A Brisbane judge has granted a fresh trial for a man convicted of an armed domestic violence assault on his wife because a magistrate erred by failing to consider a possible defence of provocation.
District Court Judge Vicki Loury recently allowed the appeal and ordered a new trial for a man, identifiable only as JEJ, charged with assault causing his wife bodily harm whilst armed, with an aggravating feature of it being a domestic violence offence, after an argument via social media on 3 February 2019.
Judge Loury’s decision in JEJ v Queensland Police Service  QDC 64 was handed down on 23 April. Her Honour said that, during a trial in the Magistrates Court in January last year, it was not disputed that JEJ struck his wife with a phone charger cord after she used it to hit him.
However, she said JEJ appealed his conviction on the grounds the magistrate did not give proper consideration to whether prosecutors had excluded JEJ’s defence of provocation.
“(JEJ) contends that no consideration was given to whether the prosecution had excluded that (he) was acting in order to prevent a repetition of a wrongful act of insult (against him),” Judge Loury said. “I am of the view that the learned magistrate erred in her consideration of the defence of provocation and … because of the limitations in the evidence led in the trial I am unable to make my own determination on the evidence before the learned magistrate.
“A retrial must be ordered.”
Judge Loury noted that during a summary trial it was alleged JEJ was very intoxicated and slurring his words as he lay on the lounge of the couple’s home when engaged in an argument with his wife, who was in the couple’s bedroom at time, via social media.
“They (JEJ and his wife) had been arguing on Facebook Messenger and Instagram and verbally throughout the evening (of the alleged assault),” she said.
“(JEJ), at home, was ignoring (his wife and) … messaged her and asked her to leave him alone. She sent him a message demanding that he talk to her.
“The complainant (wife then) approached (JEJ) on the couch and grabbed some nuts out of his hand threw them at the opposite wall. (JEJ) kicked his leg out and it struck her in the right hip.
“The complainant then leaned over and picked up a phone charger cord from the coffee table, and flicked it at (JEJ) … and did not know where it hit him. (JEJ then) sat up and grabbed the cord out of (his wife’s) hand … (and) then stood up and said ‘if you’re going to hit me I’m going to hit you’.’’
It was alleged JEJ then used the cord to strike his wife about the thigh and buttocks about “six to eight times” – leaving a number of visible welts and subsequent bruising.
Judge Loury noted during the trial two police officers, who responded to a triple-0 emergency call from the wife, gave evidence JEJ had told them “my wife attacked me”.
JEJ, in his appeal, argued the magistrate was required to consider the provocation from his viewpoint in order to determine the gravity of the provocation and erred in law by failing to do so. It was also contended the magistrate was required to consider provocation and proportionality in light of the ordinary person test and erred in law by failing to do so.
“The learned magistrate ultimately found that the assault on the complainant was disproportionate to the injuries suffered by (JEJ) and rejected the defence of provocation on that basis,” she said.
“(The magistrate) also found that (JE) did not use force which was reasonably necessary to make an effectual defence against the assault.
“I consider that error has been established by the appellant in the learned magistrate’s consideration of the defence of provocation.”
The matter was remitted to the Magistrates Court for trial on a date to be fixed.
Read the full decision.