S v Barnes
[2020] WASC 327
•11 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: S -v- BARNES [2020] WASC 327
CORAM: TOTTLE J
HEARD: 23 JULY 2020
DELIVERED : 11 SEPTEMBER 2020
FILE NO/S: SJA 1115 of 2019
BETWEEN: S
Appellant
AND
JORDAN BARNES
Respondent
ON APPEAL FROM:
For File No: SJA 1115 of 2019
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G SMITH
File Number : JO 2641 of 2018
Catchwords:
Criminal law - Appeal against conviction - Defence of provocation - Error of law and fact - Whether magistrate considered totality of conduct - Whether magistrate determined severity of provocative conduct - Leave to appeal refused
Criminal law - Appeal against conviction - Section 31 Magistrates Court Act 2004 (WA) - Whether reasons of magistrate identified findings of fact relevant to defence of provocation - Whether reasons of magistrate exposed finding of fact between conflicting evidence - Leave to appeal refused
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Criminal Code (WA), s 245, s 246, s 247, s 248, s 313(1)(a)
Magistrates Court Act 2004 (WA), s 31
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr F P Merenda |
| Respondent | : | Mr D Anderson & Mr L W Geddes |
Solicitors:
| Appellant | : | Sharleena Ramdhas Barrister & Solicitor |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Bennett v Carruthers [2010] WASCA 131
Brewer v Bayens [2002] WASCA 37
Evans v The State of Western Australia [2011] WASCA 182
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Manonai v Burns [2011] WASCA 165
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601
Momand v Merttens [2015] WASC 10
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
TOTTLE J:
Introduction
The appellant applies for leave to appeal against his conviction for the offence of aggravated common assault contrary to s 313(1)(a) of the Criminal Code (WA). The circumstance of aggravation was that the complainant was the appellant's wife with whom the appellant lived in a domestic relationship at the time of the assault.
The offence was committed on 17 September 2017. The appellant was convicted following a trial that took place over four days, two days in May and two days in July 2019. The magistrate gave ex tempore reasons for decision and entered a judgment of conviction on the last day of the trial, 9 July 2019. A spent conviction order was made and in light of that order, and in order to protect the privacy of the complainant and her children I have anonymised this judgment.
The appeal notice was filed on 4 September 2019. The appellant requires an extension of time within which to bring his application for leave to appeal as the last day for filing the application was 30 July 2019. The appellant's solicitor has sworn an affidavit in which she has explained the reasons for the delay in filing the application. The delay was limited and it has been explained satisfactorily. An extension of time within which to bring the application will be granted.
The appellant admitted the assault. The sole issue at trial was whether the assault was unlawful. The appellant raised the defences of provocation,[1] the use of force to prevent the repetition of insult,[2] and self-defence.[3]
[1] Criminal Code s 245, s 246.
[2] Criminal Code s 247.
[3] Criminal Code s 248.
In his appeal notice, as amended at the hearing of the application, the appellant raises two grounds of appeal directed to the magistrate's rejection of the defence of provocation. The substance of the first ground was that in making an assessment of the severity of the provocation the magistrate failed to assess the totality of the complainant's conduct. By the second ground the appellant contended the magistrate failed to deliver adequate reasons.
A factual overview
On the afternoon of 17 September 2017 the complainant went shopping with her mother, her then 12 year old daughter, and her 18 month old infant son of whom the appellant is the father. The complainant bought some plants. When she returned home with her mother and children, the appellant came out to help unload the car. The appellant expressed his annoyance the complainant had spent money on plants saying 'what the fuck are these'. This remark set the tone for the exchanges between the appellant and complainant in the events that followed.
An argument ensued after which the complainant and the appellant went into separate rooms. The complainant went into the couple's bedroom and while she was in the bedroom, her mother left the house. Sometime later the complainant came out of the bedroom and started to prepare dinner but was distracted by her young son.
The complainant went into the theatre room where the appellant was sitting. She asked him to leave the room so she could turn on the television to placate their son. The appellant refused to leave the room saying the children could watch the television with him in the room.
The complainant protested in vehement and aggressive terms about the appellant's refusal to leave the theatre room. In response the appellant swore at the complainant but did not leave the room.
The complainant went in and out of the theatre room on four occasions in the course of a prolonged and heated argument in which each party swore at the other. Although the evidence did not permit more precise findings the sequence of events was broadly as follows:
(a)On the first occasion the complainant went into the room she slapped the appellant and left the room.
(b)When the complainant returned she tried to pull the appellant off the couch on which he was sitting.
(c)At some point, but it was not clear exactly when this occurred, there was a scuffle as the appellant tried to restrain the complainant. The complainant and the appellant ended up on the ground with the appellant on top of the complainant. The complainant grabbed at the appellant's face in an attempt to get him off her. The complainant's daughter, who witnessed the event, told the appellant to get off the complainant and he did so. The daughter took the parties' son, who was also present while these events were taking place, out of the room and put him in his cot.
(d)It is not clear exactly when this occurred, but the complainant threatened to smash a hard disk drive unless the appellant left the room. When he did not leave the complainant threw the hard disk drive against the wall, smashing it. The complainant then threatened to smash a Playstation device, and again, when the appellant refused to leave the room, the complainant smashed it on the floor.
(e)The complainant left the theatre room but returned a short time later and sat on the edge of the couch on which the appellant was sitting and used her legs to try to force the appellant off the couch. The complainant kicked the appellant in the course of this episode.
(f)The appellant gave evidence that as the complainant was kicking him, she said, 'If you don't do as I say, you'll never see your son again'. The complainant denied saying these words and maintained she said, 'Come on [appellant], like seriously you can't do this, you know, if you're going to be a good parent, you know, if you're going to have the kids, you have to be able to prioritise them, you know, and get up, get up and leave'. The magistrate assumed in the appellant's favour that the complainant had made the statement to the effect the appellant would never see his son again if he did not comply with her demand that he leave the room.
(g)At that point the appellant grabbed the complainant around the neck with his right hand and squeezed her throat. The appellant's evidence was that he pushed the complainant onto the couch and the complainant's evidence was that he lifted her up. The assault was witnessed by the complainant's daughter who called out to the appellant to stop.
(h)The complainant collapsed. At trial it appeared to be accepted that the complainant lost consciousness even if only momentarily. With assistance from her daughter, the complainant got up. The appellant's evidence was that she immediately started hitting him again. The complainant's evidence was that she left the room but returned some minutes later and punched the appellant in the face.
The complainant's father arrived at the house not long after the events I have just described. He had been telephoned by the complainant's daughter and asked to come over. The complainant's father gave evidence that he spoke to both the complainant and the appellant. His evidence was that the appellant said words to the effect, 'I did it. I choked her out. I ‑ I don't know why I did it. I'm ‑ I'm not running away. I'm not hiding. I'm here to take my medicine'. That evening the appellant went to stay with the complainant's parents. He remained there for a few days before returning to the family home. The complainant and the appellant separated in mid-November 2017.
On 23 November 2017 the appellant published a statement on Facebook containing lengthy account of the incident on 17 September 2017. In the statement the appellant gave the following account of the events.
On the 17th September 2017 I choked my wife [the complainant].
We were having an argument over something completely inconsequential (lavender plants) which I'd sought to disengage from by going into the theatre.
[The complainant] told me to get out of the theatre and I refused. She wanted the theatre for the kids because she needed them out from under her feet.
[The complainant] told me that she wanted the theatre for the kids, I told her they were more than welcome to be in there with me and watch whatever they want. [The complainant] maintained that I wasn't in the right headspace to have the kids so they shouldn't be near me. At this point I hadn't even raised my voice.
[The complainant] begun yelling at me from the theatre doorway but I stubbornly refused to move. I said how there's no need to yell but she continued.
I stubbornly held my position because I wanted to isolate myself in a safe space so things could diffuse.
[The complainant] next got centimetres from my face continuing her insistence I leave the theatre. I remained.
[The complainant] resorted to landing blows on me, primarily around my head. Slaps or punches I don't know. I pleaded that there was no need for the violence, that I just needed to be left alone.
Next [the complainant] threatened to break items in the theatre unless I moved. I didn't move so first was an external hard drive to get thrown across the room and smashed. Next was the PS3 which got picked up and smashed into the PC repeatedly doing damage to both.
At this stage I wanted to go across the room and punch her but I did not, I remained seated.
Of what comes next I can't remember the order but I know the events.
I tried to restrain [the complainant] on the floor thinking that if she couldn't hit me perhaps she could calm down. I was of course wrong nor was I able to restrain her.
[The complainant] was situated on the couch to the right of me in such a position she could complement her strikes to my head with kicks to the same. Something she took full advantage of. I still did my utmost best to remain calm and avoid action, just stay still, whether [sic] the blows.
[The complainant] then presses the button that pushed me over the edge.
She said to me 'If you don't do as I say you'll never see your son again'.
I saw red and without conscious thought I moved over her, my right hand finding its way to and grasping on to her neck and without thinking I held and I choked her and I remember saying something to the effect of 'don't you ever use my son against me'.
I was angry. I don't know how long I held on, I didn't hold on for any deliberate time or result but I held on long enough for her to pass out and when I did release and sat back her arm or leg or something was draped across me and I pushed it because I couldn't stand the contact and her limp body fell onto the floor.
[The complainant] proceeded to have a literal fit on the floor and I didn't help her. I didn't know how to help or what to do or what was happening or the severity of my actions. I honestly thought what I'd done was something less than punching. Had I held on much longer it could have been permanent brain damage, longer again and I could have killed her.
When [the complainant] came to the blows from her resumed…
…
Eventually [the complainant's father] came to me in the theatre, he sat next to me, put his arm around me and said .are you okay?'
I broke down. I sobbed, I said 'No, I am not okay. I have just choked out [the complainant] and I don't even know why we were arguing'.
…
There was a good deal of evidence adduced about events after 17 September 2017. This was adduced for the purposes of impugning the complainant's credit but it is unnecessary to refer to these events for the purposes of determining this application.
The magistrate's reasons
After referring to the charge and the circumstance of aggravation, the magistrate stated that what was in dispute was whether the assault was unlawful. He recorded his view as to how the defences of provocation, prevention of repetition of insult and self-defence arose on the evidence and referred to the burden and standard of proof in relation to those defences.[4]
[4] ts, 9 July 2019, 33.
The magistrate outlined the evidence and made some observations about the credibility of the witnesses and the appellant. In respect of the complainant, the magistrate said that he did not think that she was exaggerating or was obviously vindictive and appeared to accept some blame for what had taken place. His Honour described the complainant's behaviour, the smashing of the hard drive and PlayStation as 'very erratic behaviour' which showed an over-reaction and a loss of control.[5]
[5] ts, 9 July 2019, 39 - 40.
The magistrate considered that the appellant's evidence was not diminished or damaged by cross-examination. His Honour thought that the appellant 'was exaggerating when he mentioned an ongoing, sustained attack and overwhelming threat' but was unable to reject with any certainty the appellant's claim that the complainant struck him as part of her effort to get him off the couch. His Honour could not reject the appellant's evidence that the complainant had said to him that he would not see his child again.[6]
[6] ts, 9 July 2019, 41.
The magistrate referred to the difficulty in making findings in relation to assaults of the nature that took place on 17 September 2017. His Honour said:[7]
[7] ts, 9 July 2019, 39.
In assault trials it is often very difficult for a court to determine exactly what has taken place. This is the court's experience even when we have neutral and objective witnesses in a position to give evidence. Incidents of assault or incidents such as the one that took place on 17 September 2017 will often happen quickly, it's unpleasant and it's difficult for people to recall with precision exactly what happened and in what sequence. In his Facebook post two months later … even the accused accepted that he could not remember the order of events. But a determination of the facts must be made before a consideration of the possible defences could be undertaken.
The magistrate said he considered the Facebook post to be a critical piece of evidence. He said:[8]
[8] ts, 9 July 2019, 41 - 42.
I consider the Facebook post which [the appellant] made on 23 November 2017 to be a critical piece of evidence. I'm not sure why he did it. It was at a time which was two months after the event. It seems to me to be a desire to come clean to the world at large. In fact, 'coming clean' was mentioned in the first line of that post. It was made at a time when he had plenty of time to think about what had happened and to recall the events, and it was made at a time before any criminal charge had been contemplated.
He now seeks to resile from what he said in that post and he now seeks to try to explain its contents in a way which does not contradict his present position. His present position being that the force that he used was reasonable in the circumstances. In other words, my view is that he is now adopting a position which is different from that expressed in the Facebook post. In that post, he said that he had tried to remain calm, but that [the complainant] pressed the button which pushed him over the edge.
Pressed the button by saying that about him not seeing his child. In that post, he said that he saw red and that he choked her. He said that he was angry. Being angry is different from what he said in court yesterday. He said in the post that he doesn't know how long he held on to her neck or throat, but it was long enough for her to pass out. He said that when he released his grip on her, she was limp, so he pushed her off him and onto the floor.
He said in the post that she then had a fit on the floor and that he did not help her. He said in the post that had he held on much longer, he could have caused permanent brain damage to her, and longer still, he could have killed her. He said that he had done a very wrong thing, and that he said to her father that he had just choked her out. He said there was no excuse for what he did, and he said that it didn't matter what buttons she had pressed; there was no excuse.
He said he could not stop himself even though the children were witness to it. That, to me, is a heartfelt volunteered confession of wrongdoing. It's an acknowledgement of having lost control and having gone too far, and I find it to be extremely compelling evidence in this case. I would also like to make the point that there is nothing said in that Facebook post that appears to be relevant to or raises the question of self-defence, or a defence under section 247.
The magistrate rejected the defence of self-defence. It is unnecessary to refer to his reasons for doing so.
Next, the magistrate considered the defence of provocation. I set out the critical passages in his Honour's reasoning later when I deal with the appellant's criticisms of the adequacy of the reasons. Essentially, his Honour found that a reasonable person would not have acted as the appellant did in the face of the provocation from the complainant - he concluded that the force used by the appellant was disproportionate to the provocation.
In considering the threat made by the complainant that 'you will never see your child again', his Honour stated it was:[9]
[9] ts, 9 July 2019, 43 - 44.
… an unpleasant thing to say, and I would expect that it would have an effect on any father. It would make anybody angry, in my view, or perhaps more angry than they already were. But applying what was said in paragraph 35 of the Hart case which has been brought to my attention, I do not accept that saying that would be sufficient to cause a reasonable person to lose control to such an extent as to choke the person who said it into unconsciousness.
Many things get said in the course of heated domestic arguments; I don't consider that it can be said to justify such an extreme response. Although there is no medical evidence on the subject, I am sure that to choke a person into unconsciousness requires a considerable force and sustained over a period of time. It's a requirement of provocation defences that the force used must not be disproportionate to provocation which is offered, and my view, this force which I have been talking about clearly is disproportionate.
So at the end of the day, I am satisfied that the conduct of the complainant may well have provoked the accused to some extent, that it may well have provoked him to lose control and act on the sudden. But I do not consider that her conduct was sufficiently provocative in all of the circumstances to justify an assault of this magnitude and of this seriousness. And I am of the view that choking her into unconsciousness was clearly disproportionate to any provocation that she may have offered.
I'm satisfied that the prosecution has negatived the defence of provocation beyond a reasonable doubt.
The magistrate rejected the defence of the use of force to prevent the repetition of insult on the ground the force used by the appellant was not 'reasonably necessary'.[10]
[10] ts, 9 July 2019, 44.
Grounds of appeal
The grounds were as follows:
1The magistrate made an error of law and fact when he considered the conduct of the complainant on a piecemeal basis, and without regard to the objective circumstances of the appellant, the purposes of determining the severity of the complainant's provocative acts towards the appellant and, in turn, whether a reasonable person would have lost control and acted as the appellant did.
2The magistrate's reasons for decision were inadequate in that they failed to disclose the magistrate's reasoning as to which of the versions of what occurred on 17 September 2017 - as those versions were set out in the evidence of the complainant, an admission made on Facebook by the appellant and the evidence of the appellant - were accepted (and it would follow, rejected) for the purposes of determining whether the prosecution had negated the defences of self-defence, provocation and repetition of insult.
Leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), meaning that leave to appeal is required for each ground of appeal.[11]
[11] Criminal Appeals Act 2004 (WA) s 9(1).
Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of success.[12] This means that each ground must have a real, rational and logical prospect of succeeding.[13]
[12] Criminal Appeals Act 2004 (WA) s 9(2).
[13] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Provocation - the law
There was no dispute between the parties as to the law.
Provocation is a complete defence to a charge of assault.[14]
[14] Criminal Code (WA) s 245 and s 246.
The defence will apply to remove criminal responsibility for an assault if:[15]
[15] Criminal Code (WA) s 246; Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 324, 332.
(a)there was a wrongful act or insult;[16]
[16] Words alone may constitute provocation, but the words must be of an extreme and exceptional character: Evans v The State of Western Australia [2011] WASCA 182 [237] (Pullin JA) citing Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601, 616.
(b)the provocation is capable of causing an ordinary person to lose self-control and act in the way in which the accused did (the objective element);
(c)the accused is in fact deprived by the provocation of the power of self-control (the subjective element);
(d)the accused acts upon the provocation 'on the sudden and before there is any time for his passion to cool'; and
(e)the force used is not such as to cause death or grievous bodily harm.
In assessing the objective element, the court must:[17]
[17] Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58, 67 (Brennan, Deane, Dawson & Gaudron JJ).
(a)identify any relevant personal characteristics of the accused which may affect the gravity of the provocation;[18]
[18] But not a characteristic which itself lowers the accused person's capacity for self-control: Evans [135] (McLure P, Mazza J agreeing).
(b)assess the gravity of the provocation to a person with the personal characteristics and past history of the accused; and
(c) ask whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions.
Although s 246 of the Criminal Code makes reference to proportionality, it is well-settled that the question of proportionality is absorbed as part of the test of the effect of the provocation upon the ordinary person.[19]
[19] Masciantonio v The Queen, 67; Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441[67] (Steytler J, McLure & Pullin JJ agreeing).
Whether the objective and subjective elements are satisfied are questions of fact.[20]
[20] Criminal Code (WA) s 246.
In the course of his reasons the magistrate referred to the decision in Hart v The Queen, in which, in the context of a discussion of the degree of unity of the notions underlying the common law defence of provocation and the statutory defence, Steytler J (as his Honour then was), described the approach to the objective and subjective elements of the defence as follows:[21]
[21] Hart v The Queen [35].
In both cases it is, of course, necessary to apply both a subjective and an objective test, asking whether the provocation in fact caused the accused to lose his power of self‑control and whether a reasonable person so provoked could have lost his self‑control and acted as the accused did: see Moffa v The Queen (1977) 138 CLR 601 at 612 ‑ 613, per Gibbs J, and Roche, at 280, per Burt CJ. The position in that regard is conveniently summarised in Masciantonio, above, at 66, by Brennan, Deane, Dawson and Gaudron JJ as follows:
'The provocation must be such that it is capable of causing an ordinary person to lose self‑control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self‑control and the accused must act while deprived of self‑control before he has had the opportunity to regain his composure.
It follows that the accused must form an intention to kill or to do grievous bodily harm (putting recklessness to one side) before any question of provocation arises. Provocation only operates to reduce what would otherwise be murder to manslaughter. Since the provocation must be such as could cause an ordinary person to lose self‑control and act in a manner which would encompass the accused's actions, it must be such as could cause an ordinary person to form an intention to inflict grievous bodily harm or even death ….
Ground 2 - the adequacy of the magistrate's reasons
There is a considerable overlap between the grounds and it is convenient to begin by dealing with the appellant's complaints concerning the adequacy of the magistrate's reasons.
Applicable principles
The principles to be applied in determining the adequacy of reasons delivered by a magistrate are well known.
Section 31 of the Magistrates Court Act 2004 (WA) applies to both civil and criminal proceedings and provides:
(1)The court's reasons for a judgment in a case -
(a)need only identify the facts that the court has accepted in coming to its decision and give the reasons for doing so;
(b)need only identify the law of the court is applied in coming to its decision and give reasons for doing so;
(c)need not canvass all the evidence given in the case;
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given only or in accordance with subsection (1) is not of itself a ground for reversing or modify it on an appeal.
All judicial officers owe a duty to provide reasons that expose the process by which a decision has been reached and s 31 of the Magistrates Court Act 2004 (WA) does not relieve a magistrate from that duty. The reasons must enable the parties to understand the basis for the decision and, most importantly, enable the losing party to determine whether or not there are any grounds of appeal.[22]
[22] Manonai v Burns [2011] WASCA 165 [53] (Hall J, Pullin & Murphy JJA agreeing).
Where one set of evidence is accepted over a conflicting set of significant evidence a trial judge is required to explain why one has been accepted over the other, that is, explain the intellectual processes which have led to the acceptance of one set of evidence and the rejection of the other.[23]
[23] Manonai v Burns [52]; Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525.
Reasons are to be considered as a whole and they are to be read in the context of the evidence adduced at the trial.[24]
[24] Bennett v Carruthers [2010] WASCA 131; Momand v Merttens [2015] WASC 10 [47] (Corboy J).
An appeal court may take into account what may be legitimately inferred from the reasons.[25]
[25] Bennett v Carruthers; Momand v Merttens [47].
A beneficial construction is to be given to ex tempore statements of reasons given by a magistrate.[26]
[26] Brewer v Bayens [2002] WASCA 37 [31] (McLure J).
A failure by a magistrate to mention a matter expressly does not necessarily give rise to an inference that it was not considered.[27]
[27] Brewer v Bayens [31].
The appellant's contentions
The appellant contends the magistrate's reasons were inadequate because:
(a)the reasons failed to identify the facts the magistrate had accepted for the purposes of considering what had occurred inside the theatre room on 17 September 2017, which was an essential component of his requirement to consider each of the available defences but, in particular, for the purpose of the objective element of the provocation defence and the content and extent of the provocative conduct said to have given rise to the assault;
(b)although the magistrate acknowledged the clear conflict in the evidence, the reasons failed to identify whether he had in fact rejected the appellant's sworn evidence at trial; and
(c)although the magistrate referred to the Facebook post as 'the critical piece of evidence', his Honour's reasons failed to identify what he had found had occurred in the lead up to the appellant grabbing the complainant by the throat.
Consideration
It is helpful to start by stating my understanding of the use made by the magistrate of the Facebook post. His Honour described this statement as a 'critical piece of evidence' and referred to a number of factors why what was said in the Facebook post made it a reliable account of the incident. They were: it was made two months after the event, it was an expression of the appellant's desire to come clean to the world at large, it was made at a time when the appellant had plenty of time to think about what had happened and to recall events, and it was made before any criminal charges had been contemplated.
In the course of oral argument on the present application, counsel for the appellant said that from the appellant's perspective there was no material difference between the appellant's evidence at trial and the account given by the appellant in the Facebook post about the events that immediately preceded the appellant grabbing the complainant's throat.
The magistrate said that the appellant had sought to resile from what was said in the Facebook post. It is clear from the magistrate's observations that the contents of the Facebook post caused the magistrate to doubt the reliability of the appellant's evidence at trial where it conflicted with what he had said in the Facebook post. The conflict identified by the magistrate concerned the extent to which the appellant remained calm in the period immediately before the assault, and the severity of the assault itself and whether the appellant in fact 'choked [the complainant] out'.
The overall impression created by the appellant's evidence at the trial was that, apart from one occasion on which he raised his voice to shout 'Fuck off' at the complainant, he remained calm until the complainant made the threat about access to their son, whereas in the Facebook post he stated that after the complainant had broken the PlayStation he wanted to go across the room and punch her. The magistrate said that in his evidence the appellant had maintained that the force used by him was reasonable whereas in the Facebook post he said he was angry when he choked the complainant and that he held onto her for long enough for her to pass out.
Further, the magistrate attached significance to the absence of any statement in the Facebook post supporting the defences of self-defence or the use of force to prevent the repetition of insult.
I infer from the magistrate's reference to the Facebook post as 'a critical piece of evidence' and 'extremely compelling evidence in this case' that his Honour accepted the account of the incident given by the appellant in the Facebook post. Such an inference gives due weight to the terms in which his Honour referred to the Facebook post.
I do not accept the magistrate failed to identify the facts he had accepted for the purpose of considering what had incurred inside the theatre room in the lead up to the assault. In the magistrate's reasons, his Honour made express findings of fact in the appellant's favour as follows:
(a)The complainant was so frustrated over the appellant's refusal to leave the theatre room that she went in and slapped him.
(b)The complainant was so angry and frustrated as the incident went on that she smashed the hard drive and smashed the PlayStation.
(c)The complainant behaved very erratically, had overreacted and lost control.
(d)The complainant assaulted the appellant by striking him when she was frustrated at being unable to get him off the couch and out of the theatre room.
(e)The complainant made a statement to the effect that if the appellant did not do as she said he would not see his son again.
In addition I consider it is implicit that:
(a)The magistrate accepted that there had been a scuffle between the complainant and the appellant following which they both ended up on the floor. I think this is to be inferred from the magistrate's reference to the evidence given by both parties of a scuffle. I think that this is also implicit from the importance attached by the magistrate to the Facebook post and the reference in the post to the attempts by the appellant to restrain the complainant on the floor.
(b)The magistrate found that the complainant had made four separate visits to the theatre room, two before she was choked and one when she was choked and one afterwards when she went back in and punched the accused. This is to be inferred from the magistrate's reference in the course of his reasons to the complainant's evidence to this effect (given in answer to a question by the magistrate himself).
It can be inferred from the matters to which I have referred, including importantly the Facebook post, that the magistrate accepted the assault occurred in the context of an argument of some duration in which the complainant was a determined and aggressive participant, and in the course of which she had assaulted the appellant.
It is apparent from the magistrate's reasons that on the critical issues on which there was a conflict between the evidence of the appellant and the complainant, his Honour proceeded on the basis of findings of fact favourable to the appellant and, where there was a conflict or tension between the appellant's evidence at trial and what he had said in the Facebook post, he considered what was said in the Facebook post was more reliable for the reasons to which I have referred above.
In the course of oral argument counsel for the appellant accepted that the appellant's principal contentions were that his Honour was not specific enough in his findings in relation to the blows and the conduct of the complainant that made up the complainant's assaults on the appellant, and did not make a clear finding as to the level of severity of the complainant's assaults on the appellant in considering the defence of provocation.
There are four answers to these criticisms:
(a)the magistrate could only make findings on the basis of the evidence available to him and he prefaced his findings by recording that, in the absence of evidence from independent witnesses, it was difficult to make findings about assaults of the kind in question in this case - this difficulty is exemplified by the lack of specificity in the description given by the appellant in the Facebook post of the number and character of blows he sustained;
(b)as stated earlier, it may be inferred from the magistrate's description of the Facebook post as 'extremely compelling evidence' that he accepted the appellant's account of the events;
(c)the magistrate described the conduct leading up to the assault in the course of his reasons, including that the complainant slapped the appellant early in the course of the argument and that the complainant smashed the PlayStation, hit and kicked the appellant, and it may be inferred from his Honour's description of this conduct that he took it into account; and
(d)the criticisms reflect that the appellant has approached the magistrate's reasons with an eye attuned to error.
There is one further matter that I must deal with. This is the magistrate's observation that he considered the appellant was exaggerating when he described the complainant's conduct as 'an ongoing, sustained attack and an overwhelming threat'. At first blush this may seem to be inconsistent with a view the magistrate had accepted the appellant's account of events in the Facebook post but I do not think that is so. One reason why his Honour concluded that the appellant was exaggerating is to be found in his Honour's assessment that the photograph taken by the appellant of the injuries to his face immediately after the incident. His Honour considered the photograph did not disclose swelling of the nature described by the appellant's counsel. A second reason is if, as the appellant maintained, the complainant presented an overwhelming threat, then as his Honour said in the course of dealing with the self-defence issue, the appellant could have avoided the threat by leaving the room. Instead the appellant remained seated on the couch and it was only when the complainant made the statement about their son that he 'saw red'.
In my assessment it is plain from a fair reading of the magistrate's reasons why he came to the conclusion that the prosecution had discharged the burden on it to negative the defence of provocation, and the approach taken by his Honour to the evidence and the reasons for that approach are also plain.
I refuse leave to appeal in respect of ground 2.
Ground 1
The first aspect of this ground is the appellant's contention that the magistrate addressed the objective element of the provocation defence solely by reference to the threat said to have been made by the complainant about access to their son and without regard to the complainant's conduct prior to the making of the threat. The appellant contends that the threat the appellant would not see his son again could not be looked at separately to or in isolation from: the assaults the complainant had made on the appellant, the smashing of the hard disk and PlayStation by the complainant, the appellant's attempts to restrain the complainant and the appellant's physical limitations as a consequence of his pre-existing injuries.
Consideration
As noted earlier the magistrate referred expressly to each of the elements of the complainant's conduct on which the appellant relied for the purposes of the provocation defence. When his Honour came to address the provocation defence he said:
I will turn to the question of provocation. I have to look at what he did in the light of what she did, not just by what she said, but by what she did before that and what led up to it. In other words, the totality of her behaviour. Assuming that she assaulted him, which I am doing for the purposes of this exercise, she has in my view, acted poorly.
The appellant acknowledges the magistrate directed himself correctly but contends that his Honour did not follow that direction. This contention rests upon the focus placed by the magistrate on the words spoken by the complainant in the following passages of the magistrate's reasons:[28]
[28] ts, 9 July 2019, 43 - 44.
To say to a person in the course of an argument, 'You will never see your child again' if it was said, and I'm assuming that it was, is an unpleasant thing to say, and I would expect that it would have an effect on any father. It would make anybody angry, in my view, or perhaps more angry than they already were. But applying what was said in paragraph 35 of the Hart case which is been brought to my attention, I do not accept that saying that would be sufficient to cause a reasonable person to lose control to such an extent as to choke the person who said it into unconsciousness.
Many things get said in the course of heated domestic arguments; I don't consider that it can be said to justify such an extreme response. Although there is no medical evidence on the subject, I am sure that to choke a person into unconsciousness requires a considerable force and sustained over a period of time. It's a requirement of provocation defences the force used must not be disproportionate to the provocation which is offered, and my view, this force which I have been talking about clearly is disproportionate.
These observations must be considered in the context not only of the magistrate's earlier reference to the need to refer to the totality of the complainant's conduct but also to the observations set out below which followed the discussion of the threat made by the complainant:[29]
[29] ts, 9 July 2019, 44.
So at the end of the day, I am satisfied that the conduct of the complainant may well have provoked the accused to some extent, that it may well have provoked him to lose control and act on the sudden. But I do not consider that her conduct was sufficiently provocative in all of the circumstances to justify an assault of this magnitude and of this seriousness. And I am of the view that choking her into unconsciousness was clearly disproportionate to any provocation that she may have offered.
In my view it is clear from a consideration of the magistrate's reasons as a whole, and from the passages to which I have referred, that his Honour complied with the direction he gave to himself and considered the totality of the complainant's conduct and did not confine himself to a considering the effect of the statement made by her. I add that it was entirely natural for the magistrate to have made express reference to the threat because it was an aspect of the conduct said to constitute provocation to which critical importance had been attached by the appellant in his Facebook post.
The second aspect of ground 1 is the appellant's contention that the magistrate did not consider the severity of the threat made by the complainant that if the appellant did not do as she asked he would never see his son again.
The magistrate did not refer in his reasons to the appellant's evidence to the effect that the threat made by the complainant was significant because he had previously lost contact with his daughter (by another relationship) 'due to an aggrieved mother' when he had married the complainant and this had caused him anguish. In answer to a question from the magistrate the appellant said:
I had a standing relationship with my daughter, [D], and her mum, [M] right up until I married [the complainant], at which point [D] stopped talking to me. We have been progressively rebuilding that relationship since separation.
This evidence was given by the appellant in re-examination on 8 July 2019 (the penultimate day of the hearing). The evidence was likely to be fresh in the magistrate's mind. In the course of closing submissions at the trial the appellant's counsel referred to the threat and the reason why the threat 'had such a significance to him'.[30]
[30] ts, 11 July 2019.
I do not accept that because the magistrate did not mention the appellant's evidence about the reasons why the threat made by the complainant has a significant effect on him meant the magistrate did not take it into account in making an assessment of the severity of the provocative conduct.
The third aspect of ground 1 was that the magistrate did not take into account the significance of the disability to which the appellant was subject. The appellant had sustained serious injuries to his lower legs in a road traffic accident in 2015 and he walked with difficulty. The appellant's counsel described him as suffering 'severe physical limitations'. In the course of the reasons the magistrate referred to a medical report tendered by the appellant in which his injuries were described, and his Honour said the appellant suffered 'from some limitations'.
The magistrate made no reference to the appellant's physical limitations in the course of his analysis of the provocation defence. Once again, however, I do not accept that because the magistrate did not mention the appellant's disability in the course of his reasons he did not take it into account.
I do not accept the magistrate erred in the manner alleged by the appellant in ground 1 and I refuse leave to appeal in respect of it.
Before leaving ground 1 I should add this. Had I concluded that the magistrate had erred in any of the respects alleged by ground 1 I would have granted leave to appeal but dismissed the appeal on the basis that there had no substantial miscarriage of justice.[31] In my judgment looking the totality of the evidence and, for the purpose of the objective element of the defence of provocation, attributing to the ordinary reasonable person each of the characteristics identified by the appellant in ground 1, the prosecution discharged the burden on it to negative the defence of provocation. Faced with the provocation offered by the complainant as described by the appellant in the Facebook post, an ordinary reasonable person would not have 'choked out' the complainant.
[31] Criminal Appeals Act 2004 (WA) s 14(2).
I will make an order permitting the appellant to bring the application out of time, but will refuse leave to appeal in relation to each ground of appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle11 SEPTEMBER 2020
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