Watson v Graham

[2009] QDC 308

DISTRICT COURT OF QUEENSLAND

CITATION:	Watson v Graham [2009] QDC 308
PARTIES:	TERRANCE GEORGE WATSON
(Appellant)
v JOHN GERARD GRAHAM
(Respondent)
FILE NO/S:	BD3504/08
DIVISION:	Appellate
PROCEEDING:	Appeal against conviction
ORIGINATING  COURT:	Magistrates Court at Brisbane
DELIVERED ON:	28 August 2009 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	24 August 2009
JUDGE:	Irwin DCJ
ORDER:	Appeal against conviction dismissed
CATCHWORDS:	APPEAL – CONVICTION – where appellant convicted of assault occasioning bodily harm – whether complainants suffered bodily harm – whether prosecution had proved beyond reasonable doubt that appellant’s assault upon the complainant was the cause of her bodily harm – whether prosecution had excluded provocation
Criminal Code (Queensland), s 245(1), s 268, s 269 Justices Act 1886, s 221, s 223(2) Fox v Percy (2003) 214 CLR 118, applied Mbuzi v Torcetti [2008] QCA 231, applied R v Scatchard (1987) 27 A Crim R 136 Rowe v Kemper [2008] QCA 175, applied Stingel v The Queen (1990) 171 CLR 312, applied
COUNSEL:	The appellant appeared on his own behalf M.J. Litchen for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent

1-1

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE IRWIN

10

No 3504 of 2008

TERRENCE GEORGE WATSON	Appellant
and
JOHN GERARD GRAHAM	Respondent

20

BRISBANE

..DATE 28/08/2009

..DAY 1

JUDGMENT	30
40
50

1-2 60

HIS HONOUR: This is an appeal pursuant to section 222(1) of

1

the Justices Act, 1886, against the appellant's conviction by
an acting Magistrate at Brisbane on 8 December 2008 of one
count of assault occasioning bodily harm for which a
conviction was recorded, together with a fine of $450 to be

paid in five months, in default, six months' imprisonment.	10
The Clerk of the Court was ordered to refer the fine to SPER for enforcement. The charge was that on the 12th day of May 2006, at Brisbane city in the State of Queensland, the
appellant unlawfully assaulted one Belinda Newman and thereby	20
did her bodily harm.
The basis of the appeal is that the conviction is unsafe and
unsatisfactory and contrary to law. Section 223(1) of the
Justices Act provides that the appeal is by way of rehearing	30
on the evidence given in the proceeding before the Magistrate.
It has not been sought to adduce fresh evidence under section
223(2). On such an appeal, the Court should afford respect to
the decision of the Magistrate and bear in mind any advantage	40
the Magistrate had in seeing and hearing the witnesses give
evidence, but is required to review the evidence to weigh the
conflicting evidence and to draw its own conclusions: Fox v Percy, (2003) 214 CLR 118 at [25], Rowe v Kemper, [2008] QCA 175 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].	50

The appellant was represented at the summary trial and the
prosecution called six witnesses.
The appellant also gave evidence. The evidence before the 1-3 JUDGMENT 60

1

Magistrate can be summarised as follows. The complainant, Belinda Newman, gave evidence that she was with two of her friends and they left an Hotel at 12.15 a.m. or midnight on 12
May 2006.

10

She said that had not been drinking because she was the designated driver. They walked around the corner to buy pizza from a pizza shop. She stated that on the way, they were approached by a busker who had a tambourine .

20

She stated that she could not understand what it was the
busker said to her and assumed that he was asking for money.
Although she did not hear him ask for money, the busker had a
shoe box in his hand and kept putting the shoe box in her face

and she told him, "No, thank you, no."	30
He was then following them. She believed that they bought a
pizza and ate it at the shop. She could not recall whether
she took any pizza with her. On the way back, she says that
the same thing happened with the busker.	40
According to her evidence, he seemed quite aggressive but she
couldn't understand what he was saying. She said that she
waved her arms because she was annoyed and again said, "No,
thank you, no."	50

She and her friends kept walking. She said that she could not have told him "no" enough times. She then felt something on her back and turned around and found that the busker was right 1-4 JUDGMENT 60

1

there behind her, in her face.

She told him to fuck off. She said this after he had hit her.
When she turned around, she saw that he had a tambourine in

his hand and nothing else. It was never suggested that the	10
defendant was not the busker.
It will become apparent that the appellant did not deny this,
on his own evidence before the Magistrate. He did not seek to
deny this before this Court on appeal where he represented	20
himself.
The complainant stated that she was wearing a backless top.
She kept walking away and then felt that her back was
stinging. She said that she felt pain and her back hurt.	30
Other than this, she was aware of no physical injury.
She asked a friend to look at her back and put her hand to her
back and saw blood on her fingers. She said she started to
freak out and called the police. Some police were in the area	40
and she flagged them down.
Later, she went to see a doctor who told her that her cut did
not require stitches. The cut was approximately 10
centimetres long. She said that she did not have an injury	50

when she went out that evening.
Under cross-examination, she denied throwing the pizza at the 1-5 JUDGMENT 60

1

appellant. She said, during cross-examination, that she was not afraid of him when she walked back past him. There were many people in the street because it was a busy Friday night.

She felt one hit on the back and she felt pain from the hit	10
but she did not hear anything behind her before she felt this hit. A Mr Nitz approached her after it happened. She had a conversation with him and showed him her back.
Peter Nitz was also called as a witness. The appellant told	20
me, on the hearing of the appeal, that he is now deceased.
He stated that he was working across the road from the Hotel,
selling the Big Issue magazine between 10 p.m. and 12
midnight. According to his evidence, this was just down from	30
the pizza shop and about two buildings or shop fronts away from the appellant.
He saw the appellant who was known to him, busking as he
normally does. He also said that he saw the complainant	40
offering the appellant a piece of pizza. He said that he did not see what she did with it. He also said whether she was offering it to him, he did not know.
His evidence was that as the complainant was walking away from	50

the appellant towards him, he saw the appellant strike her on
the back with the metal rings of a tambourine.
He said that she then approached him and said to him, "That 1-6 JUDGMENT 60

1

man hit me with the tambourine." This, of course, is contrary and she was obviously distressed about it.
to her evidence about how she came in contact with Mr Nitz.

10

He said the mark looked very fresh. His evidence suggests
that he did not see any blood. He stated that he and the
appellant no longer spoke to each other, having known each
other for the last 10 years. He said they called each other

names. In his evidence, the appellant said that Mr Nitz was	20
big trouble and bad news.
His submissions to me on this appeal were to a similar effect.
There was clearly bad blood between them so far as the
appellant is concerned. Mr Nitz said that there were a lot of	30
people on the footpath. He was questioned about his ability
to see the appellant hitting the complainant with the
tambourine on the basis that the appellant would have been
behind her as she walked towards Mr Nitz. He insisted that he
could see the tambourine being swiped.	40
He said that he heard the appellant yell. He also said he was
looking towards him at this time. He said that the appellant
was sitting at the bus stop as he usually does with his
tambourine. In re-examination he said that the place where he	50

saw the appellant hit the complainant with the tambourine
there were street lights and it was fairly well lit.
28082009 D.1 T(3)04/KDF(BNE) M/T BRIS24 (Irwin DCJ) 1-7 JUDGMENT 60

Constable O'Neill gave evidence that he was working that	1
evening and remembered being hailed down by three females on the corner of Edward and Charlotte Streets. He introduced himself to the complainant who told him that she had been hit in the back by the appellant. His evidence was that she was

10

very upset and distressed. He also said that because the
incident was over two years old he had a bad recollection of

it and the specific details eluded him.

He was shown photographs of the complainant including of a cut

20

to her back which had been tendered as exhibits. After this
had happened he said that he did remember that the scratch on
the complainant's back was fresh and there were splatterings
of blood and that her outfit had an exposed back. He said in

cross-examination that by splatterings of blood, he meant that

30

it was a fresh cut because it was red. He also could not say
that he saw any liquid in this area.

Senior Constable Norden who was working with Constable O'Neill and another police officer that evening also gave evidence of

40

being hailed down by three females. He said this occurred at
approximately midnight. He heard the conversation between
Constable O'Neill and one of the females who was saying that
she had been hit by a tambourine and pointed down Edward

Street towards Elizabeth Street. Senior Constable Norden

50

walked in that direction and the appellant approached him and said words to the effect of, "These girls were harassing me." 28082009 D.1 T(3)04/KDF(BNE) M/T BRIS24 (Irwin DCJ) 1-8 JUDGMENT 60

The appellant told him that they had thrown a pizza crust into	1
my collection tin. He told him that they think I'm worthless and they threw a pizza crust away. Senior Constable Norden looked down and saw a pizza crust in the collection tin which was on the ground in front of the bus stop. He then had a

10

general conversation with the appellant and arrested him for
assault occasioning bodily harm. He did not speak to the

complainant or observe any injuries because he didn't look.

Detective Sergeant Paff stated that she was working that

20

evening and attended the scene. She spoke to police already
there and then to the complainant. She saw a scratch mark on
the complainant's back. Detective Paff stated that the injury
was approximately 20 centimetres long and appeared to be

fresh. The photographs have a measure which demonstrates it

30

was in fact 10 centimetres long.

Detective Paff stated that the complainant was wearing a
backless dress and she could not remember if there was blood.

Her observation that the scratch mark appeared to be fresh was

40

made on the basis of a quick look at the complainant's back.
She said that it was a red scratch. Her evidence also was
that she was an ex-nurse. She conceded that a fresh mark could
possibly last beyond 10 minutes. She also said that the

appellant declined to be interviewed.

50

Detective Senior Constable Graham, the respondent, stated that
he was working with Sergeant Paff. He spoke to Mr Nitz and
the complainant. His evidence was that the appellant did not
28082009 D.1 T(3)04/KDF(BNE) M/T BRIS24 (Irwin DCJ) 1-9 JUDGMENT 60

wish to speak to him about the incident telling him words to	1
the effect of, "I didn't touch her. I don't want to talk about it." Detective Graham saw the complainant had a large scratch and that there had been some bleeding and there was smudged blood near the scratch. He noted that she was

10

distressed and that she had been a bit teary.

In cross-examination he said it was as if someone had tried to wipe the blood away or if someone had tried to clean the blood away from the wound. He also recalled that she was wearing a

20

backless top.

The appellant gave evidence as I have said. He
said that he had come out of hospital at about 1.30 p.m. that

day and he had been busking with another man who had gone

30

home. He said that the so-called drama started about 11.30 or
12.00 that evening when they had finished busking on account
of his health. He had to go to the hospital again the next
morning. He said he was trying to relax on the bus seat. He

called this, de-stressing.

40

He said that he had council and police permission to busk and that he was very well known so that he did not have to ask for money because people pay him to shut up. He did not ask for money. He said he was getting ready to go home in the next

50

few minutes.

His evidence was that a female walked past him and just threw
her rubbish into the collection tray. He made it clear that
28082009 D.1 T(3)04/KDF(BNE) M/T BRIS24 (Irwin DCJ) 1-10 JUDGMENT 60

despite the proposition that was put to the complainant that	1
he was not saying that she threw the item at him. He said that a lot of them do throw rubbish into his tray; and she harassed him and then walked down the road. He then said he
picked up the pizza crust which was the rubbish that he was

10

referring to and walked about six or seven metres after her.

He also said at another point of his evidence that he walked two metres after her. He said he then pushed the pizza crust into her shoulder and said, "Keep your dirty rubbish to

20

yourself." He said that she responded with some very bad,
foul language which went beyond "fuck-off". He said that he

got a shock and went and sat down.

His evidence was that he had a lot of people throw rubbish at

30

him. He gave examples of a man who had vomited into his tray
and people who had urinated into it and shown him contempt,
just, as he said, the complainant had. He said that it was
very upsetting. He also said that people had grabbed money

out of his tray. His evidence was that he saw the police

40

paddy wagon and the complainant talking to the police together
with Mr Nitz. He said that he went to speak to the police
because he is treated like an animal. He said, "It is pretty
stressing out there although he often had a laugh about it

next morning." He also said that busking was lucrative.

50

The appellant stated that he had left his tambourine on a seat. He said, that because of damage it was smooth and the wooden tambourine had only two clangers left on it. Under 28082009 D.1 T(3)05/MAA(BNE) M/T BRIS24 (Irwin DCJ) 1-11 JUDGMENT 60

cross-examination he denied that he spoke to the complainant.	1
He claimed that she had provoked the incident. He stated that he was upset. He also agreed that he had assaulted the complainant with the pizza crust. He maintained this position on the appeal and said that his objection was to the

10

allegation that he had caused her bodily harm as a result. He
denied that he had assaulted the complainant with the
tambourine. He also gave evidence that although people threw
rubbish at him and gave him a hard time and this could be very

upsetting and distressing, he continued to busk and he would

20

joke about it the next morning. He said, "it's good and I can
handle it. I'm quite resilient in some ways."

His legal representative, Ms Soong, submitted that the prosecution had not proved beyond reasonable doubt that the

30

appellant had assaulted the complainant with the tambourine. She argued that Mr Nitz's evidence could not be relied on to establish this. She referred to the bad relations between him

and the appellant.

40

She pointed to the inconsistency between the complainant's
evidence and Mr Nitz's evidence about whether she came over to
speak to him or he came to speak to her. She submitted that
if the appellant had walked up to the complainant with the

tambourine she would have heard it. She referred to the

50

absence of the complainant's friends as witnesses. She
submitted that no-one saw the appellant hit the complainant
with the tambourine. She said that the injury was not
consistent with being caused by the tambourine. She said the
28082009 D.1 T(3)05/MAA(BNE) M/T BRIS24 (Irwin DCJ) 1-12 60

evidence that the injury was fresh was based on assumptions	1
after the passage of two years.
The prosecution submitted that the appellant was identified by his own admissions and that the evidence was clear that an

10

assault had taken place and that injuries were sustained as a
result. He relied upon Mr Nitz's evidence to establish that
the injury was caused by the appellant hitting the complainant
with the tambourine. He submitted that the complainant's

evidence was reliable and there was evidence that the injury

20

was fresh.

When the Magistrate's decision is read as a whole it can be seen that he correctly identified that the onus was on the prosecution to establish its case beyond reasonable doubt. He

30

referred to the admission by the appellant that he had
assaulted the complainant. He noted that apart from the issue
that on the defendant's version of the complainant, having
thrown a pizza crust into his collection box, there was no

evidence that would amount to consideration by way of

40

provocation.

He said that the issue of provocation would probably be dissipated by his other findings of fact. This is likely to be because he considered that the complainant gave very clear

50

and very concise evidence, notwithstanding some discrepancies
with the evidence of other witnesses, including the defendant.
28082009 D.1 T(3)05/MAA(BNE) M/T BRIS24 (Irwin DCJ) 1-13 60

He clearly accepted her evidence that she had a verbal	1
altercation with the appellant going to and from the pizza shop. He said it was clear, partly on the admissions of the appellant, that when she was walking away he walked up behind her and hit her. He noted that on the appellant's version he

10

hit her with the pizza crust. He also said that the
complainant did not specify what she was hit with, although
when she turned around the defendant was in her face holding
the tambourine. However, she did not specifically say in her

evidence that he had hit her with it.

20

He referred to the fact that the evidence was that she was injury-free before the striking and thereafter she had an injury. He said that she had experienced "a stinging sensation", she was "hurt" and there was "pain", and shortly

30

afterwards the scratch was drawn to her attention.

He referred to blood being on her fingers and observed the
consistency of Detective Graham's evidence that there was

blood smudged near the scratch, consistent with someone trying

40

to wipe it away. He said there was no evidence to seriously
challenge that she suffered the injury that night. In his
view, the evidence was not sufficient to support a finding
that she was actually struck with a tambourine. He said,

"That to an untrained eye it might be equally consistent with

50

a fingernail dragged down one's back." He did not find Mr
Nitz particularly convincing and he considered him
sufficiently unconvincing not to be able to reach the
28082009 D.1 T(3)05/MAA(BNE) M/T BRIS24 (Irwin DCJ) 1-14 60

conclusion that the complainant was actually struck with a	1
tambourine beyond reasonable doubt.
Clearly, the Magistrate accepted the evidence of the complainant and as I have observed, it must have been on this

10

basis that he considered that provocation had been excluded.

He was satisfied that the appellant assaulted her and caused an injury which clearly amounted to bodily harm, although he said, in the subsequent sentencing proceedings, that it

20

appeared to be not much more than a superficial scratch.

On this basis, he found the appellant to be guilty. However, his Honour, added immediately afterwards, "To my mind, the evidence, as I've heard it, does not exclude a possibility

30

that, in some way perhaps, the complainant had wound the
defendant up to some small extent."

During submissions on sentence, Ms Soong said, "As your Honour rightly noted, that there were elements of the complainant

40

having shown some disrespect to Mr Watson, as he has quite endured for a number of years as he is a homeless person." His Honour replied that he wouldn't exclude the possibility.

The appellant, in representing himself on this appeal,

50

submitted that although he assaulted the complainant with the
pizza crust, it could not and did not cause the injury.
28082009 D.1 T(3)06/LBM(BNE) M/T BRIS24 (Irwin DCJ) 1-15 60

He submitted that however the mark happened, he didn't cause	1
it. Much of his submission was a reiteration of the evidence that he gave in the Magistrates Court about how he was treated with lack of respect by people such as vomiting into his collection box and other harassment.

10

He said that the complainant threw the pizza into his box and he picked it up and shoved it into her shoulder. He demonstrated in the courtroom how far he had walked to do this.

20

My estimate is that the distance was about three or four
metres. He said that she and Mr Nitz had lied. As he put it,
they had told fairy stories and porky pies with the result

that he was wrongly convicted.

30

He pointed to the lies she told. He said that he never approached her for money and never approached her at any other time than when he came up behind her. He said that she had lied when she said how the injury was caused.

40

He said that Mr Nitz had no credibility and again reiterated it was the complainant's word against his.
what had been said by him in the Magistrates Court about this.

50

He reminded me that she was with two or three girlfriends and a hostile person, namely, Mr Nitz. He suggested that however 28082009 D.1 T(3)06/LBM(BNE) M/T BRIS24 (Irwin DCJ) 1-16 JUDGMENT 60

the injury had occurred, this had happened in the 45 metres	1
that she had walked to speak to the police.
He also said that while he was not critical of his solicitor, she was young and inexperienced. He said that he would accept

10

a conviction for common assault but not of assault occasioning
bodily harm.

He was clearly unhappy with the penalty but he has only appealed against conviction. As a result, I consider only his

20

appeal against conviction and not his concerns about his
sentence.

The respondent submitted that it was apparent that the complainant had an injury that caused her skin to break,

30

although it was a minor injury. It was further submitted that
as the appellant made the admission that he struck the
complainant, albeit with a pizza crust, and not with a
tambourine, that his appeal has no merit as that element of

the offence was made out.

40

It is submitted that it was open to the learned Magistrate to make the finding he did as he had the benefit of seeing and hearing the evidence of the witnesses before him. Accordingly, the respondent submitted that the conviction was

50

neither unsafe nor unsatisfactory.

Having reviewed the evidence with due regard to the
Magistrate's advantage in seeing and hearing the witnesses, I
28082009 D.1 T(3)06/LBM(BNE) M/T BRIS24 (Irwin DCJ) 1-17 JUDGMENT 60

can see no reason to reach a different conclusion as to his	1
assessment of Mr Nitz's evidence.
The evidence of the bad blood between he and the appellant leads me to the conclusion that I cannot be satisfied beyond

10

reasonable doubt of his evidence that the appellant struck the
complainant with the tambourine and he observed this.

There is nothing in the evidence which would cause me to come to any different view than that his evidence should be

20

assessed on the basis that it was unconvincing.

Mr Nitz was the only person who gave evidence that he saw the tambourine used as a weapon. Like the Magistrate, I consider that his evidence is not sufficient to support a finding that

30

the complainant was struck with a tambourine.

On the other hand, I can find no reason, on my review of the
evidence, to come to any conclusion other than that as the

Magistrate said, the complainant gave very clear and concise

40

evidence which is to be accepted, notwithstanding some
discrepancies with the evidence of Mr Nitz, which is only to
be expected when different persons give evidence of their
different perspectives of what has happened, particularly

after the passage of time that was involved here.

50

In particular, despite the appellant's denials, there is no reason for me not to accept her beyond reasonable doubt as a credible and reliable witness that she was approached by him 28082009 D.1 T(3)06/LBM(BNE) M/T BRIS24 (Irwin DCJ) 1-18 JUDGMENT 60

when she was going to and from the pizza shop in a way that	1
she interpreted involved him asking her for money by putting the box in her face and behaving in an aggressive manner.
As I have observed, her evidence was that she became annoyed

10

and on the way back, not only said, "No, thank you, no." on a
number of occasions, but also waved her arms at the appellant.

Like the Magistrate, I cannot exclude that, at least in this way, she wound him up. I also cannot exclude that she did, in

20

fact, give a piece of pizza crust to him or threw it into his
box.

This is because, not only is there the evidence of Mr Nitz that he thought that she was offering him a pizza, which was

30

also put as whether she was offering it to him, I do not know,
but also Senior Constable Norden saw a pizza crust in the

collection box.

This conclusion is not inconsistent with my acceptance of the

40

substance of her evidence because she could not recall whether she took a pizza with her after she left the shop, but she was never asked whether she threw the pizza crust into the
collection box as opposed to being asked whether she threw the

pizza at him.

50

It was only put to her, "You, in fact, threw the pizza at Mr
Watson." She denied this and so did Mr Watson. On the other
hand, Mr Watson admitted that, following this, he was upset
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-19 JUDGMENT 60

and he walked, depending on which view of the evidence is	1
taken, anywhere between two metres and six or seven metres after her and pushed the pizza crust into her shoulder.
Whether he used the pizza crust or not, this is an admission

10

of an assault. I accept her evidence that she did not have an injury when she went out that evening, and that after she felt something on her back, which must have been the contact caused by the appellant, she felt the pain and stinging and the blood on her fingers and that a red mark was seen shortly afterwards

20

by Constable O'Neill and Sergeant Paff, and also Detective
Graham.

Sergeant Paff who was the ex nurse recalled that it was a fresh mark. Detective Graham consistently with the

30

complainant's evidence, saw smudged blood nearby as if someone
had tried to wipe it away.

I also accept her evidence that when she turned around that he had the Tamborine in his hand. However this is not

40

inconsistent with his injuring her in some other way, such as
for example bringing his fingernails into contact with her
back when he thrust the pizza crust at her. I reject his
evidence that it was left on the seat. As I have said she

never gave evidence to the Magistrates Court that she saw him

50

strike her with a Tamborine. There is evidence that she made
this statement to the police when they arrived at the scene
shortly afterwards. However, this statement is equally
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-20 JUDGMENT 60

consistent with being an assumption or inference that she drew	1
from the circumstances.
It is against this background that I must consider what is to be established beyond reasonable doubt to establish that the

10

defendant committed an assault occasioning bodily harm to the
complainant on the date and the place alleged. The
Prosecution must prove beyond reasonable doubt that:

1.    The defendant assaulted the complainant.

20

Any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly without that person's consent is said to have assaulted the other person.

30

2.    The assault was unlawful, that is it is not authorised, justified or excused by law.

3.    The defendant thereby did bodily harm, that is any bodily

40

injury which interferes with health or comfort.

In relation to this, it was decided in R v Scatchard (1987) 27 infliction of an identified bodily injury is not sufficient to

50

constitute bodily harm.

In relation to issue 1, the appellant admitted to assaulting
the complainant. He says that this was done by pushing the
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-21 JUDGMENT 60

pizza crust into her back. There is no suggestion that any	1
other person was responsible.
It is not necessary to establish beyond reasonable doubt that he assaulted her in any particular way, whether by Tamborine,

10

pizza crust or with his fingernails. I am therefore satisfied
beyond reasonable doubt that it is established that the
appellant assaulted the complainant. I am also satisfied that
he caused the scratch to her back. As I have said, her

evidence is that she had no injury when she went out that

20

evening, and it was only after whatever the appellant did to
her that she felt hurt, pain, stinging and became aware of
blood when she touched her back. She was seen shortly
afterwards to have a red mark which was considered fresh by

the three officers who saw it, including the ex nurse,

30

Detective Sergeant Paff. And as I have said, Sergeant Graham noticed smudged blood consistent with it having been wiped.

In this case there is a 10 centimetre scratch to her back which was still obvious on the 15th of May 2006 when police

40

photographs were taken that were tendered as exhibits. I am
satisfied that the pain and stinging that the complainant
experienced as a result of this injury caused her to be
distressed and crying and was an interference with her comfort

and constituted bodily harm. No reason has been identified as

50

to why she would want to fabricate an account against him of
having caused this injury to her, given that she had only come
into contact with him in the way that she described that
evening. Nor is there any reason that has been identified
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-22 JUDGMENT 60

that she would want to injury herself or have some other	1
person injure her for this purpose.
The appellant does not describe any action towards her by any other person while he saw her walking towards the police which

10

could account for the injury. I am therefore satisfied beyond
reasonable doubt that not only did the appellant assault the
complainant, but he thereby did her bodily harm. The only
issue that remains is as to whether or not the Prosecution

established beyond reasonable doubt that the assault was

20

unlawful in the sense it is not authorised, justified or
excused by law.

This raises the question as to whether provocation arises for consideration on the evidence that was before the Magistrate.

30

The appellant referred to her provoking the incident. He described her conduct as harassing to him. As I have said, I cannot exclude that she gave him the pizza crust or threw it into his box. This was against the background where people throw rubbish at him and vomit and urinate into his box. He

40

also has had people grab money from a tray.

His evidence was that he regarded her conduct as an act of contempt, and said it was very upsetting. As a result, he walked between two and six or seven metres after her and

50

pushed the pizza crust into her shoulder and said, "Keep your
rubbish to yourself." He said that he is treated as an
animal.
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-23 JUDGMENT 60

On the other hand he said that although it is pretty stressing	1
busking, he often had a laugh about it next morning. He said that although people throw rubbish at him and give him a hard time and this can be very upsetting and distressing, he
continued to busk and could joke about it next morning. He

10

said, "It's good, I can handle it, I'm quite resilient in some
ways."

I will consider provocation on the version of events most favourable to the appellant, Stingel v The Queen [1990] 171

20

CLR 312 at 318, and given that I am required to consider it, if there is the least doubt whether the evidence is sufficient, Stingel at 334.

As I said, in order to convict the defendant it must be

30

established beyond reasonable doubt that the assault was
unlawful. An assault is unlawful unless it is authorised,
justified or excused by law. An assault is justified or
excused if at the time of the assault the defendant was acting

under provocation.

40

Provocation is defined as, "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

50

done or offered."

Our law provides that when such an act or insult is done or
offered by one person to another, the former is said to give
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-24 JUDGMENT 60

the latter provocation for an assault. At the outset there	1
must be a wrongful act or insult by the complainant. On the view of the evidence most favourable to the appellant this would be the throwing of the pizza crust into his donation box or tray.

10

Proceeding on the basis that this was a wrongful act or insult by the complainant to the appellant, it must also be of such a nature as to be likely if done to an ordinary person to

deprive a person of the power of self control. Whether the

20

act or insult is such as is likely to provoke the person is a
question to be decided in light of the facts and the

circumstances as I have found them to be.

An ordinary person in this context is expected to have the

30

ordinary weaknesses and emotions common to all members of the
community, and to have the same level of control as an
ordinary person of the appellant's age. In this case the
appellant was aged 58 at the time. It means an ordinary

person in the position of the appellant who has been provoked

40

to the same degree of severity and for the same reason as the
appellant.

I must consider the gravity of the provocation to the particular appellant; his race, colour, habits and

50

relationship to the complainant may all be part of this
assessment. Conduct, which might not be insulting to one
person may be extremely insulting to another because of that
person's race, age, ethnic, or cultural background, physical
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-25 JUDGMENT 60

features, personal attributes, personal relationships or past	1
history.
In this case the special characteristics of the appellant raised on the evidence and relevant to the assessment of the

10

wrongful act or insult, are that he was a homeless man seeking to earn a living by busking in public streets in circumstances where he is often treated with disrespect in the manner I have described. However, this is also a person who can nonetheless joke about it the next day and can handle it and describes

20

himself as resilient.

In these circumstances I am satisfied beyond reasonable doubt that an ordinary person in the position of the appellant in this context who had been provoked to the same degree of

30

severity, and for the same reason as the appellant, would not

be deprived of his power of self control.

But even if I was satisfied or left in a reasonable doubt as

to whether there was a wrongful act or insult of such a nature

40

as to be likely when done to a reasonable person to deprive
the ordinary person of a power of self control, I must
consider whether that act or insult induced the appellant to
assault the complainant. For example, a deliberate act of

vengeance, hatred or revenge may not be induced by the

50

wrongful act or insult despite the fact that such an act or
insult was offered.
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-26 JUDGMENT 60

A person is not criminally responsible for an assault	1
committed on a person who gives the appellant 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

10

to cool, and if the force is not disproportionate to the
provocation and is not intended, or is not such as is likely
to cause death or grievous bodily harm. I must be satisfied
beyond reasonable doubt that provocation does not apply.

There is no burden on the defendant to satisfy me that he was

20

provoked.

In deciding whether the defendant was deprived of the power of
self control, I must view the words or conduct in question as

a whole, and also in light of any history or disputation

30

between the appellant and the complainant since particular
acts or words, which considered separately could not amount to
provocation, may in combination or cumulatively be enough to

cause the appellant to lose self control in fact.

40

I am satisfied beyond reasonable doubt that in this case the appellant, who did not know the complainant, was not deprived of his power of self control because while he described himself as upset, he deliberately decided to walk towards her and to thrust the pizza crust into her shoulder, on his

50

evidence, in order to make his point.

The appellant must have acted upon the provocation upon the
sudden, and before there is time for his passion to cool, the
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-27 JUDGMENT 60

force used by the appellant must not be disproportionate to	1
the provocation. I am satisfied beyond reasonable doubt that walking up behind her and assaulting her in a manner that caused a 10 centimetre scratch which bled, is a disproportionate response to any act of hers which involved

10

throwing a pizza crust into his box.

In coming to this conclusion I am conscious that the question of whether force was disproportionate depends on all the circumstances of the case, including the physical attributes

20

of the person offering the provocation, the nature of the
attack, whether a weapon was used, what type of weapon and

whether the person was alone in company.

Ultimately I am satisfied beyond reasonable doubt that there

30

was no provocation in terms of how an ordinary person would be
likely to react in these circumstances, or that the appellant
was in fact not deprived by the provocation of the power of
self control, or that the force used by the appellant was out

of proportion to the provocation. Therefore I consider that

40

provocation is excluded.

In these circumstances I am satisfied beyond reasonable doubt that the assault by the appellant on the complainant was unlawful. I am satisfied, as I have already said, beyond

50

reasonable doubt that the assault occasioned her bodily harm.
Therefore I order that the appeal is dismissed. I take it you
don't wish me to make any order as to costs?
28082009 D.1 T(3)08-09/KDS(BNE) M/T BRIS24 (Irwin DCJ) 1-28 JUDGMENT 60

MS LITCHEN: No, your Honour.	1
HIS HONOUR: All right. I make no order as to costs.
MS LITCHEN: Thank you, your Honour.

10

HIS HONOUR: I'll make some arrangements to have the decision when it is prepared and has been revised by me to be sent to the last known address of the appellant, who I note, despite the information I have that he was advised that the matter was

20

on today, and was making his way to the Court this morning,
has still not arrived at Court in the period of about an hour
during which I've given the decision, it now being 3.45 p.m.
by the Court clock, the matter originally being listed to

commence at 2.30. All right, that is the order of the Court.

30

MS LITCHEN: Thank you, your Honour.
HIS HONOUR: Thank you, Ms Litchen.
MS LITCHEN: If I might be excused, your Honour.

HIS HONOUR: Yes, you may.

40

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1-29 JUDGMENT 60