District Court of WA|2013-02-22|Before: Mr P

MCDAVITT -v- MCDAVITT [2013] WADC 22 (22 February 2013)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : MCDAVITT -v- MCDAVITT [2013] WADC 22

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Whether appellant claiming criminal injuries compensation award engaged in criminal conduct at the time of her injuries - Whether appellant's conduct excused by the law of provocation - Whether appellant disentitled to an award of criminal injuries compensation pursuant to s 39 Criminal Injuries Compensation Act 2003 - Turns on own facts

Amicus Curiae : Mr P D Spragg appeared on behalf of the Chief Executive Officer of the Department of Attorney General

Anderson v Malcolm [2010] WASC 308

Arden v The Queen [1975] VicRp 43; [1975] VR 449

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Davis v The Queen (1998) 100 A Crim R 573

Doust v Meyer [2009] WASCA 65

Ellis v Ellis [1999] WASCA 30

Evans v The State of Western Australia [2011] WASCA 182

Fogg v The State of Western Australia [2011] WASCA 11

Hutchings v Lachlan [2012] WADC 89

Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58

Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233

Re: Richardson [2009] WADC 93

Stingel v The Queen [1990] HCA 621; (1990) 171 CLR 312

Sunderland [2011] WADC 97

The Queen v Quartly (1986) 11 NSWLR 332

Verhoeven v Ninyette (1998) 101 A Crim R 24

1 DAVIS DCJ: On 19 July 2007 the respondent pleaded guilty in the Magistrates Court at Fremantle to an offence of aggravated assault occasioning bodily harm committed against the appellant. This offence occurred on 7 January 2007.

2 The appellant made an application for compensation under the Criminal Injuries Compensation Act 2003 (the Act) for the injuries she received in the assault.

3 On 13 April 2010 the Chief Assessor of Criminal Injuries Compensation refused the appellant's compensation application. Applying s 39 of the Act, the chief assessor concluded that she was prevented from making an award of compensation to the appellant because the appellant was committing a 'separate offence' when she was injured. That separate offence was the appellant's own assault on the respondent, before his commission of the assault on the appellant.

4 Following the chief assessor's decision this appeal was brought with the following ground of appeal:

The Assessor for Criminal Injuries Compensation erred, in fact and in law, in finding that:

(a) the appellant was committing a separate offence at the time that the appellant suffered injury; and

(b) the assessor was precluded from making an award of compensation in favour of the appellant by virtue of section 39 of the Criminal Injuries Compensation Act 2003.

5 The appeal has been heard by me. For the reasons which follow, I consider that in the particular circumstances of the offence committed against the appellant, s 39 of the Act does not apply and that her appeal must be allowed.

Background and the chief assessor's refusal of compensation

6 Police initially charged the respondent with two offences of aggravated assault occasioning bodily harm and prepared the following statement of material facts:

The accused and victim have been in a domestic relationship (husband and wife) for approximately eight years and lived together.

The accused is a male, 55 years of age, medium build and 180cm tall. The victim is a female, 52 years of age, medium build and 160cm tall.

On Saturday 6th of January 2007, the accused and the victim attended a friend's house ... for dinner and drinks.

Three couples were at the house and all the females and one of the males went to bed at approximately 10.15 p.m. The accused and a friend, Michael MANNIX remained in the rear yard drinking alcohol.

At approximately 2 a.m. the victim woke up and heard the accused 'bagging' her and her children from a previous marriage. She listened to the accused for approximately half an hour.

At approximately 2.30 p.m. [sic - a.m.] the victim got out of bed and approached the accused, who was sitting on a chair, and hit him with an open hand to his head in a forcefull [sic] manner.

The victim sat down on a chair nearby and the accused got up and ran towards the victim and punched the victim to the head area twice. The victim was knocked out of her chair and into a raised garden bed.

The accused then continued to punch the victim another four times to the head area. The accused was dragged by Michael MANNIX away from the victim towards the front of the house.

The accused was taken to the verge, outside the house. Michael MANNIX left the accused there while he entered the house and rang for a taxi to attend and take the accused away.

The victim was very upset and woke up the Wife of Michael, Tracey MANNIX and told her what had happened.

At approximately 2.45 a.m. the two were in the rear yard having a cigarette when the accused returned and grabbed the victim by the hair. The accused then said to the victim, 'You deserve this, it's been coming for a long time.' He then punched the victim about eight times around the head with a clenched right fist.

One again Michael MANNIX dragged the accused away from the victim towards the front of the house.

When Police arrived, the accused and Michael MANNIX were outside the address waiting for a taxi to arrive.

The victim's injuries visable [sic] to attending Police were, swollen left cheek, swollen nose, large lump to her head behind her left ear, bruising to her left upper arm, large abrasion to her right upper arm, large scratch to her left elbow. The victim stated to Police that she had a sore buttocks and knee.

7 The reference to the 'victim' in the statement of material facts is, of course, a reference to the appellant and the 'accused' is a reference to the respondent.

8 By a letter dated 3 July 2007 the solicitors who were then representing the respondent wrote to the police, contending that there was some doubt about the first charge 'given that there is a defence of provocation available to the accused and given that there is no corroboration of the complainant's version of the assault'. The letter went on to advise that the respondent would plead guilty to the second charge of aggravated assault occasioning bodily harm if the first charge was discontinued. The police appeared to have accepted this proposal with a note on the brief stating 'second charge to be discontinued as one charge covers both incidents. Facts to remain the same and PG will be entered'.

9 There is, unfortunately no transcript of the proceedings which took place before the magistrate on 19 July 2007. The chief assessor assumed that the statement of material facts had been presented to the court at the time of the respondent's guilty plea.

10 Based on the statement of material facts and the evidence from the statements of witnesses on the police file, the chief assessor found that the time between the appellant going out to speak to the respondent about his remarks concerning her family, and the second assault which occurred while she was with Tracey Mannix, was approximately 15 minutes.

11 The chief assessor also found, applying s 39 of the Act and the decision of Re: Richardson [2009] WADC 93, that the appellant's injuries were suffered when the appellant was committing a separate offence, that of slapping the respondent to the face.

12 In Re: Richardson Yeats DCJ stated [31]:

I agree with respect that s 39(1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case. Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.

13 In essence, the chief assessor decided on the facts that there was a temporal connection between the appellant's separate offence of assaulting the respondent by slapping him and her injuries, and thus s 39 prevented the making of a compensation award: see McDavitt [2010] WACIC 20 [12] - [16].

The nature of the appeal and the admission of further evidence

14 On the hearing of this appeal I must determine the application afresh without being fettered by the determination of the chief assessor: s 56(1) of the Act. I may confirm, vary or reverse the chief assessor's decision in whole or in part: s 56(2) of the Act.

15 I can determine the claim solely on the evidence and information that was in possession of the chief assessor, or I may receive further evidence and information: see s 56(1) of the Act. It is now well established that the discretion to admit further evidence on an appeal under the Act should be exercised without undue restriction, particularly given the beneficial purpose of the Act, the fact that an assessor is not bound by the rules of evidence, and that the nature of a determination by an assessor is informal: see s 18 of the Act; Re: Tilbury [2010] WADC 46 [3]; Sunderland [2011] WADC 97.

16 In this appeal, before it was set down for hearing, orders were made giving both the appellant and respondent leave to give oral evidence at the hearing of the appeal. In fact, that further evidence was given by way of affidavit, which stood as each of the appellant's and respondent's evidence-in-chief, with cross-examination on that affidavit evidence.

17 I will therefore determine this appeal on the basis of what information the chief assessor had before her, supplemented by the further evidence given in this appeal by each of the appellant and the respondent.

18 The parties also agreed that I should first consider the issue of whether, pursuant to the provisions of s 39(1) of the Act, the appellant is disentitled to an award. After the outcome of my decision on that issue, if I find in favour of the appellant, I will need to decide whether there should be a reduction in any award of compensation, pursuant to s 41 of the Act, by reason of the appellant's behaviour, and there will be a separate and later hearing relevant to the assessment of compensation and the award which should be made to the appellant.

Section 39(1) of the Act

19 Section 39(1) of the Act provides:

No award if victim was engaged in criminal conduct

(a) that a person was injured as a consequence of the commission of an offence; and

(b) that the injury was suffered when the person was committing a separate offence,

the assessor must not make a compensation award in favour of the person.

20 After the chief assessor's decision in this case, s 39 was considered by the Court of Appeal in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 (Attorney General v Schoombee). In that decision the Court of Appeal confirmed that the approach to the construction of s 39 of the Act was that set out by Yeats DCJ in Re: Richardson [31] (which I have set out in [12] above). Martin CJ, with whom Newnes and Murphy JA agreed, stated at [31] - [33]:

As the District Court judge correctly noted in the passage which I have set out above [18], one of the well-established rules of statutory construction requires primary regard to be given to the natural and ordinary meaning of the words used in the statute. As she correctly noted, the natural and ordinary meaning of the word 'when' read in its context in s 39(1)(b) of the Act is 'at the time that': see The Macquarie Dictionary (1981). The focus of the word is temporal. In its natural and ordinary meaning it can be used to identify a period of time measured in hours or minutes or seconds. However, it can also be used to describe a period of time reckoned more generally such as, by reference to an incident or occasion, as the District Court judge noted. So, while the word 'when' is capable of referring to a precise instant in time at which two separate events are occurring, it is also capable of referring more generally to a period of time more loosely defined - as in 'when I was a child', or 'when I was on holiday'.

Another accepted principle of a statutory construction allows attention to be given to the evident purpose of the statute, ascertained by reference to the words used. The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instants in time, it could not be said that the two offences were committed 'at the same time'. Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.

In my respectful view, the proper approach to the construction of s 39 of the Act was put well by Yeats DCJ in Richardson......

21 Whether there is a temporal connection requires judgment of all the facts and circumstances of the case to determine whether at the time the claimant was injured he or she had committed a separate offence. The temporal connection between the separate offence committed by the claimant before the offence causing injury is not to be interpreted on a narrow basis. It is not necessary that they must be committed at the same instant in time: Attorney General v Schoombee [53], [54].

22 The principles relating to s 39 of the Act as set out in Attorney General v Schoombee were conveniently summarised by Commissioner Gething in Hutchings v Lachlan [2012] WADC 89 [32], which I respectfully adopt but paraphrase as follows:

(a) the term 'when' in s 39 (1) (b) does not require a causal connection between the offence committed by the claimant and the offence that gave rise to that person's injuries;

(b) the term 'when' in s 39 (1) (b) requires a temporal connection between the offence committed by the claimant and the offence that gave rise to that person's injuries;

(c) the temporal connection does not require the claimant's offence to be committed at the same instant in time as the offence that gave rise to the claimant's injuries; and

(d) whether there is a temporal connection requires judgment of all the facts and circumstances of the case to determine whether at the time the claimant was injured the claimant was committing a separate offence. This will include a consideration of whether the claimant's separate offence and claimant's injuries are part of the one incident.

23 The appellant submitted that she was not committing a separate offence at the time that she suffered the injuries for which she claims an award of compensation, as set out in s 39 of the Act, because she had been provoked by what the respondent had been saying about her and her family. That provocation caused her to hit the respondent. It was not in issue that the appellant had slapped the respondent and it was not in dispute that, absent provocation, this would constitute an assault or 'separate offence' by the appellant against the respondent within the meaning of s 39 of the Act.

24 The provisions relating to provocation are found in s 245 and s 246 of the Criminal Code. Section 245 provides:

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.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

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.

26 There is no doubt that words alone are capable of amounting to provocation. Further, the word 'wrongful' in s 245 of the Criminal Code does not qualify the word 'insult': Stingel v The Queen [1990] HCA 621; (1990) 171 CLR 312, 322; Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [39] - [40].

27 The essence of provocation is that the provocative conduct (wrongful act or insult) must be 'capable of causing an ordinary person to lose self-control and act in the way the accused did' (which is an objective aspect) and must 'cause the accused to lose self-control and do the charged act while deprived of his self-control and before he has had the opportunity to regain his composure' (which is a subjective aspect): Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58; Pollock v The Queen [2010] HCA 35; (2010) 242 CLR 233 [60].

28 For provocation to excuse an assault, therefore:

(a) there must be a wrongful act or insult which gives the accused provocation for the assault: s 245;

(b) the provocation must be of such a nature that it could or might have caused an ordinary person to lose self-control and act as the accused did: s 245; Evans v The State of Western Australia [2011] WASCA 182 [127] (McLure P);

(c) the accused must in fact have been deprived by the provocation of the power of self-control ie he or she must have acted upon the provocation on the sudden and before there was time for his or her passion to cool: s 246;

(d) the force used must not be disproportionate to the provocation: s 246.

29 In a criminal trial, in the case of the prosecution for an assault on which the State bears the onus of proof beyond reasonable doubt, the State would have to prove that the law of provocation did not apply to excuse the assault and the State could do so by proving that any one of the above matters did not apply.

30 As discussed by Commissioner Gething in Hutchings v Lachlan [34] and [37], s 39 of the Act requires the assessor (and therefore this court on appeal) to be 'satisfied' of certain matters and is essentially neutral as to the onus of proof and whether that rests on the claimant for criminal injuries compensation or the offender. The failure of the assessor to be satisfied of a matter may operate to the advantage of the claimant or the offender, depending on the context. Section 3 of the Act provides that 'satisfied' means 'satisfied on the balance of probabilities'. The strength of what is necessary to establish a matter on the balance of probabilities may vary according to the nature of what is sought, and where criminal conduct is alleged, clear and cogent evidence will be required: Hutchings v Lachlan [2012] WADC 89 [35]; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363.

31 Applying these principles, in this appeal where I am asked to determine whether the appellant's assault of the respondent was excused by the law of provocation, I consider I should apply the tests for provocation as I have set out in [28]. To make a finding that the appellant was provoked I would need to be satisfied on the balance of probabilities that:

(a) there was an insult which gave provocation for the appellant's assault of the respondent;

(b) the provocation could or might have caused an ordinary person to lose self-control and act as the appellant did;

(d) the force used by the appellant was not disproportionate to the provocation.

32 If I am not satisfied of any one of the above matters, then I could not find that the appellant's assault of the respondent was excused by the law of provocation and consequently I would have to find that the appellant did commit a separate offence within the meaning of s 39.

33 If I do find that the appellant committed a separate offence, there is a further matter I need to determine arising from the facts in this appeal, and that is whether there is the necessary temporal connection between the appellant's separate offence and all of the injuries she suffered as a result of the offence committed upon her by the respondent.

34 Counsel for the appellant submitted that there was not in fact one continuing assault by the respondent in response to the appellant's assault of him, but rather two separate incidents:

the first assault by the respondent on the appellant which occurred after the appellant's assault on the respondent, where she was punched to the head twice and fell out of her chair and into a garden bed. This was referred to as the 'first incident'; and
the second assault by the respondent which occurred after the taxi had been called, when the respondent returned and hit the appellant again in the presence of Tracey Mannix. This was referred to as the 'second incident'.

35 It was submitted that the second incident was separate and distinct from the first incident both in time and in purpose and the second incident occurred without any separate offence having been committed by the appellant. In effect it was submitted that if I was to find that the appellant's assault of the respondent was not excused by the law of provocation and therefore she did commit a separate offence, the separate offence only had a temporal connection with the first incident, and there was no temporal connection with the second incident. Accordingly, a further question I must consider is whether there is a temporal connection between the appellant's separate offence and the injuries she suffered as a result of the second incident.

36 It is common ground that on 6 January 2007 the appellant and the respondent, who were then married, attended the home of Michael and Tracey Mannix for dinner. After dinner the appellant and the respondent stayed the night at the Mannix house, with the appellant and Tracey Mannix going to bed at approximately 10.15 pm. The men, the respondent and Michael Mannix, stayed up drinking and talking.

37 In the early hours of the next morning at approximately 2.00 am the appellant awoke and heard the respondent in conversation with Michael Mannix. In a statement to police which the appellant made on the same day of the incident, 7 January 2007, she said she heard the offender 'bagging me and the kids'. It is apparent from the evidence of both the appellant and the respondent in this appeal that the term 'bagging' is not an expression which the appellant herself used on the night. I accept the appellant's evidence that this term was one used by the police officer who drafted her statement.

38 In her police statement the appellant did not give details of what she had overheard the respondent saying. She did say that she was upset by the things he was saying.

39 More details were provided in the appellant's evidence in the hearing of this appeal. The appellant's evidence in her affidavit sworn 7 June 2012 was that she awoke to hear voices coming from the rear patio of the house. As she needed to use the toilet, she walked from the bedroom where she was sleeping to the bathroom. That bathroom shares a common wall with the rear patio. As she walked into the bathroom she heard the respondent talking in what she described as an 'angry venomous tone', speaking of her daughter, Tara. The appellant stated that she heard the respondent use Tara's name and say 'she is a lazy lay about. She lays on a couch and watches television and she pays no rent.'

40 After hearing a response from Michael Mannix, which she did not or could not decipher, the appellant then heard the respondent talk about her son, Adam. Her evidence was that she heard the respondent say 'Adam has earnt nothing, Sharyn (the appellant) has paid for all of his holidays and he isn't as sick as Sharyn makes him out to be.'

41 The appellant said she then heard the respondent speak about her mother and sister, describing her mother as a 'psycho old whore' and then calling her sister 'nothing but a prostitute'.

42 The appellant's evidence was she also heard the respondent talking about her, saying 'Sharyn is nothing but an extravagant prostitute, keeps all her money to herself, does nothing for me and gives all her money to the kids'.

43 After hearing these comments, the appellant described herself as physically shaking.

44 In the respondent's evidence in this appeal he admitted that he was out the back of the house having discussions with Michael Mannix about the appellant's family members. As to each of the people which the appellant said were mentioned:

(a) The respondent denied having said anything negative about the appellant's daughter, Tara, explaining in both his affidavit sworn 24 September 2012 which stood as his evidence-in-chief and during cross-examination that he was very fond of her and respected her.

(b) The respondent admitted that he discussed the appellant's son, and made derogatory comments about him, but disputed the words that the appellant attributed to him. His version of what he said he told Mr Mannix was something to the effect that the appellant's son was smart but was very lazy and could manipulate his mother who continued to give him substantial amounts of money, which was unfair to the rest of the family. The respondent explained that he and Mr Mannix discussed the positives and negatives of marrying into a household with three children and the responsibilities that came with it. During cross-examination the respondent explained that he and the appellant 'had our differences over Adam on how he was brought up' and later admitted that the appellant's son was the 'centre of the discussions', relating to his inability to work and contribute to the house and 'do a number of things that normal people - kids of his age would do'.

(c) The respondent admitted that during the conversation he 'may have' insulted the appellant's mother. In cross-examination he said he could not remember what he might have said about her, later adding that he was 'ambivalent' about her and later again commenting that in having a discussion with Mr Mannix 'maybe I was getting something off my chest ... I would suggest that it would be just the general mother-in-law thing of interference within the family'. In re-examination the respondent said that he did make some derogatory comments 'possibly' about the appellant's mother.

(d) He denied that he referred to the appellant's sister as a prostitute, saying in his affidavit that 'At no time did I refer to the appellant's sister as a prostitute nor did I refer to the appellant as a prostitute'. He said in re-examination 'I have no reason to make derogatory comments about her sister'.

(e) The respondent in his affidavit denied that he referred to the appellant as an extravagant prostitute. In his cross-examination he said he did not believe he would have said that about the appellant.

45 The appellant was not present while the conversation between the respondent and Michael Mannix took place. She was standing inside the house listening, through the wall, to what the respondent and his friend were discussing outside the house. In other words, the appellant was eavesdropping.

46 Her evidence was that the two male voices then became quieter so she could then not hear what was being said. The next thing she heard was Michael Mannix saying 'Well I am sorry it has come to this', to which the respondent replied 'don't worry, I got a car out of the first wife, a boat out of the second and I will get a house off the third wife'. The appellant understood the reference to the third wife to be a reference to her.

47 The appellant's evidence was that she estimated that 'a few minutes' passed between her hearing the respondent's final comment about getting a house out of the third wife, and when she walked outside to confront the respondent.

48 On the appellant's evidence in this appeal she was listening inside the house for about 20 minutes before going outside. I note that the appellant in her police statement said that she listened to the respondent for about half an hour before she went outside to confront him. That is the time period which appears in the statement of material facts.

49 The appellant stated that she was extremely upset and on the verge of tears. She could not comprehend how someone who had acted so lovingly towards her family and herself in the past could say such horrible things. (From this I infer that the appellant had not heard the respondent speak in this way before). She described herself as angry and extremely offended that the respondent had referred to her mother as a whore and her sister and herself as prostitutes.

50 The appellant's evidence was that after seeing both the respondent and Mr Mannix sitting in chairs on the patio, she walked towards the respondent, stood directly in front of him and said 'I have been in there and I have heard everything you have said about my family'. She admitted that she may have called the respondent a bastard. She said that she then told the respondent that she wanted him to pack all his things and get out of the house (meaning the matrimonial home where they lived, not the house that they were visiting that night).

51 According to the appellant, the respondent did not immediately respond. He looked at the appellant and smirked, before taking another sip of his beer and stating 'you can't make me'.

52 It was at this time that the appellant said she slapped the left-hand side of the respondent's face with her right hand.

53 The appellant's evidence (par 28 of her affidavit) was that she did not go out to the patio with the intention of slapping the respondent but it was a 'reflective reaction to my anger at the respondent's verbal abuse, smirk and taunt. I felt as though I couldn't help myself.'

54 In cross-examination, the appellant confirmed she had asked the respondent to leave, and he had answered 'You can't make me'. She was then asked and answered the following questions (ts 31):

And at that time, you have then hit the respondent, haven't you? --- He smirked and said, 'You can't make me', and I did. I slapped him.

But that was some time after what you say you heard in terms of insults inside the house, wasn't it? --- I'd been in there listening to all of this about all these family members for about 20 minutes.

So for about 20 minutes, you're hearing things being said about your family that's made you feel quite upset, then you've gone outside, you've approached the respondent, you've had an exchange of words - yes? --- Yes.

And then you've hit the respondent? --- I asked - I told him I'd heard everything he said about everybody in the family. I said, 'I want you to pack up and leave the house. It's over'. And he was sitting there holding his beer, and he smirked at me and he said, 'You can't make me', and that's when I slapped him.

55 After this, the appellant's evidence was that she made her way to the other side of the patio and sat in a chair. It was after she had sat in the chair that the respondent then assaulted her. In her statement to the police she said that all of a sudden the respondent got up and ran at her and started punching her about the head, about twice. The punches knocked her out of the chair and into a raised garden bed. The respondent continued to punch her, she said about four times, until Michael Mannix dragged him off.

56 The respondent has given two different versions of what occurred after the appellant came outside. In his original statement to police made on 12 February 2007 he said that he was sitting in the chair on the patio talking to his friend when he heard a noise behind him and then received a blow to the left-hand side of his head, on the temple. He stated he was unaware who had hit him but turned around and retaliated by striking out. He was then restrained by his friend and became aware that he had struck his wife.

57 The respondent's evidence during the appeal in his affidavit sworn 24 September 2012 was very different from the statement he had given to police. His evidence was that the appellant came out of the house and started walking towards him, saying words to the effect of 'I have been listening to you and what you have been saying and you are a bastard'. The next thing to happen was that the appellant hit him hard in the head. The respondent described the hit as stunning him for about 30 seconds to one minute. He then stood up and lent over and hit her twice. He did not recall what body part he connected with. He did not recall if the appellant was sitting down when he hit her. He said that the appellant fell backwards onto and into the garden bed before Michael Mannix grabbed him. It was then, the respondent said, that there was a verbal exchange with the appellant. He could recall that he asked the appellant why she had hit him, but could not recall anything else of what was said during the exchange.

58 According to the evidence of both the appellant and the respondent a taxi was then called so that the respondent could leave the house, however, before the taxi arrived what has been referred to as the 'second incident' then occurred. The evidence about the second incident differs between the appellant and the respondent. Tracey Mannix was an independent witness to this.

59 The appellant's version, in her statement to police, was that (after the first incident), she went and woke up Tracey Mannix and they went outside to have a cigarette. All of a sudden the respondent appeared on the back patio and ran at her, 'yelling stuff, then laid into me again'. The respondent punched her about six times around the head and she fell down. Mr Mannix appeared and dragged the respondent away and then the appellant asked Tracey Mannix to call the police.

60 Tracey Mannix in her statement to police stated 'At about 2.40 am on Sunday the 7th of January 2007 I was at home with my husband Michael'. She then stated that she was woken up by the appellant, after which she got up. The appellant and respondent were inside the house. Tracey Mannix said she and the appellant went outside the back to have a smoke while her husband, Michael Mannix, rang a taxi for the respondent to leave. In Tracey Mannix's statement she said that then the respondent came out the back 'with us', grabbed the appellant by the hair and said 'You deserve this, it's been coming for a long time'. The respondent then hit the appellant with his clenched right fist about eight times to her head and face. Tracey Mannix yelled to her husband who came running outside, grabbed the respondent and threw him to the ground, before taking him out to the front of the house. She then rang the police as the appellant had asked her to do.

61 In his statement to police on 12 February 2007 the respondent did not make any mention of coming back and hitting his wife again, however, in this appeal he gave evidence that Mr Mannix took him into the kitchen to calm him down and that was when the respondent asked Mr Mannix to call a taxi so that he could go home and remove himself from the situation. After talking in the kitchen, Mr Mannix and the respondent went outside to see if the taxi was there. The respondent then went back into the house and saw the appellant in the kitchen. He went up to her and said words to the effect of 'the situation has been coming for a long time'. He said the appellant then verbally responded with words to the effect 'you will never get back in that house' as well as other comments he could not recall. He felt humiliated and hurt and responded this time by hitting the appellant two or three times in the head and the arm. By that time Michael Mannix had returned to the house and restrained him and took him to the front of the house again, where he remained until the police arrived.

62 The respondent admitted that his memory of the night was 'blurred'. He admitted he was intoxicated, saying that he had drunk 'a substantial amount'. He agreed that on 'certain points' he had a lack of recollection because of alcohol, although he said his memory of the exchange he had with the appellant before he first assaulted her was good.

63 On the police prosecution brief file, there is the letter dated 3 July 2007 which I have already mentioned, written by the respondent's solicitors to the police. When the respondent was asked about this letter during cross-examination in this appeal, the respondent said that he could not recall having seen that letter or instructing his solicitors to write it.

64 It is unfortunate there is no transcript of the proceedings which took place in the Magistrates Court on 19 July 2007 when the respondent pleaded guilty. In cross-examination the respondent could not remember whether the statement of material facts was read and accepted by him. In re-examination (ts 47) he was asked:

And in pleading guilty, did you accept all of the facts that were alleged?--- Yes. I accepted that I'd stepped over the line and took responsibility for my actions as far as I was concerned and I've moved on from there.

65 It is the case that generally when a plea of guilty is entered the facts contained in the statement of material facts are accepted, however, occasionally counsel representing the offender can advise the court that there are some facts which are not correct or some additional facts which the sentencing judge needs to be apprised of. In this case, given the letter of 3 July 2007 written by the respondent's previous solicitors, coupled with his plea of guilty to the charge, I am prepared to accept that there was no dispute about the statement of material facts.

Was there an insult by the respondent which gave provocation for the appellant's assault of the respondent?

66 The ordinary dictionary meaning of 'insult' in the Shorter Oxford English Dictionary was referred to in Doust v Meyer [2009] WASCA 65 [67] as 'injuriously contemptuous speech or actions, an affront'. A provocative insult will commonly take the form of a taunt or some offensive or deeply hurtful remark, such as a racial slur: Tough v Kay (1996) 87 A Crim R 278, 283 (Heenan J).

67 It is necessary for me in this appeal to make findings as to what, in fact, the respondent said about the appellant's family members and the appellant herself, and whether these are insults capable of amounting to provocation.

68 This is a difficult exercise as I consider there are issues as to the reliability of the recollections of each of the appellant and the respondent.

69 In relation to the appellant, her initial statement to police contained no detail about what was described as 'bagging' of her and her family. To some extent this lack of detail is explained by the events of the night. I accept that she was injured and there was some rush about the police taking a statement from her at the house, in the early hours of the morning. No doubt the focus of the police, and also the appellant, at the time she made her initial statement was on the respondent's physical actions. However, it was not until more than five years later, after the appellant lodged this appeal and swore her affidavit in June 2012, which stood as her evidence-in-chief, that she condescended to any details of the discussions which she overheard before she went out onto the patio and assaulted the respondent. While the appellant impressed me as an honest witness, I must assess whether her evidence is credible and reliable. As a matter of common sense and experience I am not able to accept that the appellant is now able to remember exactly what words were spoken by the respondent. There is also, in my view, considerable doubt about the accuracy of what she heard, particularly given that she was inside and, on her own evidence, there were parts of the conversation between Mr Mannix and the respondent which she was not able to hear, or hear clearly.

70 As to the respondent's evidence, he was affected by alcohol on the night. His recollection of what he actually said was obviously impacted by this and the events of the night. There are some aspects of the evidence of the respondent which I do accept, however, and those relate to the evidence he gave about the appellant's daughter as I have set out in [44](a) and the context of the discussions he was having with Mr Mannix as I have set out in [44](b) and (c) above. I found the respondent's evidence on these matters believable and credible.

71 Having regard to all the circumstances of the night and the evidence from both the appellant and respondent, the findings of fact I make concerning what the respondent said (and the appellant overheard) at the relevant time before the appellant's assault on the respondent are as follows.

72 I am not satisfied on the balance of probabilities that the respondent made any comment or insult about the appellant's daughter. The respondent was adamant and convincing in his evidence before me that he did not insult the appellant's daughter.

73 I am satisfied on the balance of probabilities that the respondent made a derogatory remark about the appellant's son, a matter which the respondent effectively conceded. I accept that what he said was as set out by the appellant, namely that her son had earnt nothing, the appellant had paid for all his holidays and he is not as sick as the appellant makes him out to be. That is fairly close to what the respondent could recall he said, which was words to the effect that the appellant's son was lazy and received money from the appellant which was unfair to the rest of the family.

74 I am satisfied that the respondent made a remark about the appellant's mother, a fact that he admitted was possible. I consider it more probable than not that the insult was as the appellant described, a statement that her mother was a 'psycho old whore'. That is consistent with the respondent's evidence that he considered his mother-in-law interfered with the family.

75 While the context of this is not clear, I accept the appellant's recollection of what she heard the respondent call her sister. Accordingly, I am satisfied on the balance of probabilities that the respondent called the appellant's sister a prostitute.

76 So far as the appellant herself is concerned, it is apparent that the main grudge which the respondent was ventilating to Mr Mannix that night was the fact that the appellant was far too generous to her son. I accept part of what the appellant has said, namely that she heard the respondent say 'she does nothing for me and gives all her money to the kids'. I have difficulty with the balance of what the appellant says the respondent stated, namely that the appellant 'is nothing but an extravagant prostitute' and 'keeps all her money to herself'. These last two comments are internally inconsistent, and also inconsistent with the rest of the comments made by the respondent, which related to the appellant's generosity to her children and her corresponding lack of extravagance with him ('she does nothing for me' and see also [77] below). I have also considered carefully other aspects of the appellant's own evidence, in particular what she raised with the respondent after first coming outside to confront him. Both in her affidavit as filed and which stood as her evidence-in-chief (par 25) and during cross-examination (ts 30 and 31) the appellant's evidence was that she spoke only to the respondent about hearing what he had said about her family. There was no mention of confronting him about anything said about her. The passage in cross-examination which I have set out at [54] confirms that what the appellant overheard were insults relating to her family members. I am therefore not satisfied on the balance of probabilities that the respondent called the appellant an 'extravagant prostitute'.

77 Finally, and for the sake of completeness, I accept the appellant's evidence that the respondent made a remark along the lines of 'don't worry I got a car out of the first wife, a boat out of the second and I will get a house off the third wife'. While that remark reflects poorly on the respondent and must have been particularly hurtful to the appellant, I do not consider it to be an insult - there is nothing insulting about the appellant in that remark. I find also that the smirk and the words which the respondent spoke after the appellant asked him to leave - 'You can't make me' - could also not constitute an insult. (An arrogant or smug expression will not constitute a wrongful act or insult: Tough v Kay).

78 In determining this appeal I therefore proceed on the basis that what the respondent said about the appellant's son, mother and sister were insults.

79 I need to determine whether these insults were capable of amounting to provocation under s 245 of the Criminal Code. A difficulty arises in this case because the insults relied on by the appellant were not spoken to her, or in her presence, but were overheard by her when she was eavesdropping. As I identified in an exchange with counsel for the appellant during submissions, the insult must be, pursuant to the express words of s 245:

....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.

(italics my emphasis)

80 In my following discussion of the law relating to provocation, where there is a reference to 'the accused', this can be taken to refer to the claimant in a criminal injuries compensation matter.

81 In Arden v The Queen [1975] VicRp 43; [1975] VR 449, which involved the common law defence of provocation relevant to reduce a verdict of what would otherwise be murder to manslaughter, Menhenitt J, after reviewing a number of cases, said:

In light of all those authorities I have concluded that for there to be sufficient to constitute provocation, conduct of some kind, whether it be physical conduct or words, on the part of the person killed must take place in the presence of the accused person. The rationale of this rule appears to me to be as follows. If a person actually sees conduct taking place in respect of a third person and he is provoked thereby, it is understandable that he may be provoked to the extent of taking the other person's life and in circumstances which would reduce murder to manslaughter. Where, however, all that happened is that the accused is told something by a third person there enters immediately the element of belief, and there is nothing tangible upon which the accused can be said to have acted.

82 In The Queen v Quartly (1986) 11 NSWLR 332, which also dealt with the issue of whether provocation could reduce murder to manslaughter pursuant to s 23 of the Crimes Act 1900 (NSW), Lee J (with whom Hunt and Wood JJ agreed) said (338):

The view which I have expressed that provocation requires a reaction by an accused to conduct of the deceased which occurs in his sight or hearing, appears to have been accepted in the common law from the very earliest times. An examination of the cases in the reports dealing with provocation and they are multitudinous - will indicate that in all but a couple of instances the matter dealt with has been one in which there has been conduct by the deceased in the appellant's presence. That has been the 'provocative incident' relied upon in all the cases. The provocative incident must be one which directly 'involves' the accused and the deceased, even though the actual element of provocation or affront in the provocation may not be directed intentionally or specifically against the accused.

83 In Davis v The Queen (1998) 100 A Crim R 573, another NSW case, the appellant had been convicted of murder and appealed on the basis that the trial judge had erred in ruling that the defence of provocation would not be left to the jury. The appellant had been told that a man had sexually assaulted both the appellant's 5-year-old niece and 3-year-old stepdaughter. The appellant then killed the man. The appeal was dismissed, with Quartly being applied.

84 Some doubts about the correctness of Quartly were expressed in an application by Davis for special leave to appeal to the High Court of Australia [1998] 73 ALJR 139, when McHugh J said:

The applicant seeks special leave to appeal against his conviction for murder to raise the question whether provocation is available to reduce murder to manslaughter where the provocation is not committed in the presence of the accused but is reported to him. The learned trial judge, following the decision in Quartly v The Queen held that it was not. We think that there is a strong case for saying that Quartly was wrongly decided on this point. Having regard to the terms of the statute it would seem sufficient for the accused to show that there was provocation on the part of the deceased and that it induced the accused to lose his or her self-control.

85 The application for special leave in Davis was refused on the basis that the time that elapsed was such that no ordinary person could have so far lost self-control as to have formed an intent to kill or cause grievous bodily harm.

86 In Western Australia, Heenan J in Tough v Kay considered the requirements of s 245 of the Criminal Code as a defence to an assault. In that case the provocation was 'hearsay provocation', with the appellant hearing about what the victim had said about the appellant from another person. The appellant then went up to the victim and assaulted him. It was held by the trial magistrate that an act or insult done in the absence of a person and merely reported to that person could not give rise of itself to provocation. That was upheld on appeal by Heenan J who stated (282):

The second paragraph of s 245 requires that the act or insult be 'done or offered by one person to another, or in the presence of another, to a person' to whom the other person stands in a particular relation. In my opinion those words confirm, as the learned Magistrate concluded, that the person provoked must be present at the time when the act or insult is done or offered.

In Western Australia the law as to provocation is ascertained by interpreting the language used in the Code 'instead of, as before, by roaming over a vast number of authorities' (the words used by Lord Herschell in Bank of England v Vagliano Brothers [1891] AC 107 at 145 in the course of his celebrated statement as to the manner of interpreting a code of law). Nevertheless, it is interesting to note that in The Queen v Quartly (1986) 11 NSWLR 332 at 338 Lee J (with whom Hunt and Wood JJ agreed) said:

The view which I have expressed that provocation requires a reaction by an accused to conduct of the deceased which occurs in his sight or hearing, appears to have been accepted in the common law from the very earliest times. An examination of the cases in the reports dealing with provocation - and they are multitudinous - will indicate that in all but a couple of instances the matter dealt with has been one in which there has been conduct by the deceased in the appellant's presence. That has been the 'provocative incident' relied upon in all the cases. The provocative incident must be one which directly 'involves' the accused and the deceased, even though the actual element of provocation or affront in the provocation may not be directed intentionally or specifically against the accused.

There might be room in other jurisdictions for mitigation of the requirement of presence but the provisions of the Code are very clear. In my opinion, the learned Magistrate was right in finding, as a matter of law, that the events in the Freemasons Hotel on the evening in question could not be relied upon by the appellant as provocation for his assault on Holdsworth.

87 Section 245 requires the wrongful act or insult to be 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... '. Accordingly, for an insult to constitute provocation the insult must be made directly to the accused, or alternatively if it is an insult about a person for whom the accused is responsible or has a particular relationship (and I will take the example of the accused's family member), an insult to that family member, in the presence of the accused. As stated by Heenan J in Tough v Kay, the person provoked must be present at the time when the insult is offered.

88 On behalf of the appellant it was submitted, however, that an insult concerning a family member did not have to be to that family member, it only had to be about the family member. It was further submitted that for the insult to have been made 'in the presence of' the appellant, it was enough that the appellant was within hearing.

89 I am not able to accept either of these submissions, having regard to the words of s 245 and Tough v Kay. The words 'in the presence of' in s 245 should be given their natural and ordinary meaning unless the contrary is indicated in the section: Attorney General v Schoombee [18], [31]; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 396 - 397, 398.

90 The Shorter Oxford English Dictionary, 6th ed (2007), defines 'presence' to mean 'the fact or condition of being present; the state of being with or in the same place as a person or thing; attendance, association'. The adjective and adverb 'present' is defined to mean 'being beside, with, or in the same place as the person who or thing which is the point of reference; being in the place in question'.

91 There is a real difference between words said in the presence of a person, and words said in the vicinity of a person where that person might overhear what is being said. In my view the natural and ordinary meaning of the words 'in the presence of' in s 245 requires that the person must be in the place where the insult is spoken or otherwise conveyed. There is nothing in the context of s 245 to indicate to the contrary or that it is sufficient for the person to have overheard an insult.

92 The insults made by the respondent were about the appellant's family, but not to those family members in the appellant's presence. (The insult which the appellant alleged was also made by the respondent about the appellant herself was also not made to the appellant). The insults by the respondent were not, as required by the words of s 245 '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...'.

93 I am therefore not satisfied that there was any provocation within the meaning of s 245 of the Criminal Code. There was no insult which, as a matter of law, could constitute provocation for the appellant's assault of the respondent.

Was the insult of such a nature that it could or might have caused an ordinary person to lose self-control and act as the appellant did?

94 It is not strictly necessary for me to decide this next issue, however, I will do so in case I am wrong in my assessment that the insults could not amount to provocation, and because this next matter was also argued in the appeal. For the purpose of considering this question I will proceed on the basis that the respondent's insults would amount to provocation within the meaning of s 245 of the Criminal Code.

95 As recently stated by the Court of Appeal in Evans v The State of Western Australia [127], the provocation must be of such a nature that it could or might have caused an ordinary person to lose self-control and act as the accused did.

96 It is only if this objective threshold test is satisfied that it becomes necessary to consider the subjective question whether the accused was, in fact, deprived of his or her self-control: Hart v The Queen [49](a).

97 The content and relevant implications of the wrongful act or insult must be identified and an objective assessment of its gravity in the circumstance of the particular case made: Hart v The Queen [49](c).

98 The ultimate question posed by the threshold objective test relates to the possible effect of the wrongful act or insult upon the power of self-control of a truly hypothetical ordinary person, unaffected by the personal characteristics or attributes of the particular accused, age aside: Hart v The Queen [49](g); Evans [131] - [133]. In practical terms the ordinary person is projected into the shoes of the accused except for characteristics (or conditions such as intoxication) that reduce self-control, unless the characteristic is itself the subject of the provocative conduct, in which event the gravity of the provocation increases but the power of self-control remains that of the ordinary person: Evans [131] - [135].

99 In the case of an insult and its effect on an ordinary person, Hall J observed in Anderson v Malcolm [2010] WASC 308 [46] that:

The orderly operation of civilised society assumes that people will exercise an acceptable degree of self-control in their dealings with others. Thus it would be expected that ordinary people exercising a reasonable degree of self-control would ignore or laugh off some insults. Alternatively, a person might respond verbally in kind. In yet other circumstances a person may leave or require the person who made the insult to leave. It is proper to consider the available alternatives that a person may have when faced with such an insult.

100 Having set out the legal principles, it is necessary for me to make findings about the gravity of the insults which the respondent made and the circumstances in which they were spoken.

101 I find that the insult about the appellant's son 'Adam has earnt nothing, Sharyn has paid for all of his holidays and he isn't as sick as Sharyn makes him out to be' conveys the meaning that the appellant's son was lazy, relied on his mother for money, and was a hypochondriac. That is confirmed by the context of the discussions as described by the respondent as I have set out in [44](b), and which I accept.

102 There is little detail from the appellant about the context in which she heard the respondent refer to the appellant's mother as a 'whore' and sister as a 'prostitute'. Given the other details of the conversation as overheard by the appellant, one matter being discussed was money. As I have set out in [44](b) and (c) and accept (see [70] above), the respondent was also discussing the family difficulties he was experiencing and that included interference from his mother-in-law. Having regard to all of these circumstances I am not satisfied that in using the words 'whore' or 'prostitute' the respondent was indicating that these two female relatives of the appellant were promiscuous and engaged in sexual activity in return for payment. I consider it more probable than not that what was being conveyed was that the appellant's mother and wife were acting without honour, perhaps for some personal or financial gain. That is a common way in which both words are used these days. The definition of 'whore' in the Shorter Oxford English Dictionary includes not only a promiscuous woman but also a 'promiscuous or unprincipled person esp. as a term of abuse'. One of the definitions of 'prostitute' in the Shorter Oxford English Dictionary is 'put one's talents, skills etc to an unworthy or corrupt use or purpose; sacrifice (self-respect, honour etc) for the sake of personal or financial gain'. To call a person a 'whore' or 'prostitute' as a term of abuse in this way is, of course, still offensive.

103 It is necessary to take into account contemporary conditions and attitudes in assessing the likely effect of provocative words on an ordinary person: Verhoeven v Ninyette (1998) 101 A Crim R 24, 29 (Wheeler J); Hart v The Queen [49](g). For example, to accuse a person of adultery or extra-marital sex in this day and age is not as offensive to an ordinary person as it might have once been: Anderson v Malcolm [44]. Similarly, referring to someone as a 'whore' or prostitute does not, in my view, have the same sexual connotations as these words once may have held when referring to a woman, nor are the words quite as offensive as once they may have been.

104 Taking into account the context of the discussions and contemporary standards, I do not consider that the insult about the appellant's son is particularly grave. The insults about the appellant's mother and sister are more grave. However, I do not consider that the insults were of a type that could or might deprive an ordinary person of the power of self-control.

105 I do accept that it would be most upsetting for an ordinary woman of the age of the appellant (who was aged 52 at the time) to hear what the respondent said about her son, mother and sister from the man whom she had previously believed to be a loving husband. I also accept that to hear such insults could or might make an ordinary person angry, as well as upset.

106 An appropriate reaction to such insults, however, would be to respond verbally, and to ask the person to leave, as the appellant gave evidence that she did in fact do.

107 Whilst insulting words were used by the respondent, I am not satisfied on the balance of probabilities that these insults were of such a nature that they could or might have deprived an ordinary person, of the same age as the appellant, of the power of self-control and cause that person to act in the way that the appellant did, by assaulting the respondent.

Was the appellant in fact deprived of the power of self-control by the provocation?

108 While I am not satisfied of the objective threshold test and it is not necessary to go on to address the next issue of whether the insults also in fact caused the appellant to lose self-control and assault the respondent (the subjective aspect), for the sake of completeness I will address this issue.

109 In the criminal law, the question of whether the accused in fact lost self-control is determined by having regard to the conduct of the accused himself and the common experience of human affairs; it is not a question to be answered by reference to the ordinary person: Masciantonio (69). The provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he has had the opportunity to regain his composure: Masciantonio (66). In the words of s 246, the accused must act upon the provocation 'on the sudden and before there is time for his passion to cool'. While there is no requirement that the assault must immediately follow upon the provocation and it has been accepted in the authorities that a loss of self-control could develop after a lengthy period of abuse without the necessity for a specific triggering incident, there must still be a sudden and temporary loss of self-control. A lengthy period of brooding, before retaliation, would defeat the defence: Hart v The Queen [68].

110 I find, based on the evidence of the appellant, that she listened to the respondent talking about her family for some time without any loss of self-control although, understandably, she was upset by what she heard. There was then a further period of time after the insults were made, during which the appellant overheard portions of a further exchange in which the respondent really indicated to Mr Mannix that the marriage was over, saying what he had obtained from his first two marriages and then saying 'I'll get a house out of the third wife'. That, too, must have added considerably to the appellant's distress. There was a further period of time of what the appellant described as a 'few minutes' before she came outside after hearing this last comment. The total time spent by the appellant overhearing all of these matters before going outside to confront the respondent was at least 20 minutes (based on her evidence in this appeal) but more likely 30 minutes (based on her contemporaneous account in her police statement). During this time the appellant had not lost her self-control.

111 I accept the evidence of the appellant about what occurred when she came out to where the respondent and Mr Mannix were sitting, after she overheard their discussions. It is apparent that the respondent has no real recollection of the events at that stage and there are real inconsistencies between what he told the police on the night and what he subsequently stated in his evidence in this appeal.

112 I find that when the appellant went outside to confront the respondent, she first told him that she had overheard what he had said about her family and then called him a bastard. She then asked the respondent to leave the matrimonial home. At that stage she still had not lost self-control and, I find, she acted as an ordinary person would have acted, by reacting verbally.

113 Even the appellant's evidence was that the insults alone did not cause her to react as she did, but that it was a combination of the insults, smirk and challenge - in her words, her assault of the respondent was a 'reflective reaction to my anger at the respondent's verbal abuse, smirk and taunt'.

114 The stage when she lost self-control came after the respondent smirked and challenged the appellant by saying 'You can't make me'. The appellant's evidence in cross-examination when she said 'He smirked and said, 'you can't make me', and I did. I slapped him' is, in my view, telling, as is her answer three questions later when she said 'And he was sitting there holding his beer, and he smirked at me and he said 'you can't make me', and that's when I slapped him' (italics my emphasis). Her answers are evidence that what in fact caused the appellant to break down and lose self-control was the smirk and the respondent's challenge to her by saying 'you can't make me', and not the insults made by the respondent about her family members.

115 Assuming that the respondent's insults constituted provocation and the threshold objective test was satisfied, I am not satisfied on the balance of probabilities that the appellant was in fact deprived of the power of self-control by the respondent's insults. I find that the reason the appellant slapped the respondent was not attributable to the insults, but rather the respondent's subsequent behaviour and attitude to her after she had asked him to leave the matrimonial home.

Was the force used when the appellant slapped the respondent disproportionate to the provocation?

116 Again, given my findings on the previous three questions it is not necessary for me to consider this, but I will do so.

117 In the criminal law, the question as to whether the force used by an accused is proportionate to the provocation offered is a question of fact: Ellis v Ellis [1999] WASCA 30 [12].

118 In Doust v Meyer, Miller JA (Wheeler & Buss JJA agreeing) said [80]:

The requirement that the mode of retaliation should bear a reasonable proportion to the act of provocation is not a separate element which an accused person must establish, but is absorbed in the application of the test of the effect of provocation upon the ordinary person: see Hart per Steytler J at [67] and cases cited, including Sreckovic v The Queen (1973) WAR 85; Johnson v The Queen [1976] HCA 44; (1976) 136 CLR 619; Moffa v The Queen [1977] HCA 14; (1977) 138 CLR 601; Censori v The Queen [1983] WAR 89; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58.

119 The question of proportionality was decided by Doust v Meyer having regard to the fact that 'no ordinary person would have reacted in the manner in which the appellant did': Doust v Meyer [81].

120 I am not satisfied that an ordinary person would have reacted to the insults in the manner in which the appellant did. Accordingly, assuming that there was provocation by reason of the respondent's insults, I am satisfied on the balance of probabilities that her reaction in slapping him hard to the face was disproportionate to the provocation.

121 In accordance with the tests I have set out in [31], I have found that:

(a) the respondent's insults, as a matter of law, could not constitute provocation for the appellant's assault of the respondent;

(b) the insults could not have deprived an ordinary person of the same age, as the appellant of the power of self-control;

(d) the force used by the appellant was disproportionate to the provocation.

Anderson v Malcolm

At a glance

Court

Decision date

Before

Catchwords

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Judgment (226 paragraphs)

MCDAVITT -v- MCDAVITT [2013] WADC 22 (22 February 2013)

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Legislation Cited (1)

Cases Cited (10)