Provocation can be a defence to common assault when being recorded (by media)

Taylor v Commissioner of Police [2022] QDC 101

CRIMINAL LAW – APPEAL – OFFNCES AGAINST THE PERSON – ASSAULT/ CONSENT - CRIMINAL LIABILITY – DEFENCES – PROVOCATION - APPEAL – PARTICULARS OF CHARGE

The Appellant was convicted of one charge of common assault and was acquitted of one charge of stealing. [1]

The facts are that the complainant and the Appellant agreed to meet at a pub to discuss returning money for storage fees. The Appellant objected to being recorded at the meeting by the Appellant and the attendance of media (A Current Affair). The Appellant noticed that the media was recording the interaction and knocked the phone out of complainant’s hand when the complainant refused to stop recording. The Appellant also had an altercation with the media that was recording the meeting. [3] [4]

Video evidence was presented that showed that the complainant followed the Appellant and insulted her while recording the interaction. An altercation followed where the phone was taken from the Complainants hand. The magistrate determined that taking the phone from the Appellants hand was not theft as there was no intention to permanently deprive the phone from the complainant. [12]

However, the magistrate convicted the Appellant on common assault due to the shove to the Appellants shove to the complainant’s shoulder. The Magistrate however noted that notwithstanding the Complainant provoked the assault, a finding of common assault was warranted noting the recording cannot be a wrongful act.

Consent.

The Appellant when referring to Horan v Ferguson (1995) 2 Qd R 490, 495 contended that the Complainant consented to the assault. It was found that the Complainant incited the Appellant by bring the media and recording the interaction; notwithstanding the Appellants objection to being recorded. His found that that that there was no evidence that the complainant consented to the application of force or agreed to a fight. However, it was held that it was inferred that the Complainant implicitly consented to the assault for the interest of the media. [ 23].

Provocation.

The second ground was that the Appellants actions could not constitute a “wrongful Act or insult”. S268 of the Criminal Code Act defines provocation as “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered”.

The Magistrate found that the recording of the Appellant by the complainant was not in itself a wrongful act. [32] However, his honour found that the complainant continued to follow and film the Appellant notwithstanding that the Appellant was withdrawing herself from the situation. [30] His Honour found that that the Appellant was provoked by the Appellant "by filming Ms Taylor knowing that she was objecting to it and was distressed by it; continuing to do so after Ms Taylor asked her to stop; and, following her whilst filming her, was a wrongful act of such a nature as to be sufficient to deprive an ordinary person of the power of self- control to the degree that Ms Taylor exhibited which was to strike the phone from the hand of Ms Anderson”. [40]

Costs

His Honour applied s158A(2) of the Justices Act 1886. His Honour found that “the complainant was complicit in bringing about the confrontation with Ms Taylor. There was very little evidence led on the element of consent. Ms Anderson effectively denied the conduct which was particularised as the assault. On that basis alone there was insufficient evidence to convict the appellant”. [51] His Honour noted “that costs are intended to indemnify the appellant and not punish the respondent”. When applying the relevant scale His Honour set costs in favour of the Appellant in the amount of $1,500. [54]

Conclusion

The Appeal was allowed, and the complaint was dismissed based on consent and provocation.