R v McCauley

[2009] QDC 298

DISTRICT COURT OF QUEENSLAND

CITATION:

R v McCauley [2009] QDC 298

PARTIES:

THE QUEEN

AND

SHANE MICHAEL MCCAULEY

(Defendant)

FILE NO/S:

Indictment 2200/08

DIVISION:

PROCEEDING:

Ruling during trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2009

JUDGE:

McGill DCJ

ORDER:

Ruling that any relevant assault by the complainant was unprovoked.

CATCHWORDS:

CRIMINAL LAW – Provocation – what constitutes – wrongful act done to complainant’s property in the absence of complainant – whether capable of being provocation for an assault by complainant on accused upon discovery of act

Criminal Code 1899 s 268

R v. Buttigieg (1973) 69 A Crim R 21 – cited.
R v. R (1981) 4 A Crim R 127 – considered.
Stingel v. R (1990) 171 CLR 312 – considered.

COUNSEL:

G.P. Cash for the prosecution

A.P. Simpson for the defendant

SOLICITORS:

Director of Public Prosecutions for the prosecution

Byrne Legal Group for the defendant

1. In this matter the accused is charged with one count of unlawfully doing grievous bodily harm with intent.  He has pleaded not guilty.  The evidence in the case raises self-defence, but there is an issue as to whether it is appropriate to sum up to the jury on self-defence under section 271 or under section 272, or perhaps both.

1. That depends on whether the applicable provision is that relating to self-defence against unprovoked assault, or self-defence against provoked assault.  The effect of the Crown case is that there was an assault by the complainant on the accused immediately before the complainant did the acts which would amount to unlawfully doing grievous bodily harm if self-defence and accident are not available.  The issue is whether the assault was provoked or unprovoked. 

1. The Crown submits that the assault was provoked by the actions of the accused and therefore submits that the jury should accept that and, on that basis, consider self-defence only on the basis outlined in section 272. 

1. Whether it is appropriate to leave the matter on the basis of section 272 would depend, first, on whether what was done by the accused was capable of amounting to provocation and, second, whether it did, in fact, amount to provocation for the assault by the complainant.  Whether it is capable of amounting to provocation is a question law, but whether it does amount to provocation is a matter for the jury.  The Crown would seek to persuade the jury that the actions of the defendant did amount to provocation and that the question of self-defence should therefore be assessed on that basis.  That raises, therefore, the question of whether the actions sought to be relied on are capable of amounting to provocation. 

1. What is sought to be relied on is that, at a time when the complainant was away from the premises where the incident occurred, the accused deliberately damaged the complainant's laptop computer which was then left on the driveway of the house in a place where it was likely to be seen by the complainant at a time when he returned to the house.  There was an expectation, or it could reasonably be inferred that there was an expectation, that he would return at some point or other.  In the event, he returned pretty quickly.  The effect of the evidence of the complainant was that he was, in fact, provoked by seeing the state of his laptop, that this made him enraged with the accused, and as a result he went aggressively towards the accused.  Hence, there is no dispute about the fact of the assault. 

1. What provoked him, therefore, in a practical sense, was becoming aware of the damage to the laptop which he assumed, correctly, had been inflicted by the accused. There is no dispute that it was the accused who damaged the laptop. He has admitted as much in evidence. The question then arises whether the damage to the laptop can amount to provocation. That depends on whether it satisfies the definition of provocation in section 268 of the Code. Subsection (1) provides: "The term 'provocation', used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person's immediate care, or to whom the person stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, 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."

1. The same ideas are referred to in subsection (2) which identifies the concept of someone giving provocation for an assault. Section 269 then provides that a person is not criminally responsible for an assault committed on a person who gives the person provocation for the assault in certain circumstances which, essentially, emphasise the sense of immediacy involved in the defence of provocation. The question is whether the damage to the laptop can amount to a wrongful act done to the complainant in circumstances where any damage to the computer was not done in the immediate presence of the complainant.

1. This is something that I was told has not been the subject of any direct authority in Queensland or in another State which applies the Criminal Code. I was helpfully referred by Mr Simpson to a statement in the Court of Criminal Appeal in South Australia in R v. R (1981) 4 A Crim R 127 which said something about the question of provocation in the context of a defence to a charge of murder. At page 131 the Chief Justice said, "Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer [authority cited] although of course such words or conduct may be important as part of the background against which what is said or done by the deceased of the killer is to be assessed."

1. Now, that of course was a statement about the position at common law. For the purposes of section 304 of the Criminal Code, which is the provision governing that situation, it is accepted that the common law test is applicable, and the authorities, or most of the authorities, dealing with provocation deal with the subject in that context. It is clear from the various things that were said in Kaporonovski v. R (1973) 133 CLR 209, that caution needs to be applied when seeking guidance from the common law in relation to the interpretation of the Code. On the other hand it has also been said by the High Court in Stingel v. R (1990) 171 CLR 312 at 320: "One finds in the authorities . . . a perception that, in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions."

1. That was said in the context of a decision in relation to the Tasmanian Criminal Code, and in relation to provocation as a defence to a charge of murder, but it seems that under the Tasmanian Code there is a statutory definition of provocation which has elements similar to those set out in 268 and which applies to provocation in that context.  That comment in Stingel was quoted with apparent approval by the Queensland Court of Appeal in R v. Buttigieg (1973) 69 A Crim R 21 at 26. That was also a case where what was in consideration was provocation in the context of a charge of murder. I suppose what one can safely draw from all that is that it might well be reasonable for provocation in section 268 to reflect the ideas which inform the common law concept of provocation.

1. The notes on the draft Criminal Code by Sir Samuel Griffith indicate that he was of the view that the Code, by making provocation a defence to an offence of which assault was an element, was breaking new ground but was, in this respect, reflecting what he described as the law of life, or the rules of life. His Honour's comments do not clearly indicate to what extent, if at all, his formulation in section 268 was intended to reflect the common law in the context of a charge of murder, but perhaps they may be seen as intending to apply the common law defence in this new context, and in that respect to reflect the common law.

1. Ultimately, what matters in terms of the wording of section 268 is what is meant by the concept of any wrongful act done to an ordinary person, and in section 269 a wrongful act or insult done to the person who is alleged to have committed the assault. There is an express requirement where the wrongful act or insult is done or offered, not to the person in question, but to another person within the appropriate categories of relationship, that in that situation that must occur in the presence of the person who is said to have been provoked.

1. It was submitted on behalf of the Crown that the express inclusion of the requirement that this occur in the presence of the relevant person reflected a distinction in policy between a situation where the wrongful act or insult was directed to the person concerned and a situation where it was directed to another person, and one can see that that might have been a rational distinction. On the other hand it can be seen also as confining the scope of the defence in that context to the situation which would apply where the wrongful act or insult was offered directly to the person concerned. If it was confined to something which was offered in the person's presence and therefore in the direct and immediate sense a wrongful act or insult to that person, that would also be consistent with the concept of immediacy which might be seen as underlying the defence as it is expounded in section 269 of the Code.

1. One can always think of examples of distinctions which would be produced between similar situations by different interpretations of such a provision. However, it seems to me that when sections 268 and 269 are read together a more natural reading of the words is that the requirement that any wrongful act or insult be done or offered to another involves that this is done or offered to the other directly, and that necessarily involves the other person being present when that occurs.

1. That would also be consistent with the rationalisation of the defence of provocation, and the confining of it to offences of which assault is an element, that the underlying rationale of the defence is that provocation negates a lack of consent, which in that way renders the assault not an unlawful assault since an absence of consent is a requirement for an assault to be unlawful.  That analysis was put forward by the Queensland Law Reform Commission in a review of the defence of provocation, in discussion paper number 63 dated August 2008, paragraph 11.13, and to the extent that that is an appropriate rationalisation of the defence it would seem to me to be more consistent with a requirement that the provoking conduct be offered directly and immediately to the person said to be provoked, and therefore necessarily be something that occurred in the presence of that person.  That would exclude a situation where the conduct relied on as provocation had occurred out of the presence of the person and all that happened was that the person subsequently found out about it. 

1. Overall, therefore, it seems to me that both that rationalisation of the defence and such authorities as I have been able to locate in relation to the operation of provocation at common law support the proposition that it should be confined to a situation where the relevant wrongful act or insult was offered to the person said to be provoked in the immediate sense, that is in the presence of that person, and does not extend to a situation where a wrongful act is done but out of the presence of the person, so that what actually provokes the person is not the doing of the wrongful act or the offering of the insult, but the awareness which is subsequently acquired of the fact that a wrongful act has been done or an insult offered on an earlier occasion. 

1. On that view of section 268 it seems to me that smashing the complainant's laptop at a time when the complainant was not present cannot amount to provocation for an assault by the complainant on the accused, and therefore it is not open for the Crown to seek to persuade the jury that any subsequent assault by the complainant was an assault which the accused had provoked. It also follows that the only relevant defence is that under section 271 of the Code.

1. Although in the present case it is admitted that the complainant suffered grievous bodily harm section 271 does not depend for its operation on whether grievous bodily harm is in fact suffered, but on whether it was likely to be caused by the force used.  That has not been admitted and therefore it seems to me that I have to leave both limbs of section 271 to the jury.