Morrison v Bonde - [2016] TASSC 7

[2016] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: Morrison v Bonde [2016] TASSC 7

PARTIES:  MORRISON, Daniel John
  v
  BONDE, Michael

FILE NO: 2023/2015
JUDGMENT

APPEALED FROM: Bonde v Morrison [2015] TASMC 9

DELIVERED ON:  18 February 2016
DELIVERED AT:  Burnie
HEARING DATE:  11 February 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – General matters – Criminal liability and capacity – Defence matters – Voluntariness – Act or omission occurring independently of exercise of will – Particular cases – Drunkenness and concussion – Threatening and kicking ambulance officer.

Criminal Code (Tas), s 13(1).
R v Falconer (1990) 171 CLR 30, applied.
Aust Dig Criminal Law [2038]

REPRESENTATION:

Counsel:
             Applicant:  S G Wright
             Respondent:  S Thompson
Solicitors:
             Applicant:  S G Wright
             Respondent:  Director of Public Prosecutions

Judgment Number: [2016] TASSC 7
Number of paragraphs: 26

Serial No 7/2016
File No 2023/2015

DANIEL JOHN MORRISON v MICHAEL BONDE

REASONS FOR JUDGMENT BLOW CJ

18 February 2016

This is a motion for the review of a determination by which a magistrate, Mr M Brett, found two charges proven: Bonde v Morrison [2015] TASMC 9. He found the applicant, Daniel Morrison, guilty on charges alleging that he had threatened and assaulted an ambulance officer.
On the night of 23 April 2014 the applicant and some companions went drinking in Launceston. The applicant became highly intoxicated, and got involved in an altercation on the dance floor of a nightclub at Lloyds Hotel. He was knocked unconscious. An ambulance was called, but the applicant regained consciousness, and left with his friends. On the way out of Launceston, he lost consciousness again. The ambulance officers returned, and took him to the Launceston General Hospital. During the journey one of the officers, Mr Cane, became concerned that the applicant might have lost consciousness again, and carried out an investigatory procedure, flicking one eyelash and tweaking one shoulder. The applicant responded and said to the officer, "I'm going to kill your family. I'm going to kill you." Those words were the subject of a charge of threatening a public officer in the execution of his duty, contrary to s 34B(2)(b) of the Police Offences Act 1935.
The applicant then kicked backwards, kicking Mr Cane in the face. That act was the subject of a charge of assaulting a public officer in the execution of his duty, contrary to s 34B(2)(a) of the Police Offences Act.
Section 13(1) of the Criminal Code provides:
"(1) No person shall be criminally responsible for an act, unless it is voluntary and intentional ...".
The applicant defended the charges on the basis that his words and his kick were neither voluntary nor intentional.
The prosecutor bore the burden of satisfying the learned magistrate beyond reasonable doubt that the applicant's conduct was voluntary and intentional. The learned magistrate found that it was. The applicant contends that he erred in the reasoning that led to that conclusion. He has moved for the review of the learned magistrate's determination on one ground which, as amended, reads as follows:
"The Learned Magistrate erred in fact and or in law in finding that the assumption as to a voluntary and intentional act of threatening and assaulting the Public Officer was not displaced, and that the Prosecution had proved that the acts of assaulting and threatening the Public Officer committed by the Applicant were in fact voluntary and intentional and constituted the Charge of Assault and Threatening a Police [sic] Officer."
The principles applicable to the sort of defence raised by the applicant were set out by Mason CJ, Brennan and McHugh JJ in R v Falconer (1990) 171 CLR 30 at 40-41, as follows:
"The presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily, … the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act." [Case reference omitted.]
Similar statements of principle appear in that case in the judgments of Deane and Dawson JJ at 61, Toohey J at 68, and Gaudron J at 83.
The learned magistrate was well aware of R v Falconer, and of the relevant principles. He analysed the relevant evidence and came to a conclusion to the effect that the presumption that the applicant's conduct was voluntary and intentional had not been rebutted or displaced.
There were four people in the ambulance during the relevant journey – the ambulance officer who drove it, Mr Hope; Mr Cane, who got kicked; the applicant; and a companion of his, Mr Beswick. Relevant evidence was also given by a medical practitioner, Dr Tyrrell, who spent time with the applicant after his arrival at the hospital. There was also evidence of the taking of a blood sample from the applicant at the hospital, and of analysis showing that he then had a blood alcohol concentration of about .20 per cent. The prosecution also relied on hospital records which showed the applicant's Glasgow Coma Scale scores at various times.
The applicant gave evidence that he remembered nothing from the time he was on the dance floor until he woke up at his home the next morning at about 10am or 11am. His evidence as to that gap in his memory was unshaken and uncontradicted.
Mr Cane's evidence was to the following effect. When the ambulance arrived at Lloyds Hotel, the applicant was standing on the footpath outside. He was verbally aggressive. He did not want anybody to see him or look at him or do anything. Mr Cane asked the applicant whether he could assess him. The applicant refused. He asked the applicant his name. He said he did not want to give him his name or address or date of birth, that he had the right to refuse to give those details, and that the officer did not have to know them. He was responsive, able to communicate with his friends, and able to talk about what had gone on. He was answering his friends appropriately. He looked like he had been punched on the nose. He appeared lucid. Mr Cane sought out the designated driver, mentioned to that person some things to keep an eye on or look out for, and suggested that they give the ambulance service a call if any of those things changed. Subsequently he and Mr Hope were called back to the same patient, who was on the Bass Highway. On their arrival there, the applicant was sitting on the ground, conscious, talking, and aggressive. He did not want to go anywhere and did not want the ambulance officers there. He was lucid, and quite verbal in his interaction with his friends. He was not vomiting, not nauseous, and not complaining of nausea or anything like that. He would answer some questions but would refuse to answer others. His friends convinced him that it was a good idea to go in the ambulance. He got onto the ambulance bed with a bit of assistance. In the ambulance he was intoxicated, verbally aggressive, and using lots of colourful language. He was on a bed, with the head of the bed towards the front of the ambulance. Mr Cane sat in a seat that was forward of the head of the bed, facing the applicant and the rear of the ambulance. One of the applicant's friends had said that the applicant was diabetic. Mr Cane performed a blood sugar level test. At that point the applicant said, "Only touch me and I'm going to charge you with assault. You can't touch me." The applicant then settled down. Mr Cane tested for unconsciousness, doing an eyelash flick and tweaking one shoulder. The applicant "sort of came around quite quickly". While Mr Cane was talking to Mr Beswick, the applicant started to take his seat belt off, and said words to the effect of, "I'm going to kill your family. I'm going to kill you. Don't touch me." Mr Cane went to put the applicant's seat belt back on, and the applicant moved his feet off the bed and kicked backwards, connecting with the side of Mr Cane's face. His glasses went flying. Mr Beswick jumped on the applicant's legs and held him down. Mr Cane grabbed the applicant's arms, tried to pin him down, and yelled to the other ambulance officer that he had been assaulted. The applicant remained conscious.
The ambulance driver, Mr Hope, gave evidence of the applicant refusing to be taken from the hotel to the hospital, being persuaded to go to the hospital in the ambulance from the Bass Highway, and being conscious but under the influence of alcohol. He gave evidence that, during the journey, the applicant stated clearly that he did not want to be assessed and just wanted to be left alone, and that shortly after that exchange he heard Mr Cane saying, "The patient is kicking me."
Mr Beswick gave evidence that he did not see the applicant kick Mr Cane, and did not recall hearing the alleged threat. The learned magistrate concluded that Mr Beswick had a poor recollection of the events in question, and accepted the evidence of the ambulance officers as to what happened. Those findings have not been challenged in these proceedings.
Dr Tyrrell gave evidence that he had been practising medicine for a period approaching six years. He gave evidence as to the relevant events to the following effect. He was given a history that the applicant had been brought in by ambulance, had been intoxicated, had been assaulted, had reportedly lost consciousness, and had elected to travel home with friends; that there were further episodes of loss of consciousness; that the ambulance service was contacted; that the applicant remained alert, awake and able to breathe for himself and was otherwise in a stable condition; and that there had been an incident involving an assault on one of the ambulance officers on the way to the hospital. He did not witness any loss of consciousness himself. He observed the applicant to be awake, quite agitated, using abusive language, swearing, apparently making appropriate interactions with the environment around him, and in a stable condition. He was being restrained by security guards and police officers, on a stretcher. He was advised that the applicant's Glasgow Coma Score had at all times, in the ambulance and in the emergency department, been a normal score of 14 to 15. Chemical sedation was used because of his agitated behaviour.
As to the cause of the applicant's behaviour, Dr Tyrrell said, "My judgment was that it was more likely that the behaviour was a result of intoxication and driven by the patient's own behaviour and cognition rather than a medical condition."
The prosecutor led evidence from Dr Tyrrell as to the possible effects of concussion, as follows:
"So if a patient is suffering from concussion can they, whilst concussed or in that post concussion period, physically respond in ways they can't control?……It's rare but possible.
And what does that physical response tend to look like?……Generally with concussion there are – there are three signs that we look for; the physical signs are decreased coordination, unsteadiness, agitation, confusion, inappropriate speech or movements, and short term memory loss.
When you say 'inappropriate' what do you mean by that?……Inappropriate as in, poorly coordinated or uncoordinated movements – so not movements that you will consider intentional.
If they do respond in that way physically, do they later have an awareness of what they've done?……In the instance of true concussion there is generally no recollection of the events, or a very poor recollection of events.
So if, for example, someone who had concussion responded in a way that they struck another person, is it likely they will recall that happening?……If the patient – if the patient has true concussion there is a strong likelihood they may not recall that action. However, a directed coordinated blow is an unusual movement to be performed by – or an unusual thing to do while – while in a concussed state.
…
Dr Tyrrell, would it be – would you say it's unusual that a patient suffering from concussion and unaware of his actions would be able to direct a punch to someone in the face?……It would be unusual that the punch would be clear and directed.
And that they would then be in a position to make comment about that punch, as in to say, 'How do you like that?'?……It would also be unusual for a patient to make a clear comment about a movement.
Would it be unusual for a patient suffering concussion laying on a bed to be able to lift their legs and kick a person standing directly behind them – leaning over the top of them?……In a concussed patient that would be unusual."
Under cross-examination, Dr Tyrrell agreed that a scan of the applicant's facial bones was undertaken on the night in question, that nothing abnormal was identified on that occasion, that he looked at the scans subsequently, and that he was able to see a deviated nasal septum and a contusion that had not been noted as significant at first. He accepted that the applicant was suffering from a deviated nasal septum when at the hospital, and that that injury would have resulted from significant force to his nasal passage or nasal area. He accepted that the applicant could have been suffering from the effects of concussion when he was being unco-operative at the hospital.
It was put to him that with a blood alcohol content of about .20 per cent, together with concussion, it was likely that the applicant would not have known what he was doing. Dr Tyrrell replied, "That is a possibility."
That answer needs to be considered carefully and in context. Dr Tyrrell was not agreeing with the cross-examiner. He conceded only that there was a possibility that the applicant would not have known what he was doing. He did not concede that that state of affairs was likely. He did not say how strong he considered that possibility to be. I do not consider that he thereby resiled to any extent from the opinion he had expressed earlier, that the applicant's behaviour was more likely "a result of intoxication and driven by the patient's own behaviour and cognition rather than a medical condition".
The learned magistrate dealt with the issue of whether the threatening words and the kick were voluntary and intentional at [17] and [18] of his reasons, saying this:
"17I am satisfied also that the defendant's actions in kicking and threatening Officer Cane were voluntary and intentional. Defence counsel's argument that I should have a reasonable doubt that the defendant's actions were voluntary and intentional, because of the effect on his cognition of the injuries he had sustained earlier in the night and a possible consequent concussion, is simply not supported by the evidence. In particular, I note the following:
a There is no doubt that the defendant was very drunk during these events. A sample of his blood alcohol taken at the hospital after his arrival there at 4:13 am on 24 April showed findings equivalent to a blood alcohol concentration of approximately 0.2. However, he was also consistently described by the ambulance officers and by the medical practitioner at the hospital, Dr Tyrrell, as being lucid and displaying no symptoms consistent with a loss of mental capacity. The Glasgow coma scale, which was taken repeatedly both in the ambulance and at the hospital showed normal scores of between 14 and 15. Dr Tyrrell expressed in evidence the opinion that the defendant's behaviour was a result of his intoxication and his own cognitive decision-making rather than a medical condition, such as concussion.
b My own assessment of the evidence is that the defendant's actions were consistent with him making conscious, albeit drunken, decisions. For example, his comment to Officer Cane in the ambulance threatening to have him charged with assault if he touched him is consistent with a conscious and logical response to events around him. It does not suggest a person in a state of automatism, as Mr Wright submits I should find the defendant to be.
18The defendant's claimed lack of memory of the events in question is also raised by Mr Wright as a reason for having a doubt that the defendant's actions were voluntary and intentional. However R v Falconer [1990] HCA 49; (1990) 171 CLR 30 is authority for the proposition that the defendant is presumed to have acted in a voluntary and intentional manner in the absence of evidence to the contrary, and that this presumption will only be displaced if there is credible evidence which raises a reasonable possibility that his actions were not so. In this case, the only expert evidence on the question of the defendant's mental capacity comes from Dr Tyrrell, and his evidence is consistent with the said presumption. In my view, there is no other evidence that would tend to displace that presumption. Accordingly, I am satisfied that the relevant actions of the defendant were voluntary and intentional."
Counsel for the applicant submitted to me that there was evidence that should have led the learned magistrate to conclude that the presumption that the applicant's conduct was voluntary and intentional was displaced, and thus to conclude that it was not proved beyond reasonable doubt that the relevant conduct was voluntary and intentional. He relied on a number of passages in the evidence of Dr Tyrrell, as follows:
·     Dr Tyrrell said it had been reported to him that the applicant had lost consciousness on a number of occasions.
·     He confirmed that concussion can be associated with a loss of consciousness, and that significant head trauma can cause a loss of consciousness.
·     He accepted that the applicant had suffered a significant blow to the nasal area.
·     He conceded that scans of the applicant taken on the night revealed a deviated septum and a contusion.
·     He agreed that that injury must have been caused by significant force to the nasal passage or nasal area, and that there was a strong possibility that the applicant had lost consciousness.
·     He accepted that the behavioural consequences of concussion can include agitation, aggression and confusion.
·     He accepted that those factors could have contributed to the unco-operative and aggressive behaviour of the applicant on the night in question.
·     In his last answer in cross-examination, which I have referred to above at [19], he said that it was a possibility that because of his blood alcohol content and concussion, the applicant would not have known what he was doing.
Counsel for the applicant referred me to a number of passages in R v Falconer, particularly passages quoting from other cases, in which concussion was referred to by judges as an example of a cause of involuntary and unintentional conduct. See Bratty v Attorney-General (Northern Ireland) [1963] AC 386 per Lord Denning at 409; R v Sullivan [1984] AC 156 per Lord Diplock at 172; Rabey v The Queen (1977) 79 DLR (3d) 414 per Martin JA (Ontario Court of Appeal) at 430, adopted by Ritchie J in Rabey v The Queen [1980] 2 SCR 513 at 519; R v Falconer (above) per Mason CJ, Brennan and McHugh JJ at 56. I accept that concussion can sometimes result in a concussed individual unconsciously engaging in conduct that is neither voluntary nor intentional. But it certainly does not follow that, when an individual is suffering the effects of concussion, all of that individual's conduct must be involuntary and unintentional. In fact Dr Tyrrell's evidence was that such a situation is rare.

The learned magistrate's finding that the applicant's conduct was voluntary and intentional involved findings of fact, at least in part. A motion to review a conclusion of a magistrate based on findings of fact cannot succeed unless, upon the evidence, the magistrate, as a reasonable person, could not have come to the conclusion that he or she reached: Phillips v Arnold (2009) 19 Tas R 21 at [46].
The learned magistrate had ample evidence of facts suggesting that the applicant was alert and conscious before, during and after the ambulance journey, particularly the evidence that he threatened to charge Mr Cane with assault. The evidence of Dr Tyrrell, despite his unwillingness to rule out possibilities, strongly suggested that the act of kicking was not likely to be an involuntary act. In my view, having regard to the whole of the relevant evidence, it was reasonably open to the learned magistrate to reach the conclusions that he reached. Further, there is nothing in the relevant passage in his reasons, which I have quoted above, that shows any misunderstanding of the principles expounded in R v Falconer, nor any misapplication of the relevant legal principles to the facts as found.
In my view the learned magistrate's findings and reasoning are unimpeachable. The motion must therefore be dismissed.