Deidenang v Republic [1980] NRSC 14; [1969-1982] NLR (D) 87 (5 March 1980)

[1969-1982] NLR (D) 87

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 2 of 1980

CRAIG DEIDENANG

v.

THE REPUBLIC

5th March, 1980.

Provocation - section 269 of the Criminal Code of Queensland (adopted) - proportionality.

Appeal against conviction for assault occasioning actual bodily harm contrary to section 339 of the Criminal Code of Queensland (adopted). The appellant was subjected to foul-mouthed insults by another young man. As a result they fought. In the course of the fight the appellant bit off part of the other's ear. On appeal it was argued on his behalf that by virtue of section 269 provocation affords a defence to an assault unless the violence used is both disproportionate to it and intended or likely to cause death or grievous bodily harm.

Held: Section 269 makes provocation a defence unless the violence used is either disproportionate to it or is intended or likely to cause death or grievous bodily harm. If it is either the one or the other, it affords no defence.

Appeal dismissed.

Mrs. M.L. Billeam for the appellant
P.A. Thorpe for the respondent

Thompson CJ.:

The appellant was convicted in the District Court of assault occasioning actual bodily harm contrary to section 339 of the Criminal Code, which is the First Schedule to the Criminal Code Act 1899 of Queensland, in its application to Nauru. He was sentenced to nine months' imprisonment. The learned magistrate found as fact that, after being insulted by another young man, Sam Baraidogi, the appellant fought with him and in the course of the fight, in which both participants were unarmed, bit off part of one of Sam Baraidogi's ears. He found that the appellant had been provoked into fighting but that the force used by the appellant in assaulting Sam Baraidogi as he did was disproportionate to the provocation.

In this appeal the appellant is not disputing the learned magistrate's finding that he assaulted Sam Baraidogi and occasioned him actual bodily harm by biting off part of one of his ears; but, on his behalf, Mrs. Billeam has submitted that the learned magistrate misconstrued section 269 of the Criminal Code and that, on the evidence, he should have found that the force used by the appellant was not disproportionate to the provocation.

On that point of law Mrs. Billeam has argued that the effect of section 269 is that, once provocation has been established, it affords a defence unless the force used was both disproportionate to it and was intended or likely to cause death or grievous bodily harm. I regard section 269 as a serious aberration from the common law; the sooner it ceases to be part of the law of Nauru, the better it will be for enforcement of law and order in Nauru. But, while it is part of our law, effect must be given to it by the Courts. Fortunately it does not have the extreme effect for which Mrs. Billeam has argued. The reasoning with which she has supported her argument is erroneous because she has converted the conditional clause with its verbs in the negative ("provided that 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") into a negative conditional clause with its verbs in the positive ("unless the force used is disproportionate to the provocation, and is intended and is such as is likely, to cause death or serious bodily harm") without making the further amendment, necessary in any such conversion, of substituting "or" for "and" in both the places where the latter word appears. The correct conversion of the conditional clause in section 269 into a negative conditional clause would read "unless the force used is disproportionate to the provocation, or is intended, or is such as is likely, to cause death or serious bodily harm". Provocation is a defence provided that all the conditions stated are met, i.e. provided that the force used is not disproportionate to the provocation and provided in addition that it is not intended to cause death or serious bodily harm and also is not likely to do so.

If any one of those conditions is not met, provocation is not a defence. So the learned magistrate construed section 269 correctly.

He was also correct in his decision that the condition that the force used must not be disproportionate to the provocation had not been met. The provocation consisted of insults, foul-mouthed certainly but not unusual among young people today. Biting off part of an ear was quite out of proportion to the provocation. Accordingly the appeal against conviction must fail.