SUPREME COURT OF QUEENSLAND

CITATION:	R v Newbould [2019] QCA 284	
PARTIES:	R
v
NEWBOULD, Steven Michael
(appellant)	
FILE NO/S:	CA No 143 of 2019
DC No 541 of 2018	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Maroochydore – Date of Conviction: 16 May 2019 (Cash QC DCJ)	
DELIVERED ON:	6 December 2019	
DELIVERED AT:	Brisbane	
HEARING DATE:	7 August 2019	
JUDGES:	Gotterson and Philippides and McMurdo JJA	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – DEFENCE MATTERS – DEFENCE OF PERSONS OR PROPERTY – DIRECTIONS TO JURY – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the trial judge directed the jury orally that the prosecution bore the burden to “exclude” self-defence in the terms outlined in the Benchbook but did not describe that burden in a document provided to the jury that summarised the different ways in which the defence could be excluded – whether the jury may have misunderstood the burden because the word “exclude” was not included in that document – whether the jury was misdirected as to what had to be proved by the prosecution in relation to self-defence
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the appellant was intoxicated at the time of the incident – where the appellant’s counsel at trial submitted that the appellant mistakenly believed that he was being or would be assaulted and acted in response to that belief – where the trial judge directed the jury as to a defence of mistake of fact – where that direction did not include an instruction that the jury must take into account subjective factors such as the appellant’s intoxication in deciding whether there was an honest mistake – whether an adequate direction required the trial judge to instruct the jury to take into account the appellant’s intoxication – whether the jury was misdirected as to a mistake of fact
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – where the appellant was convicted after a trial of an offence of assault occasioning bodily harm – where the appellant was found to have assaulted the complainant by punching him in the face several times at a nightclub – where the incident was captured on security cameras but the footage lacked audio – where the appellant’s counsel at trial submitted that the defence of provocation should be left to the jury – where that counsel identified the provocative acts as the complainant’s hand movements in the vicinity of the appellant and words spoken by the complainant to the appellant which were unknown – where the appellant in a police interview did not suggest that he had lost his self-control – where the trial judge ruled that the defence of provocation would not be left to the jury – whether the trial judge erred in so ruling – whether there was a basis for a jury to have a reasonable doubt as to whether the appellant acted under provocation 
R v O’Loughlin [2011] QCA 123, cited	
COUNSEL:	K M Hillard for the appellant
D Balic for the respondent	
SOLICITORS:	Butler McDermott Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	GOTTERSON JA:  I agree with the order proposed by McMurdo JA and with the reasons given by his Honour.
[2]	PHILIPPIDES JA:  I agree with McMurdo JA.
[3]	McMURDO JA:  After a trial by jury in the District Court, the appellant was convicted of an offence of an assault occasioning bodily harm.  He was found to have unlawfully assaulted another young man at a nightclub at Noosa, in the early hours of a Sunday morning.  There was no doubt that the appellant had assaulted the complainant, by punching him several times in the face, and caused him to suffer a fractured nose, a fractured upper jaw and the partial loss of a tooth.  The question for the jury was whether the assault was unlawful.
[4]	In the way in which the matter was left for the jury, the issues were whether, in the circumstances which existed, or which honestly and reasonably he might have believed them to be, the appellant might have acted in self-defence.
[5]	The grounds of this appeal are that the jury was misdirected as to the questions of self-defence and mistake, that his Honour failed to properly direct the jury on the relevance of the appellant’s intoxication and that defences of provocation and the prevention of the repetition of an insult should have been left to the jury.
The evidence
[6]	The incident was captured by closed circuit television cameras in the nightclub.  From the footage, the jury was able to see the movements of the appellant and the complainant in the minutes leading up to the assault, as well as the assault itself.  There was no sound to the footage, but had there been, it would have been of no assistance, because on all accounts, it was difficult for someone at the scene to hear what was being said by someone else.  This occurred in a crowded space, in which some were dancing and many were drinking.
[7]	The appellant and the complainant did not know each other.  The complainant said in evidence that he noticed that the appellant was glaring at him across the room, and said something to him which he, the complainant, did not understand, but which he interpreted as something said angrily.  He noticed that the appellant was with a group of males and he asked one of them what “his mate’s deal was”.  He said that he recalled being told something by one of the appellant’s group, which made him lean forward to listen to what was being said.  The complainant said he asked the appellant what the problem was, and at a point where their heads were touching, the appellant said to him “don’t push your forehead against me”, and then punched him.  In cross-examination, he agreed that there had been some interaction between the two of them a minute or so earlier, as the footage confirmed.
[8]	The appellant had gone to the club with two male friends, one of whom, Mr Bax, gave evidence in the prosecution case.  Mr Bax said that there was an unfriendly exchange of words between the appellant and the complainant, lasting about 10 seconds, and that Mr Bax had a conversation with the complainant in order to “mellow things out”.  He then tried to do the same with the appellant.  He did not give evidence of what was said between the appellant and the complainant, other than that it was a heated exchange.
[9]	Immediately after the incident, the appellant and his group left the nightclub.  Later that night, the police located the appellant nearby and took some photographs of him, showing that he had blood on his shirt and a cut to his right hand.  A police officer observed the appellant to then have a dishevelled appearance, with the appearance that “he had a fair bit of alcohol on board and was slurring his speech …”.
[10]	The appellant did not give or call evidence.  His account was before the jury in the form of a recorded interview with police more than two months after the incident.
[11]	In that interview, the appellant said that he had watched a football game with some friends in the afternoon where he had had “a few beers and a few rums”.  That evening, which was a Saturday, he and his friends drank at another place in Noosa, before going to this nightclub at around midnight.  During this period he was drinking vodka.  He told police that he “wasn’t absolutely plastered” and described his level of intoxication at six on a scale of 10.  But, he said, he knew “what was going on”.
[12]	The appellant then had a very limited recollection of the incident.  He said the following in the course of the interview:
“I don’t know we [the appellant and the complainant] just might’ve exchanged words the wrong way and got a bit misunderstood there, bit of a push and shove, and punches are thrown …
… [T]hen just exchanged a few words I think, and then we just misheard him and then turned into a bit of push and shove …
Must’ve said something to each other …
I pushed him off to say like ah that’s enough and then he kept coming back up to me and kept like yelling at each other and what not … and then I think I hit first and then I walked off and he came back up and he threw a few punches and I threw a few more and that was it, I walked out …
He kept coming up to me yelling and stuff and it was like kind of a push kind of a hit, not like a full on swing … he kept coming, he came back up, saying more stuff … and then I was just like that’s enough”.
The appellant said that the complainant threw a punch at him, which did not hit him, and that the appellant then threw a punch at him, and “I think there was a couple”.
[13]	Twice in the interview, the appellant was asked whether he could recall what was said between the two of them, and each time the appellant replied “not really”.
[14]	Later in the interview, there were these questions and answers:
“Police officer:	Did you feel like you had to do that like was there, was there any other option?
The appellant:	Oh I was a bit yeah, a bit kind of worried for myself that he was gonna throw a punch I guess like that um.
Police officer:	Mm, so what made you feel worried that he was gonna throw a punch or what sort of?
The appellant:	Oh pretty much just being face to face, pretty –
Police officer:	For him to [INDISTINCT] up in your face yep.
The appellant:	Yeah, yeah.  Um kind of intimidating I guess.
Police officer:	Mm.
The appellant:	As it is, like yeah.
Police officer:	Mm and that’s why you reacted?
The appellant:	Yeah.”
The directions about self-defence
[15]	The first of the appellant’s complaints is that the jury was not properly directed as to what had to be proved by the prosecution in relation to self-defence.  The argument relies upon a document which the trial judge provided to the jury as a summary of the alternative ways in which the jury could exclude the defence.  Relevantly, the document was in these terms:
“If the prosecution satisfies you beyond reasonable doubt of any one of the following matters: 
1.	That the defendant was not unlawfully assaulted by the complainant, and that the defendant did not honestly and reasonably, but mistakenly, believe he was or would be assaulted; or
2.	That the defendant gave provocation to the complainant for the assault; or
3.	That the force used was more than was reasonably necessary to make effectual defence; or
4.	That the force used was either intended or was likely to cause death or grievous bodily harm;
then the prosecution has proved that the defence does not apply.”
[16]	For the appellant it is argued that the document did not state the law correctly, because it did not describe the burden of the prosecution as being to “exclude” self-defence.  The argument is that without the word “exclude” being used, the direction was misleading.
[17]	The argument acknowledges that in his oral directions to the jury, his Honour did use the word.  His Honour read the relevant section of the Criminal Code to the jury before saying this:
“So let us break that down, then, and look at what might be relevant as far as this trial is concerned. From that definition, you can see that there are four matters raised for consideration, and those are the four matters which you see set out at the second part of the handout that you have got. Now, if, in the case of a matter that requires consideration of self-defence, the prosecution are able to establish beyond reasonable doubt any one of those matters, that would exclude the operation of self-defence.”
(Emphasis added.)
[18]	At a number of points in his Honour’s oral directions as to self-defence and mistake of fact, his Honour emphasised, in unambiguous terms, that the burden of proof was upon the prosecution and that the standard of proof was beyond reasonable doubt.
[19]	Yet the argument is that the jury may have misunderstood the burden or standard of proof, because of the absence of the word “exclude” from the document which was provided to the jury.  The argument seeks support from the draft direction in the Benchbook, in which that word is used.  Indeed his Honour’s oral directions followed the Benchbook in that respect.
[20]	This argument cannot be accepted.  With the clear oral directions which were given by the judge, the jury could not have been under a misunderstanding about the burden or standard of proof.  And in my view, the document itself was unambiguously consistent with the relevant law.  There was no risk of any unfairness from the fact that it did not use the word “exclude”.
[21]	A further ground of appeal is that the judge’s directions, as to mistake of fact, were not according to law.  In his oral directions, the trial judge said:
“Even if you come to the view that [the complainant] did not actually assault the defendant, that is not a conclusion to this aspect. You would also have to consider whether, in the circumstances as you find them to be, the defendant mistakenly believed that he was being or would be assaulted and acted in response to that. So, here, you should ask if the prosecution have proved that the defendant did not honestly and on reasonable grounds believe that he was going to be assaulted or was being assaulted, and that is encompassed if you look at self-defence, there, under the first point. You will see that it reads:
… if the prosecution establish beyond reasonable doubt that the defendant was not unlawfully assaulted by the complainant, but also would have to show that the defendant did not honestly and reasonably but mistakenly believe that he was or would be assaulted.
So you will follow that, I am sure. There is two aspects to it. One is what actually happened. Was there an assault, or have the Crown proven there was not one? But even if that is the case, you have got to look at things through the prism of what the defendant might have been acting upon and ask if the prosecution have excluded beyond reasonable doubt that the defendant was acting under an honest, but reasonable, mistaken belief that he was going to be assaulted or was being assaulted by [the complainant].
So the process, you might think, would be as follows. Has the prosecution proven the defendant was not assaulted? And if they have, have they also proven the defendant did not honestly believe that he was being or would be assaulted? Or have they proved that if he believed that, it was not a reasonable one in the defendant’s circumstances? So it would only be if the prosecution excludes both the fact of an assault and also a mistaken belief as to an assault that the Crown would have excluded self-defence on this particular basis, which is the first number, there, listed in the document you have got. So that deals with number 1.”
[22]	The appellant’s argument is that these directions did not duly inform the jury of what was relevant for their consideration of the law of mistake of fact.  In particular, they were not told that an honest belief in a state of affairs was one which was genuinely held by the defendant, nor was the jury told of the “subjective factors” that could have contributed to an honest belief, namely the appellant’s intoxication, the noise in the room and “a feeling of intimidation.”
[23]	The argument relies upon this Court’s judgment in R v O’Loughlin.  In that case, the trial judge misdirected the jury as to the relevance of intoxication, by directions which may have led the jury to think that the accused’s intoxication was irrelevant not only to the reasonableness of his belief, but also to the question of whether she was in fact mistaken.  Of course, there was no error of that kind in the present case.  But the appellant’s argument is that the jury was not told, as it is said that they had to be told, that they should consider the appellant’s intoxication in deciding whether he might have honestly believed that he was, or would be, assaulted.
[24]	His Honour did not misstate the law in his directions about mistake.  An adequate direction did not require his Honour to instruct the jury to take into account the appellant’s intoxication in deciding whether there was an honest mistake.  There was no unfairness by not doing so, because the appellant’s intoxication was something of a two-edged sword when it came to the question of mistake.  The jury may well have considered his intoxicated state was a contribution to an unreasonable understanding of what the complainant was meaning to do.
[25]	Nor was it necessary for the judge to instruct the jury that they were to consider the circumstance of the noisy room, when considering the question of mistake.  That was a relevant fact, but it was unnecessary for the judge to direct the jury about it.
[26]	As to the complaint that his Honour did not refer to the appellant’s “feeling of intimidation” as relevant to a mistaken belief, the circumstances which confronted the appellant, as best he could describe them in his record of interview, were clearly put before the jury.  Again, it was not necessary for the jury to be told to consider that matter in assessing the question of self-defence.
[27]	This second ground of appeal cannot be accepted.
[28]	A further argument for the appellant is that the judge should have explained to the jury that the appellant’s intoxication, when the incident occurred, would explain the appellant’s poor memory when providing his account to the police.  It is said that this was a significant omission, in the context of a case where the police interview was so relevant for the question of self-defence.  However, in my view, it was unnecessary for the judge to explain to the jury that the appellant’s memory of the incident might have been affected by his intoxication when it occurred.  It is inevitable that the jury would have understood that matter, and the appellant’s counsel had told the jury that the recollections of all witnesses were likely to have been affected by intoxication.  The judge reminded the jury of the argument by the appellant’s counsel that some allowance should be made, in the appellant’s favour, for the inconsistencies between the appellant’s account to police and the video footage, given the weeks that has passed since the incident and “the circumstances in which it occurred”.
[29]	The next ground is that the judge ought to have left for the jury’s consideration a defence of provocation.  His Honour was obliged to leave this defence unless no reasonable jury could have held the evidence to be sufficient to raise a reasonable doubt.
[30]	Section 269(1) of the Criminal Code provides that a person is not criminally responsible for an assault committed upon a person who gives provocation for the assault, if the assailant 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 the person’s passion to cool, and if 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.
[31]	Section 268(1) defines the term provocation, when used in this context, to mean and include any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive that person of the power of self-control, and to induce that person to assault the person by whom the act or insult is done or offered.
[32]	The appellant’s counsel at the trial asked the judge to leave to the jury a defence of provocation.  He submitted to the judge that the issue was raised by the video footage itself, and the way that the appellant was shown to have “lashed out”, raising a possibility that “there could have been words spoken or actions undertaken by the complainant that has caused that lashing out.”  There was then this exchange between counsel and the judge:
“HIS HONOUR:	So is it - just so I'm following this is an argument to this effect: that because we don't know - on the video we don't know why your client punched the complainant that's an irrational act, therefore, that itself suggests a loss of control? Is that - - -
MR TURNER:	Yes, and also coupled with that the lack of explanation by any of the civilian witnesses about the motivation behind the lashing out.”
His Honour asked counsel to identify the provocative act, to which counsel said that it “could be the hand movements by the complainant immediately before he struck.”  Counsel confirmed that the case, which he was asking the judge to put to the jury, was that the wrongful act or insult was the “hand movement in the vicinity of [the] neck/throat [of the appellant]”.  Counsel then added that the jury would consider the possibility that there were provocative words although, he conceded, the words were not known.
[33]	I have looked at the video footage and although the hand movements of the complainant, upon which the submission to the trial judge was based, can be seen, there is nothing about them which at all suggests that they constituted a wrongful act or insult which could deprive an ordinary person of the power of self-control.  Of course, the complainant’s conduct was to be considered also in the light of what he may have said at the time.  But in my view, the critical consideration is that in the appellant’s account to police, he did not suggest that he had lost his self-control.  Rather, he said that he became “a bit kind of worried for myself that he was gonna throw a punch” and that this was the reason why he reacted.
[34]	Consequently, the fact that the appellant appeared to have reacted to something which came from the complainant did not raise a basis for a jury to have a reasonable doubt as to whether the appellant had acted under provocation, and this ground of appeal cannot be accepted.
[35]	For essentially the same reasons, the remaining ground of appeal, namely that the defence of the prevention of the repetition of an insult ought to have been left, cannot be accepted.  It should be noted that the appellant’s trial counsel did not ask the judge to put this defence to the jury.  But in ruling that the defence of provocation would not be left, his Honour said that although this defence had not been raised, it would follow from his view about provocation that it would be inappropriate to put this defence, and the appellant’s counsel agreed.
Conclusion and order
[36]	None of the grounds of appeal against this conviction is established.  I would order that the appeal be dismissed.