R v Logue

[1994] QCA 230

IN THE COURT OF APPEAL [1994] QCA 230

SUPREME COURT OF QUEENSLAND

C.A. No. 84 of 1994

[R. v. Logue]

THE QUEEN

v.

JOHN LOGUE

(Appellant)

The President
Mr Justice McPherson

Justice Demack

Judgment delivered 24/06/1994

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:CRIMINAL LAW - assault occasioning bodily harm - conflicting evidence of events leading to assault - decision of Stipendiary Magistrate sustained.

Counsel:	T Carmody for the appellant P Rutledge for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing date: 17 June 1994

JUDGMENT

Judgment delivered 24/06/1994

On 24 February 1994, the appellant was convicted by a Stipendiary Magistrate of the offence of assault occasioning bodily harm, fined $500 and ordered to pay $500 by way of compensation.

The offence arose out of an incident at The Underground Nightclub on 25 September 1993. The appellant admitted that the complainant sustained injuries which constituted bodily harm. He also admitted in evidence that he punched the complainant in the face. He said he was provoked.
The appellant went to The Underground with Mr and Mrs Farr and Miss Silvester, after 3:00am on 25 September 1993. Constable Zerner was called to The Underground at 4:45am. By that time, the complainant had been placed on a stretcher by ambulance officers. This sets the time frame within which the events leading up to the assault occurred.
At some time which is not specified, the complainant, who was very drunk, approached Mrs Farr and behaved in a way which confused and frightened her. He poked her forcefully in the back and it seemed that he wanted to have a cigarette lit. The appellant saw this incident and formed the impression that the complainant was making some sexual gestures to Mrs Farr. She said that at the time she was speaking to her husband.
The appellant had been playing pool with two young women. He saw the complainant approach these young women who told him to "piss off". The appellant's evidence continued:

"Well, after they told him to piss off I said to him again - I said, 'Don't bother the women. Leave the women alone.' He's just come over to me and started poking me in the chest and said, 'Don't tell me what to fucking do."

And what effect did that have on you?-- At that stage I just lost my cool and within a split second I just punched him.

How did you punch him?-- Just straight in.
With the fist?-- Fist.
Right fist?-- Yes.
To what part of his face?-- Just to the front of his face."

Mr Farr gave evidence that he saw the complainant and the appellant together, and "it looked like he was poking John in the chest". He then spoke to his wife, looked back and saw the appellant strike the complainant.

Mr Lamont was employed at The Underground as a security officer. He said that he noticed "two gentlemen standing together side by side. One of them just turned and hit the other fellow". He said the blow was struck with a closed fist and that the appellant followed through with the elbow as well.
Although the two men were in his field of vision for about three minutes, he did not see the complainant poke the appellant in the chest.
The Stipendiary Magistrate reviewed all this evidence. He properly recognised that the onus lay on the prosecution to prove the unlawfulness of the assault. The complainant had little useful memory of the evening. It was the Magistrate's responsibility to make what he could of the differing accounts.

He said:

"There's the manner in which the complainant behaved immediately prior to being struck by the defendant that the defendant pleads is sufficient provocation for him to commit the assault which he did and to render the assault not to be unlawful. It seems to me that Mr Lamont was in a particular situation, in that he was observing the patrons in the normal way they were carrying on. He says that he was particularly on the look out for any patrons who were being annoying to others, and it was his duty to control such situations, so that the - particularly the female patrons were not upset by the way in which other patrons carried on.

He didn't, obviously, observe anything of that nature in the behaviour of the complainant, Carruthers, that the defendant, Logue, has taken exception to. I am not saying it didn't occur. It may have occurred that the two girls told Carruthers to piss off because they were not satisfied with his behaviour. And obviously, he did leave them, otherwise there would've been some complaint to Lamont or the management of The Underground.

The Underground, of course, is a nightclub operating in the very early hours of the morning some time between 3.00 a.m. and 5.00 a.m. when these events occurred and it is quite normal for persons to be in that establishment when quite affected by liquor at times.

And these security officers are particularly trained to control those situations. No complaint was made by Mrs Farr to anybody else, other than her husband and Miss Silvester. They were prepared to walk away and leave the defendant. Logue was not.

He didn't take the action of complaining to the security officer, who was standing some four metres away, when he alleges these things happened. I cannot accept on the evidence before me that any provocation that was held out by Carruthers was such as to amount to being sufficient to deprive the defendant, Logue, of his power of self control, nor that the provocation - the manner in which Carruthers acted in relation to the two girls and Mrs Farr was such that would cause that to happen, and that the blow to his face, breaking his nose and causing the injuries that have been put before this Court, was far in excess of any force that would be excused in law."

It appears from that statement that the Stipendiary Magistrate was not completely satisfied with the evidence of any of the witnesses. What has impressed him was that, if the two young women were approached by the complainant, they responded to the situation without violence. Further, he noticed that Mrs Farr responded to the situation she was in without violence.

There was thus, in the Stipendiary Magistrates's opinion, no justification in law for the response the appellant made. Even if there had been some justification for loss of the power of self-control, he held that the force used was disproportionate to the provocation.

In support of the appeal, it was submitted that there
should have been express findings:
a)about the nature of the assault, i.e. one blow or more than

one;

b)the nature of the provocation;

c)the degree of force used.

There cannot be pro forma reasons for judgment that must be
followed in every case. The passage quoted shows that the
Stipendiary Magistrate was alert to the issues he had to decide.
His findings are expressed in a way that dismisses anything
that was done to the two women and Mrs Farr as being of such a
nature as to be likely to deprive an ordinary person of the
power of self-control. They are in any event not persons within
the scope of s. 268 of the Criminal Code. The remaining act,
poking in the chest, was not likely to deprive an ordinary
person of the power of self-control. In any case, the
complainant's actions did not justify a blow of such force as to

break his nose and to render him unconscious, and to cause him

injury to his back as he fell.
The reasons for judgment fully justify the decision reached and that was a proper decision on the evidence.

The appeal is dismissed.