R v Gale

[1992] QCA 204

COURT OF APPEAL [1992] QCA 204

FITZGERALD P
DAVIES JA

DEMACK J

CA NO 72 of 1992

THE QUEEN

v.

RICHARD JOHN GALE	(Appellant)
BRISBANE
.. DATE 1/6/92 JUDGMENT

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JUDGMENT

DEMACK J: The appellant has appealed against his conviction

in the District Court at Southport on 6 February 1992 of an

offence of unlawful assault on 14 September 1990. He had been
charged with assault occasioning actual bodily harm and wilful
and unlawful damage to property. He was acquitted of those
charges but, on the former count, convicted of the lesser
offence of unlawful assault. The ground of appeal is that the

jury's verdicts are inconsistent.

The charges arose out of a traffic incident. The appellant

was proceeding along West Burleigh Road on his motorcycle when

the complainant entered the roadway in his motor vehicle and

caused the appellant to swerve and execute a manoeuvre which

he called a “lay-over”. The appellant pursued the complainant

after believing he had seen a provocative gesture. When he

came alongside the complainant’s motor vehicle, the
complainant struck it. His evidence was that he did so

because when he was beside it and travelling at the same

speed, the motor vehicle veered towards him whereupon he used

his leg to fend off the motor vehicle and prevent it from

colliding with his motorcycle. The appellant's motorcycle

passed the complainant's car and drove in front of it for a

distance, although, according to the appellant, the

complainant eventually got in front of him. It was common

ground that the complainant entered a service station and that

the appellant followed him. The appellant went to the

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complainant's motor vehicle, yelled at him and hit him. He

was very angry because of the complainant's driving behaviour.

No complaint was made by the appellant of the summing-up which

left the defence of provocation, including on the basis of s

24 of the Criminal Code, for the jury’s consideration. The
essential submission for the appellant is that to acquit on
wilful damage, the jury must have, at the least, not been
satisfied that the appellant did not reasonably believe that

he was in imminent danger from the complainant's vehicle. In

those circumstances, it was submitted it was perverse for the

jury to be satisfied that the defence of provocation, as it

applied to the charge of assault, was excluded. The argument is without substance. The verdict of acquittal on the charge

of wilful and unlawful damage to property by no means
indicates that the jury must not have been satisfied that the
appellant did not reasonably believe that he was in imminent

danger from the complainant’s vehicle. A range of defences to

that charge were left open, including self-defence and the

defence provided for in s 458 of the Criminal Code. The

jury's verdict on that charge means no more than that it was

not satisfied beyond reasonable doubt that the contact between

the appellant's leg and the motor vehicle was a wilful and

deliberate act intended to cause damage. In any event, a

period of time separated the infliction of that damage and the

assault. Even if the jury accepted that the appellant
reasonably believed that he had been in imminent danger from

the complainant's motor vehicle, it was open to it to be

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satisfied beyond reasonable doubt on all the evidence at the time of the assault that the accused was not deprived of the

power of self-control, did not act on the sudden, and that his

conduct was not proportionate to any provocation that might

have existed.

The appeal is without substance and should be dismissed.

The order of the Court is the appeal is dismissed.

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