R v Toomath

[2009] QCA 369

SUPREME COURT OF QUEENSLAND

CITATION:

R v Toomath [2009] QCA 369

PARTIES:

R
v
TOOMATH, Jonathan Jason
(appellant)

FILE NO/S:

CA No 198 of 2009
DC No 272 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2009

JUDGE:

Keane and Muir JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against conviction dismissed.

2.   Application for leave to appeal against sentence dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where appellant convicted after a trial in the District Court of unlawful stalking, entering a dwelling with intent to commit an indictable offence and unlawful and indecent assault – where appellant submitted that as assault is an element of the offence of unlawful and indecent assault the defence of provocation was available to the appellant if raised on the evidence – where appellant submitted provocation was so raised – whether primary judge erred in failing to leave the defence of provocation for the jury's consideration

Criminal Code 1899 (Qld), s 245, s 268(1), s 269(1), s 352, s 668E(1)

Howe v The Queen (1980) 55 ALJR 5, cited
Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67, considered
R v Buttigieg (1993) 69 A Crim R 21, [1993] QCA 214, cited
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, considered

COUNSEL:

J B Godbolt for the appellant
M B Lehane for the respondent

SOLICITORS:

MDR Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. KEANE JA:  I have had the advantage of reading a draft of the reasons for judgment prepared by Muir JA.  I agree with those reasons and the orders proposed by his Honour.

1. MUIR JA:  The complainant was convicted after a trial in the District Court of unlawful stalking (count 1), entering a dwelling with intent to commit an indictable offence in the dwelling (count 3) and unlawful and indecent assault (count 5).  He was acquitted of wilful damage of a window (count 2) and unlawful assault with intent to rape (count 4).

1. He appeals against his conviction.  Counsel for the appellant made no submissions on the only ground of appeal in the notice of appeal but was given leave to include a new ground that the learned primary judge erred in failing to leave the defence of provocation for the jury's consideration.

The complainant's evidence

1. The evidence of the complainant was to the following effect.  She had known the appellant for four months or so prior to 4 July 2008, the date on which counts 3 and 5 were committed.  She had had a friendly relationship with the appellant which was not romantic or sexual in nature.  In the course of the relationship, she had borrowed money from the appellant and the timing and nature of her repayments had given rise to some friction between them.

1. On the day of the offences the complainant was at home with a friend, Mr Steinhardt.  An egg was broken on the front of her house, after which the appellant "showed up … in [her] driveway and started going off his nut and banging … on [her] [insect] screen, saying, 'You want to mess with bikies?'"  He then attempted to pull out an exterior air-conditioning unit.  At this stage, the complainant went outside the house and confronted the appellant.  He asked, "Where's my money?" and was told that it was under his door mat.  The complainant said that she had put the money there earlier in the week.  The appellant grabbed her by the breasts, pushed her up against the wall of the house and tried to "stick his hands down [her] pants".  The appellant, "going off his nut", said, "This is what it's going to feel like – it's going to be raped" and licked the side of her face and up and down her face.  She called out for help, managed to break free and enter the house.  The appellant threw her onto the floor inside the house and sat on top of her.  In that position the appellant said a couple of times, "This is what it's going to feel like to be raped".  When sitting on top of her, he attempted to rip off her shirt.  In response to the complainant's calls for help, Mr Steinhardt, who had been in a bedroom, came out and punched the appellant in the head.  He was then chased by the appellant.

1. After chasing after Mr Steinhardt, the appellant came back to the house, smashed a window and said to the complainant, "You don't want to mess with me and the bikies … Do you remember Underbelly?  … You are going to be taken off the road …"

1. The complainant and Mr Steinhardt left the house with a view to walking to another place where they would not be able to be found by the appellant.  After they had been walking for a few minutes, the appellant came up to them in his car, alighted and ran after them, yelling out to Mr Steinhardt, "You're going to be dead.  I'm going to put you underneath a pole – bury you underneath a pole."  The appellant continued to chase the complainant and Mr Steinhardt, intermittently, driving up to them and calling out abuse.

1. Approximately two weeks prior to 4 July 2008, the appellant drove various vehicles past the complainant's house during the day or at night at least daily and would walk around the house, banging on the windows.

Mr Steinhardt's evidence

1. Mr Steinhardt gave evidence of being in a bedroom in the house on 4 July 2008 and hearing "a scuffle going on at the front of the house" and noises consistent with the complainant being pulled in and out of the house.  When he came onto the scene of the scuffle, he saw the complainant "lying pretty much on her back" with the appellant crouched down, knees on either side, over the top of her.  He heard the appellant say five or six times, "Would you like to get raped, slut?" and he then punched the appellant in the head.  He went outside, followed by the appellant, who drove off in his utility.  After trying to use a neighbour's telephone he returned to the house and telephoned the police from his mobile phone.  Shortly afterwards the appellant returned in his utility, came to the house and broke a window before driving off.  He and the complainant commenced walking to a friend's house at Capalaba and were accosted on the footpath by the appellant.  During their walk the appellant kept following them in his car, approaching them from time to time and making threats.

The evidence of Senior Constable Pugh and another witness

1. Senior Constable Pugh gave evidence of interviewing the complainant on 4 July 2008.  He said that in the course of the interview, the complainant gave this account of the appellant's actions:

"He grabbed me on my boobs, grabbed me on my vagina, pushed his fingers in down there and grabbed me on my backside.  He then pushed me to the ground, laid on top of me and said, 'Do you want to be raped?  Do you want to be raped?'  Jason then licked me on my cheek.  Clinton came out of the room and got Jason off me and then he ran off."

He noticed a red mark between the complainant's breasts. 

1. A person called by the prosecution gave evidence that he was working on a vehicle at a unit block at 10 Elwyn Street, Capalaba, when he noticed a male and female enter the driveway.  They asked to hide behind the vehicle and he allowed them to use a telephone to contact the police.

The appellant's evidence

1. The appellant gave evidence to the following effect.  He lent the complainant money from time to time, which she repaid, with the exception of his last advance.  Prior to the incident, he and the complainant had had only one encounter of a sexual nature.  On 4 July 2008 he sent a text message to the complainant asking where his money was.  In response, the complainant rang him and abused him, saying that she would telephone the police and allege that he had been stalking her.  He then went around to her place to find out "where the money was" and was abused by her again.  As he went to go to his car he bumped an air-conditioner, which, at the time, was propped up with a stick.  The complainant, who was wearing jeans, came out of the house saying, "You bastard, you're stealing it.  Leave my air-conditioner alone."  She delivered other oral abuse.  He "went back around the car to meet her at the sliding door", asking, "Where's my money?" and the complainant continued her oral abuse.

1. Two or three weeks before this incident he had had an altercation with the complainant about repayment of loan moneys in the course of which he was abused by the complainant who called him, amongst other things, "small dick" and tried to get him aggravated enough to hit her.  On 4 July, he believed that she again tried to get him aggravated enough to hit her.  He said, "'A couple of weeks ago you were trying to get me to hit ya, and you wanted me to hit ya, and I didn't hit ya.'  I said, 'I suppose this week you want me to rape ya?', and with that, as I said that, I've grabbed her on the vagina, and said, 'I suppose you want me to rape ya.'"

1. These words were spoken in front of the house at the screen door.  The appellant heard a noise, turned to look and the complainant started pushing him and hitting him.  He pushed her away and Mr Steinhardt came through the door and "smacked" him in the side of the head.  He chased Mr Steinhardt down the driveway, but Mr Steinhardt eluded him, and returned to the house, where he locked himself in with the complainant.  The appellant returned to the house asking, "Where is my money?  All I want is my money."  The complainant abused him and told him that she was going to call the police and tell them that he had been stalking her.  The appellant slammed the window, which broke, and he departed after saying to the complainant, "Good, me address is 61 Allenby Road.  Send 'em up."  The appellant drove off with a view to seeing "a friend at the pub".  On the way, he passed the complainant and Mr Steinhardt, stopped his car, jumped out and said, "Do you want to go at me now whilst I'm looking instead of hitting me from the side?"  The complainant and Mr Steinhardt ran off.

1. In cross-examination, the appellant said of the incident, "She assaulted me first and I pushed her away … I was arguing with [the complainant] … I heard a bang inside which sounded like a door … as I proceeded to look into the house to see what the noise was, she started attacking me and abusing me again, so I pushed her back again and that's when I grabbed her on the vagina and said, 'How about you pay for it with this, like in the contract?'"  That's what he was doing when Mr Steinhardt came out of the house and struck him.

1. An invoice book kept by the appellant was put in evidence in the course of the appellant's evidence-in-chief.  It was dated 13 May 2008 and headed with the complainant's name printed in handwriting.  Under the words, "For the loan of $400 to be paided (sic) on the tems (sic) below or as agreed as personal favours" appeared a list of repayments totalling $400.  Asked to explain the reference to "personal favours", the appellant said:

"Well, I had - when she come around to ask me for the money for Housing Commission, because she hadn't paid her rent or something, I'd already had various conversations with her about money she'd already owed me which she hadn't paid back, and I said I need some sort of - well, rock solid evidence to prove that I'm going to get it back - a contract of some sort - and she agreed to that, and I said, 'Well, you haven't been paying me any money, you haven't been giving everything back properly, you haven't got anything else to give me when you don't have money, so how are you going to pay me?', and that's when I suggested, well, personal favours.  I've already asked her in previous times to do housework to pay back money, which came to no avail."

1. The appellant denied striking the complainant during the subject incident.

Counsel for the appellant's submissions

1. It was argued on behalf of the appellant that as assault, as defined in s 245 of the Criminal Code 1899 (Qld), is an element of the offence of unlawful and indecent assault created by s 352 of the Code, the defence of provocation was available to the appellant if raised on the evidence.[1]  Counsel for the defence did not seek a direction in terms of s 268 of the Code and nor did the primary judge give such a direction.  However, it is clear that counsel "completely overlooked" the potential operation of s 268 and was not motivated to ask for an appropriate direction because of a tactical forensic decision.  It was the duty of the trial judge to give directions to the jury on provocation, notwithstanding provocation not being relied on by the defence, as the evidence properly raised the issue of provocation.  See Howe v The Queen.[2]

   [1]See e.g. Kaporonovski v The Queen (1973) 133 CLR 209.

   [2](1980) 55 ALJR 5.

1. Counsel placed reliance on the following passage from the reasons of Gibbs CJ, Wilson, Brennan and Deane JJ in Van Den Hoek v The Queen:[3]

"The question then that arises is whether there was evidence which, if believed, may reasonably have led the jury to return a verdict of manslaughter on the ground of provocation."

[3](1986) 161 CLR 158 at 162.

1. Reliance was placed also on the following passage from the reasons of this Court in R v Buttigieg:[4]

   [4](1993) 69 A Crim R 21 at 27.

"(a)In a case where the evidence gives rise to a question of provocation, the onus lies on the prosecution to disprove provocation beyond a reasonable doubt:  Stingel (at 332-333, 334; 199, 200).

(b)The question whether provocation should be left to the jury falls to be resolved by reference to the version of events most favourable to the accused:  Stingel (at 318; 188).

(c)The judge should withhold the issue of provocation from the jury if it is such that no reasonable jury could hold the evidence sufficient to raise a reasonable doubt:  Rose [1967] Qd R 186 at 192; Stingel (at 333; 199).  However, a trial judge should leave the issue to the jury if in the least doubt whether the evidence is sufficient:  Callope (at 462-463); Van Den Hoek (at 161-162, 169; 100, 106); Stingel (at 334; 200).

The failure of an accused person to testify is not fatal to provocation and a jury is able to infer provocation from evidence, suggesting a possible loss of self-control: Lee Chun-Chuen [1963] AC 220 at 233; Van Den Hoek (at 169; 106).
Further, if there is evidence, it is the duty of the judge to leave the question of provocation to the jury notwithstanding that it has not been raised by the defence and is inconsistent with the defence which is raised:  Stingel (at 333, 334; 199, 200).

(d)If a verdict of manslaughter is not open to a reasonable jury under s 304 of the Code, then any misdirection as to the elements of that section or the common law rules concerning provocation will have produced no substantial miscarriage of justice and an appeal based upon such an alleged misdirection is properly to be dismissed under the proviso to s 668E of the Code:  Lee Chun-Chuen; Moffa (1977) 138 CLR 601; see also Wilde (1988) 164 CLR 365; 31 A Crim R 331.

(e)Although there is an intention to kill or inflict serious bodily harm, a verdict of manslaughter due to provocation may result if the intention arises from the provocation:  Parker (1963) 111 CLR 610 at 629-630, 652-653, 658-659, 679; Johnson (1976) 136 CLR 619 at 634; Lee Chun-Chuen (at 228); Van Den Hoek (at 166; 103-104).

(f)Conduct can amount to provocation for the purpose of s 304 of the Code if a reasonable jury could conclude that it might be capable of provoking an ordinary person to retaliate as the accused person did:  Parker (at 641); Johnson (at 637-638, 658); Stingel (at 324-325; 193).

Consideration

1. Section 269(1) of the Code relevantly provides:

"A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person 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 the person's passion to cool, and if the force used is not disproportionate to the provocation …"

1. Section 268(1) of the Code relevantly provides:

"The term provocation, used with reference to an offence of which an assault is an element, means and includes … any wrongful act or insult of such a nature as to be likely, when done to an ordinary person … 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."  (emphasis added)

1. According to the appellant in his evidence-in-chief, he had gone to the complainant's house, been abused, left the house to go to his car and was then accused of stealing the complainant's air-conditioner.  He came back from the car to the house, demanded repayment of money and was verbally abused.  He formed the belief that the complainant was abusing him with a view to provoking him to strike her.  Nevertheless, he "had grabbed her" in the crotch, saying, "I suppose you want me to rape ya?"  He then heard a noise inside the house and turned to look.  The complainant started to push and hit him.  He pushed her away and was then struck in the head by Mr Steinhardt.

1. In cross-examination, the appellant said that the grabbing "on the vagina" occurred after he heard the noise inside the house and after the complainant started attacking and abusing him again.  Consequently, there was evidence before the jury upon which, if accepted, the jury could find that the subject assault was a response to a physical attack on and verbal abuse of the appellant by the complainant.  The nature of the attack or the degree of force applied in it was not described by the appellant.  The complainant denied that there was an attack.  There is no suggestion in the evidence that the appellant suffered any injury or pain or feared any injury.  Nor is there any suggestion in the evidence that the complainant did or said anything which may have provoked a sexually orientated response.

1. The circumstances in which provocation should be left to a jury are discussed in the following passage from the reasons of Brennan, Deane, Dawson and Gaudron JJ in Masciantonio v The Queen:[5]

"The answer to the question whether the trial judge should have left provocation to the jury at either stage of events in this case depends upon whether there was evidence which was capable of constituting provocation.  However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely.  It is 'whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense.'"  (footnote deleted)

[5](1995) 183 CLR 58 at 67-68.

1. Their Honours then proceeded to compare the approach to be adopted by a trial judge with that of an appellate court:[6]

"The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left, but as a matter of practicality a trial judge is likely to lean towards leaving provocation if he or she can.  As was observed by the Privy Council in Lee Chun-Chuen v The Queen 'there is a practical difference between the approach of a trial judge and that of an appellate court.  A judge is naturally very reluctant to withdraw from a jury any issue that should properly be left to them and he is therefore likely to tilt the balance in favour of the defence.  An appellate court must apply the test with as much exactitude as the circumstances permit."  (footnote deleted)

[6]Masciantonio v The Queen (1995) 183 CLR 58 at 68.

1. The fact that the appellant gave no evidence in which he claimed to have been deprived of the power of self-control did not remove the obligation on the trial judge to leave provocation to the jury if "there was some evidence fit for its consideration."[7]

   [7]Van Den Hoek v The Queen (1986) 161 CLR 158 at 161.

1. The fact that the evidence relied on to raise provocation is lacking in credibility does not mean, necessarily, that provocation should not be left to the jury.  As was observed in the joint reasons in Van Den Hoek v The Queen:[8]

" … it is trite to say that in a case of provocation all that the defence need do is to point to material which might induce a reasonable doubt."

[8](1986) 161 CLR 158 at 162.

1. By operation of s 269(1) of the Code, for offences in which assault is an element, the force used must not be "disproportionate to the provocation". The question of proportionality, may involve consideration of the nature as well as the degree of force applied and the circumstances in which it is applied. In other words, the question of whether the force used by the accused is disproportionate to the provocation is to be answered by looking at the circumstances in which force is used, the manner and location of its application, as well as the extent of the force applied.

1. It does not seem to me that, on the version of events most favourable to the accused suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the appellant's indecent assault was unprovoked.  There is nothing in the evidence which suggests a lack of self-control at the time of the incident.  If the appellant's evidence-in-chief is to be believed, he understood that he was being goaded into assaulting the complainant.  On this version of the facts he was verbally abused by the complainant and responded, not by striking her, but by grabbing her "on the vagina" whilst using sexually explicit language.  In the version of the subject incident given by the appellant in cross-examination, there was an argument, the complainant assaulted him and he pushed her away.  The argument continued.  The complainant attacked him and abused him orally.  He "pushed her back again" then "grabbed her on the vagina" and said, "How about you pay for it with this, like in the contract."  Both of the appellant's versions are much more consistent with conduct of a deliberate and contemptuous nature than with a spontaneous act arising out of a loss of self-control.

1. More significantly, it would not have been open to a jury acting reasonably to conclude that the appellant's force was not disproportionate to the provocation.  An ordinary male in the appellant's position, if subjected to a minor assault or abuse by a slightly built female, such as the complainant, may have pushed her away.  It is even arguable that, startled by a blow, such an ordinary person may have reacted spontaneously by shoving or delivering a retaliatory blow.  But such an ordinary male in the circumstances would not have reacted by acting and speaking as the appellant said he did.

1. Counsel for the appellant submitted that the force used by the appellant on his own versions of the incident was not disproportionate to the provocation, having regard to there having been some sexual contact between the appellant and the complainant on one occasion and to "the personal favours" bargain alleged by the appellant.  That contention lacks merit.  The appellant and the complainant had an argument over repayment of loan moneys.  The complainant was abusive.  The background on which the appellant's counsel relies, if accepted by the jury, might provide some explanation of the words actually spoken and of the motivation behind the accompanying acts.  It does nothing, however, to make the force used any more proportionate to the provocation relied on.

1. The appellant did not say how the complainant assaulted him.  An assault may take many forms and the responses assaults in their great variety may provoke in an ordinary person are equally variable.  And, of course, many assaults, having regard to the circumstances in which they occur and the nature of the protagonists, may provoke no physical response.  The lack of evidence of the nature of the alleged assault by the complainant made it impossible for the jury to do more than speculate as to whether the "assault" could have caused an ordinary person to lose self-control.  The evidence was thus insufficient to raise provocation.

1. If I had not concluded that the primary judge did not err in not leaving provocation to the Jury, I would have regarded this a proper case for the application of s 668E(1) of the Code as "no substantial miscarriage of justice has actually occurred."

1. As I have said, there was nothing of a sexual nature in the complainant's abuse or actions. 

1. The prosecution case was compelling.  The appellant's evidence was less than compelling.  There is cogent evidence that the complainant and Mr Steinhardt fled from the complainant's house out of fear of the appellant and that he pursued them in his utility.  Although he claimed to have been provoked, he did not swear to any loss of self-control, or give evidence of any words used or acts done by the complainant, from which it could be concluded that an ordinary person with ordinary powers of self-control would have lost self-control and acted in a manner which would have encompassed the appellant's actions or that the force used was proportionate to the provocation.

1. There was ample evidence before the jury which, if accepted, would have entitled the jury to return guilty verdicts on counts 1 and 3.  No submissions were made to the contrary.  The appellant also applied for leave to appeal against sentence but his counsel informed the Court that that application would not be pursued if the appeal against conviction was unsuccessful.

1. Accordingly, I would order that the appeal and the application for leave to appeal against sentence be dismissed.

1. DAUBNEY J: I also agree with the reasons for judgment of Muir JA and the orders he proposes.