Ellis v Ellis [1999] WASCA 30

Conviction quashed, verdict of acquittal substituted.

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Aitkin v Wilson [1974] WAR 166

Brunskill v Sovereign Marine and General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Devries v Australian National Railways Commission (1993) 177 CLR 472

Giannasi v Waghorne, unreported; SCt of WA; Library No 960551; 11 September 1996

Neale v Sloan, unreported; SCt of WA (Wheeler J); Library No 970729; 6 August 1997

1 TEMPLEMAN J: Mr Stephen Michael Ellis appeals against the decision of a Stipendiary Magistrate who convicted him on a charge of assault in the Court of Petty Sessions at Rockingham.

2 The appellant is a resident of Rockingham. The complainant, Ms Lisa Gaye Scarrott, also lives in Rockingham in the same neighbourhood as the appellant. The appellant claims that for over two years he has been the subject of abuse and intimidation by the complainant. Because the appellant feared for his safety, he sought, and obtained, a restraining order against the complainant in mid-July 1998.

3 A few days later, on 19 July 1998, at the Woolworths supermarket in Rockingham, the appellant and the complainant were involved in an altercation which resulted in the appellant being charged with assault. The appellant pleaded not guilty and was tried before a Stipendiary Magistrate on 23 December 1998.

4 At the trial, evidence about the alleged assault was given only by the complainant and the appellant. There were no other witnesses to the incident. In addition, a video-recording of an interview made between the appellant and police officers on the day following the incident was played to the Court.

5 There was a conflict of evidence between the complainant and the appellant. In the result, the learned Magistrate accepted in large measure the account given by the appellant. As appears from the reasons of the learned Magistrate (AB 40-41), her principal findings of fact may be summarised as follows:

1. The complainant followed the appellant into the store.

2. The complainant knew there was a restraining order in place but went into the store so as to demonstrate to the appellant that she would not allow him to restrict her freedom "in any way, shape or form".

3. The complainant came up behind the appellant and whispered threatening remarks in his ear.

4. The appellant, without looking round, swept his hand behind him.

5. The back of the appellant's hand or his lower wrist, came into contact with the complainant's mouth causing a minor injury.

6 The learned Magistrate considered the defences of accident and provocation.

"I do accept that he has back-handed her and it has not occurred by way of accident. It is reasonable to assume that when he lashed out he was going to hit the person who was close behind him, as he knew. He said he was. She was at his shoulder. Her voice was there."

The defence of accident is set out in s 23 of the Criminal Code. Relevantly for present purposes, it provides that:

"...a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

8 It was not suggested by the appellant that when he "lashed out" (to use his words, on the video-recording of interview) he acted independently of his will. Further, having regard to the fact that the appellant knew that the complainant was behind him at the time, it was reasonably foreseeable that he would hit her. That being so, the learned Magistrate was undoubtedly correct to reject the defence of accident: see R v Tralka [1965] Qd R 225, 228.

9 Turning to provocation, the learned Magistrate said:

"Was there provocation? No. I do not accept there's provocation. It's been a long-standing dispute between the parties and never over the period of 2 years has there ever been any physical (sic) between the parties. I do not believe that he has been deprived of his power of self-control because of what has been whispered to him by Ms Scarrott in the store - and I accept she has been going around whispering in his ear.

10 The law relating to the defence of provocation is set out in s 246 of the Criminal Code. It is in the following terms:

"246. 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."

11 In order to apply the section, three questions must be asked. The first is whether the relevant act or insult is likely to deprive an ordinary person of the power of self-control and induce him to commit the assault.

12 If the tribunal of fact comes to the conclusion that the act complained of would be likely to deprive an ordinary person of the power of self-control, the second question must be asked. That is, whether the person provoked was in fact deprived by the provocation of the power of self control. If so, it is then necessary to consider the third question: whether the force used was, or was not, disproportionate to the degree of provocation. Each is a question of fact.

13 Further, it must be borne in mind that in accordance with the fundamental principles of the criminal law, the onus is not on the accused person to prove provocation: the onus is always on the prosecution to negative the defence.

14 Although the starting point is a consideration of the way an "ordinary person" is likely to react in the face of provocation, the standard is not wholly objective. As was pointed out by the High Court in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 325-6, the central question posted by the objective test:

"...obviously cannot be answered without the identification of the content and relevant implications of the wrongful act or insult and an objective assessment of its gravity in the circumstances of the particular case. Conduct which may in some circumstances be quite unprovocative may be intensely so in other circumstances. Particular acts or words which may, if viewed in isolation, be insignificant may be extremely provocative when viewed cumulatively."

15 A little later in the same joint judgment, the Court said:

"Even more important, the content and extent of the provocative conduct must be assessed from the viewpoint of the particular accused. Were it otherwise, it would be quite impossible to identify the gravity of the particular provocation. In that regard, none of the attributes or characteristics of a particular accused will be necessarily irrelevant to an assessment of the content and extent of the provocation involved in the relevant conduct. For example, any one or more of the accused's age, sex, race, physical features, personal attributes, personal relationships and past history may be relevant to an objective assessment of the gravity of a particular wrongful act or insult." (My emphasis)

16 The fact that an allegedly provocative remark must be considered in context is illustrated by the judgment of Jackson J in Mehmet Ali v The Queen (1957) 59 WALR 28, 39. There, the question of provocation had been raised as a defence to murder. However, the same principles apply in the present case. Jackson J said:

"But it would have been wrong, in my view, to instruct the jury that what had happened earlier was irrelevant either on the question whether a wrongful act then suddenly offered would have been likely to cause an ordinary person to lose his power of self-control or on the question whether the accused was in fact deprived of his self-control by such wrongful act. On such matters, the past history of the relations between the deceased and the accused could well be of great importance. The final wrongful act or insult might, of itself, be comparatively trifling, but when taken with what had gone before, might be the last straw in a cumulative series of incidents which finally broke down the accused's self-control and caused him to act in the heat of passion."

17 In the present case, the learned Magistrate did not deal directly with the first of the questions identified above. However, it is to be inferred that she answered it favourably to the appellant. Had she not done so, she would not have gone on to deal with the question whether the appellant had been deprived of his power of self control.

18 As to that question, the learned Magistrate decided that the appellant had not been deprived of his power of self-control by the remarks which the complainant whispered in his ear. The learned Magistrate came to that view on the basis that the dispute had been one of long-standing, but that there had never been "any physical between the parties". I take this to mean that there had never been anything in the nature of physical contact between the parties by way of an assault, for example. With the greatest of respect to the learned Magistrate, I do not think that assessment gives proper weight to the evidence that the complainant had followed closely behind the appellant when he entered the store and that she did so in breach of the restraining order which had so recently been obtained by the appellant. Not only did the complainant breach the restraining order, she continued to make precisely the kind of threatening statements which had prompted the appellant to obtain it.

19 Although the learned Magistrate did not accept the appellant's evidence that the complainant had kicked him in the heel as she entered the store, the balance of the appellant's evidence, which the learned Magistrate did accept, leads me to the conclusion that the complainant's actions were extremely provocative. She deliberately followed the appellant into the store in breach of the restraining order. She approached close behind the appellant and made threatening statements to him.

20 Counsel for the respondent submitted that the reason for the appellant's loss of self-control was to be found in an answer which he gave in cross-examination. The evidence emerged from the following exchange:

"Q. But according to you nothing was different on this day. According to you she's been abusing you for 2 years?

A. No. Probably my frame of mind, the fact that my back was giving me more trouble than what would normally happen. I just wasn't in the mood for it."

21 The reference to the appellant's back is to the fact that he has suffered serious spinal injuries which have resulted in more or less continuous pain. His uncontested evidence was that he had seven injuries to vertebrae in his spine and that this also had a severe effect on his mobility. The learned Magistrate apparently accepted this evidence. She referred to it in her reasons when rejecting the complainant's evidence that the appellant had "chested" her.

22 The fact that the appellant suffered from these injuries in the way that he did, resulted in his having characteristics which, I think, would have been relevant to take into account in determining the effect on him of the complainant's conduct. Although the appellant said that "nothing was different", the question which elicited that answer was directed to the nature of the abuse he had complained of: not the circumstances generally. The reference to his "frame of mind" and that he "just wasn't in the mood for it", in my view, reflects a last straw factor such as that referred to in Mehmet Ali (supra).

23 This appeal, being made under the Justices Act 1902 is in the nature of a rehearing: see Vrisakis v Australian Securities Commission (1993) 9 WAR 395, 447. As was said by Ipp J, with whom Malcolm CJ agreed (at 419):

"In general this Court is in as good a position as the magistrate to decide on the proper inference to be drawn from facts which are undisputed or which are established by her findings. Respect and weight will be given to the conclusion of the magistrate but this court, having reached its own conclusion, will not shrink from giving effect to it".

24 In the present case, the question whether the appellant was deprived by the provocation of the power of self-control is a matter of inference. With all respect to the learned Magistrate, and giving due weight to her conclusion, I do not think it possible, on the whole of the evidence, to conclude beyond reasonable doubt that the appellant was not deprived by the provocation of the power of self-control. Indeed, I would draw the inference that he was deprived of that power by the complainant's extremely provocative conduct. His action in swinging his arm behind him was a reaction "on the sudden" (in the words of s 246). I infer that he acted without thinking and without intending to hit the complainant. The complainant's conduct was, in other words, the last straw which finally broke down the appellant's self-control and caused him to act as he did.

25 In reaching this conclusion, I have had regard to the authorities to which I was referred by counsel for the respondent. In Bartlett v Torr & Magdn, unreported; SCt of WA (Walsh J); Library No 93031; 31 May 1993, his Honour said at 11:

"An appellate court should not interfere with the findings of a Court of Petty Sessions ... unless it could be shown that they were clearly wrong because of some glaring improbability, or that for some other reason the learned Stipendiary Magistrate misapprehended the evidence or otherwise failed properly to take advantage of the opportunity he had of seeing and hearing witnesses who have given evidence at the trial...."

26 Further, in Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, the High Court said that the question in circumstances such as this is whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. It is not for an appellate court to disturb a verdict of conviction simply because it disagrees with the conclusions reached by that tribunal.

27 I emphasise that in the present case, I am not simply disagreeing with the learned Magistrate. As a result of the inference which I have drawn from the primary facts as she found them, I have come firmly to the view that on the whole of the evidence, the learned Magistrate should not have been satisfied beyond reasonable doubt that the second of the questions raised by s 246 should be answered unfavourably to the appellant.

28 Having regard to the conclusion reached by the learned Magistrate in relation to the second question, it was not necessary for her to consider the third question: whether the force used was, or was not, disproportionate to the degree of provocation.

29 As I have said, the contact between the appellant's hand or wrist and the complainant's mouth resulted from the appellant swinging his arm backwards. He had already told the complainant, in strong language, to go away. She however persisted in walking behind him and making threatening remarks. The appellant's action, as he demonstrated in the video-recorded interview, was of a swatting motion which he might reasonably have made in order to encourage the complainant to go away. Although he hit the complainant, she was, to a certain extent, the author of her own misfortune. She should not have been in close proximity to the appellant.

30 Having regard to the appellant's physical characteristics, his ability to swing back with any great force was obviously limited. As I have said, his evidence in this respect was not challenged. Further, there was no finding that the appellant intended to hit the complainant. The learned Magistrate found only that it was objectively foreseeable that his action would result in contact between them. Although there was evidence that the complainant had suffered a cut to her lower lip, the photographs tendered in evidence at the trial showed the injury to be quite minor. I am therefore satisfied that the force used was proportionate to the provocation.

31 For these reasons I am satisfied that the appellant should not have been convicted of the offence of assault.

32 Upon the hearing of an appeal of this nature, I have various powers pursuant to s 199 of the Justices Act 1902. Having considered the options, I have come to the conclusion that the appropriate course is to quash the conviction and substitute a verdict of acquittal. I am satisfied that if the conviction were permitted to stand, there would be a substantial miscarriage of justice.