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

Cantatore v Lambrecht, unreported; SCt of WA; Library No 6413; 22 August 1986

Chu v Hampson, unreported; SCt of WA; Library No 980487; 28 August 1998

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

Ellis v Ellis [1999] WASCA 30

Fraser v Attree, unreported; SCt of WA; Library No 8476; 13 September 1990

Harling v Hall (1998) 94 A Crim R 437

Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349

Mehemet Ali v R (1957) 59 WALR 28

R v Robertson [1974] QL 259

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306

Steffensen v Cox, unreported; SCt of WA; Library No 930693; 6 December 1993

Walsh v Tattersall (1996) 70 ALJR 884

Willers v R, unreported; CCA SCt of WA; Library No 950464; 31 August 1995

1 McKECHNIE J: On 18 January 1999 Mr Horlatsch was at a carpark near a swimming pool in Girrawheen when his parked car was damaged. He believed that some young people, including a young woman of 16 years, the complainant, could help him to find out the name of the driver of a red Falcon which he thought had damaged his car. Accordingly, he approached them.

2 There was a discussion between them which became antagonistic. The complainant, who was holding a bottle of Coke, threw a portion of its contents over Mr Horlatsch and then turned away. On the prosecution theory of the case, Mr Horlatsch chased the complainant, grabbed her by the hair and pushed her in the back. She fell to the ground and received minor injuries.

3 On 1 June 1999, having been charged with unlawful assault, Mr Horlatsch stood trial in the Court of Petty Sessions. The Magistrate reserved his decision until 11 June when he convicted Mr Horlatsch. On 16 July 1999 leave was granted to appeal against the decision to convict on five grounds, some of which merged into others and were not pressed on appeal.

4 I will deal with the ground in relation to provocation.

5 To understand this ground it is necessary to examine the facts in some little detail. The complainant gave evidence:

"Then from there we just continued to argue and everything and he started yelling abuse at us, saying that we were kids from Girrawheen and asking if this was a gang thing or something and we said, 'No'. I said to him, 'I don't even live in Girrawheen'. Then from there we got into a discussion about where we lived; not that it had anything to do with the actual incident of the car. We continued to argue and then he turned around and looked at me and he said, 'What do you have to do with this incident because you can't be part of this family because you're black? ...

Kristen was also arguing because before that he started yelling abuse at her brother also was in the car and Kristen asked him - - repeatedly asked him to apologise, but he wouldn't apologise."

6 Then in relation to the reference to her skin colour, the complainant said:

"He started with the racial abuse and everything and that's when I started to get really mad, and I had a bottle of Coke in my hand and I began to shake my hand around and that's when the Coke spilled on him. He became angry. ...

I had the Coke in my hand and I went like that and it spilled on him, but it wasn't like a purposeful throw. It was just basically just when you're mad and ...."

"Did you have an intention for anything to happen when you moved the Coke towards him?---No. I didn't even realise I had the Coke in my hand, basically. It was just basically the movement of my hand."

7 Mr Horlatsch gave evidence by adopting the video record of interview. At p 63 he gave evidence at the trial in cross-examination broadly in the same terms as his record of interview as follows. Having been directed to the question of about reference to calling her black, he was asked:

"What did she [the complainant] says?---I'm a racist. 'You're a racist', along those terms. The other young lady then interjected as well saying, 'You're a racist'. We then just - - because they were still at the front of the bonnet of the car. I was then near the position where I held which was near the front door and the fender of the motor vehicle. At that stage I ended up having a bottle of Coke poured over my head."

8 He described that as the bottle was raised above his head and half a bottle was poured over his head. He continued:

"The incident happened in such a quick time that there was no chance of reaction other than when the Coke was all over me. We were in a state of shock when the Coke was over my head."

9 The Magistrate found that Mr Horlatsch did use the word "black" to the complainant in the circumstances and the manner outlined by her. The reason was that Mr Horlatsch was angry and upset. His use of the word "black", according to the Magistrate, was a gratuitous insult to Miss Pola, the complainant.

10 The complainant denied pouring Coca-Cola over Mr Horlatsch. However, from other evidence the Magistrate reached the view that she had lost the power of self-control and threw Coca-Cola in the direction of Mr Horlatsch by moving the hand holding the bottle away from her body in Mr Horlatsch's general direction. He did not accept Mr Horlatsch's evidence that the Coca-Cola was poured over his head. The Magistrate found Mr Horlatsch wrongfully insulted the complainant by his gratuitous remarks as to her skin colour and that this remark induced the complainant to act as she did.

11 There are few areas of criminal law more redolent with possibilities for error than provocation. The volume of cases which interpret and explain the deceptively simple provision of the Criminal Code s 245 to s 249 attest to this. The Magistrate held in the circumstances of this case that the Criminal Code s 246 did not excuse Mr Horlatsch from criminal responsibility because of the provisions of s 245, in particular, a subsection of s 245 which reads as follows:

"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."

"Even though the defendant has raised evidence going to the question of provocation the circumstances are such that what is referred to as the 'defence' of provocation is not available to him."

12 Provocation is generally available as an excuse for criminal responsibility, although questions of proportionate response might limit the extent to which responsibility can be excused. In order to remove the availability of provocation as an excuse for criminal responsibility, there must be evidence of a mental element residing in the mind of the defendant. That is clear from the subsection.

13 First of all, the word "incitement" suggests a mental element. Incitement is the act of urging on or stimulating to action. As defined in the Criminal Code, "incites" includes solicits and an endeavour to persuade. The term "incitement" conveys a notion of deliberation in causing another person to act to achieve a result desired by the inciter. The subsection uses the phrase "in order to". That phrase, in my opinion, imports a mental element, that element being an intention to cause a specific result.

14 Support for this interpretation is to be found in Kaminski [1975] WAR 143 per Burt CJ at 146 where he says:

"In my opinion, although it is not for the purposes of this case necessary to so hold, in the crime of robbery an intention to cause a specific result in the sense of s 28 is also involved in the use of and in the threat to use violence 'in order to' obtain the thing stolen or to prevent or overcome resistance to its being stolen."

15 Support is also found in Chew v The Queen [1992] HCA 18; (1991-1992) 173 CLR 626 per the Chief Justice and Brennan, Gaudron and McHugh JJ at page 630 where they say:

"The sense in which the word 'to' is used in association with the infinitive may be purposive ('in order to') or causative ('so' or 'so as to', though 'so as to' may sometimes signify purpose rather than result). It is common to use 'to' with the infinitive in the sense of 'in order to' so as to express purpose, particularly in an adverbial clause, as an adjunct (See Quirk et al, A Comprehensive Grammar of the English Language, (1985), par 15.48; Oxford English Dictionary, and ed (1989), vol XVIII, pp. 166-167). No doubt the use of subordinators such as 'in order to' or 'so that' is more frequent and makes for more precise expression."

The application of the principles to the present case

16 The Magistrate did not advert to the mental element in any way. He simply quoted the subsection before concluding that it rendered the Criminal Code s 246 unavailable. This was an error. Furthermore, there was in fact no evidence adduced at trial that Mr Horlatsch did insult the complainant with the intention of inducing her to do something such as pour Coca Cola over him, so that he could use that act as an excuse to assault her.

17 He was angry that his car had been scratched and angry at the non-responsive answers to his questions. The insult was no more than that, an insult offered in the course of a verbal confrontation.

18 The Magistrate appears to have accepted that the insult had no particular purpose by his use of the adjective "gratuitous" to describe it. "The Macquarie Dictionary" defines "gratuitous" in this way: "(2) being without reason, cause or justification," and gives as an example "a gratuitous insult". This ground of appeal is made out.

"(e) The learned Magistrate failed to properly direct himself as to the proper standard and onus of proof, failed to apply the proper tests as to the standard and onus of proof, and failed to make proper findings of fact in the case."

20 The case which Mr Horlatsch was called on to meet was one of unlawful assault particularised as grabbing the complainant's hair and pushing her in the back causing the complainant to fall to the ground and sustaining minor injuries.

21 That is the case which not only he was called on to meet but he met. It is implicit from the Magistrate's reasons that he was not satisfied beyond reasonable doubt as to the hair pulling. The Magistrate noted that there were three witnesses to the actual event, the complainant, an independent observer Mrs Watson and Mr Horlatsch. He reached the conclusion:

"On the evidence before me I am satisfied that the defendant's hand did come into contact with Miss Pola's back shortly before she fell to the ground. I am satisfied that there was contact at least in this manner. Pursuant to the definition of assault in the Criminal Code, there was an assault by the defendant on Miss Pola".

22 Although Mr Horlatsch gave evidence that if contact was made it was accidental, I consider the finding by the Magistrate was open on the evidence and sufficiently expressed. The Magistrate did not go on to consider whether the contact in turn caused the complainant to fall over. While there is some evidence to suggest it did, I am unable to resolve this matter on the transcript. I do not uphold the ground of appeal but it has a relevance in the next question: Should there be a retrial?

23 The appellant has succeeded on the principal ground of appeal. By wrongly holding that the Criminal Code s 246 had no application, the Magistrate did not resolve the question whether the prosecution had negatived provocation beyond reasonable doubt. He did, however, state that the defendant had raised evidence going to the question of provocation.

24 Normally the result of an error of law would be an order for a retrial. Several factors militate against the making of such an order in this case:

(1) the assault which will now be the issue at trial is Mr Horlatsch's contact with the complainant's back;

(2) there is evidence going to the question of provocation which the prosecution would have to negative beyond reasonable doubt;

(3) where justice has miscarried, it is not always easy to put right.

25 There is a reasonable case for the prosecution although the case is not by any means overwhelming. I note, as I have previously stated, that the Magistrate did not make any findings that the injuries caused to the complainant were as a result of the contact with the back.

26 The incident itself was not trivial but it was in the scheme of things minor and it does seem that both parties in some sense contributed to the antagonistic circumstances.

27 The question of a retrial is always a matter of discretion into which some essentially pragmatic factors sometimes intrude. The appellant has been put to cost and inconvenience. In my opinion, weighing all the factors, the public interest does not require a retrial. In the event, the appeal will be allowed, the conviction quashed and a verdict of acquittal entered.