Zoccoli v McDarby
[1999] WASCA 179
•22 SEPTEMBER 1999
ZOCCOLI -v- McDARBY [1999] WASCA 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 179 | |
| Case No: | SJA:1072/1999 | 8 SEPTEMBER 1999 | |
| Coram: | MILLER J | 22/09/99 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowedMatter remitted to Court of Petty Sessions for re-hearing | ||
| PDF Version |
| Parties: | NEVILLE PETER ZOCCOLI CARL JOSEPH McDARBY |
Catchwords: | Criminal law Appeal Defence of provocation Not raised at hearing Not dealt with by Magistrate Whether should have been considered Turns on own facts |
Legislation: | Criminal Code |
Case References: | Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 Chamberlain v R (No 2) (1984) 153 CLR 521 Knight v R (1992) 175 CLR 495 Stingel v R (1990) 171 CLR 312 Van Den Hoek v R (1986) 161 CLR 158 Giannasi v Waghorne, unreported; SCt of WA; Library No 960551; 11 September 1996 Hancock v Beard, unreported; FCt SCt of WA; Library No 960675; 27 November 1996 Long v Rawlins (1874) 4 QSCR 86 Lotz v Bullock [1912] StRQd 36 R v O'Malley [1964] QdR 226 Uranerz (Australia) Pty Ltd v Hale (1980) 30 ALR 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CARL JOSEPH McDARBY
Respondent
Catchwords:
Criminal law - Appeal - Defence of provocation - Not raised at hearing - Not dealt with by Magistrate - Whether should have been considered - Turns on own facts
Legislation:
Criminal Code
Result:
Appeal allowed
Matter remitted to Court of Petty Sessions for re-hearing
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Representation:
Counsel:
Appellant : Mr B S Hanbury
Respondent : Ms K A Sellars
Solicitors:
Appellant : Beau Hanbury
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Chamberlain v R (No 2) (1984) 153 CLR 521
Knight v R (1992) 175 CLR 495
Stingel v R (1990) 171 CLR 312
Van Den Hoek v R (1986) 161 CLR 158
Case(s) also cited:
Giannasi v Waghorne, unreported; SCt of WA; Library No 960551; 11 September 1996
Hancock v Beard, unreported; FCt SCt of WA; Library No 960675; 27 November 1996
Long v Rawlins (1874) 4 QSCR 86
Lotz v Bullock [1912] StRQd 36
R v O'Malley [1964] QdR 226
Uranerz (Australia) Pty Ltd v Hale (1980) 30 ALR 193
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1 MILLER J: This is an appeal from a decision of Mr Black SM given in the Court of Petty Sessions at Joondalup on 6 April 1999 when the learned Magistrate convicted the appellant of the offence of assault occasioning bodily harm. The grounds of appeal contend that the learned Magistrate erred in fact and in law in recording a conviction against the appellant in that:
(a) The learned Magistrate ought not to have concluded that the appellant had used force which was not reasonably necessary in removing the complainant from his property (Criminal Code s 254).
(b) The learned Magistrate failed to consider the question whether the appellant had been provoked by the complainant's conduct and acted under provocation in assaulting her as he was found to have done (Criminal Code s 246).
2 The grounds for appeal are particularised by reference to the evidence, but it is unnecessary for me to recount those particulars here.
The facts
3 On 15 July 1998 the appellant and his daughter Melissa Marie Zoccoli, who was 15 years of age, went to a counselling session in Warwick. The complainant Cheryl Bandy had on the morning asked her daughter Melissa whether she could attend the counselling session but her daughter had told her she could not. Notwithstanding this, the complainant arrived at the counselling session and attempted to take part in it. As a result the appellant and his daughter left and went to the Woodvale Boulevard shopping centre. There the appellant received a call on his mobile telephone from the complainant. She informed him that she was at his home and wanted to see Melissa about why she (the complainant) could not be involved in the counselling session. A short time afterwards the appellant and his daughter arrived at the appellant's home in Woodvale where he thereupon told the complainant to leave the premises. This she refused to do, and as a result the appellant forcibly removed her from the property.
4 There was a dispute at trial as to the circumstances in which the complainant was removed, but Melissa Zoccoli, whose evidence the learned Magistrate accepted, said that her father had asked her mother to leave a couple of times but she would not leave, and as a result he "lost
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- his block" and pushed her, at which time Melissa went to her bedroom. The complainant's version was that the appellant grabbed her and slammed her head on the bonnet of his car twice before dragging her some ten metres or so along the ground, including dragging her across a low brick wall, and slamming her head on the concrete floor of the carport area. The complainant when cross-examined elaborated upon the incident by saying that she had been grabbed by the throat before being grabbed by the shoulders. She said that after this incident she had returned home and then gone to see a doctor. When asked whether she had banged on the front window of the house, she admitted that she had but contended that this was before the incident in which she was forcibly removed from the property.
5 The appellant gave evidence that he found the complainant in the house in the laundry area and forcibly removed her, pushing her to her car. He claimed that she came back at him again, following him to the house, as a result of which he grabbed her again and tried to put her back in her motor vehicle, telling her to leave the premises. Some time later she returned and the appellant found her banging on the window of his house in an agitated condition, swinging at the window with a piece of wood which she had removed from a garden bed. He contended that he then approached her, grabbed her by the arms ("the top of the shoulders and in the arms") and then dragged her away from the window, down the driveway and onto the roadway. He denied putting his hands around her throat or choking her in any way and contended that he had not lost his temper. Although conceding that he was angry he said he did not think he was out of control in acting as he did.
6 Melissa Zoccoli, whose evidence the learned Magistrate accepted, described the second incident. She said that she observed her mother hit the window five or six times with a pipe and described her as "going off her face". She said her father kept telling her mother to leave but she would not and she then saw him put his hands around her neck for a short period of time which she estimated at a couple of seconds. There were a number of answers she gave in which she described this action, once saying that "he wasn't actually choking her" and also adding that "I suppose he was trying to scare her just to get her to go".
7 There was medical evidence in the form of a medical report from Dr T Pham which indicated that he had seen the complainant on the day in question at which time she made a complaint of being dragged along the ground with her head being banged on a car bonnet and receiving
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- "throws" to the body. Amongst the injuries found by Dr Pham were "soft tissue neck injuries to the trapezius bilaterally and subcutaneous tissues".
The Magistrate's Decision
8 After reviewing the evidence of the complainant and the appellant respectively, the learned Magistrate concluded that he was unable to accept the evidence of either of them in its entirety. His conclusion was:
"Having seen the parties give their evidence my impression is that Ms Bandy was intent on making whatever occurred as bad as she could in terms of the assault against her and that Mr Zoccoli's evidence was intended to paint a picture opposite that of Ms Bandy. That is, that he did absolutely nothing wrong. I have a good deal of difficulty in accepting the evidence of either of the parties in its entirety. Indeed it is only where there is some other evidence - some corroboration - that I am prepared to accept the evidence of either Ms Bandy or Mr Zoccoli."
9 Although the learned Magistrate was unable to accept the evidence of either of the parties "in its entirety" his Worship did not indicate just what parts of it he was prepared to accept. Whilst saying that he would accept their evidence where corroborated, the fact of the matter was that it was difficult to find any direct corroboration of any precise portion of their respective testimony.
10 The learned Magistrate found that Melissa Zoccoli's evidence supported to some degree the evidence of each of the complainant and the appellant. After finding that she was a somewhat reluctant witness his Worship accepted her testimony that in the initial incident her father had "lost his block" and pushed the complainant away from the house and that subsequently the complainant had come back to the house and banged on a window, following which the appellant had warned her to leave and then pushed her and "grabbed her as if he was strangling her … grabbed her around the neck".
11 The learned Magistrate said in relation to corroboration:
"The only corroboration, as I've said, is what comes in the form of Melissa. Given that evidence I find as facts that Ms Bandy went to the premises of Mr Zoccoli and as a result of perhaps things that occurred in the past but in particular what had
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- occurred that morning and the exclusion of her from the counselling session involving Melissa that she was - notwithstanding her denials - angry, upset and wanting to do something about it.
When Mr Zoccoli and Melissa arrive home - again, notwithstanding her denials - Ms Bandy was in the premises. She was in the kitchen laundry area and that she was told on several occasions to leave. There was no restraining order in force, however, the evidence establishes that Mr Zoccoli was entitled to possession of those premises. He had the entitlement to require Ms Bandy to leave. She did not. He then grabbed her and did remove her from the premises. At some stage during the course of the removal, he returning to the residence and Ms Bandy returning to the residence after she perhaps done something else, he again sought to remove her from the premises.
In doing so at or about the flower bed, the brick wall towards the end of the driveway he grabbed her around the neck in a strangling motion. That only lasted for a short period of time but he did that. As a result of that and the push that she fell into or was pushed into the flower bed."
12 The case was presented before the learned Magistrate as one of unlawful assault occasioning bodily harm, the prosecution case being there was no authorisation, justification or excuse for the assault that occurred. The defence submission was that the appellant's conduct came within the provisions of s 254 of the Criminal Code, namely, it being a situation in which it was lawful for him as the occupant in peaceable position of his property to use such force as was reasonably necessary to remove the complainant, a person who wrongfully remained on or in that place. The proviso under s 254(2) which requires that force used is not intended and is not such as is likely to cause death or grievous bodily harm to the person was clearly inapplicable.
13 The learned Magistrate dealt with the defence raised under s 254 of the Code and said:
"… section 254 is relied upon. Had it been the case that Mr Zoccoli simply grabbed Ms Bandy by the shoulders, by the arms, around the waist - and removed her in that fashion from
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- his property in my view the assault upon her would have been lawful.
But he went further than that. It was not reasonably necessary in removing her from the property for him to grab her around the neck nor push her as he did into the garden bed. The medical reports says that there was soft tissue neck injuries. On the evidence before me the only way in which those injuries can have occurred is when he did grab her around the neck. I conclude that the force used by the defendant in removing Ms Bandy was not reasonably necessary simply to remove her, in the sense that I've outlined. As such the assault was not a lawful assault."
Appeal
14 On the argument of the appeal before me it was contended that the bodily harm sustained by the complainant was not unusual and it was in the circumstances to be expected that some injury might result from the situation which had developed. The injuries were said to be "not such as were unexpected". Further, it was put that the learned Magistrate wrongly picked out one fleeting aspect of the overall conduct in convicting the appellant of the charge. It was argued that the whole of the circumstances needed to be viewed and weighed up, not a single aspect of an overall struggle. Criticism was also raised in relation to the learned Magistrate's conclusion that the cause of soft tissue neck injury was "the assault", it being argued that there was no medical evidence to demonstrate that being grabbed around the neck was the only way in which the neck injuries could have been caused.
15 As I have indicated, the complaint made by the complainant to Dr Pham was that she had been dragged along the ground, her head had been banged on a car bonnet and she had received a number of "throws" to the body. It was not suggested by her that she had been grabbed around the neck in any way. The doctor did not seek to attribute the cause of the soft tissue neck injuries to any particular assault.
16 However, I am of the view that it was open to the learned Magistrate to conclude that the soft tissue neck injury was consistent with the complainant being grabbed around the neck. Likewise, I am of the view that it was open to the learned Magistrate to conclude that this injury constituted bodily harm within the meaning of the Criminal Code.
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17 The respondent argued that the learned Magistrate had directed himself properly in respect of the law relevant to the provisions of s 254 of the Code and was entitled to find as he did that the appellant had grabbed the complainant around the neck in a strangling motion and in the circumstances the prosecution had negatived the defence available under the provisions of s 254.
18 The respondent properly pointed out that the learned Magistrate had the advantage of seeing and hearing all witnesses, and it would be wrong for this Court to simply substitute its view of the evidence for any view formed by the learned Magistrate: Knight v R (1992) 175 CLR 495. It was argued there was nothing before the Court to establish that the learned Magistrate had failed to use or effectively misused the advantage he possessed as the trier of fact by accepting a body of evidence glaringly improbable or inconsistent with established fact: Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53.
19 I accept these arguments, and in relation to the learned Magistrate's conclusions about the force used to remove the complainant from the property, I conclude that it was open to him to reach the view that the force used by the appellant in removing the complainant was not reasonably necessary simply to remove her. The question is not whether I would have formed a different view, but whether the learned Magistrate's view was defensible: Chamberlain v R (No 2) (1984) 153 CLR 521.
20 The appellant argues that the learned Magistrate erred in law in failing to consider the issue of provocation. Although conceding that this issue was not raised at the hearing, it is contended that it was nevertheless necessary that the learned Magistrate address himself to the issue, as the evidence gave rise to a question of provocation and the onus lay on the prosecution to disprove provocation beyond reasonable doubt: Stingel v R (1990) 171 CLR 312. Whether or not the defence has raised the issue of provocation, it is necessary for a trial Judge to leave the issue the jury if there is any evidence of provocation fit to be left to the jury. The following passage from the decision of the Court in Van Den Hoek v R (1986) 161 CLR 158 (at 161 - 162) sets out the principle:
"The question on which the learned members of the Court of Criminal Appeal disagreed was whether the learned trial judge erred in failing to direct the jury on the issue of provocation. Neither the fact that the applicant did not expressly say in evidence that she had been deprived of the power of self control, nor the fact that counsel in effect told the learned trial
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- judge that provocation was not an issue, absolved the learned trial judge from the necessity of leaving that issue to the jury if there was some evidence fit for its consideration. In Bullard v The Queen (11) Lord Tucker, delivering the reasons for the judgment of the Judicial Committee, said:
'It has long been settled law that if on the evidence, whether or the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.'
- That statement is amply supported by authority: see Mancini v Director of Public Prosecutions (12); Kwaku Mensah v The King (13); Lee Chun-Chuen v The Queen (14); Parker v The Queen (15); Da Costa v The Queen(16); Pemble v The Queen (17); Sreckovic v The Queen (18).
The question that then arises is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation."
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- had put the case fairly and squarely as one which raised the defence under s 254 of the Code. However, there was in my view enough evidence to necessitate that the learned Magistrate consider the question and resolve it.
22 Counsel for the respondent argued that even if the learned Magistrate had considered the issue he would have had no difficulty in concluding that the prosecution had negatived the issue of provocation. Reference was made to the fact that the appellant in his testimony had denied that he had lost his temper and although conceding that he was angry had said that he did not think he was out of control. However, as was made clear in Van Den Hoek (supra), even if the accused has not said in terms that he was provoked, the Judge must after a proper direction leave it open to the jury to return a verdict of guilty of manslaughter (in a homicide case) if they are not satisfied beyond reasonable doubt that the killing was unprovoked. In the same way, notwithstanding the appellant's testimony that he had not lost his temper and although angry did not think he was out of control, it was incumbent upon the learned Magistrate to consider the totality of the evidence, including that of Melissa Zoccoli, that her father had only shortly before the incident in which he took the complainant by the neck "lost his block" and after her return to the property "went off at her again". There was a very live question as to whether in the circumstances the complainant's behaviour was such as to be likely to deprive an ordinary person of the power of self-control and induce him to assault her and whether, in the case in question, the evidence established that the appellant was in fact deprived by provocation of the power of self-control. It was unfortunate that the issue of provocation was not raised with the learned Magistrate, but the appellant cannot be held responsible or prejudiced for that fact. He was in my view entitled to have the matter considered by the learned Magistrate and ruled upon.
23 In my view, the appellant has made out ground 1.3 of the grounds of appeal namely, that the learned Magistrate failed to consider the issue of provocation within the meaning of s 246 of the Criminal Code. The question is what should be done about it. Counsel for the respondent argued that I was in as good a position as the Magistrate to deal with the issue, but in that respect I disagree. In my view it is a matter that requires consideration in the light of the testimony and credibility of the witnesses, advantages which are not available to me on a mere reading of the transcript of proceedings. I therefore conclude that the appeal should be allowed and the matter remitted to the Court of Petty Sessions at Joondalup for re-hearing. As Mr Black SM has already determined the
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- complaint on the defence raised under s 254 of the Code, it is appropriate that he should now consider the defence of provocation under s 246 of the Code, appreciating of course that it is for the prosecution to negative beyond reasonable doubt that defence. Whether the learned Magistrate will need the key witnesses to be recalled, or whether he can determine the issue in the light of the evidence already given, is for him to decide.
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