Sims v Keene
[2014] WASC 248
•15 JULY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SIMS -v- KEENE [2014] WASC 248
CORAM: CORBOY J
HEARD: 11 MARCH 2014
DELIVERED : 15 JULY 2014
FILE NO/S: SJA 1158 of 2013
BETWEEN: DOUGLAS ARTHUR SIMS
Appellant
AND
JOHN KEVIN KEENE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S WILSON
File No :PE 24073 of 2013
Catchwords:
Criminal law - Appeal - Whether magistrate erred in finding assault not provoked or in other findings of fact - Whether magistrate erred by not releasing the appellant without imposing a penalty
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 245, s 246
Sentencing Act 1995 (WA), s 39(2)(a), s 46
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr N Van Hattem
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AR v Wood [2008] WASC 119
Bembridge v G‑K‑R Karate Australia Pty Ltd (1998) 103 A Crim R 362
Davy v Fletcher [2011] WASC 351
Eastland Medical Systems Ltd v Sims [2010] WASC 33
Eastland Medical Systems Ltd v Sims [2012] WASC 241
Eastland Medical Systems Pty Ltd v Sims [2013] WASC 11
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
Masciantonio v The Queen (1995) 183 CLR 58
O'Brien v Ostorowski [1999] WASCA 184
Pillage v Coyne [2000] WASCA 135
Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211
Rose v Kempthorne [1910] 103 LT 730
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sims v Jooste [2013] WASC 425
Sims v Jooste QC [2013] WASCA 245
Sims v Legal Profession Complaints Committee [2013] WASAT 44
Sims v Suda Ltd [2014] WASC 3
Teede v Wright [1999] WASCA 121
Wilson v The State of Western Australia [2010] WASCA 82
CORBOY J:
The appeal and the result
The appellant was charged that, on 29 April 2013, he unlawfully assaulted Peter Innes Jooste, being a person of or over the age of 60 years, contrary to s 313(1)(b) of the Criminal Code (WA). He was convicted following a trial held on 6 and 7 November 2013. A conditional release order was made for a period of one month. The amount set by the court for the purpose of s 51 of the Sentencing Act 1995 (WA) was $100. A spent conviction order was also made. No order was made as to the costs of the prosecution.
The appellant has applied for leave to appeal from his conviction and the sentence that was imposed. He represented himself in the appeal. The appeal notice contained 10 proposed grounds of appeal. In summary, the appellant alleged that the trial magistrate had erred in making various findings of fact; by finding that the assault was not excused under s 246 of the Criminal Code and by imposing a sentence – see s 39(2)(a) and s 46 of the Sentencing Act.
I have concluded that the magistrate did not err as alleged and that the appellant should be refused leave to appeal on each of his proposed grounds of appeal (applying the test for leave specified by the Court of Appeal in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473).
The facts as found by the trial magistrate
The complainant, Mr Jooste, is a barrister. In April 2013, he practised from an office located at suite 8, 8 Clive Street, West Perth.
The appellant and the complainant had been involved in the management of Suda Ltd (previously known as Eastland Medical Systems Ltd) and associated companies (the Eastland companies). At some point, a dispute had developed between them over the management of the Eastland companies. It was apparent from the evidence presented in the trial that the dispute was acrimonious. Various proceedings were commenced involving the appellant, the complainant, the complainant's son and one or more of the Eastland companies: see, for example, Eastland Medical Systems Ltd v Sims [2010] WASC 33; Eastland Medical Systems Ltd v Sims [2012] WASC 241 and Eastland Medical Systems Pty Ltd v Sims [2013] WASC 11; Sims v Jooste [2013] WASC 425 and Sims v Jooste QC [2013] WASCA 245; and Sims v Suda Ltd [2014] WASC 3. The appellant stated in an interview recorded with police that there were 14 actions on foot involving himself and the complainant.
Further, the appellant had made a complaint to the Legal Profession Complaints Committee concerning the conduct of the complainant. The complaint was dismissed and the appellant sought a review of that decision under s 435(1)(a) of the Legal Profession Act 2008 (WA). The application for review was made out of time. An application for an extension of time was refused by The State Administrative Tribunal (SAT): see Sims v Legal Profession Complaints Committee [2013] WASAT 44.
The appellant commenced an appeal from the decision of SAT. He acted on his own behalf in the appeal. The complainant was a respondent to the appeal.
The appellant attended at the complainant's office on 29 April 2013 for the purpose of serving documents that related to the appeal. The documents were held together by a clip. The prosecution alleged that the appellant and the complainant argued outside the building located at 8 Clive Street, West Perth (the Clive Street Building); that the appellant threw the clipped documents at the complainant during the argument; that the clipped documents struck the complainant above his right elbow and, as a result, the complainant received a wound in the form of a small cut that drew blood.
The magistrate made detailed findings of fact about the circumstances in which the alleged assault had occurred: reasons for decision [91]. His Honour found that the appellant had gone to the reception area of the complainant's office in the Clive Street Building for the purpose of serving the appeal documents. The appellant handed the documents to the complainant in the reception area. The complainant accepted the documents. However, he then invited the appellant to go outside the Clive Street Building to discuss service. The appellant left the building, followed by the complainant. The complainant took the appeal documents, which were still held together by the clip, with him.
The appellant and the complainant exchanged insults once outside the building. The complainant told the appellant to serve the documents on his lawyers. He handed the clipped documents back to the appellant and turned to walk back into the building. The appellant flung or threw the documents at the complainant, aiming to hit him on the chest or shoulder. He had intended to 'redeliver' (that is, serve) the documents by that act.
The complainant raised his right elbow as the clipped documents were thrown towards him. The documents struck the complainant above the right elbow, causing pain and a small graze that drew blood. The documents fell to the ground and were eventually collected by the complainant.
The complainant subsequently attended his doctor and was treated for the cut. He reported the incident to the police. The appellant was charged after being interviewed by the police.
The appellant did not give evidence at the trial but relied on the statements that he had made to the police in his electronically recorded interview. His account of what had occurred differed from the evidence given by the complainant in several respects. However, the appellant accepted that he had thrown the clipped documents at the complainant and that they had struck him on the shoulder. He stated that he had thrown the documents at the complainant in order to effect service – he had been advised that it was necessary to touch or strike the complainant on the shoulder with the documents for that purpose. He had stood close to the complainant and had thrown the documents a short distance so that they struck the complainant on the top of his shoulder. He denied that the clip had struck the complainant on the elbow.
The magistrate considered that the appellant had raised three issues in his electronically recorded interview with the police:
(a)whether he had acted lawfully in striking the complainant with the documents in order to effect service;
(b)whether the assault was excused under s 246 of the Criminal Code (provocation);
(c)whether the assault was justified by s 248 of the Criminal Code (self‑defence).
His Honour considered that the proposition that the appellant had acted lawfully in striking the complainant with the documents rested on the decision in Rose v Kempthorne (1910) 103 LT 730. His Honour held that:
(a)The circumstances considered in Rose v Kempthorne were different from those established by the evidence in the trial. In particular, the appellant had already effected service prior to the incident outside the Clive Street Building.
(b)The law had 'moved on' since the decision in Rose v Kempthorne. It was no longer considered necessary to physically touch a person with documents to effect service.
His Honour further held that the assault was not excused by s 246 of the Criminal Code as:
(a)There was no evidence that the appellant had flung the clipped documents at the complainant having lost his power of self‑control and 'before he had time for his passion to cool' [105]; rather, the appellant had told the police that he had thrown the documents at the complainant to ensure that important documents relating to the appeal were not left in the street.
(b)There was no evidence that the complainant had invited the appellant to go outside the Clive Street Building with the intention of assaulting the appellant or for the purpose of provoking an assault.
As to self‑defence, his Honour held that:
(a)there was no evidence that the complainant had acted in a manner that would cause the appellant to believe that he was about to be assaulted (the appellant having told the police that he was concerned that the complainant might assault him);
(b)there was no evidence of the complainant assaulting or attempting to assault the appellant that would 'enliven this defence ' [103].
The proposed grounds of appeal
A copy of the proposed grounds of appeal is annexed to the reasons. It is to be noted that the appellant does not dispute the finding that he assaulted the complainant.
Provocation - proposed ground of appeal 1
Section 246 of the Criminal Code provides that:
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he 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 his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‑control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.
Section 245 provides that:
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 his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.
When such an act or insult is done or offered by one person to another, or in the presence of another, to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
A lawful act is not provocation to any person for an assault.
An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
The principles relevant to the 'defence' of provocation were comprehensively identified and explained in the reasons delivered by Steytler P in Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441. It is not necessary to reproduce the detail of his Honour's observations; it is sufficient to note that:
(a)The test of provocation involves both a subjective and an objective element - 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 [35]. The provocation must actually cause the accused to lose self‑control and the accused must act while deprived of self‑control and before he or she has had the opportunity to regain composure (and see Masciantonio v The Queen (1995) 183 CLR 58, 66).
(b)The word 'wrongful' when used in s 245 only qualifies the nature of the allegedly provocative act; it does not qualify the quality of the allegedly provocative insult [39] ‑ [40].
The magistrate found that:
(a)The veracity of the evidence of the complainant and the appellant was affected by their antipathy towards each other [80] and [86] (the reference to the appellant's evidence being to the statements that he made in his electronically recorded interview with the police).
(b)The appellant was 'agitated' by the complainant's conduct [81].
(c)He did not accept the 'interaction' between the appellant and the complainant was 'a quiet and restrained affair' [85].
(d)The documents were not thrown to the ground by the complainant; rather they were handed to the appellant [87]. The complainant attempted to have the appellant take the documents and serve them on the complainant's solicitor 'during the course of the abuse and insults being exchanged' [88].
(e)The appellant and the complainant exchanged abuse and insults in the course of leaving the complainant's office and outside the Clive Street Building. The exchange became heated and voices were raised [91].
The evidence on which the magistrate made those findings raised the issue of provocation; the prosecution was required to prove beyond a reasonable doubt that the appellant's assault of the complainant was not excused by s 246 of the Criminal Code. His Honour found that there was no evidence that the appellant was, in fact, provoked. That finding reflected the appellant's account to the police of what had occurred.
It was plain from his statements to the police, and from his submissions in the appeal, that the appellant considered that the complainant had instigated the incident. He equated that with provocation; the complainant had, so the appellant argued, provoked the incident by his actions. In particular, the appellant alleged in his interview with the police that the complainant had:
(a)repeatedly asked the appellant to come with him to the outside of the Clive Street Building after service of the appeal documents had been effected in the reception area;
(b)thrown the appeal documents away once they were outside so that the documents were left on the street;
(c)followed the appellant when he had tried to walk away;
(d)abused the appellant and behaved aggressively toward him.
However, the tenor of the appellant's statements to the police was that he had maintained control over his emotions and actions despite what he had alleged about the complainant's conduct. He denied that he had acted aggressively towards the complainant and stated that he had thrown the appeal documents from a short distance so as to strike the complainant lightly on the shoulder. He described throwing the documents in a controlled and deliberate way. He claimed that he had 'done everything to avoid [the complainant's] confrontation'.
There was no suggestion in the appellant's statements to the police that he had suddenly thrown the documents at the complainant having lost control over his emotions. Rather, his action in throwing the documents had been deliberate and calculated. He had not acted in the heat of the argument but in order to effect service of the documents. Accordingly, the appellant's account of the incident was inconsistent with him having been provoked within the meaning of s 246 of the Criminal Code.
The magistrate further found that 'the words spoken by either [the appellant] or [the complainant] towards each other was not sufficient to cause a reasonable person to lose his power of self-control and assault another person' [108]. That finding was not expressly challenged by the appellant's proposed grounds of appeal. However, in my view, it was a finding that was, in any event, open on the evidence and the facts as found by the magistrate.
Accordingly, the magistrate did not err in law or in fact in finding that the prosecution had proved beyond a reasonable doubt that the appellant's assault was not excused by s 246 of the Criminal Code. The appellant's grounds of appeal misconceive the notion of provocation for the purpose of that section.
Proposed ground of appeal 2
Proposed ground of appeal 2 refers to evidence given by Ms Wrona. She stated that she had observed the complainant attempt to hand the clipped documents to the appellant outside the Clive Street Building. The appellant initially refused to take the documents but eventually did so (ts 36).
Ms Wrona was cross‑examined about that evidence by the appellant (ts 43):
At - in your witness statement, you confirm that Mr Jooste was in Clive Street trying to make me take back the documents. Can you confirm how he was trying to make me take back the documents?‑‑‑Well, first of all he was speaking to you and then he was trying to hand the documents to him and you wouldn't take them.
So he was trying to enforce me to take back the documents?‑‑‑Well, it wasn't forcing. He wasn't touching you. He was just - it was gesturing them to you.
So can you tell the court how I became in possession of the documents when he was - when you say that I was backing away trying to get away?‑‑‑Yes.
How?‑‑‑You took them with your hand.
I say to you that that's not true?‑‑‑No, I'm sorry ‑ ‑ ‑
I say to you that you should take your mind back, that that's not true?‑‑‑No, I definitely saw you take those documents, sir.
It will be seen that Ms Wrona did not unequivocally state that the appellant was backing away while the complainant was endeavouring to return the documents. She also did not say in her evidence that she heard the complainant yelling at the appellant. Rather, she stated that she heard one loud voice outside the Clive Street Building which directed her attention to the exit from the building (ts 34).
The magistrate accepted the evidence of Ms Wrona; he described her evidence as being credible and forthright and that she was the witness who had the best position to see the incident between the complainant and the appellant [75]. He made findings in accordance with her evidence.
There is no merit in proposed ground of appeal 2.
Proposed ground of appeal 3
Proposed ground of appeal 3 alleges that the complainant gave false evidence to the effect that he had engaged a solicitor to act for him in the appeal from the decision of SAT. It is not necessary to further consider whether the complainant gave false evidence to dispose of this proposed ground of appeal. That is because the magistrate found that the evidence given by both the appellant and the complainant was affected by their mutual animosity and accordingly, he relied on the evidence of other witnesses to determine what had occurred between the appellant and the complainant outside the Clive Street Building.
Further, the magistrate did not rely on the complainant's evidence that he had engaged a solicitor to act on his behalf in determining whether the appellant had acted lawfully in throwing the documents at the complainant in the belief that this was necessary to effect service.
Proposed ground of appeal 4
Proposed ground of appeal 4 assumes that the magistrate made a finding that the appellant had 'chested' the complainant. The magistrate did not make that finding. Rather, the magistrate summarised the evidence given by the complainant and in the course of doing so, noted that the complainant had said that the appellant had 'chested himself towards [the complainant] without coming into contact' [11].
The balance of the proposed ground of appeal alleged that the magistrate ought to have accepted an aspect of the appellant's account about one aspect of the incident that occurred outside the Clive Street Building. However, the appellant's account to the police on this aspect could only have been relevant to the question of provocation. As has been explained, the appellant apparently misconceived the notion of provocation for the purpose of s 246 of the Criminal Code. This and other grounds of appeal assumed that, in effect, the complainant ought to have been held liable for what occurred as, according to the appellant, the complainant had instigated the incident and was the aggressor. It should be noted in that regard that the evidence of the independent witnesses whose evidence was accepted by the magistrate - Ms Wang, Ms Wrona and Ms Stock - did not support the appellant's account of what had occurred and his attempt to blame the complainant for the incident.
Proposed ground of appeal 6 - Section 46 of the Sentencing Act
Section 39(2)(a) of the Sentencing Act provides that 'subject to sections 41 and 45, a court sentencing an offender may with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender'.
Section 46 of the Sentencing Act provides that:
A court sentencing an offender may impose no sentence if it considers that -
(a)the circumstances of the offence are trivial or technical; and
(b)having regard to -
(i)the offender's character, antecedents, age, health and mental condition; and
(ii)any other matter that the court thinks is proper to consider,
that it is not just to impose any other sentencing option.
The magistrate raised and considered whether he should release the appellant and impose no sentence under s 46 of the Sentencing Act. However, his Honour concluded that the circumstances of the offence could not be characterised as technical. He referred to the decision of the Court of Appeal in Riggall v The State of Western Australia [2008] WASCA 69; (2008) 37 WAR 211 in that regard.
Wheeler JA (with whom Buss JA agreed) considered the meaning of the word 'technical' for the purpose of s 46 in Riggall. She noted that the ordinary meaning of the word 'technical' suggested that, '[i]t may, subject to the statutory context, be appropriate to regard an offence as "technical" where it is accompanied by a state of mind which demonstrates that the breach of the law was inadvertent' [57]. However, her Honour noted that it was unlikely that the exercise of the discretion to release without penalty would often arise in relation to an offence that was inadvertently committed because of the 'defences' of accident, mistake and honest claim of right. Her Honour then observed that:
Another way of understanding the term 'technical' in the dictionary sense I have described, which seems to be of relevance to the present case, would be that, although the elements of the offence have been made out (as they must necessarily be for a conviction to be recorded), the conduct might be seen as 'technical' where it was, in the particular circumstances, far removed from the mischief at which the relevant legislation could be seen to be directed [59].
Her Honour reviewed other cases in which it had been submitted that s 46 of the Sentencing Act should be applied to release an offender without a sentence being imposed: Teede v Wright [1999] WASCA 121; Bembridge v G‑K‑R Karate Australia Pty Ltd (1998) 103 A Crim R 362; O'Brien v Ostorowski [1999] WASCA 184 and Pillage v Coyne [2000] WASCA 135. It is apparent from that review that her Honour ultimately concluded that the word 'technical' when used in s 46 of the Sentencing Act required the court to consider the mischief sought to be prevented by the offence and the circumstances in which the offence was committed by a particular offender. Consistent with that interpretation, her Honour concluded that the appellant in Riggall ought to have been released without penalty as:
[I]t is my view that the appellant's offences may be regarded as committed in circumstances which are 'technical', both because his conduct was very different from the type of predatory exploitation of the young at which s 321 [of the Criminal Code] is directed, and because he had no reason whatever to consider that his behaviour would be a breach of that section. I would therefore order his release without penalty [67].
It is to be noted that s 46 refers to the circumstances of the offence being trivial or technical. In contrast, s 45 of the Sentencing Act refers to the offence, itself, being trivial. Understandably, the decided cases contain little discussion of what might constitute trivial circumstances for the purpose of s 46 as the circumstances of every case will be different. However, the word 'trivial' for the purpose of s 45 of the Sentencing Act has been held to mean 'of little importance, petty, frivolous or trifling': see AR v Wood [2008] WASC 119 [34] (EM Heenan J).
The principles by which an appeal against sentence must be decided are well established. In Wilson v The State of Western Australia [2010] WASCA 82, it was stated that [2]:
The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following:
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of success, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia …
It cannot be concluded that the magistrate erred in refusing to release the appellant without penalty having regard to those principles. In my view, it was open to the magistrate to find that the circumstances of the appellant's offending were neither trivial nor technical. The circumstances were not 'far removed from the mischief' sought to prevented by making an assault a criminal offence. Further, the circumstances were not trivial given that the complainant suffered an injury, albeit that the injury was relatively minor, and considerations of general and specific deterrence were relevant. The observations of EM Heenan J in Davy v Fletcher [2011] WASC 351 at [38] are apposite. In circumstances that were, in many respects, similar to the circumstances of this prosecution, his Honour considered that 'it was necessary for the law to demonstrate that this kind of behaviour would not be tolerated by the courts and that a penalty and its consequences were necessary to reinforce that message'.
Proposed ground of appeal 7
As has been mentioned, the magistrate summarised in his reasons the evidence given by the complainant. He noted that the complainant alleged that the appellant said during the incident that the complainant should go back to South Africa. However, he did not expressly find that the appellant actually said those words to the complainant. The magistrate merely found that there was exchange of abuse and insults between the appellant and the complainant (at [91 (h) and (i)].
Proposed ground of appeal 5, 6 and 8 - 10
These grounds reflect a view that was strongly expressed by the appellant in his oral submissions and which was succinctly identified in the final sentence of proposed ground 10: that the appellant was the victim of a crime committed by the complainant. The appellant regarded himself as the victim of the complainant's conduct which he variously described as criminal, unconscionable or exploitive (in the sense that the appellant considers that the complainant deliberately engineered the incident for the purpose of having the appellant charged with a criminal offence).
As has been explained, the magistrate found that the evidence of both the appellant and the complainant was affected by their mutual antipathy. His findings as to what had occurred were primarily based on the evidence given by other witnesses to the incident - Ms Wang, Ms Wrona and Ms Stock. He accepted their evidence as being truthful and reliable. It was apparent from his oral submissions that the appellant had difficulty in divorcing the criminal proceedings heard and determined by the magistrate from the extensive civil litigation subsisting between himself and the complainant and entities with which they had been associated. That was, perhaps, understandable in the sense that the incident was a further manifestation of the extreme animosity between the appellant and the complainant. However, the appellant had difficulty in accepting that he was the person who had been charged and that the purpose of trial was to determine whether he was guilty of the charge that had been made. He appeared at times to consider that the trial was merely a vehicle by which the complainant's conduct (as perceived by the appellant) could be exposed and sanctioned. The complainant's conduct was, of course, only relevant to the extent that it raised issues of provocation, self‑defence and credibility. Those issues were considered and determined by the magistrate.
Proposed grounds 5, 6 (apart from the reference to s 46 of the Sentencing Act) and 8 ‑ 10 reflect the appellant's attitude to the proceedings and who he considered ought to have been held liable for what occurred outside the Clive Street Building and who should have been, in his view, charged. They do not disclose any error by the magistrate.
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