAG127659/06(1)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Summary Hearing
ORIGINATING COURT:
Magistrates Court at Atherton
DELIVERED ON:
2 March 2007
DELIVERED AT:
Atherton
HEARING DATE:
18 January 2007, 19 January 2007
MAGISTRATE:
Braes TJ
ORDER:
Not guilty on both charges
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – ASSAULT – defence of provocation – defence of self defence
COUNSEL:
Hafner (sergeant) for prosecution
J Henry SC for defendant
SOLICITORS:
Prosecution appeared on own behalf
Kay Ireland (the defendant) appears before me charged by way of a notice to appear with two counts of common assault, that on 10 July 2006 at the Atherton Show she unlawfully assaulted Kurt Crowther (Kurt) and Diana Crowther (Diana). The Prosecution elected to have the charges determined in the Magistrates Court in a summary way. To these charges the defendant has pleaded not guilty.
Mr Henry SC appeared for the defendant and Sergeant Hafner appeared for the prosecution. The hearing was conducted at Atherton on 18 and 19 January 2007.
In order for me to find the defendant guilty of the charges I must be satisfied that all of the elements of the charge(s) have been proven to the standard required, that being beyond a reasonable doubt. The onus of proving those elements and of negating 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(s).
At the commencement of the trial Mr Henry and Sergeant Hafner advised me that the following was not in dispute;
1. date
2. time
3. place
4. identity of the parties
5. and that something physical occurred.
In fact on the evidence it cannot be in dispute that the defendant assaulted each of the complainants. The issue for determination by me is whether the assaults, either one or both, were unlawful. No consent was given by the complainants to the defendant to assault them.
An assault is unlawful and constitutes an offence unless it is authorized, justified or excused by law. The defendant says that her assault on Kurt should be excused and raises provocation as the excuse. She says that the assault on Diana should be excused and raises provocation as the excuse. She further says that the assault on Diana should be found to have been justified and raises self defence as the justification.
Evidence was received from prosecution and defence witnesses.
Constable Easterbrook gave his evidence in an uncontroversional manner. His evidence in chief painted a general outline of events but under cross examination it became apparent that his statement made shortly after the event on 3 August 2006 was a more detailed statement of what had occurred.
In particular:
1. That a female bystander had approached him and advised him that there was a lady at the other stables who would like to speak to him,
2. That the defendant had advised him that there had been trouble with Kurt and Diana and that they would not leave her daughter Chloe (Chloe) alone,
3. That the defendant had advised him that she had had previous problems with Kurt and Diana tormenting Chloe and that this time she had had enough and snapped,
4. That the defendant had advised him that she had only intended to go down there and tell them to leave Chloe alone.
Kurt agreed that the relationship with the Irelands was not good as far back as 2005 and that he was not talking to any of the Irelands. It was put to him in cross-examination “things were not good between you in April 2005”. He replied “absolutely” and later he said “I stopped talking to all members of the Ireland family a long time ago”. He did not agree or accept that any of incidents of harassment, intimidation, bitchiness, bad sportsmanship, assault etc. had ever occurred.
Sergeant Hafner, I think, did say that there was some acknowledgement of the incident where it was alleged that Kurt had flicked horse manure onto Chloe and her two friends, but I may be mistaken and cannot now find that acknowledgment. This incident occurred at the Townsville Show in 2002. The Irelands had been asked by the stable steward to move stables as the Crowthers had brought an extra horse with them. The Irelands moved and cleaned out the stable in preparation for the Crowther’s arrival. An incident occurred when Kurt said to the defendant that they had stolen their stable in the first place. The manure incident occurred the next day. Kurt denied the allegation put to him and said “I had a pooper scooper and used it to clean out my float. I was parked nowhere near close enough to negligently or purposefully hit them with manure”. The defendant, Chloe and Chloe Schmidt all gave evidence that the manure flicking incident took place. These three versions were not identical, there were some minor inconsistencies, but their evidence was credible and I accept that the incident occurred. The result is that I find Kurt lied when he denied the incident occurred. The Prosecutor cross-examined the defendant, Chloe and Chloe Schmidt about the various incidents and, in particular, in respect of this incident, put to them that it did not happen.
I am therefore none the wiser as to why the situation exists where Kurt does not talk to the Irelands. Obviously, there is something between him and the Irelands. He and Diana and his sister Peta gave their evidence in an unemotional way, even when being vigorously cross-examined. I felt that there must be something between the two families given the universal concurrence by the Crowthers that they hadn’t spoken to the Irelands for years. Yet none of them expanded on this. Every sour incident was denied yet they confirmed that they did not speak. I am left wondering about these denials and lack of further explanation. On balance I find that the incidents complained of did occur.
The evidence which Kurt gave was a much more embellished version of events than that given to Police a couple of hours after the event, which makes the defendant look much more aggressive and intent at having a go at Kurt and would all but exclude the excuse of provocation raised.
Kurt’s evidence was that none of the incidents put to him had ever occurred. He had not spoken to any of the Ireland family for years. This would not have been because there was no opportunity. The Crowther’s family home is in the same street as the Irelands and they are involved in the same sport.
On 10 July 2006 Kurt, Peta and Chloe were competing in the champion Galloway hack, or Champion of the Show at Atherton. The title was won by Kurt. He and Peta were lined up either side of Chloe. After being announced the winner he said he made what he said was a flippant comment across Chloe to his sister Peta to the effect that that was his seventh win in a row and queried whether it would silence his knockers who accuse him of cheating. He then returned to the stables.
He said that at the stable Diana said “Don’t look now. Here comes Kay Ireland and don’t get into an argument”. This was not given in evidence by Diana.
Kurt said that the defendant came around agitated and yelling and said “Where are you? Don’t hide from me. Do you have a problem? I’m sick and tired of your picking on my daughter”. He said to her that he did not want to argue. He said she was in his face. She said “I am tired of your harassing my daughter”. He said “I don’t have a problem with your daughter. I have a problem with you telling lies and storytelling. Everyone does. Just leave”. She said “I’m not going anywhere. I’m tired of your cheating. It’s time you learned a lesson”.
Kurt then says that the defendant lunged at him, grabbed him behind the neck and pulled him over the guard chain which he said was about thigh high. He said that the defendant then started lashing out at him with what felt like closed fists. Hitting him about the head, mainly on the helmet, and forearms, but also on the mouth. Kurt said that his mother came in from his right hand side and said “Let go of him, you crazy woman”, at which the defendant stepped back, formed a fist and punched his mother.
Kurt said that he then said “Don’t dare touch my mother”, at which the defendant lunged again at him and grabbed him by the testicles. At this time his mother came back into the fray armed with an umbrella. By now he had the defendant by the hair. She had one hand on his throat and one hand clutching his testicles. He says that the defendant then let go his testicles and started lashing out at his stomach and saying for him to let go of her hair. He said that he would not let go her hair until she stopped hitting him. The defendant stopped hitting him, he let her go and pushed her away. He says that the defendant then left making a parting comment about watching his back.
Under cross-examination it was apparent that his testimony was different to that in this statement made to Police shortly after the event. His testimony was of a much more aggressive defendant. Mr Henry called for and tendered Kurt’s original statement, which is Exhibit 3. It is apparent that his testimony differs significantly from his written statement.
There is no mention in his statement of the flippant remark made after winning Champion of the Show.
There is no mention in his statement of the comments made by Diana that the defendant was coming.
There is no mention in his statement of the comments by the defendant about hiding from her.
There is no mention in his statement about the comment that everyone has a problem with the defendant telling lies and storytelling.
There is no mention in his statement of the defendant being in his face.
His testimony did not include the allegation of the defendant pointing her finger at him.
The statement Exhibit 3 was made, typed, read and signed within a couple of hours of the incident.
Under cross-examination Kurt offered a gratuitous comment that gives an insight into his state of mind at the time of the incident. He said “She was coming in with one thing in mind and that was to cause mischief”.
Interestingly Diana said in evidence in chief and under cross-examination that the first words the defendant said to Kurt were “Have you got a problem with my daughter?” Not that she was yelling and said where are you, don’t hide from me. Diana’s statement was also made only hours after the event and like Kurt’s written statement does not include any reference to the defendant storming down the hallway yelling abuse.
Peta said in her evidence in chief that the defendant was yelling coming down the hallway, that she was aggressive and worked up and got into Kurt’s face and said “let’s sort this out now, if you have a problem with me, sort it out now”. Peta made her statement on 14 November 2006, four months after the event. She admitted under cross-examination that she had spoken to her mother and brother on more than one occasion about the incident. She admitted reading their statements in the last day or so before the commencement of the hearing. Mr. Henry put to her that she had gone to the Police, slipped the boot in when she made her statement, and then in evidence toned it down to suit the evidence of her mother and brother. She denied this.
Kurt’s written statement is in line with his mother’s written statement and testimony. It is as if on this point of what was said in the beginning Diana has given evidence in line with her statement, Kurt has given evidence not in line with his statement but more in line with Peta’s statement and Peta has left out some of the abuse attributed to the defendant i.e. “where are you, you cunt” “You’re a dirty little poofter”.
The point of this exercise is that the defendant says that after Kurt had upset her daughter in the show ring she went to tell him to leave her daughter alone. (This is consistent with the written statements of Diana and Kurt),and that Kurt, maybe being a little defensive about his behaviour in the ring had the state of mind that the defendant had come down for one reason only and that was to cause mischief. If that be the case his reaction to the defendant may have been more spontaneous and aggressive than he now says.
As with Kurt and Peta, Mr Henry tendered the statement of Diana. Her evidence was to the effect that the defendant after the initial question - of did Kurt have a problem with her daughter, came forward, grabbed Kurt and started kicking and punching him. She said that she walked out from where she was standing in the next-door stable and said “Cut it out. That’s enough” at the same time gesturing with her hands in a parting motion.
In her written statement she said that she “tried to split them up”. In her evidence she said that the defendant had Kurt by the back of the neck and shirt. This is consistent with what Kurt said, and with what is in his written statement, but not with what is in her own written statement, where she says that the defendant lurched forward and took hold of Kurt with both hands around his head area.
She then says when she said to the defendant to cut it out, that the defendant looked at her, went back (presumably disengaging herself from the attack on Kurt), formed a fist and hit her in the cheek. She denied that at the time she was struck that she was doing anything towards the defendant and Kurt.
The defendant she says having struck her turned her attention back to Kurt, who it would appear did not make any movement away from the spot during the assault on Diana, and kept going at him.
Diana then says that “she had an umbrella”. Her evidence on how and when she obtained the umbrella became somewhat confused so that she appeared in the end to concede that she did not know when she obtained the umbrella. She did admit that after she obtained the umbrella she used it to poke the defendant in the side. As her evidence was “I was poking her in the side” I accept there was more than one poke to the side of the defendant by Diana. She denied that there was any abuse from herself, Kurt or Peta towards the defendant. She said that there was not a lot of noise or abuse at all.
Kurt gave evidence that there was no swearing from them prior to the attack, only after the attack, although there is no reference to it at all in his written statement. Peta in her statement said that the defendant had abused Kurt prior to the attack. She agreed that here would have been swearing by them (but not her mother) but couldn’t recall the exact terms of the language.
In her evidence in chief Peta said that at the end the defendant said that this was not the end of it and took off. Whereas Mr. Henry points out that in her written statement she said “you stay away from us” and took off.
Diana said in her written statement that she saw Kurt and the defendant stop fighting and the defendant walked away. This is consistent with what she said in her evidence in chief.
Kurt said in his statement that the defendant said: “I haven’t finished with you yet”, and in his testimony he said the defendant said “she would get him if it was the last thing she did”, and that “he should watch his back and look around corners”
In her written statement Peta said at paragraph 15. “My mum has poked Kay with the umbrella and said “go away”
At paragraph 16 of her statement Peta said “Kay then grabbed the umbrella and snapped it in half with one hand. Kay has then looked at mum and said “you fucking old bitch” Kay has lined her up and punched her in the eye with a closed fist”.
This version of the defendant being assaulted by Diana before she struck her is consistent with the defendant’s version of events.
But in her testimony Peta seemed to say: The defendant pulled Kurt out of the stable, The defendant saw Diana and hit her with a closed fist.
Then a little later, that she (the defendant) was swinging at him. Mum stepped forward, said leave him alone, she (the defendant) saw mum and punched her with a closed fist.
Then a little later at a time when Kurt had the defendant by the hair, mum had the umbrella, Kay snapped the umbrella and threw it to the ground.
The defendant’s version of events is that she did not strike Diana until after she was poked with the umbrella. This is the version in Peta’s written statement, but not it might appear in her testimony. When challenged about this in cross examination she was not sure when the umbrella was produced, and couldn’t remember the correct sequence of events.
I find that the assault by Diana on the defendant with the umbrella occurred before the defendant assaulted Diana.
Kurt suffered minor injuries to the neck and hand as evidenced by the photos exhibit 1. No injuries to the stomach, testicles, legs, thighs, mouth or chin were referred to. Diana suffered minor bruising and discoloration under the left eye and left cheek areas.
The defendant suffered cuts, bruising and swelling to a large number of parts of her body including her back area ( consistent with being poked with the umbrella ) left knee, right knee and thigh, ( consistent with being hit with spurs ) stomach, and neck. She also had hair pulled out of her scalp. The defendant gave evidence of injury to some 15 areas of her body. The defendant says that Kurt was deliberately trying to knee her in the stomach and scratch her with his spurs. Kurt denies this, he says that he moved his legs up and down a couple of times trying to disengage the defendants hold on his testicles. He said that it would have been physically impossible for his spurs to have come into contact with the defendant. He said that he never touched her neck, but then said that he could have come into contact with her neck. About the only injury that he thought might have been possible was an injury to her shins.
The doctor’s evidence and the evidence of the injuries are not really disputed. There is no suggestion from the prosecution that the injuries said to be suffered by the defendant in this incident were not suffered in the incident. The injuries suffered by the defendant are not consistent with Kurt’s version of events.
On 10 July 2006 the defendant saw Chloe in the ring at the Atherton show, she saw Kurt and Peta line up either side of Chloe, she saw Kurt lean forward, she saw that Chloe got upset. She then went to Chloe in the stables to see what was wrong. Chloe was crying and said, “Mum, I wish the Crowthers would just leave me alone. They keep saying nasty things about me and my horses”.
As well as the evidence from the defendant and Chloe of the accumulation of incidents leading up to 10 July 2006 the defendant and Chloe gave unchallenged evidence of attempts in the past to obtain redress from the police in Edmonton and Townsville.
None of the prosecution witnesses put forward any explanation for the breakdown of the relationship between the families. It was never suggested to any of the defence witnesses that an incident occurred (other than for the particulars of the incident on 10 July 2006 in the Atherton show ring), BUT that the circumstances of the incident were different to that put forward.
I accept that the incidents complained of by the defendant and Chloe occurred.
With this background and the incident in the show ring on 10 July 2006 the defendant said that she did not know what to do. She decided that the best thing to do was to go and front the Crowthers and tell them to leave the kids alone. There was evidence from the defendant of an incident where Peta had swerved her vehicle towards the defendant’s son Brian.
This version of the defendant’s intention is consistent with the evidence of Chloe. ( She said that he mother had said that she was going to talk to them ) and the statement made to Constable Easterbrook very shortly after the incident ( I had only intended to go down and tell them to leave my daughter alone ) and ( subject to the various inconsistencies previously referred to ) the statements of Kurt and Diana. It is not inconsistent with Constable Easterbrook’s statement that a bystander had informed him that there was a lady at the stables who would like to speak to a police officer.
The defendant said that she walked towards Kurt, as he was the main one picking on Chloe.
She said “I want you to leave my kids alone. Don’t talk to them. Don’t throw things at them. Just leave them alone”
In reply the Crowthers were just yelling and swearing.
She just kept saying to leave her kids alone.
Kurt who was dressed in riding apparel was standing in the stable on sawdust one and a half feet higher then her and in front of her. Diana and Peta were on either side. The positioning of the parties is not controversial although there is uncertainty about the movement of each one of them during the event.
The defendant said that she was clear about what she had said but not clear about what they said. She gave evidence of a dismissal of her concerns with language like “Fuck off” and “You fucking ugly fat bitch” and “Piss off”.
It is possible on the evidence of Kurt and especially Peta that language like this was being used.
At this point the defendant says that she lost it.
The physical altercation was a blur.
She had no recollection of grabbing Kurt when he was in the stable. She said that Kurt grabbed her by the hair with two hands (demonstrated by the defendant). Kurt was forcing her down, she was hurting, and she was punching. Kurt was kicking her in the stomach, twisted her and tried to kick her like a horse with his spurs.
She felt that she was being pushed by other people and being tugged from side to side.
She saw two pair of boots while she was in Kurt's grip.
She then felt jabbing in the left side, she thought that she was gone. She was still being held by the hair by Kurt in a bent over forwards position. Kurt was still kicking and punching at her. She was being struck by Diana with the umbrella. She was able to turn her head. Diana was right there, next to her. The umbrella was bent, she had it raised. The defendant said that she then grabbed the umbrella in her left hand and punched Diana with her right. Kurt still had her in his grip by the hair.
It seemed to her as if the struggle went on forever. They both let go of each other and she said, “I want you to leave my kids alone” – which is similar to what is in Peta’s statement, and then she walked back to where Chloe was.
Under cross examination the defendant was not swayed from her evidence in chief.
She said that by the time she had finished saying what she had had to say she was really upset, and that prior to anything physical they were yelling and screaming.
She admitted that she could have grabbed Kurt by the front of the jacket and neck and pulled him over the chain. She said that she was really distraught and it was a blur. She did not deny that she may have struck him on the helmet and mouth. She had no particular recollection of grabbing Kurt by the testicles.
The two critical points of time in the incident are at the point of confrontation between the defendant and Kurt, and when the defendant admits to assaulting Diana.
Kurt says that there was an unprovoked assault on him by a woman who was after his blood.
Kurt and Diana say that the defendant assaulted Diana after she had told the defendant to go.
All of the witnesses either said, or it was obvious that they were nervous and traumatized by the event.
In the circumstances of the event it is understandable that observations and recollections would be less than perfect and that there would be inconsistencies in the evidence. One expects that there will be inconsistencies in the evidence of witnesses. This is not a case of a few minor inconsistencies between witnesses. There are substantial inconsistencies between prosecution witnesses and between what individual prosecution witnesses said at the time of making their statement and what they said in evidence.
The prosecution must prove beyond reasonable doubt that the defendant unlawfully assaulted the two complainants.
To do so the prosecution must exclude provocation and self defence beyond reasonable doubt.
On the state of the evidence I am unable to make any findings of fact other than:
1. A number of incidents had occurred involving Kurt and Peta and the defendant and Chloe prior to the 10 July 2006,
2. Kurt, Diana and Peta lied when they denied the various events had ever occurred,
3. Events came to a head with a remark made by Kurt at the presentation of ribbons at the Atherton Show on the 10 July 2006,
4. The defendant had sought assistance from the Queensland Police Service in respect of some of the incidents and had on each occasion been told to take no action,
5. On the 10 July 2006 at the sight of her daughter crying, the defendant had had enough,
6. The defendant went to the Crowther stables with the intent of telling Kurt to leave her kids alone,
7. A physical and verbal altercation including abuse occurred which involved the defendant, Kurt, Diana and Peta,
8. The defendant was flaying a Kurt and hit him in the face at least twice,
9. Kurt had the defendant by the hair in a two handed grip,
10. Kurt was striking at the defendant with his booted feet,
11. The injuries suffered by the defendant are not consistent with the version of events given by Kurt,
12. Diana poked the defendant more than once in the side with an umbrella prior to the defendant striking her,
13. The defendant struck Diana while being held by the hair by Kurt,
14. Diana suffered minor bruising under the left eye and cheek,
15. The defendant suffered a number of cuts, bruises and swellings as particularised by the doctor and photographic exhibits.
The defendant has raised provocation and self defence for my consideration.
The defendant relies, in respect of the charge of assault against Kurt, on the background of unpleasantness, and the combined abusive insults and dismissive attitude to her concerns as constituting provocation for the assault on him.
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…”
The defendant says that she was provoked to assault Kurt by his insults, abuse and dismissive response to her pleas to leave her children alone, and that she was provoked to assault Diana by being unlawfully assaulted by Diana with an umbrella.
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.
The prosecution must satisfy me beyond reasonable doubt that provocation does not apply. There is no burden on the defendant to satisfy me that she was provoked.
If the prosecution can satisfy me beyond reasonable doubt of any one of the following matters, then provocation is excluded:
1. there was no provocation as the law defines it in terms of how an ordinary person would be likely to react; or
2. the defendant was in fact not deprived by the provocation of the power of self-control; or
3. the defendant did not act upon the provocation on the sudden and before there was time for her passion to cool; or
4. the force used by the defendant was out of proportion to the provocation; or
5. the force used was intended and was such as was likely to cause death or grievous bodily harm.
The ordinary person is not assumed to be a saint. He is expected to have the ordinary human weaknesses and emotions common to all members of the community and to have self-control at the same level as ordinary citizens of his age. This area of the law recognises that there does occur a snapping point where an ordinary person may do something that he would not dream of doing under normal circumstances.
An ‘ordinary person’ is simply one who has the minimum powers of self-control expected of an ordinary citizen who is sober, not affected by drugs, and of the same age and sex as the defendant.
It is proper to view the words or conduct in question as a whole and also in the light of any history or disputation between the complainant and the defendant 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 (his/her) self-control in fact.
This is quite different from a deliberate act of vengeance, hatred or revenge, and likewise quite different from a consideration of whether in the light of (his/her) conduct the complainant got (his/her) just desserts.
On the state of the evidence before me I cannot be satisfied that the defendant’s assault on Kurt was not as a result of provocation received from him. The prosecution is unable to satisfy me that provocation should be excluded.
I find the defendant not guilty in respect of charge one.
The charge involving the assault against Diana is somewhat more problematical.
The previous bad relations did to some extent involve Diana so the history of disputation between the families remains a relevant consideration. The evidence of events at the time of the assault is largely (save as I have previously found) inconclusive however it would appear unlikely that Diana abused or insulted the defendant such as would give rise to exculpation on the grounds of provocation.
I do not recall the defendant’s evidence to directly implicate Diana in the abuse and insults although she said, “they” were yelling and swearing and “Peta and Diana were in the stables and came towards the front of the stables when I went to Kurt”. “They were about one metre either side”
Although I think it is unlikely that Diana was involved in the abuse/insults the prosecution must exclude provocation beyond reasonable doubt. If Diana was involved in the abuse/insults then notwithstanding her minor role in the previous bad relations that abuse/insults could be enough to cause a person to snap, and give her the benefit of provocation as an excuse.
Diana’s evidence was that she must have been quite close to the defendant and Kurt as in her statement she said that “I attempted to split them up” and in her testimony she gestured with her hands in a waving, parting motion. She denied any abuse was said at all. I am satisfied to the requisite standard that provocation is excluded in respect of the insults/abuse from Diana.
The defendant also relies on the act of being struck by Diana with the umbrella as a wrongful act giving rise to the defence of provocation. For reasons that have already been explained I find that the assault on the defendant by Diana with the umbrella happened prior to the defendant assaulting Diana, and that that act would have caused the defendant to lose her power of self control and induce her to assault Diana. I find that the defendant did in fact lose her power of self control causing her to assault Diana. Provocation is made out, that is the prosecution has not excluded provocation in respect of the assault by the defendant on Diana after being struck with the umbrella.
The defence however also raises self defence in respect of the assault against Diana.
Self Defence:
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.
There are four matters to consider in respect of self defence:
1. There must have been an unlawful assault on the defendant.
2. The defendant must not have provoked that assault
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 was likely to cause death or grievous bodily harm.
The onus remains on the prosecution at all times to prove that (the defendant) was not acting in self-defence, and it must do so beyond reasonable doubt before (the defendant) can be found guilty.
Therefore, if the Prosecution satisfies me beyond a 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 by the defendant was more than reasonably necessary to make effectual defence, or;
4. That the force used was either intended or likely to cause death or grievous bodily harm
Then the Prosecution has satisfied the onus which rests upon it to negate self defence.
I have found that Diana struck the defendant with the umbrella before she was punched , also I find that at this time Kurt had hold of the defendant by the hair. Was the defendant unlawfully assaulted by Diana? On the face of it – yes.
Was Diana provoked into assaulting the defendant?
As I have found that the prosecution is unable to exclude provocation for the assault on Kurt beyond reasonable doubt, and that the assault by the defendant on him was therefore not a wrongful act, Diana could not legally have been provoked to assault the defendant. There is no other evidence of an act of provocation by the defendant towards Diana.
I find that there was no provocation to Diana for the assault on the defendant. The assault was unlawful.
As a result of being poked by Diana who was in close proximity to the defendant the defendant from a position of disadvantage struck Diana with one blow to the left cheek area.
This slight blow was all that was necessary to cause Diana to retreat, it was not excessive.
In the circumstances the prosecution has not excluded beyond reasonable doubt self defence as justification for the assault on Diana.
I find the defendant not guilty of the charge of assault against Diana.
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