Matthews v The Queen
[2010] QDC 412
•29 October 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Matthews v The Queen [2010] QDC 412
PARTIES:
BRADLEY JOHN MATTHEWS
(Applicant)V
THE QUEEN
(Respondent)FILE NO/S:
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
DELIVERED ON:
29 October 2010
DELIVERED AT:
Brisbane
HEARING DATE:
15 October 2010
JUDGE:
Bradley DCJ
ORDER:
That count 1 be struck out.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – OTHER MATTERS – whether the applicant, by deliberately driving into a police officer’s vehicle, “struck” the applicant and therefore could be guilty of an offence under section 317 Criminal Code – whether the words “in any way” in section 317 can include an indirect application of force – whether the meaning of “to strike” in section 317 differs from the definition of “assault” – where “assault” includes an indirect application of force and section 317 “…in any way to strike…” appears to anticipate only a direct application of force.
Criminal Code Act 1899 (Qld).
COUNSEL:
Mr R Davies for the applicant
Mr NW Needham for the respondentSOLICITORS:
David Burns Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent
Application
[1] The applicant has been indicted on four counts. Counts 1 and 2 are in the alternative as follows:
Count 1 That on or about the 17th day of January 2010 at Millmerran in the State of Queensland he, with intent to prevent Ian Bruce Buckmaster, a public officer, from acting under lawful authority unlawfully attempted to strike Ian Bruce Buckmaster with a motor vehicle.
Alternatively,
Count 2 That on or about the 17th day of January 2010 at Millmerran in the State of Queensland he dangerously operated a vehicle near Millmerran/Cecil Plains Road; and he had previously on 30th day of August 1990 at Bundaberg been convicted of an offence against s328A of the Criminal Code; and he had previously on 30th day of August 1990 at Bundaberg and on 30 September 2002 at Bundaberg been convicted of prescribed offences, namely dangerous operation of a vehicle and drive under the influence of liquor.
[2] The applicant has been arraigned and pleaded not guilty to Count 1 but guilty to Count 2 and other related charges.
[3] The applicant submits that Count 1, which is laid under s 317 of the Criminal Code is bad in law and that the prosecution evidence taken at its highest is insufficient to sustain a conviction.
Facts
[4] The following facts are taken from the applicant’s Outline of Submissions and are not apparently in dispute. At around 7 pm on 17 January 2010 police responded to a call that the applicant had been acting suspiciously in the Millmerran area. Senior Constable Buckmaster, acting alone, was despatched to investigate in a marked police car.
[5] As Buckmaster approached the applicant the latter drove off and the police officer attempted to intercept the fleeing motor vehicle.
[6] The officer observed the applicant’s car a short time later on the grounds of a feed lot on the outskirts of town. The applicant ignored the officer and continued to drive around the property. Buckmaster described what followed at paragraph 24 of his statutory declaration dated 20 October 2010:
“As the Magna approached where I was, I have started to pull off the track so that the vehicle would travel along the track. To the left of the track there was a slight rise and I have started to drive up on to it. I watched the Magna come towards my vehicle, he appeared initially to be heading towards the track but then has corrected and come straight at my vehicle. The Magna has run into the driver’s and driver’s side passenger door of my police vehicle causing the airbag to be deployed. The vehicle has been pushed further up the rise and around about 45 degrees.
…
I had to cut the seatbelt as it had become entangled around my gun and holster. I then slid across the centre console and out the front passenger door.”
[7] Buckmaster then approached the applicant and, with his taser drawn, ordered him on to the ground.
[8] The police brief (QP 9) asserts that the officer sustained bruising and abrasions to his right shoulder and muscle pain down his right arm, shoulder and back. He also had swelling of his right shin and hand as a result of the incident.
[9] A Collision Analysis was conducted by Sergeant B P Stevenson of the Dalby Forensic Crash Unit, a copy of which has been tendered in evidence in this application.
A summary of the findings in the Collision Analysis are that although the speed of the applicant’s vehicle cannot be estimated, the direction of travel of the tyre marks of the vehicle show a direct path of travel towards the police vehicle. There was no evidence of braking prior to the impact. The impact was severe enough to deploy the side airbags and spin the police vehicle around by 45 degrees. A mechanical inspection of the applicant’s vehicle showed no defects in the steering, braking or throttle systems. Sgt Stevenson’s opinion is that on the evidence available, the applicant had purposely crashed into the police vehicle.
Three photographs tendered in the application illustrate the damage to the driver’s side of the police vehicle and the front driver’s side of the applicant’s vehicle.
Applicant’s arguments
Section 317 of the Criminal Code relevantly provides as follows:
“Acts intended to cause grievous bodily harm and other malicious acts
Any person who, with intent to –
…(d)… prevent a public officer from acting in accordance with lawful authority –
….
(f)Unlawfully … attempts in any way to strike any person with any kind of projectile or anything else capable of achieving the intention;
…
is guilty of a crime, and is liable to imprisonment for life.”
Clearly the gravamen of the offence is the attempt to strike a person with any kind of projectile, or anything else. The applicant argues that the word “strike” involves a direct application of force to the victim. This, the applicant argues, is in contrast to the definition of “assault” under s 245(1) of the Criminal Code which includes an indirect application of force.
The applicant’s argument is that the prosecution evidence can only support a finding that the applicant intended to strike the police vehicle with his own vehicle and that he cannot be said to have “attempted to strike” Buckmaster himself with a projectile or anything else. The facts support findings of guilt with respect to offences of wilful damage or dangerous operation of a motor vehicle but not an offence under s 317. Any application of force to Buckmaster was an indirect application of force which may amount to an assault under the broad definition of assault in s 245 of the Criminal Code but cannot amount to an attempt to strike under s 317.
The physical barrier of the police vehicle between the vehicle driven by the applicant and Buckmaster means that on the facts of this case there can be no direct attempt to strike the person in the police vehicle.
Respondent’s argument
The respondent argues that as s 317 includes the words “attempts in any way to strike” it should be read as having a wide application. The section clearly recognizes that there are innumerable ways in which one can “strike” or “attempt to strike” another.
The respondent argues that Buckmaster, although he was within the police vehicle was nevertheless capable of being struck by the applicant’s vehicle. For example, it is possible that the forceful collision of the applicant’s vehicle with the police vehicle could have resulted in such damage that the applicant’s vehicle came into direct physical contact with Buckmaster’s body.
The respondent argues that the wording of the section namely “unlawfully strikes, or attempts in any way to strike” means that a wide interpretation should be applied. As the evidence (as given at committal by Buckmaster) was that the applicant drove his vehicle directly at Buckmaster, the evidence does support a finding that the applicant attempted to strike Buckmaster.
Meaning of “strike”
There is no definition of the word “strike” in the Criminal Code but the Macquarie Dictionary definition includes the following:
(1) to deliver a blow/or thrust with (the hand a weapon, etcetera);
(2) to deal a blow or/to (a person or thing), as with the fist, a weapon, or a hammer; hit.
(3) to deal or inflict (a blow, stroke, etcetera).
(4) to drive or thrust forcibly; to strike the hands together
….
(7) to come into forcible contact or collision with: the ship struck a rock.
This dictionary definition of “strike” contrasts with the definition of “assault” under the Criminal Code:
245 Definition of assault
(1) A person who strikes, touches, or moves, or otherwise applies
force of any kind to, the person of another, either directly or
indirectly, without the other person’s consent, or with the
other person’s consent if the consent is obtained by fraud, or
who by any bodily act or gesture attempts or threatens to
apply force of any kind to the person of another without the
other person’s consent, under such circumstances that the
person making the attempt or threat has actually or apparently
a present ability to effect the person’s purpose, is said to
assault that other person, and the act is called an assault.
(2) In this section—
applies force includes the case of applying heat, light,
electrical force, gas, odour, or any other substance or thing
whatever if applied in such a degree as to cause injury or
personal discomfort.
S 245 of the Criminal Code includes a direct or indirect application of force in the definition of “assault”, whereas s 317 talks of striking, or attempting to strike, with something. Despite the use of the words “attempts in any way to strike”, s 317 appears to anticipate a direct application of force only. The section speaks of striking “any person” and therefore seems to be limited to situations involving the direct application of force with something to the body of another person.
There is no doubt therefore that had the applicant driven at or struck Buckmaster whilst Buckmaster was situated outside of the police vehicle, or even sitting in the driver’s seat of the vehicle with the door open, then the fact situation would support a charge under s 317. In this case however, the application of force, or striking of Buckmaster by the vehicle driven by the applicant was indirect and the applicant cannot be found guilty of a charge under s 317.
Count 1 on the indictment should be struck out.
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