Prior v Kemp

[2001] WASCA 22

PRIOR -v- KEMP [2001] WASCA 22

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 22
Case No:	SJA:1124/2000	Heard:	1 DECEMBER 2000
Coram:	HASLUCK J	Delivered:	13/02/01
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	GRAEME BRUCE PRIOR WILLIAM JAMES GREGORY KEMP
Catchwords:	Criminal law Appeal Assault Defence of property against trespass Defence of provocation Turns on own facts
Legislation:	Criminal Code, s 245, s 246, s 254, s 313 Justices Act 1902, s 196, s 199
Case References:	Chamberlain v R (No 2) (1984) 153 CLR 521 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Garrett v Nicholson (1999) 2 WAR 226 Glennon v The Queen (1992) 179 CLR 1 Harling (1997) 94 A Crim R 436 King (1996) 88 A Crim R 150 M v The Queen (1994) 181 CLR 487 Mascantonio v R (1995) 183 CLR 58 Nyul v Dann (1996) 133 FLR 359 Stingel v R (1990) 171 CLR 312 Thompson v Park (1944) 2 AER 477 Verhoeven (1998) 101 A Crim R 24 Zoccoli v McDarby [1999] WASCA 179 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PRIOR -v- KEMP [2001] WASCA 22 CORAM : HASLUCK J HEARD : 1 DECEMBER 2000 DELIVERED : 13 FEBRUARY 2001 FILE NO/S : SJA 1124 of 2000 BETWEEN : GRAEME BRUCE PRIOR

Appellant

AND

WILLIAM JAMES GREGORY KEMP
Respondent

Catchwords:

Criminal law - Appeal - Assault - Defence of property against trespass - Defence of provocation - Turns on own facts

Legislation:

Criminal Code, s 245, s 246, s 254, s 313

Justices Act 1902, s 196, s 199

Result:

Appeal dismissed

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Representation:

Counsel:

Appellant : Mr A R Beech
Respondent : Ms C J Thatcher

Solicitors:

Appellant : Hylton Quail
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Chamberlain v R (No 2) (1984) 153 CLR 521
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Garrett v Nicholson (1999) 21 WAR 226
Glennon v The Queen (1994) 179 CLR 1
Harling (1997) 94 A Crim R 437
King (1996) 88 A Crim R 150
M v The Queen (1994) 181 CLR 487
Masciantonio v R (1995) 183 CLR 58
Nyul Nyul Aboriginal Corporation v Dann (1996) 133 FLR 359
Stingel v R (1990) 171 CLR 312
Thompson v Park (1944) 2 All ER 477
Verhoeven (1998) 101 A Crim R 24
Zoccoli v McDarby [1999] WASCA 179

Case(s) also cited:

Nil

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1 HASLUCK J: The appellant, Graeme Bruce Prior, appeals against his conviction on a complaint of unlawful assault contrary to s 313 of the Criminal Code. He was charged pursuant to a complaint issued by a police officer under the Justices Act 1902 that on 22 August 1999 at Cottesloe the appellant unlawfully assaulted one Sandra Ann Prior. It was common ground at the hearing before me that Mrs Prior was the estranged wife of the appellant.

2 On 23 May 2000, the complaint was heard in the Perth Court of Petty Sessions before her Worship Mrs Robbins SM. A transcript of the hearing appears in the appeal book. The transcript includes the reasons for judgment handed down by the learned Magistrate on 12 July 2000. Having found that the charge was proved and that a conviction should be recorded, the learned Magistrate determined that the appropriate sentence was for the appellant to be required to enter into a conditional release order to be of good behaviour for two years in the sum of $500.

3 The evidence reflected in the transcript showed that the appellant and Mrs Prior were married and had been separated for about two years. On 22 August 1999, Mrs Prior had gone to the appellant's address in Cottesloe. Mrs Prior's evidence suggested that there was a history of animosity between the parties. It seems that the meeting was organised at Mrs Prior's request to discuss their children, with the location of the meeting being chosen by the appellant.

4 The evidence given by the appellant and Mrs Prior about the meeting varied considerably, each casting themselves as the wronged party. Mrs Prior had asked for the meeting to occur in a public place, but the appellant insisted that the meeting should take place at his house. It seems that after the telephone arrangement to meet at the appellant's house had been made, the appellant telephoned one of his employees, Ms Jennifer Gill, and asked her to come to his house, which she did, before Mrs Prior arrived. At the appellant's request, Ms Gill went into a laundry area at the rear of the house for the purpose of listening to the conversation between the appellant and Mrs Prior, whilst remaining concealed from view.

5 The appellant and Mrs Prior sat at the kitchen table. Mrs Prior said in evidence that the appellant's behaviour seemed very strange and although she attempted to initiate some discussion about the children, the conversation soon became heated and reference was made to another person with whom the appellant was allegedly having a relationship. There was evidence before the Magistrate that during the course of the

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discussion, Mrs Prior made some reference to the appellant's relationship with his grandfather, who had died in 1986. Under cross-examination, Mrs Prior agreed that she said to the appellant: "If you can cheat your dying grandfather, obviously you can hurt the mother of your children."

6 Mrs Prior said in evidence that after the conversation became heated, the appellant slapped her face several times, leaving her in a state of upset. He told her several times to get out. He then grabbed her arms and began pulling her out of the house. When she attempted to crawl back inside the house to retrieve her handbag, it became apparent to Mrs Prior that Jennifer Gill was on the premises. This left Mrs Prior with the impression that she had been set up.

7 There was evidence before the Magistrate from Mrs Prior that she arrived at the premises after 6 pm and evidence from a friend of Mrs Prior that she (the friend) arrived at the premises shortly before 9 pm in response to a telephone call from Mrs Prior and found Mrs Prior in a state of distress. The appellant admitted to the friend that he had hit his wife.

8 A medical certificate established that Mrs Prior was seen by a Dr Stephen Adams on the following day and was observed to have a series of bruises alongside the inside of her right upper arm, consistent with those made by fingers in a tight grip.

9 Under cross-examination, the appellant agreed that he wanted the meeting to take place at his house "in private". He wanted Jennifer Gill upon the premises because her presence was "reassuring" and this was "just my intuition". He agreed that his wife did not like Jennifer Gill, but, nonetheless, he asked the latter to come to the house to support him by being present in the laundry, out of sight. He said in evidence that his wife "when it suits her over the last ten years has dragged out this business of my grandfather with the intention of causing me emotional harm." He had never lost his temper about that matter before.

10 Jennifer Gill said in evidence that she overheard the conversation from her place of concealment. The appellant asked his wife to leave when she began talking about his relationship with a third person, but Mrs Prior's reaction was: "I'm not going till you answer my questions."

11 Jennifer Gill said this in relation to the grandfather issue: "that's when Graeme said, 'Look, if you don't leave I'm going to carry you out of this house. I'm not going to listen to any more of this abuse'." She did not hear anything that sounded like a slap. After the altercation, she

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persuaded the appellant to leave for a period so that she, by herself, could try and persuade Mrs Prior to go home.

12 The learned Magistrate said in her reasons for judgment that she was satisfied on the evidence that the appellant assaulted Mrs Prior by slapping her face several times and forcibly dragging her from the kitchen to the front door. The learned Magistrate then proceeded to give consideration to lines of defence based upon s 254 of the Criminal Code and to the defence of provocation.

13 I digress briefly to note that upon the hearing of the appeal, it was not in issue that an assault occurred. The question was whether the learned Magistrate had given proper consideration to the defences relied upon by the appellant. Put shortly, the central question raised by the various grounds of appeal was whether the appellant had acted unlawfully.

14 Section 254 of the Criminal Code reads as follows:

254 (1) For the purposes of this section and section 255, the term 'place' means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.

(2) It is lawful for a person ('the occupant') who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary —


(a) to prevent a person from wrongfully entering the place;

(b) to remove a person who wrongfully remains on or in the place; or

(c) to remove a person behaving in a disorderly manner on or in the place;


provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.

(3) The authorization conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant’s authority except that if that person's duties as an employee consist of or include any of the matters referred to in

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subsection (2)(a), (b) or (c) that person is not authorized to use force that is intended, or is likely, to cause bodily harm."

15 The learned Magistrate in her reasons for judgment began by addressing the question of whether the appellant was entitled to use reasonable force to eject Mrs Prior from the house. Having regard initially to s 254(2)(a), the learned Magistrate was not satisfied that this provision was applicable, as Mrs Prior had entered the house at the express invitation of the appellant.

16 When the learned Magistrate turned to s 254(2)(b), she was not satisfied that Mrs Prior wrongfully remained in the place, as the purpose of her visit was to discuss the children of the marriage, and this purpose had not been accomplished.

17 In regard to s 254(2)(c), the learned Magistrate held that there was no evidence that Mrs Prior's behaviour was disorderly, with the result that this provision did not apply. The evidence was that Mrs Prior was sitting at the kitchen table when the appellant stood up, slapped her face and began to drag her forcibly towards the door.

18 For these reasons, the learned Magistrate was not satisfied that a defence under s 254 of the Criminal Code was available to the appellant. I note in passing that on her view of the matter it was not necessary for the learned Magistrate to make any explicit determination as to whether the appellant used "such force as is reasonably necessary" in order to remove his wife from the premises. On the Magistrate's view of the matter, the appellant was not entitled to remove his wife, so the further question of whether the force he used could be described as reasonable did not arise.

19 The learned Magistrate then went on to address the defence of provocation that had been raised by counsel for the appellant. The defence plea was that Mrs Prior had insulted the appellant by accusing him of cheating his dying grandfather and, at that stage, he lost control and slapped her.

20 The term "provocation" is defined in s 245 of the Criminal Code. The meaning includes any insult of such a nature as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the insult is offered. It does not include circumstances in which a person has been incited to do an act which might otherwise be regarded as an act of provocation.

21 Section 246 of the Criminal Code provides that:

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"246. A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact."

22 In her review of the evidence bearing upon this issue, the learned Magistrate noted that the meeting had been arranged for the purpose of discussing the children. She also noted that the appellant contrived circumstances designed to place Mrs Prior at a disadvantage by concealing a third party upon the premises to listen to the conversation. She went on to say that:

"Despite several requests from Mrs Prior, the children were never discussed, and I reject the defendant's evidence that he approached the meeting in an attitude of sincerity."

23 Against this background, the learned Magistrate proceeded to make a finding that the charge against the appellant had been proved in the following terms:

"On the evidence that the defendant ordered Mrs Prior to leave almost at the commencement of the meeting, that he subsequently ordered her to leave about 70 times within the hour or more which followed, during which the parties were arguing and shouting, in a situation devised by the defendant to put Mrs Prior at a disadvantage, I am not satisfied that he acted of a sudden when he assaulted Mrs Prior, because his behaviour had been hostile and aggressive towards her from the time the meeting began.

I am satisfied that a defence of provocation is not available to the defendant and I find the charged proved."

(Page 8)

24 The grounds of appeal are set out in a somewhat lengthy form. With a view to avoiding prolixity, I will endeavour to summarise the grounds.

25 The first ground is that the Magistrate erred in law in finding she was not satisfied that Mrs Prior wrongfully remained on the premises within the meaning of s 254(2) of the Code. The appellant was in peaceable possession of the premises and Mrs Prior arguably became a trespasser and her continued presence wrongful once the appellant told her to leave. He was entitled to use such force as was reasonably necessary in removing her, with the result that his actions should not have been characterised as an unlawful assault.

26 The second ground is that the learned Magistrate erred in law and in fact in finding that there was no evidence Mrs Prior's behaviour was disorderly at the relevant time. The Magistrate referred only to Mrs Prior being seated at the kitchen table and had no regard to her words, conduct and demeanour, such evidence being relevant to whether she was disorderly.

27 The third ground is that the learned Magistrate erred in law and fact in holding she was not satisfied that the appellant acted of a sudden when he assaulted Mrs Prior. A holding to this effect reversed the onus of proof, that is to say, there was no onus on the appellant to establish any of the elements of provocation.

28 The fourth ground is that the learned Magistrate erred in law in failing to properly consider the appellant's defence of provocation in that she failed to have regard to the evidence of Mrs Prior's insults and the appellant's reaction to the same.

29 The fifth ground of appeal was that the learned Magistrate erred in law and fact in that the verdict was unsafe and unsatisfactory. The learned Magistrate misconceived the evidence as to the nature and content of the discussion and failed to have any regard to the evidence of Mrs Prior's previous harassment and abuse of the appellant.

30 As to the first ground of appeal, counsel for the appellant conceded that s 254(2)(a) concerning the power to prevent a person from wrongfully entering a place had no application, but the following subparagraphs were said to be relevant. Counsel referred to the Magistrate's finding that the appellant told Mrs Prior to leave almost at the commencement of the meeting, and repeatedly thereafter. Viewed in that light, Mrs Prior, in remaining upon the property, should be characterised as a trespasser. Her permission to be present had been withdrawn. Her continued presence

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was wrongful. The learned Magistrate wrongly concluded that because the purpose of the visit was to discuss the children, which had not been done, Mrs Prior was entitled to remain on the premises.

31 Counsel for the appellant submitted that the appellant was entitled to revoke the licence he had given to Mrs Prior to be upon his property. Once the licence was revoked and she refused to leave, she was a trespasser. Counsel referred to Thompson v Park (1944) 2 All ER 477; Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; Nyul Nyul Aboriginal Corporation v Dann (1996) 133 FLR 359 at 371.

32 Counsel for the respondent accepted that the appellant was entitled to withdraw permission for Mrs Prior to remain upon the premises. It was conceded also that the appellant did, in fact, withdraw his permission for Mrs Prior to be present. Counsel submitted, however, that the manner in which Mrs Prior was ejected, that is to say, by dragging her through the house so as to deprive her of all dignity and to bruise her, did not constitute force that was reasonably necessary. Counsel referred to King (1996) 88 A Crim R 150 and Zoccoli v McDarby [1999] WASCA 179.

33 Before attempting to resolve the issues raised by the first ground of appeal, it will be useful to look briefly at some of the statutory provisions bearing upon an appeal of this kind.

34 By s 196 of the Justices Act 1902, the Court shall determine the appeal on the material before the court below. By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for rehearing. The Court is not required to set aside, quash or vary because the Magistrate omitted to make any necessary finding if the facts or evidence in substance support the decision or justify the finding. If the Court considers that no substantial miscarriage of justice has occurred, it may dismiss the appeal notwithstanding that a point raised in the appeal has been decided in favour of the appellant.

35 In Harling (1997) 94 A Crim R 437, Anderson J indicated that a Magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision. In Garrett v Nicholson (1999) 21 WAR 226, Owen J referred to the obligation to give reasons out of fairness to the litigant and as a means of securing the statutory right of appeal. The reasons must disclose adequately the intellectual process which has resulted in a particular determination. He emphasised, however, that one must look at the reasons as a whole to see if they give the sense of what was intended. The reader may lose a sense of what is

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conveyed by a particular passage if the reasons are dissected line-by-line, word-by-word. The question will often be not whether the Court would have formed a different view, but whether the Magistrate's view was defensible: Chamberlain v R (No 2) (1984) 153 CLR 521.

36 It is apparent from s 199 of the Justices Act 1902 that if an error in the reasoning or determination below is exposed on appeal, the Court is not necessarily obliged to quash the decision. It seems, however, that unless the Court is persuaded that, properly informed, the Magistrate would have inevitably reached the same verdict, the Court on appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen (1994) 179 CLR 1.

37 The relief may take the form of remitting back to the court below. The task is to balance the public interest in the conviction of a wrongdoer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven (1998) 101 A Crim R 24.

38 I note also that in the present case, the proceedings in the court below were conducted upon the basis that the assault complained of consisted of one transaction whereby the appellant allegedly slapped his wife and endeavoured to remove her from the premises. There was some suggestion on appeal by counsel for the respondent that the transaction could be divided into the slapping incident and the acts associated with the removal. I will proceed upon the basis that the alleged assault is viewed as one transaction.

39 As to the first ground of appeal, the Magistrate's ruling against the appellant in respect of the defence based upon s 254(b) required the Magistrate to be satisfied by the prosecution beyond reasonable doubt that the appellant did not withdraw Mrs Prior's permission to remain on the premises, with the result that her presence could not be described as wrongful. The Magistrate purported to make such a finding, but the adequacy of her reasoning is challenged.

40 In my view, the Magistrate's reasoning in regard to this issue, albeit brief, is sufficient. In Cowell v Rosehill Racecourse Co Ltd (supra), Dixon J noted at 631 that a licensee does not become a trespasser until he has received notice that the licence is countermanded and a reasonable

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time has elapsed in which he may withdraw. What constitutes sufficient notice will depend on the circumstances. A request or a series of requests that a person withdraw from commercial premises cannot necessarily be equated to a domestic situation in which a husband has encouraged an estranged wife to meet at his premises in order to discuss matters which are likely to give rise to disagreement.

41 The learned Magistrate noted in her reasons that: "Ms Gill testified that the defendant asked Mrs Prior to leave the house within about two sentences." This suggests that the request to leave was being used as a weapon in the debate.

42 In my view, it was open to the Magistrate, in the ambiguous circumstances of the present case, to conclude that no proper notice had been given by the appellant countermanding the licence to enter, bearing in mind that there was still unfinished business between the parties. The Magistrate may have accepted that many requests to leave were made, but amidst the rhetoric of various heated domestic exchanges one should not conclude too easily that a request to leave should be equated, in a legal sense, with the final and unequivocal countermanding of a licence to enter, to be acted on immediately.

43 According to Jennifer Gill, Mrs Prior's position was that "I'm not going until you answer my questions." It was not an absolute refusal to leave. It was a requirement that the business of the meeting be attended to. One could certainly take a different view of the evidence, but, in my view, the finding made by the learned Magistrate on this issue is defensible, namely, that the requests to leave were not to be taken at face value because they were principally a means whereby the appellant sought to avoid the business of the meeting.

44 Even if I be wrong in this conclusion, a further question then arises as to whether the appellant can be said to have used such force as was reasonably necessary to remove Mrs Prior as one who had wrongfully remained on the premises. The Magistrate did not make a specific finding upon this issue. The Magistrate did make a finding on the evidence, however, that the appellant assaulted Mrs Prior by slapping her face and forcibly dragging her to the front door.

45 I have already noted that by s 199 of the Justices Act I am not obliged to quash a decision because the Magistrate in the court below has omitted to make a finding if the facts or evidence in substance support the decision or justify the finding. In my view, the evidence is sufficient to

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establish beyond reasonable doubt that the appellant used excessive force. Having slapped her, he grabbed her and dragged her through the house in a way that deprived her of all dignity. The presence of the Magistrate's finding that the appellant slapped Mrs Prior and dragged her through the house persuades me that the conviction can be upheld pursuant to the powers vested in me by s 199 of the Justices Act. Any issue concerning the credibility of the witnesses in regard to this aspect of the matter has essentially been resolved by the finding just mentioned. Further, and in any event, as I have already noted, there was evidence before the court that the appellant admitted to a third party he had hit his wife, and his own evidence is consistent with the Magistrate's finding: see Zoccoli v McDarby (supra).

46 As to the second ground, counsel for the appellant reminded the Court that s 254 of the Code authorises the use of such force as is reasonably necessary to remove a person behaving in a disorderly manner. The learned Magistrate found that there was "no evidence" that Mrs Prior's behaviour was disorderly. According to counsel for the appellant, that finding involved an error of law and of fact because there was evidence of a repeated refusal to leave when requested to do so, and of continuing and repeated derogatory and abusive comments to the appellant capable of amounting to disorderly conduct.

47 Counsel submitted that whether conduct is disorderly depends upon all the circumstances of the case. One way to approach the matter is to ask whether or not the conduct was such as amounted to a substantial breach of decorum, which tended to disturb the peace or to interfere with the comfort of those who were, or might have been, in the relevant premises. See King (supra) at 155 and 157.

48 Counsel for the respondent submitted that the conduct must be considered in context, and in this case the essential features of the context were exchanges in a private home in the presence of the appellant and his concealed witness. During the course of an argument, the appellant provoked and insulted Mrs Prior and had slapped Mrs Prior in the face.

49 Counsel submitted that a lawful entitlement to use force (including force which causes and, indeed, is intended to cause bodily harm) should not be capable of being exercised when the disorderly conduct arises because it has been, in effect, provoked by the person claiming that lawful entitlement. In addition, the force used in the present case was not reasonably necessary.

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50 In King (supra), Steytler J noted that the test for determining whether behaviour is disorderly is objective. The question will not ordinarily be influenced by subjective factors which might explain why such behaviour has been engaged in. Such explanation should not alter the characterisation of that behaviour if it was otherwise properly regarded as disorderly.

51 I will proceed in accordance with this test. Nonetheless, in determining whether conduct is disorderly, one must necessarily have regard to the context and to the surroundings. Conduct regarded as no more than loud or high-spirited in the front bar of a busy hotel may be regarded as disorderly in a conference room occupied by businessmen or members of a profession. Likewise, in a room occupied by a married couple who are now estranged, one must be careful about characterising sharp exchanges between the pair as in the nature of disorderly conduct on either side. In the circumstances of the present case, one must also take account of the fact that the appellant had arranged for the meeting to take place at his premises in the expectation that some frank or sharp exchanges would occur. It was for this reason that he did not want the meeting to occur in a public place.

52 Against the background of these observations, in my view, it was open to the learned Magistrate to make a finding that Mrs Prior's conduct could not, and should not, be characterised as disorderly. It is unrealistic to suppose that a proposed conversation about the children could be neatly confined to that subject matter in circumstances where each parent had a legitimate concern about the manner in which those with access to the children were leading their lives.

53 Further, and in any event, as I observed in regard to the first ground of appeal, even if I be wrong in the view I have just expressed, I am obliged to take account of the learned Magistrate's finding on the evidence that the appellant assaulted Mrs Prior by slapping her face several times and forcibly dragging her from the kitchen to the front door, in the course of which the top of her clothing was removed. In my view, conduct of that kind cannot be characterised as the use of such force as is reasonably necessary to effect the removal. The force used was excessive.

54 It follows that upon this basis also the Magistrate was entitled to be satisfied beyond reasonable doubt that the conduct of the appellant was not lawful. The conduct in question, absent any sufficient line of defence pursuant to s 254, amounted to an unlawful assault. I do not consider that

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the appellant's conviction should be set aside on this ground or the matter remitted back to the learned Magistrate for a further hearing.

55 As to the issue of provocation reflected in grounds 3 and 4 of the notice of appeal, the appellant submitted that a finding by the Magistrate that she was not satisfied the appellant had acted on the sudden was effectively a reversal of the onus of proof. The onus was on the prosecution to establish beyond reasonable doubt that the appellant had not acted on the sudden. It was not a question of the Magistrate being satisfied that he had done so.

56 Counsel for the appellant submitted, further, that the Magistrate's reasons for excluding provocation disclosed error. Her finding that the appellant's behaviour had been hostile and aggressive from the time the meeting began was unreasonable and not supported by the evidence. More importantly, such a finding did not, of itself, exclude the appellant from having acted on the sudden in the face of the admitted insults by Mrs Prior about the appellant having cheated his dying grandfather.

57 Counsel submitted that the gravity of the provocative conduct is to be assessed by reference to the attributes and characteristics of the individual affected, including the history of any relevant personal relationships: Stingel v R (1990) 171 CLR 312; Masciantonio v R (1995) 183 CLR 58; Verhoeven (1998) 101 A Crim R 24.

58 Counsel for the respondent contended that there had not been any reversal of the onus of proof. In the sentence in which the learned Magistrate said she was not satisfied that the appellant acted of a sudden when he assaulted Mrs Prior, she made a positive finding about events leading up to the assault that excluded acceptance of the appellant's explanation. See Garrett v Nicholson (supra) at 248. Further, it was implicit that the learned Magistrate accepted Mrs Prior's evidence that the assault did not occur as a response to her comment about the appellant cheating his grandfather.

59 In looking at these authorities, I take account of the fact that Wheeler J undertook a full review of the decided cases in Verhoeven (supra). In that case, she set out what she understood the Stingel v R (1990) 171 CLR 312 test to require.

60 In the first stage, the gravity of the provocation is assessed by reference to particular characteristics of the accused which may be relevant. Such characteristics may include age, race, sex, personal history and other factors. The result of that assessment is a characterisation of the

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provocation upon a scale of gravity, ranging from minor and trivial to extreme. The next question involves an assessment of how an ordinary person could have responded to provocation of that particular degree of gravity. It would appear that the second limb is a relatively simple filter designed to ensure that the law does not excuse an extreme response to minor provocation. She noted also that the extent to which the definition in s 245 of the Criminal Code precisely reflects that the common law is not clear; however, it does appear to require an inquiry broadly similar to that undertaken in Stingel.

61 Wheeler J went on to note that it is open to the Court to form the view that an assessment of the gravity of the provocation, for the purpose of determining the super-added requirement of proportionality found in s 246, requires that regard be had to what was said and done by the complainant in its context (which may include known characteristics of the accused) in order to understand the objective significance of the actions or the message conveyed by the words, as they would be understood by an ordinary person knowing of the words or conduct and of their context.

62 She went on to note that such an assessment does not require that the hypersensitivity, or idiosyncratic beliefs, or uncommunicated views and experiences, of the accused be taken into account so as to have regard to the subjective view of the accused concerning the gravity of the provocation (questions of mistake aside). The latter are, to use the language of the traditional distinction, individual peculiarities bearing on self-control rather than upon gravity. Thus, it may be, that the express requirement of proportionality in s 246 preserves the element of objective evaluation which appears to be implicit in the older cases.

63 Counsel for the appellant advanced two criticisms of the learned Magistrate's reasoning in regard to provocation, these criticisms being reflected in grounds 3 and 4 of the notice of appeal. The first concerned what was arguably a reversal of the onus of proof in that portion of the reasons I have already quoted, in which her Worship said: "I am not satisfied that he acted of a sudden when he assaulted Mrs Prior." This almost seemed to suggest that the burden lay upon the appellant to establish that he had acted of a sudden when the correct position was that the prosecution was obliged to negative the defence. The second ground of challenge was that her Worship's reasons for excluding provocation disclosed error because she focussed upon the wrong factors and did not ask the questions which ought to have been asked.

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64 As to the first of these matters, I return to the observations made by Owen J in Garrett v Nicholson (supra). In order to ascertain what findings were made or the true nature of the reasoning underlying a conclusion, it can sometimes be misleading to dissect a passage of the reasoning line-by-line, word-by-word. It is necessary to study the reasons as a whole with a view to understanding the tenor the decision. In the present case, I consider that, notwithstanding a lack of elegance in the expression, when the observations of the learned Magistrate concerning this issue are viewed in context, it is quite apparent that she was persuaded by the prosecution case, that is to say, she was satisfied that the appellant did not act of a sudden because in a situation devised by the appellant, he had been hostile from the outset. The tenor of her reasoning is to single out factors that negate or exclude the appellant's line of defence. This is brought out in the final words of the crucial passage in which she says explicitly that she is "satisfied that a defence of provocation is not available to the defendant and I find the charge proved." In effect, she made positive findings that had the effect of negating the defence of provocation.

65 As to the second matter, again, when the learned Magistrate's reasons are viewed in their entirety, it becomes apparent that, in essence, she applied the relevant considerations identified by Wheeler J in Stingel (supra). She took account of a matter personal to the appellant, namely, the relationship with his grandfather, but when, by implication, she proceeded to an assessment of whether the appellant was in fact deprived by the provocative slur of self-control, and acted upon it on a sudden, she took account not only of the conflicting evidence as to what he did, but also of the surrounding circumstances. These included the concealed presence of the appellant's supportive third party. Viewed objectively, the appellant's contrivance tended to negate his contention that he lost control and it also had a bearing upon whether the force he used was disproportionate. The Magistrate clearly accepted that the slapping did not follow immediately upon the reference to the grandfather, and was not persuaded that there was any loss of control as a result of the insult.

66 Further, and in any event, there were other features of the evidence, not directly adverted to by the Magistrate which are consistent with and justify her verdict. Jennifer Gill was not prepared to say that she heard the appellant slap Mrs Prior immediately after Mrs Prior had referred to the appellant defrauding his grandfather. On the contrary, Mrs Gill's evidence strongly suggested that rather than the appellant losing self-control in the manner he contended for at the hearing, he simply began taking steps to remove his wife from the premises. One also has to take account of the

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fact that there was evidence before the learned Magistrate that the allegation concerning the grandfather had been raised many times before in exchanges between the appellant and his wife since the grandfather's death in 1986, and apparently without any loss of self-control on those former occasions.

67 Accordingly, I am not persuaded that the appeal should succeed on either of the two grounds concerning the defence of provocation.

68 As to the fifth ground, counsel for the appellant submitted that the verdict was unsafe and unsatisfactory because the learned Magistrate misconceived the evidence as to the nature and content of the discussion at the appellant's premises. She placed unwarranted significance upon her view of the appellant's conduct in having an unseen third party present and upon whether the appellant approached the meeting with an attitude of sincerity. The learned Magistrate failed to have any regard to the evidence of Mrs Prior's previous sustained harassment and abuse of the appellant.

69 Counsel submitted that in considering such a ground, an appellate court is required to make its own independent assessment of both the sufficiency and quality of the evidence. If, having done that, the appellate court is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed: M v The Queen (1994) 181 CLR 487. The grounds of appeal, individually and collectively, suggested that there had been a substantial miscarriage of justice.

70 Counsel for the respondent submitted that the learned Magistrate made findings supported by and consistent with the evidence given by Mrs Prior. The existence of evidence to the contrary should not be regarded as undermining those findings. The acceptance of that evidence did not require the analysis called for by the appellant.

71 It follows from earlier discussion that I am persuaded that the learned Magistrate made findings supported by and consistent with the evidence given by Mrs Prior. In my view, it was appropriate for the learned Magistrate to take account of evidence concerning the presence of the unseen third party, even though the person in question played no part in the conversational and physical exchanges. The appellant himself conceded that the presence of the supportive third party was "reassuring". His knowledge of her presence was bound to be reflected in his behaviour,

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which his wife described as "strange", and as over-confident. Her acute perceptions in that regard lent credibility to her as a witness.

72 It follows that I am not persuaded that the verdict was unsafe and unsatisfactory because the learned Magistrate misconceived the evidence as to the nature and content of the discussion at the appellant's premises. I am not persuaded to allow the appeal on this ground.

73 In summary, then, I consider that the appeal against conviction should be dismissed. I will hear from the parties as to whether any further orders are required.