R v Bennett

[1996] QCA 72

IN THE COURT OF APPEAL	[1996] QCA 072
SUPREME COURT OF QUEENSLAND

C.A. No. 29 of 1996.

Brisbane

[R v. Bennett (a.k.a. Murray)]

T H E Q U E E N

v.

SHARON BENNETT (A.K.A. MURRAY)

Appellant

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Pincus J.A. Davies J.A. Ambrose J.

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Judgment delivered 26/03/1996

Judgment of the Court
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1.         APPEAL ALLOWED.

2.         CONVICTION AND ORDERS MADE BELOW SET ASIDE.

3.         NO NEW TRIAL.

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CATCHWORDS: COMMON ASSAULT - misdirection in considering whether a defence of provocation was available - spitting - assault on husband of defendant.

Stingel (1990) 171 C.L.R. 312
Van Den Hoek (1986) 161 C.L.R. 158
Griffiths (1994) 69 A.L.J.R. 77

Howe (1958) 100 C.L.R. 448

Counsel:	Mr D Lynch for the appellant. Mr D Bullock for the respondent.
Solicitors:	Legal Aid Office for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	19/03/1996.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 26/03/1996

The appellant who was convicted of common assault in the Magistrates Court appeals against the conviction and also against sentence. The conviction is said to be unsafe and the trial unfair; further, it is argued for the appellant that the magistrate misdirected himself in considering whether a defence of provocation consisting in an assault the complainant committed on the appellant’s husband was available. It is necessary to deal only with the last point, but treatment of that should be prefaced by an explanation of the effect of some of the evidence.

The complainant T P Foote said that on the morning in question he went to the house at which the appellant lived and that he did so for the purpose of assaulting the appellant’s husband. That having been accomplished, Foote returned to the vehicle which he had driven to the place, to find the appellant (he said) throwing objects out of it into a swamp. According to Foote, the appellant then said that "I’d done it this time and I was going to get it and all this sort of thing". The keys of the car were missing, Foote said, and he pushed it off the appellant’s property, after which the appellant’s husband - in fact, her de facto husband - came to him with a shotgun and both the appellant and her husband began to abuse him. Foote said that the appellant spat in his face two or three times, and suggested that this would give him a disease. The husband gave evidence that, as Foote had said, he was assaulted by Foote. The appellant’s evidence was that Foote came onto the property, went up to the house and assaulted her husband; it appears that she did not see the assault, but deduced from the noise what had occurred. She said she went to Foote’s car, that Foote screamed at her, grabbed her, shook her and hit her across the face; she denied having assaulted Foote, but admitted that she was "very angry at this man for coming onto my property and assaulting my husband and then myself".

The foregoing is not a complete account of the evidence; other witnesses were called, but for our purposes it is unnecessary to explain what they said.

The magistrate’s reasons dealt with some legal questions, including the definition of assault, and then went on:

"Of course, all assaults are unlawful unless authorised, justified or excused at law. Where a defendant fairly raises a defence on the evidence or seeks to rely on the exculpatory provisions of the Criminal Code, that may be raised on the balance of probabilities. It is for the prosecution to negative the defence beyond all reasonable doubt."

This passage is discussed near the end of these reasons. His Worship then discussed the evidence, being critical of the appellant’s evidence and laudatory as to Foote’s. In that discussion, one finds the following:

"The defendant denies ever committing the act which constituted the assault and therefore does not seek to rely on any of the exculpatory provisions or defences under the provisions of the Code".

It appears likely that, in referring to exculpatory provisions or defences, his Worship had in mind in particular self-defence and provocation, the latter having been specifically mentioned by the prosecutor in his address to the Court.

It is argued for the appellant that although as the magistrate said, the appellant denied having assaulted Foote, his Worship should nevertheless have considered the issue of provocation; the appellant’s complaint is that the magistrate was in error in suggesting that the appellant’s denial of the assault made provocation irrelevant.

Where the evidence gives rise to a question of provocation, the onus is on the Crown to disprove that defence beyond reasonable doubt: Stingel (1990) 171 C.L.R. 312. The magistrate appears to have considered the case on the basis that unless the evidence of the appellant, given in her own defence, included all the elements of a defence of provocation, that defence could be ignored; but that is not so. The question is not whether the evidence of the accused raises a defence of provocation, but whether any evidence in the case does so. This is illustrated by Van Den Hoek (1986) 161 C.L.R. 158, where the accused’s evidence was that she stabbed her husband because she was "so scared", apparently in consequence of his coming at her with a knife. The Court approved previous authority to the effect that:

"if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge [to leave the defence to the jury]".

In Van Den Hoek, although the accused gave no evidence suggesting that she lost self-control, the court held in effect that that could be inferred.

Here, the magistrate was of the opinion, it appears, that the defence of provocation need not be considered because of the appellant’s denial of the assault; but that gap was filled by prosecution evidence that an assault in fact occurred, which evidence the magistrate accepted. There was certainly ample evidence, to some of which we have referred, that at the relevant time the appellant was angry and acting aggressively towards Foote, at least partly in consequence of her impression - a correct one as it turned out - that her husband had been assaulted. In these circumstances the case was one in which the evidence gave rise to a question of provocation and the magistrate was in error in thinking otherwise, although the appellant did not say she assaulted Foote because she was angry at his conduct, or indeed that she assaulted Foote at all.

It is desirable to make comment on another point. We have quoted the magistrate’s reference to the onus of proof and in particular the statement that defences under the Code "may be raised on the balance of probabilities". It is true that some defences are of that kind; a familiar example is the defence created by s. 215 of the Code, as to the accused’s belief that a girl of whom he had carnal knowledge was of or above the age of 16; and another such example is the defence of diminished responsibility under s. 304A. But ordinarily the requirement that a defence under the Code be considered can arise without the defence proving anything, on the balance of probabilities or otherwise.

For example, it may be necessary for the Court to consider, in an assault case, the question of self-defence under s. 271 or 272, where there is a complete conflict as to how the assault came about. Even if the Court is not prepared to find on the balance of probabilities that what the defendant says is true, there may be evidence to give rise to a question as to whether the defence applies. And once there is such evidence, then what the Court has to do is to determine whether the prosecution has disproved the defence, beyond reasonable doubt.

That is so with respect to provocation, as has been mentioned, and also as to accident, (Griffiths (1994) 69 A.L.J.R. 77) and self-defence (Howe (1958) 100 C.L.R. 448 at 459).

In summary, then, the magistrate was in error because:

1. There was evidence before him raising the issue of provocation, although not all the elements of that defence were to be found in the evidence of the defendant.

2. It was not necessary that the defendant positively prove any facts, on the balance of probabilities or otherwise, to give rise to a necessity of considering the defence of provocation; once there was evidence to raise that issue, the Crown had to disprove provocation beyond reasonable doubt.

It follows that the appeal must be allowed. It does not seem appropriate to order

a new trial.

The orders are:

1.         Appeal allowed.

2.         Conviction and orders made below set aside.

3.         No new trial.