WIFE SLAPS AND KICKS HUSBAND, THREATENS HUSBAND THAT IF HE DOESN’T DO AS SHE SAYS, HE WILL NEVER SEE HIS SON AGAIN; HUSBAND CHOKES WIFE, CLAIMS PROVOCATION

S v Barnes

[2020] WASC 327

This is an appeal by the husband against his conviction for the offence of aggravated common assault filed by his wife. Wife and husband had a prolonged and heated argument, which culminated with husband choking the wife. Husband claims that he acted out of self-defence and in response to wife’s provocation.

Facts: 

• On 17 September 2017, wife came home shopping with her mother and 12-year-old daughter. Husband expressed his annoyance that wife spent money on lavender plants, saying ‘what the fuck are these’. This remark set the tone for exchanges that followed.
• Later on, wife went into the theatre room where husband was sitting. She asked him to leave the room so she could turn on the television to placate their son. The husband refused, saying the children could watch with him in the room.
• The wife went in and out of the theatre room on a number of occasions:
  • First, the wife went into the room slapped the husband and left the room. When the wife returned she tried to pull the husband off the couch on which he was sitting.
  • At some point, there was a scuffle as the husband tried to restrain the wife. Husband and wife ended up on the ground with the husband on top of the wife. The wife grabbed at the husband's face in an attempt to get him off her.
  • Wife threatened to smash a hard disk drive and a Playstation device, unless husband left the room, when the husband refused to leave the room, the wife smashed it on the floor. When wife returned, she used her legs to try to force the husband off the couch. While wife was kicking the husband, she said, 'If you don't do as I say, you'll never see your son again'.
  • At that point husband grabbed the wife around the neck with his right hand and squeezed her throat. The Wife lost consciousness.
• The wife’s father arrived at the house not long after. The husband told him, 'I did it. I choked her out. I don't know why I did it. I'm not running away. I'm not hiding. I'm here to take my medicine'.
• On 23 November 2017 the husband published on Facebook a lengthy account of the incident, which read in part: I saw red and without conscious thought, I moved over her, my right hand finding its way to and grasping on to her neck and without thinking I held and I choked her and I remember saying something to the effect of 'don't you ever use my son against me'.
• The magistrate convicted husband of the charge, and denied claim of provocation. His Honour found that a reasonable person would not have acted as the husband did in the face of the provocation from his wife, and concluded that the force used by the husband was disproportionate to the provocation.

Issue: Did the magistrate err when it did not consider provocation? Did the magistrate fail to appreciate the evidence in its totality? Did the court not consider the severity of the threat made by the wife that if the husband did not do as she asked he would never see his son again?

Law:

The defence of provocation  will apply to remove criminal responsibility for an assault if:

1. there was a wrongful act or insult;
2. the provocation is capable of causing an ordinary person to lose self-control and act in the way in which the accused did (the objective element);
3. the accused is in fact deprived by the provocation of the power of self-control (the subjective element);
4. the accused acts upon the provocation 'on the sudden and before there is any time for his passion to cool'; and
5. the force used is not such as to cause death or grievous bodily harm.
6. In assessing the objective element, the court must:
7. identify any relevant personal characteristics of the accused which may affect the gravity of the provocation;
8. assess the gravity of the provocation to a person with the personal characteristics and past history of the accused; and
9. ask whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions.

In Hart v The Queen, this Court described the approach to the objective and subjective elements of the defence of provocation as follows:

'The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act while deprived of self-control before he has had the opportunity to regain his composure’.

Analysis:

• When his Honour came to address the provocation defence he said: I will turn to the question of provocation. I have to look at what he did in the light of what she did, not just by what she said, but by what she did before that and what led up to it. In other words, the totality of her behaviour.
• His Honour complied with the direction he gave to himself and considered the totality of the wife's conduct and did not confine himself to considering only the effect of the statement made by her.
• Just because the magistrate did not mention the husband’s evidence about the reasons why the threat made by the wife had a significant effect on him, didn't mean the magistrate did not take it into account in making an assessment of the severity of the provocative conduct.
• Husband had sustained serious injuries to his lower legs in a road traffic accident in 2015 and he walked with difficulty. The husband’s counsel described him as suffering 'severe physical limitations'.
• Just because the magistrate did not mention the appellant's disability in the course of his reasons, did not mean he did not take it into account.

Conclusion:

The prosecution discharged the burden on it to negative the defence of provocation. Faced with the provocation offered by the wife as described by the husband in the Facebook post, an ordinary reasonable person would not have 'choked out' the wife.