Barnes v Vollmer
[2023] ACTMC 29
•7 August 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Barnes v Vollmer |
| Citation: | [2023] ACTMC 29 |
| Hearing Date(s): | 27 June 2023 |
| DecisionDate: | 7 August 2023 |
| Before: | Special Magistrate Richter |
| Decision: | In relation to CC2023/634 - not guilty. In relation to CC2023/462 - guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – assault occasioning actual bodily harm, assault front line community service provider – intoxication – disorderly behaviour – power of arrest. |
| Legislation Cited: | Crimes Act 1900 ss 24, 26A Crimes Legislation Amendment Bill 2001 (ACT) s 48 Intoxicated People (Care & Protection) Act 1994 (ACT) s 4 Legislation Act 2001 (ACT) s 138 |
| Cases Cited: | New South Wales v Le [2017] NSWCA 290 Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 R v Lambert[2002] 2 AC 545 R v Kain [2009] ACTSC 103 DPP v JWH unrep NSWSC 17 Oct 1997 Boughey v The Queen (1986) 161 CLR 10 R v Bailiff[2002] ACTSC 79 R v Donovan [1934] 2 KB 498 R v Melrose (1987) 30 A Crim R 332 McIntyre v R [2009] NSWCCA 305 |
| Parties: | W Barnes (Informant) |
| Representation: | Counsel B Chifuntwe (Informant) K McGowan (Defendant) |
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| File Number(s): | CC2023/634 CC2023/462 |
SPECIAL MAGISTRATE RICHTER:
1․The defendant, has pleaded not guilty to the offences of:
CC 2023/634 Assault occasioning actual bodily harm.
Crimes Act 1990 (ACT) section 24(1):
That he in the Australian Capital Territory, on 07 January 2023 did assault Kane Love and thereby occasioned to him actual bodily harm.
Maximum penalty 5 years imprisonment.
CC 2023/462 Assault frontline community service provider.
Crimes Act (ACT) section 26A
That he in the Australian Capital Territory, on 07 January 2023 assaulted another person, namely, Kane Love, and the other person was a frontline community service provider, and he was reckless about whether the other person was a frontline community service provider, and the assault was committed when the frontline community service provider was exercising a function given to the person as a frontline community service provider.
Maximum penalty 2 years imprisonment.
2․The two charges are laid in the alternative.
Background
3․At about 4.50pm on Saturday, 7 January 2023, the defendant was at the ‘Summernats’ event in Canberra. At that time he had been drinking alcohol and he approached a group of other people consisting of a security guard and several police officers. He splashed beer from an open VB can in their general direction and on the security guard.
4․That behaviour was captured on CCTV and police body worn camera (‘BWC’). The defendant was wearing a sombrero and was easily identified in the footage. At various times it appears that the defendant was filming his behaviour on his mobile telephone.
5․The defendant was arrested by Senior Constable Love (“SC Love”) and it is alleged that at that time the defendant struck SC Love to the face, causing him to receive a split to his lip and a chipped tooth.
Evidence
6․The following material was tendered as exhibits:
a.BWC footage SC Love – Exhibit 1.
b.Photographs of injury to SC Love – Exhibit 2.
c.BWC footage Constable White – Exhibit 3.
d.CCTV from Gate 4 of the Summernats event - Exhibit 4.
7․Oral evidence was lead from SC Love, Constable White and from Mr Richard Bennet, who was the security guard.
8․The defendant gave evidence on oath. He was not required to do so. He could have elected not to give evidence. He thereby became a witness in the hearing, and I must approach his evidence in the same way that I approach the evidence of any other witness.
9․His evidence is no better or worse, because he is the accused, than the evidence of any other witness in the hearing and must be considered in the same way as the evidence of other witnesses. However, by giving evidence the defendant did not assume any onus to prove anything at the trial.
10․The defendant told me that he was being an idiot on this day and being a bit of a smart-arse. He denied punching SC Love either intentionally or recklessly.
11․His demeanour in the witness box indicated to me that he was remorseful for his behaviour that day. His defence revolved around whether he had intentionally or recklessly punched the police officer and whether the arrest was lawful.
12․On the whole of the evidence, this situation unfolded very quickly. The CCTV (Exhibit 4) is only relevant between 3:31 and 3:35. The relevant BWC footage is useful between T05:58:23Z and T05:58:30Z.
General directions
13․In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offences charged beyond reasonable doubt. The defendant has no obligation to prove his innocence; if he raises an explanation consistent with his innocence, he is not required to prove it, it is for the prosecution to disprove it or demonstrate its irrelevance.
14․In assessing the reliability or credibility of witnesses, I may take into account a range of factors including what they say, how they say it and their general impression upon me. I may accept or reject some or all of their evidence. In assessing the evidence, I must be rational and dispassionate and may rely on common sense and experience.
Issues
15․There were three issues in dispute at hearing:
a.Was arrest of the defendant by SC Love lawful.
b.Did the defendant assault SC Love.
c.If the defendant assaulted SC Love, did that cause the actual bodily harm which is alleged.
16․I have had the benefit of written submissions from both parties.
Lawful Arrest
17․SC Love gave evidence that the reason for arresting the defendant was that he was drunk and disorderly.
18․The defendant at hearing argued that his arrest was unlawful in these circumstances because of the operation of section 4 Intoxicated People (Care and Protection) Act 1994 (ACT) (“Intoxicated People (Care and Protection) Act”), and particularly section 4(2).
Intoxicated People (Care and Protection) Act 1994
Sect 4 -Detention of intoxicated people
(1)If a police officer believes, on reasonable grounds, that a person in a public place is intoxicated and is, because of that intoxication—
(a)behaving in a disorderly way; or
(b)behaving in a way likely to cause injury to himself, herself or another person, or damage to any property; or
(c)incapable of protecting himself or herself from physical harm;
the officer may take the person into custody and detain the person.
(2)The police officer may take the person into custody only if the officer is satisfied that there is no other reasonable alternative for the person's care and protection.
19․The Act came into force in December 1994. Its purpose was to provide a legislative basis for places where people found intoxicated in public could sober up in a safe environment. The then Attorney General described the detention of intoxicated people in the Watchhouse as a waste of police resources and an inappropriate place for people whose problem is not criminal but, rather, that they have had far too much to drink‘.[1]
20․Section 4(2) was inserted into the Act by the Crimes Legislation Amendment Bill 2001 (ACT). The Explanatory Memorandum to this Bill states that:
“The Act currently does not require a police officer to consider alternatives to detention as a means of ensuring the safety of an intoxicated person. This clause inserts new section 4(2) to ensure that detention in a police cell is used only where other appropriate forms of care are unavailable.”
Section 4(2) considerations
21․The Explanatory Memorandum indicates a parliamentary intention to keep intoxicated people out of police cells.
22․When considering the point in time at which a police officer is required to contemplate the operation of section 4(2) there are three issues which affect that contemplation.
23․The first is which of the three bases for detention is being considered. There are different considerations attaching to each of the sub-sections to s 4(1).
24․A detention purely because the individual is incapable of protecting themselves comes with a different set of considerations than where the person is behaving in a way likely to cause injury to himself. By way of example, if an intoxicated person was about to run in front of a bus, it could not be said that it was unlawful for a police officer to grab that person by the arm to stop them without considering any other reasonable alternative prior to acting.
25․Similarly where an apparently intoxicated person is behaving in a disorderly manner, taking hold of the person to stop their behaviour is not unlawful at that time. The true consideration which arises at section 4(2) is what to ultimately do with them thereafter. That is, to send them to a licensed place[2] or to release them.
26․The second consideration is the breadth of circumstances in which an individual can be found to be in custody. These range from being told to wait in place[3] to a circumstance where an individual has been handcuffed.
27․The third consideration is the words used by the legislature at the end of section 4(1). Those words are ‘take the person into custody and detain the person’. The use of the terms ‘custody’ and ‘detain’ conjunctively suggests that the process contemplated by the section goes beyond the mere taking into custody, but contemplates the next step which is what is to happen with the person once taken into custody.
28․The last part of s 4(2) also indicates such an approach, by requiring consideration of any other ‘reasonable alternative for the person’s care and protection’.[4]
29․Applying a strict grammatical interpretation of the provision requires a police officer to contemplate alternatives to custody before taking any action at all.
30․It is no longer enough to assume that the legal meaning of a legislative provision “will correspond with the grammatical meaning of the provision”.[5] There are competing legislative directives, such as in s 139 of the Legislation Act 2001 (ACT).[6]
LEGISLATION ACT 2001 - SECT 138
Meaning of working out the meaning of an Act—pt 14.2
In this part:
"working out the meaning of an Act" means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
31․Using the example of an intoxicated person who was about to run out in front of a bus, a purely grammatical reading of section 4(2) leads to a result which is manifestly absurd or unreasonable as contemplated by section 138(c).
32․There is no pre-requisite that a provision needs to be ambiguous for section 138(c) to apply.
33․Applying section 138 to section 4(2) it is apparent that the intent of the parliament is for a decision to be made as to where an intoxicated person is to be kept once arrested.
34․This is supported by the provision in section 4(3) which contemplates the release of the detained person and section 4(4) which limits the time that an intoxicated person can be kept at a police station.
35․SC Love’s evidence was that he did not have time to make a decision about this issue in the short time that he interacted with the defendant. Ultimately no decision was made under s 4(3) to release the defendant to a licensed place or otherwise because the substantive charges stopped that process from progressing to its natural conclusion.
36․The only authority on the provision does not assist me in coming to my conclusion. In R v Kain[7] no analysis was made of the provision as the prosecution conceded that the arrest was not authorised by the Act.[8]
37․I find that the arrest of the defendant was not in breach of section 4(2) Intoxicated People (Care and Protection) Act.
Alternate basis for lawful arrest.
38․In its written submission the prosecution sets out its argument that the defendant was also subject to the common law power of arrest for a breach of the peace.
39․The defendant’s submission is that a breach of the peace arises where an actual assault or where public alarm and excitement is caused by a person’s wrongful act.
40․Whilst I do not necessarily agree with that proposition, it does not assist the defendant. The CCTV footage clearly shows the defendant spraying beer onto the security guard.
41․The spaying of a liquid onto another person is a battery (in the same manner that spitting is[9]). An application of force, no matter how small, if done in a rude or insolent manner constitutes a battery and therefore an assault.[10]
42․Even in the absence of a battery, the defendant’s actions were disorderly to the extent that on any objective view they constituted a breach of the peace.
43․If I am incorrect in my assessment of section 4(2) Intoxicated People (Care and Protection) Act, in so far as it is required, I find that the arrest of the defendant for breaching the peace was lawful.
Assault
BWC footage
44․I have taken the opportunity to review that BWC footage (Exhibit 1). I have considered that exhibit frame by frame. I consider this to be permissible in the same way a juror may consider a photograph by using reading glasses or a magnifying glass to clarify an image for themselves.
45․In the video I have observed the following:
a.T05:58:24Z. The defendant appears to be filming himself spraying beer in the direction of the security guard (Mr Richard Bennet). Thereafter he focusses on his phone which he has dropped to the ground, bending down to pick it up – at which time only the top of his sombrero can be seen in the frame.
b.T05:58:27Z. SC Love reaches for the defendant’s right hand which is holding the can of VB. SC Love makes contact part way down the defendant’s forearm.
c.T05:58:28Z. The defendant has drawn his right arm back behind him whilst still holding the can. A short struggle then ensues and the defendant’s sombrero blocks the camera.
d.T05:58:29Z. The defendant punches forward toward SC Love with his right hand which is still holding the beer can.
e.T05:58:30Z. The defendant’s right arm is fully extended in a punching motion toward SC Love. At the end of that series of frames the can is seen to be crushed in the defendant’s right hand.
46․Having reviewed that footage, I have no difficulty in answering yes to the question whether the defendant assaulted SC Love.
Actual bodily harm
47․This element poses more difficulty for the prosecution.
48․SC Love was frank when he gave evidence that he did not realise his tooth was chipped until the next morning when he brushed his teeth. There is no suggestion that he realised he had chipped a tooth at a time which was contemporaneous with this assault.
49․Reviewing all of the video evidence as a whole, it is clear that after the incident which gives rise to this charge, there was a melee when the defendant was taken to the ground by police and continued to resist. I cannot discount the possibility that the chip to SC Love’s tooth occurred in that melee.
50․The chip to the tooth would constitute ‘actual bodily harm’ as contemplated by the Act. On the other hand, the minor trauma to SC Love’s mouth is a trifling injury which on the evidence was merely transient. For an injury to constitute actual bodily harm it needs to be more than transient or trifling.[11] In the absence of proving a chipped tooth was caused by the blow delivered by the defendant as depicted in the BWC footage, he must be acquitted.
51․Whilst I am suspicious that the beer can could have caused such a chip to the tooth, suspicion is not enough. I cannot make that finding beyond a reasonable doubt. As such I find the defendant not guilty of the charge of assault occasioning actual bodily harm, but guilty of assaulting a frontline service provider.
Orders
52․In relation to CC2022/634, I find the defendant not guilty.
53․In relation to CC 2022/462, I find the defendant guilty.
| I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter. Associate: Amelia McGrath Date: 7 August 2023 |
[1] Terry Connolly MLA, ‗Intoxicated Persons (Care and Protection) Bill 1994, Second Reading Speech‘, Hansard¸ ACT Legislative Assembly, 10 November 1994, page 4030.
[2] ‘licensed place" means a place where a licensee is licensed to provide a caring service.
[3] State of New South Wales v Le [2017] NSWCA 290.
[4] Emphasis added.
[5] Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355 at 384.
[6] R v Lambert[2002] 2 AC 545.
[7] [2009] ACTSC 103 per Gray J.
[8] His Honour went on to allow the evidence obtained as a result of the subsequent search.
[9] DPP v JWH unreported NSW Sup Ct, Common Law Div, 17 Oct 1997.
[10] Boughey v The Queen (1986) 161 CLR 10. R v Bailiff[2002] ACTSC 79.
[11] R v Donovan [1934] 2 KB 498. McIntyre v R [2009] NSWCCA 305 at [44].
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