Dawson v Alley [1992] QCA 449

1 COURT OF APPEAL [1992] QCA 449 PINCUS JA McPHERSON JA de JERSEY J CA No 249 of 1992 R A DAWSON v. ANDREW KEITH ALLEY Appellant BRISBANE ..DATE 11/11/92 JUDGMENT -- 1 of 4 -- 2 111192 McPHERSON JA: This is an appeal against a conviction of the appellant of the offence of assault occasioning bodily harm. The assault was alleged to have been committed on 26 March 1992 at a house at St George. The complainant was David Oliver Combargno. It appears that he and the appellant and one or more other people were drinking in the house at St George. A dispute arose about some behaviour that the complainant imputed, it may be wrongly, to the appellant’s girlfriend. The appellant was annoyed by this, and, in the result, there was an argument, which ended with the appellant hitting the complainant in the chest. The complainant fell to the ground and in some fashion was injured to the extent of suffering a fractured right first rib. There is no very clear explanation of how that could have happened; but medical evidence was to the effect that the fracture could have been sustained in the course of falling, or as a result of falling, onto the ground after the blow had been given. The defence appears to have raised as grounds of exculpation s 269 of the Code, which is, of course, the defence of provocation, in conjunction with the matter provided for in s -- 2 of 4 -- 3 270 of the Code; that is to say, prevention of repetition of an act or insult. The circumstances in which those 2 provisions of the Code were relied upon are that the complainant evidently left the house, went elsewhere to make a telephone call, and returned. He was asked by the appellant what he had been doing and explained that he had gone to telephone the police to make a complaint about the behaviour of the girlfriend that I have mentioned. It was that which is alleged to have provoked the appellant and to have given him the claim to a defence founded on those 2 sections. The fact is, however, as the Magistrate pointed out, that during the period in which the complainant was absent, there was time for the appellant’s passion to cool from the original conduct which was said to have upset and annoyed him. The reference to telephoning the police came, according to the evidence, as no surprise to the appellant. He acknowledged that he expected that to be the explanation of what the complainant had gone to do when he left the house. In all the circumstances, it appears clearly that there was a proper basis on which the magistrate could hold that he was satisfied that neither of those 2 defences had been made out; and, further, on which he could be satisfied beyond reasonable doubt that the appellant had committed the offence charged and -- 3 of 4 -- 4 was without any grounds of exculpation from his criminal responsibility for the bodily harm that resulted from the assault he committed. In those circumstances, there is no basis on which the appeal against conviction can be sustained and I would dismiss it. PINCUS JA: I agree. de JERSEY J: I agree. PINCUS JA: The order of the Court is appeal against conviction dismissed. ----- -- 4 of 4 --