Schramm v Zarb

[1996] QCA 350

IN THE COURT OF APPEAL	[1996] QCA 350
SUPREME COURT OF QUEENSLAND

C.A. No. 270 of 1996.

Brisbane

[Schramm v. Zarb]

IAN GLENN SCHRAMM

v.

SEBASTIAN ZARB

Appellant

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Pincus J.A. Thomas J. Dowsett J.

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Judgment delivered 20/09/1996

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: CRIMINAL LAW - assault occasioning bodily harm - insulting words as provocation - disproportionate response - factual determination.

Counsel:	Mr A J Kimmins for the appellant. Mr W A Clark for the respondent.
Solicitors:	Jones Mitchell for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	26/08/1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/09/1996

The appellant appeals against his conviction in the Magistrates Court of the offence of assault occasioning bodily harm. The complainant and the appellant were, on the date of the offence alleged, a married couple living together. They had a difficult relationship and on that day an argument developed, apparently related to the complainant’s refusal to go to the home of the appellant’s mother to celebrate Mother’s Day. The complainant gave evidence that the appellant used abusive language to her, she started crying and "he started abusing my mother and father like in a very bad way". A little later, while the complainant was packing some of her goods, apparently preparatory to leaving, she was, she said, assaulted by him; he also made insulting remarks about her mother, to which she responded, according to her evidence "What about your father and mother?". There followed a more serious assault by the appellant which, it is not disputed, resulted in fractures of three of her ribs.

The appellant’s version of events was rather different, the most important difference for present purposes being that he said that the complainant said "Up your father’s arse, and you can go and tell your mother, that’s my Mother’s Day present to her". He admitted that he assaulted the complainant.

The issue before the Magistrate was whether the appellant should be acquitted on the ground that he was provoked, and the principal factual dispute relating to that was whether or not the complainant had insulted the appellant’s father in the way he alleged. As to that the Magistrate, after discussing the evidence, concluded -

"I am not prepared to find that the words said to have been uttered by the
complainant, namely, ‘Up your father’s arse.’, were not, in fact, used".

The Magistrate then proceeded to consider whether those words amounted to provocation within the definition in the Code and decided that point in favour of the appellant. His Worship held, however, that the force used was disproportionate to the provocation and therefore, under the proviso to s. 269 of the Code, the defence of provocation failed.

Counsel for the appellant invited us to disagree with the Magistrate’s view and to hold that the defence of provocation succeeded, on the basis that it was not established that the force used was disproportionate to the provocation. It was not argued that his Worship had misdirected himself on any legal point. Counsel contended that it was necessary that the appellant’s ethnicity be taken into account. The appellant is of Maltese origin and there was evidence suggesting that such an insult as we have mentioned would be particularly provocative to citizens coming from that country.

There is in our opinion nothing in the reasons to suggest that the Magistrate overlooked this factor; indeed, he made more than one reference to it. What we are asked to do, in essence, is simply to reverse the Magistrate on a purely factual point; limitations on the Court’s power to do this are discussed in R v. Free [1983] 2 Qd.R. 183, and in Murphy v. Porter ex parte: Murphy [1985] 1 Qd.R. 59. It is unnecessary in the present case to analyse those authorities for here the conclusion at which the Magistrate arrived, on the facts, was not only one which was open to him but was, as a matter of simple commonsense, correct. It sometimes happens that in the heat of a domestic argument very hurtful things are said. To allow this appeal we would have to hold that if a wife makes such a very offensive remark and provokes her husband into smashing her rib cage, he must not be held guilty of assault.

The appeal must be dismissed.