Gray v Smith [1996] QCA 114

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND MACKENZIE J.

The appellant was convicted in the Magistrates Court on a charge that on 13 July 1994 at Bundall he "unlawfully assaulted one Herbert Miklis and thereby did him bodily harm". The substituted grounds of appeal raise questions relating to the application to the case of ss. 271 and 272 of the Criminal Code, dealing with self-defence against assaults.

There is no doubt that the appellant assaulted Miklis and the principal question is whether the prosecution successfully negatived the appellant's contention that he acted in self-defence. The magistrate had some difficulty in resolving disputes of fact which arose in the case. But he ultimately held, in summary, that the appellant came into Miklis' office, that Miklis tried to get him to leave the office, that Miklis attempted to phone out but the appellant physically prevented that, that the appellant ignored Miklis' requests to leave the office, that the appellant called Miklis a thief whereupon Miklis assaulted the appellant, that that assault was a provoked one, that the appellant then assaulted Miklis and that this second assault was unlawful.

The summary of argument includes some discussion of the facts and finishes with what we take to be an elaboration of the grounds of appeal. In brief, the latter part of the document makes the following points:

1. Because Miklis denied that the appellant called him a thief, the magistrate could not have found that the appellant did so, nor use that as a basis for holding that Miklis' assault on the appellant was a provoked one.

2. The magistrate's finding that the appellant's interrupting Miklis' phone call amounted to an assault was incorrect.

3. The magistrate did not find that the assault Miklis performed on the appellant was proportionate to the provocation.

In short, the focus of attack in the outline is upon the magistrate's view that Miklis' assault on the appellant was provoked and that is also true of the oral argument which was advanced.

Although there are, as will appear, questions of interpretation of the Code involved, it is desirable to refer to some of the evidence. Miklis gave evidence to the effect that there was a dispute between himself and the appellant about a business matter, the details of which appear to be of no present importance, and that Smith insisted on coming to Miklis' office to discuss it. According to Miklis, Smith was then "very angry" and interrupted a conversation which Miklis was having with some customers. Subsequently, the two men spoke in Miklis' office and discussed the dispute. According to Miklis, Smith was "just getting angrier and angrier" in the course of this discussion. Miklis said the discussion became heated and he asked the appellant, several times, to leave and threatened to call the police. According to Miklis, he dialled the police number and Smith "reached across from the visitor's chair to the phone and hung up" and he did that several times. Then, when Miklis was on the phone to the police, the appellant reached across to "hang up again on the phone" and then struck the appellant in the region of the left eye. In cross-examination Miklis said that he lost consciousness and that he was kept in hospital overnight. He was asked in effect whether, as a result of his injury, he suffered a memory problem and admitted that he did; Miklis attributed that to his age. The medical evidence was that Miklis presented with swelling and lacerations in the region of the left eye. It was said that one laceration was 3 cm long and the other 4 cm long, involving the eyelid and "deeper tissues". The most significant injury was what was described as a "blowout fracture of the left orbit" which is the bony cavity containing the eye; also there was a fracture of the nose.

It seemed evident from the medical and photographic evidence that the assault on Miklis was a severe one and he denied having provoked it in any way; he recalled having heard the appellant say to Miklis' secretary, as he left, that Miklis had hit the appellant, but he had no memory of having done so and said he could not have done so because he was sitting down.

The secretary Christine Lowe supported what Miklis had said about the behaviour of the appellant when he came into the office. She said the two men argued in Miklis' office and gave some details of that. She said that Miklis asked the appellant, a few times, to leave the office and threatened to call the police, but the appellant refused to do so. She went on:

"Well the next thing I heard was the bang and I turned around and then it was all just - just seconds, you know, that I saw Mr Miklis sitting in his chair slightly leaned back . . . ".

Ms Lowe said blood was "squirting" out of the hand Miklis was holding to his eye; she called the police and the ambulance. She said that when the appellant came out of the office the appellant said "You saw him. You saw that he hit me first". Ms Lowe told the appellant that she did not see anything and said in evidence that she saw no injuries on the appellant. Hours later, according to evidence led on behalf of the appellant, he was seen to have blood all over his lower face and his shirt.

Ms Lowe also said that the appellant called Miklis a liar.

In cross-examination Ms Lowe confirmed that she saw no injury on the appellant and said she had heard the appellant call Miklis a thief. She said that she didn't know when that happened, but it " . . . would have been before that bang . . . ", that apparently being a reference to the sound previously mentioned after which she saw Miklis bleeding.

The appellant said in evidence that he had a conversation with Miklis in Miklis' office, that voices were raised, that Miklis said that if the appellant did not leave he would have the police called, that (in effect) Miklis threatened to have another person come to assault the appellant, that Miklis picked up the phone to ring that person and that the appellant put his hand on the phone and told him not to do so, that Miklis again told him to leave and the appellant walked towards the doorway, that he called Miklis a thief and was hit in the mouth. Having done so Miklis was, the appellant said, standing in front of him with his fist poised and the appellant then hit Miklis in the face. He complained to Ms Lowe of having been hit; the appellant said there was blood in his mouth and it was coming out.

Subsequent observations of the appellant should be mentioned. According to his version of events, he drove straight home and his wife (who was not called) photographed him. The photograph was tendered and it shows him with what looks like copious fresh blood on his face and t-shirt. Then, the appellant said, he replaced his bloodied shirt with a clean one and went to see a Sgt. Marwood at the police station. Marwood gave evidence that when the appellant came he had a very small external cut on his chin, but no fresh blood. Marwood observed a small amount of dried blood on the appellant's chin and two small areas, about a centimetre in diameter each, on his chest. Similar observations were made by Snr Const Gray who went to see the appellant at his home that afternoon. The evidence just mentioned was not challenged.

A Dr Coetzee gave evidence that the appellant saw him about 2.15 pm; that was after the appellant's two contacts with the police. The "most striking observation" which Dr Coetzee made was "that the lower part of his face - upper lip, chin area onto the neck was covered in blood. He was wearing a white T-shirt, the front of which was similarly covered in blood". On examination Dr Coetzee found a small abrasion on the lower lip, a chipped tooth and a 1.5 centimetre split in the lining of the mouth, which was oozing blood; this examination was of the order of two hours after the appellant was supposedly assaulted.

The contrast between the police observations of the appellant, together with those of Ms Lowe, on the one hand, and the later observations of Dr Coetzee, on the other, is odd. It is not easy to understand why the lower part of the face and shirt front should have been covered in blood when Dr Coetzee saw the appellant, well after the two police officers did, unless there was some supervening event to bring this about. But the magistrate, although he made no specific reference to the oddity just mentioned, perhaps had it in mind when he, in effect, declined to reach a conclusion one way or the other as to whether or not the appellant's story that he was struck by Miklis was true. As we understand his Worship's reasons, he proceeded on the assumption that Miklis had struck the appellant.

The magistrate referred in his reasons to a number of factual matters, including the evidence about the appellant hanging up the telephone, in discussing the question of self-defence. His Worship thought that the phone incident was "an assault of a minor type", but he did not rely upon that in reaching his ultimate conclusion. The critical part of the reasons is as follows:

"The evidence of the defendant, that he called Miklis a thief is corroborated, as I have already indicated, by the evidence of Lowe. She also heard the word, `thief', used.

The evidence of the defendant, and I have - I infer that it occurred instantly, is that after the word, "thief" was used to Miklis, the assault which could only have been - could only have been at the instance of Miklis contacted with the face of the defendant.

Well I am of the opinion that the - there was a wrongful act or insult given by the defendant to Miklis. He was provoked. He acted upon that provocation instantly, and assaulted the defendant - on the defendant's evidence, which caused the injury which has been related to us by the defendant. I am satisfied that on the evidence of the defendant that the assault which Micklis inflicted upon him was a provoked assault."

The appellant's principal criticism of this conclusion is that it was not reasonably open to the magistrate to act on the view that there was provocation, consisting in the use of the insulting word "thief", for the assault which was (assumedly) committed by Miklis on the appellant, because Miklis did not say so. In arriving at his factual conclusion on this point, the magistrate relied on the evidence of Ms Lowe and that of the appellant himself, and we are unable to see why this process of reasoning must be rejected. But counsel also urged upon us the view that the magistrate could not have paid attention to the requirements of the defence of provocation which, he said, are set out in s. 269.

That section does not in truth define provocation, the definition of which is to be found in s. 268(1). The function of s. 269 is to create a defence of provocation in circumstances there set out and the assumption which the appellant's argument makes is that this definition fulfils the function of determining whether or not there is provocation for the purposes of s. 271 and 272.

That point is not devoid of authority, albeit of a rather indirect kind. In Muratovic [1967] Qd.R. 15 at 27, 28, Hart J. said:

"Section 271 applies if there is either no provocation at all or no provocation for the assault actually made, although they may have been provocation for an assault."

These expressions are relied upon by Mr O'Regan Q.C. in his article in (1979) 3 Crim.L.J. 336 at 338, in support of the view that the categorisation of an assault as provoked or unprovoked in ss. 271 and 272 depends on ss. 268 and 269.

But in truth, in determining whether s. 271 affords a defence, it does not matter whether one applies to the notion of provocation mentioned in that section what might be called the strict meaning derived from application of the ss. 268 or 269, or some other concept of provocation. This is so because, for the section to apply so as to afford a defence to the appellant, it must appear that Miklis unlawfully assaulted the appellant and that would not be so, where provocation is in question, if the Code defence of provocation was proved to be available to Miklis. The onus of proof, where that defence is raised, is on the Crown, to negative the defence: Stingel [1990] HCA 61; (1990) 171 C.L.R. 312 at 332, 333.

The magistrate had to consider, under s. 271, whether Miklis' assault (actual or assumed) on the appellant was lawful or unlawful. If an issue as to the application of s. 271 arose on the facts, the prosecution had to show (if it wished to exclude s. 271) that Miklis did not unlawfully assault the appellant and that must raise the question whether a hypothetical prosecution against Miklis would have been successfully defeated by Miklis, on the basis that Miklis was provoked. Of course, if the magistrate had held s. 271 applicable, he would then have had to make a finding as to whether the attack by the appellant on Miklis' eye was "necessary to make effectual defence against the assault".

As appears from the passage quoted above, the magistrate had in mind at least part of the requirements of the defence of provocation mentioned in s. 269; he expressed the view that "Miklis acted upon that provocation instantly", and that is no doubt a reference to the requirement of s. 269, that the defendant have acted upon the provocation "on the sudden".

But it is contended by counsel for the appellant that there were other elements relevant to the question whether a defence of provocation would have available to Miklis and in particular the requirement that the force used be "not disproportionate to the provocation"; see s. 269. It may well be that the magistrate took this limitation into account and one should not too readily assume that he failed to do so. But the better view, in our opinion, is that the conviction should be regarded as unsafe on the ground that the magistrate may not have directed his attention to the questions raised by s. 269, read with s. 268.

In view of the opinion we hold, as explained below, that the case should be re-tried, it is desirable to say something about s. 272. The corresponding New Zealand provision was said in Adams' Criminal Law and Practice in New Zealand (2nd ed.) para. 544 to be defective. The author commented:

"Considering the effect of sections 48 and 49 [corresponding to our sections 271 and 272] together, a curious flaw appears. A person who has provoked an assault, even though the provocation may have been no more than might have been expected to lead only to a slight degree of violence, if any, has no defence under section 48 and can justify nothing under section 49 unless he is under apprehension of death or grievous bodily harm".

The same comment applies to ss. 271 and 272 and it was this gap in the protection provided by s. 272 which underlay the magistrate's ultimate decision. His Worship pointed out that there was no evidence upon which it could be said that the appellant had felt that he was in reasonable apprehension of death or grievous bodily harm. The result was that if, within the meaning of s. 272, the appellant provoked an assault from Miklis, the section could only avail the appellant if Miklis assaulted the appellant with such violence as to cause reasonable apprehension of death or grievous bodily harm, and induce him to believe, on reasonable grounds, that it was necessary for his preservation from death or grievous bodily harm to use force in self-defence. One can well understand the magistrate's view that these requirements made s. 272 inapplicable to the appellant. But it would seem to be an anomaly that the appellant, if he provoked an assault from Miklis and then assaulted Miklis in turn, would have no defence provided under the Code in any circumstances, if there was no question of apprehension of death or grievous bodily harm. But if that is a gap in s. 272, as we think it is, there does not appear to be any way for it to be filled by judicial interpretation.

To return to the main question, it was as we have explained open to the magistrate to hold that if Miklis assaulted the appellant that was a lawful assault; but the conviction should be set aside on the ground that it is not clear that the magistrate directed his mind to the issues involved in whether Miklis would have had a good defence under s. 269, on the ground of provocation, to a charge of assault. It may be that this was a result of the way in which the matter was argued below; the relevant provisions are not simple to apply: cf. the remarks of the New Zealand Court of Appeal in Kerr (1976) 1 N.Z.L.R. 335 at 343, 344. The view of the New Zealand Court, in 1976, that the corresponding provisions in that country should be re-considered applies to our ss. 271 and 272.

The total penalty imposed on the appellant was nearly $5,000, being principally compensation to Miklis. In thinking, as we do, that the matter should be re-tried we have taken into account that the assault was a serious one; Miklis seems to have received a tremendous blow, at a time shortly after he had been attempting to induce the appellant to leave his office, where plainly the appellant had no right to remain. We have also taken into account that the ground of setting the conviction aside may be thought to be technical, in the sense that it is an omission on the part of the magistrate to deal expressly with an issue which the law required to be considered. Further, we have taken into account that there is a tendency for members of the public to be encouraged to treat every successful appeal against conviction as implying that the Court is positively satisfied that the accused person is innocent or that he has been "cleared", to use the common expression; that is certainly not so, so far as our view of this matter is concerned.

We would therefore allow the appeal, set the conviction and other orders of the magistrate aside, and order a new trial.