DONOVAN -v- MASON [2012] WASC 151 (9 May 2012)

4 The appellant and Mrs Donovan were married for 16 years. They have two children. They lived on a property with two residences which were described as the main house and the cottage. The appellant and Mrs Donovan separated in December 2010. The appellant then moved into the cottage.

5 On 28 January 2011, Mrs Donovan entered the cottage and overheard the appellant on the telephone. She believed from his telephone conversation that he was going to sell the Landcruiser car which they owned. She became agitated and angry. Her son had come into the cottage and she bluntly told him to leave. The appellant castigated her for the manner she spoke to their son. An exchange followed and Mrs Donovan left the cottage, slamming the door. The appellant yelled abuse at her for slamming the door and followed her from the house so that she could hear his remonstrations. Mrs Donovan then stopped walking away from the cottage and turned to face the appellant.

6 As the learned magistrate explained, their accounts diverged at this point. His Honour accepted the evidence of Mrs Donovan, describing it as 'credible ... believable and consistent with that which occurred' (ts 81). In the respects in which it differed from that of the appellant, the learned magistrate preferred her evidence over that of the appellant. The learned magistrate described the appellant's evidence as 'gilding the lily' (ts 81). This assessment of credibility was not challenged on appeal. Counsel for the appellant properly focussed only upon Mrs Donovan's evidence.

7 Mrs Donovan's account of the events which occurred after the remonstrations followed a sequential pattern, with one exception. She said, and the learned magistrate found, that the sequence was as follows.

(i) The appellant was in her face, making her nervous, threatened and intimidated and she pushed him with both hands to the chest (ts 9 ‑ 10; ts 78 ‑ 79).

(ii) The appellant then pushed her back into the side of the house (ts 10).

(iii) Mrs Donovan then kicked him to get him away from her (ts 10).

(iii) The effect of the kick was that she got kicked back (ts 11).

(iv) Then she bit his hand (ts 11). Later she said that this was to stop the complainant pushing her head against the wall (ts 26). The learned magistrate concluded that the effect of the bite was to cause 'blood to flow freely' (ts 79).

(v) After she bit his hand he punched her in the face with a full fist punch (ts 11) (earlier she had said the punch was in the chest).

(vi) Once the punch occurred the incident came to an end as Mrs Donovan was on the ground (ts 26).

8 In cross‑examination, Mrs Donovan said that the appellant had pushed his hand into her mouth and pushed her against the side of the house and held her against the side of the house with his hand in her mouth (ts 25).

9 There was one aspect of the incident which was not placed in this sequence of events. After Mrs Donovan's first reference to the punch, Mrs Donovan was then asked if something happened 'before that'. She replied that the appellant picked up a brick and swung it towards her face stopping right in front of her face (ts 11). She was still against the wall when the brick was swung (ts 11). There was no evidence concerning whether the brick was swung before the exchange of kicks or after it.

10 Counsel for the appellant at trial explained the defences raised by the appellant in this way (ts 75):

[W]e would say that when my client struck and caused this injury to the victim's eye that it was done in self-defence and that he was acting on the sudden to bring in this whole question of whether or not provocation has been negated. Whatever the exchange was between them it's clearly elevated the situation to the point where these discussions are being had. Again, the point which we come back to is whether or not your Honour is satisfied that provocation has been made.

11 At the hearing the appellant had two amended grounds of appeal. They were as follows:

The Learned Magistrate erred in fact in determining that the Complainant bit the Appellant at a time when the Appellant was threatening the Complainant with a brick and out of fear that she would be struck by the brick held by the Appellant.

1. The Complainant did not give evidence that she bit the Complainant out of fear that she would be struck with a brick. To the contrary, she gave evidence that she bit the Appellant after they had kicked each other.
2. The events immediately before the Appellant struck the Complainant were important in the consideration of whether the Prosecution had established beyond reasonable doubt that the assault on the Complainant was unlawful.
3. The mistaken belief as to the facts has occasioned a substantial miscarriage of justice in that the Magistrate could not properly have considered whether the defences of self‑defence and provocation had been negatived based on his misapprehension of the facts.

The Magistrate erred in fact in determining that there was no evidence that the Appellant lost his self control.

1. The Magistrate determined that there was no evidence that the Appellant lost his self control.
2. The Magistrate's conclusion ran contrary to the Appellant's evidence that the act of punching the Complainant was done immediately after he was bitten, was not premeditated and that he did not mean to do is [sic]. The evidence established an inference that the Appellant lost his self control as a result of the Complainant biting him.
3. The Magistrate's error of fact gives rise to a substantial miscarriage of justice in that the failure to apprehend that the Appellant lost his self control resulted in His Honour failing to properly consider the defence of provocation.

12 At the hearing of the appeal, the appellant sought leave to add a further ground of appeal. This was not opposed. Indeed, counsel for the respondent, Ms Markham, had previously anticipated this ground of appeal in her written submissions. The third ground of appeal repeated the particulars from ground 1. Ground of appeal 3 was as follows:

The Magistrate erred in law in failing properly to consider self defence and provocation.

Ground 2: alleged finding of absence of evidence of a loss of self‑control

13 The passage of the learned magistrate's reasons which the appellant relied upon in this ground of appeal was as follows (ts 80):

This is, of course, on his evidence at that point that he has reacted spontaneously as an act of self-defence or perhaps in some respect, despite the absence of any evidence of loss of control, in the provocation provided to him by reason of that behaviour of his wife in biting his webbing [the skin webbing between his thumb and forefinger].

14 The defence of provocation requires that the appellant be 'deprived by the provocation of the power of self‑control': s 246 Criminal Code. The appellant submits that the reason why the learned magistrate rejected the defence of provocation was contained in this passage. It was submitted that the learned magistrate made a finding in this passage that the appellant was not deprived of the power of self‑control.

15 The appellant then submitted that the learned magistrate erred in finding that there was no evidence of a loss of self‑control. Although there was no direct evidence by the appellant that he lost self‑control, there was evidence, including Mrs Donovan's act of biting, which might have supported an inference that this was the case. Evidence of loss of self‑control can be established by inference: Ellis v Ellis [1999] WASCA 30.

16 The evidence that Mrs Donovan bit the appellant's hand, causing blood to flow freely, was evidence which might have supported an inference of loss of self‑control. The failure of an accused person to give evidence concerning a loss of self‑control is not fatal to the defence; indeed it would not usually be given in circumstances where both self‑defence and provocation are raised as defences: Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441, 465 (Steytler J); Lee Chun‑Chuen v The Queen [1963] AC 220, 232 (Lord Morris for the Privy Council).

17 The respondent argued that the learned magistrate did not explicitly make any finding concerning provocation (appeal ts 16). The submission of the respondent should be accepted. If the passage quoted above is considered in its proper context, it does not involve the learned magistrate making an (erroneous) finding that there was an absence of evidence of self‑control. The learned magistrate, in that paragraph, is merely summarising the evidence of the appellant and the appellant's claim that his act was spontaneous and provoked. Read in this light, his Honour's reference to the 'absence of any evidence of loss of control' must be a reference to the absence of direct evidence given by the appellant that the appellant lost self‑control.

18 This conclusion is also reinforced by the following passages in the reasons of the learned magistrate. Immediately after referring to the appellant's evidence and the 'absence of any [direct] evidence of loss of self‑control' the learned magistrate then explains that '[b]y contrast' the appellant had left the house 'highly agitated' (ts 80); his Honour then referred to Mrs Donovan's actions of moving towards the appellant as 'sufficient to inflame his emotions' (ts 81); and his Honour rejected the appellant's evidence that the appellant had acted 'in that controlled manner' (ts 81).

19 For these reasons, the learned magistrate did not make a finding that there was no evidence that the appellant lost self‑control. Rather, as the respondent submitted, his Honour did not make any explicit finding concerning provocation. Ground 2 must be rejected.

Grounds 1 and 3: alleged errors in the finding of facts and allegation that the learned magistrate erred in failing to address the issue of provocation

20 Although these grounds of appeal appear to raise a number of issues of fact and law, it was common ground at the oral hearing of the appeal that the essence of these two grounds of appeal is the simple question of whether the learned magistrate properly made a finding that Mrs Donovan was acting in self‑defence (appeal ts 7).

21 For the respondent, Ms Markham relied only upon the submission that the learned magistrate had made a finding that Mrs Donovan was acting in self‑defence. The respondent's approach was properly based upon the premise that no other finding was made which could justify the rejection of provocation (appeal ts 16, 19). Even in the light of s 31 of the Magistrates Court Act 2004 (WA), the respondent is correct that the only basis upon which it could be said that the reasons of the learned magistrate might have rejected the defence of provocation was by a finding that Mrs Donovan's act of biting was done in self‑defence. The respondent also disclaimed any reliance upon the 'proviso' which is contained in s 14(2) of the Criminal Appeals Act 2004 (WA) (appeal ts 13).

22 For the appellant, Mr Rafferty properly conceded that if the learned magistrate had properly made a finding of self‑defence then the appeal must fail (appeal ts 3). This is because if Mrs Donovan's act of biting was in self‑defence then the biting was a lawful act and could not give rise to a defence of provocation or self‑defence: see Criminal Code s 245 and s 248(5). It would be have been unnecessary for the learned magistrate to deal with the questions of self‑defence by the appellant or provocation.

23 Ms Markham submitted that the following passage from the learned magistrate's reasons (ts 81) was 'the key' to his Honour's decision:

It is fanciful, in my respectful view, as to the suggestions of him that he would in those circumstances take up a brick, strike it without description as to where, but one can only assume the proximity of his wife at or on the dwelling before then proceeding in that controlled manner short of then acting spontaneously, having been bitten by his wife in an act of defence or defiance.

24 The respondent relied only upon this passage from the decision on conviction to support the submission that the learned magistrate had found that Mrs Donovan's act of biting was done in self‑defence.

25 There are four reasons why this passage does not involve a finding that Mrs Donovan acted in self‑defence.

26 First, the reference by the learned magistrate to the biting having been 'an act of defence or defiance' is not the language of a finding that the act was in self-defence. The use of 'defence' as an alternative to 'defiance' is not a reference to the legal concept of self‑defence.

27 Secondly, the reference to Mrs Donovan's act of 'defence or defiance' is not given any legal context. No reference is made to s 245 of the Criminal Code generally. Nor is any reference made to any of the elements of self‑defence in the Criminal Code such as:

(i) whether the act of biting was considered by Mrs Donovan to be necessary to defend her from a harmful act; and

(ii) whether it was a reasonable response in the circumstances as she believed them to be; and

(iii) whether there were reasonable grounds for those beliefs.

28 It would not have been necessary for the learned magistrate to set out any of these matters in detail. However, the absence of any mention of these issues militates against construing the phrase 'defence or defiance' as a finding that Mrs Donovan's acts satisfied all the requirements of self‑defence in s 246 of the Criminal Code.

29 Thirdly, only three paragraphs earlier (ts 80), his Honour referred to Mrs Donovan's act as 'the provocation provided to [the appellant]'. As I have explained the act of biting could not amount to provocation, and could not invite consideration of the elements of the defence in s 246, if it were an act of self‑defence.

30 Fourthly, the context in which the reference to the 'act of defence or defiance' occurs is set by the opening words of the sentence. The learned magistrate was merely summarising, and rejecting, the 'fanciful' evidence of the appellant that he had acted in a 'controlled manner short of then acting spontaneously' after (the appellant said) he had been bitten by his wife in what his Honour described as an act of defence or defiance.

31 Ms Markham also referred to comments made by the learned magistrate in the course of his sentencing remarks where his Honour said that the appellant's punch was 'an immediate application of force following a defensive act by your wife and in response to that defensive act' (ts 85). This reference to a 'defensive act' is not a specific reference or finding of self‑defence by Mrs Donovan. In any event, no authority or argument of principle was made concerning whether it is permissible to rely upon remarks in the course of sentencing to qualify or expand reasons for conviction. These sentencing remarks were not seriously pressed (appeal ts 15).

32 For these reasons, the learned magistrate did not make a finding that Mrs Donovan was acting in self‑defence and therefore his Honour did not properly address the question of provocation.

33 There is a separate reason why a miscarriage of justice would occur if, contrary to my conclusion, the learned magistrate had found that the act of Mrs Donovan was done in self‑defence. This is because of the issue raised by the appellant in his first ground of appeal, namely that an erroneous finding of fact was made in support of any conclusion that the biting occurred in self‑defence.

34 The error concerns the finding by his Honour of the reason why Mrs Donovan bit the appellant's hand. His Honour said (ts 79):

Fearing that he was going to hit her in the face with the brick she bit down on the webbing between his thumb and forefinger presum[ably] causing him to drop the brick before striking her in a forceful blow with his fist to her face at about the left eye.

35 Counsel for the respondent properly conceded that the learned magistrate's reference to Mrs Donovan's fear of being hit by a brick was a 'misstatement'. The reason given by Mrs Donovan for biting the appellant's hand was 'to stop him pushing my head against the wall' (ts 26). Further, there was a lack of evidence concerning when the incident with the brick occurred: on Mrs Donovan's evidence it occurred before the biting and the punch, but it could also have occurred earlier, before the exchange of kicks.

36 If, as I have concluded, his Honour did not make any finding that the act of Mrs Donovan was done in self‑defence then this error is immaterial. The subjective views of Mrs Donovan concerning why she bit the appellant could only be relevant to the question of whether her act was done in self‑defence, and was therefore a lawful act incapable of being a provocation.

37 However, if the learned magistrate had reached a conclusion that the biting act of Mrs Donovan was done in self‑defence then her subjective beliefs would be relevant and the error about her beliefs concerning what was about to happen would be a miscarriage of justice. The learned magistrate would not have assessed the particular beliefs of Mrs Donovan relevant to self‑defence (set out above at [27]) as required by s 245(4).

38 Counsel for the respondent submitted that whether Mrs Donovan bit the appellant because she was afraid of being hit by the brick or whether it was to stop him pushing her head against the wall were equally serious reasons. There can be little doubt that it would have been open to the learned magistrate to conclude that Mrs Donovan's actions in biting the appellant's hand were in self‑defence due to her trying to prevent the appellant pushing her head against the wall. However, particularly in circumstances in which reliance upon the proviso was disclaimed, this is not a case where it is appropriate for an appeal court to make findings of fact which the learned magistrate did not make, and to assess the legal significance of those findings.

39 My conclusion is that this appeal must succeed because the learned magistrate did not properly reject the defence of provocation.

40 It was open to his Honour to reject the defences of self‑defence and provocation by a finding that Mrs Donovan's act of biting was an act done in self‑defence and hence incapable of forming the basis for the appellant's defences of provocation or self‑defence. But no such finding was made. It should be reiterated that a legal submission in these terms (ie the effect of an act of self‑defence to exclude provocation) was never expressly put by the prosecutor. It is therefore unsurprising that the learned magistrate did not make such a finding in his reasons for decision which were delivered with celerity almost immediately after the hearing. Finally, in the absence of consideration of the question whether Mrs Donovan was acting in self‑defence, the misstatement by the learned magistrate concerning the subjective motivations of Mrs Donovan in biting the appellant was immaterial. It would otherwise have assumed real significance.

41 The appeal is allowed, the conviction set aside, and a retrial ordered. I will hear from counsel as to the appropriate orders including costs and whether retrial should be before a different magistrate in circumstances in which credibility findings were made by the learned magistrate in this case.