Police v Zemek
[2007] QMC 6
•28 February 2007
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Zemek [2007] QMC 6
PARTIES:
POLICE
(prosecution)
v
JOHN ZEMEK
(defendant)
FILE NO/S:
MAG12786/06(9)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
28 February 2007
DELIVERED AT:
Southport
HEARING DATE:
26 June 2006, 27 November 2007, 28 November 2007, 1 December 2006, 19 December 2006, 3 January 2007
MAGISTRATE:
Brassington JM
ORDER:
Defendant is acquited
CATCHWORDS:
CRIMINAL LAW – ASSAULT – common assault – defence of defence of premises against trespassers
Criminal Code, s 335, s 277
Cowell v Rosehill Racecourse Co. Ltd. (1937) 56 CLR 605
Robson v Hallett [1967]2 All E R 407
COUNSEL:
T Jobberns for prosecution
Defendant on own behalf
SOLICITORS:
Prosecution on own behalf
Defendant on own behalf
John Zemek (referred here after as “the defendant”) is charged that on 11 June 2005 at Tallebudgera Valley in the State of Queensland he unlawfully assaulted one Jean Mary Bartley (referred here after as “the complainant”). The charge is one of common assault under s 335 of the Criminal Code. To this charge the defendant pleaded not guilty. The matter was heard by me in the Southport Magistrates Court over six days finally concluding on 3 January 2007.
During the trial the prosecution called four witnesses. The defendant gave evidence in his own defence. In reaching my verdict I, of course, apply the usual standards and burderns of proof: the burden rests on the prosecution to prove the guilt of the defendant upon the offence charged beyond reasonable doubt (including excluding any defences or excuses raised upon the evidence); the defendant is presumed to be innocent and has no burden to establish his innocence.
A transcript of the evidence has become available. In making my findings I will refer to some of the evidence but I have considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight, nor because matters have been mentioned does it follow they have been given undue weight.
THE EVIDENCE AND FINDINGS ON FACT
The defendants, was at the time of the assault a few weeks from his 59th birthday. He was an accountant by profession but also had a number of investments including property. One of these investments was The Ingleside Cottage in Dalton Road Tallebudgera Valley. The Ingleside Cottage property consisted of an old cottage of quaint appearance that housed a restaurant and also a more modern house. As of June 2005 Jeannie Bartley, the complainant, was employed by John Zemek as a chef at the restaurant. She had been employed in the capacity of hostess and then chef for approximately four months.
As well as the restaurant the other house on the property was occupied by a couple – Rex Harvey and Christine Watts – who, as of 11 June 2005, planned to turn their property into another massage business. Mr Harvey and Ms Watts already ran such a business in Brisbane and commuted to the Tallebudgera Valley property. These business plans did not come to fruition due, in part, the collapse of the relationship between Mr Harvey, Ms Watts and the defendant.
The complainant was a chef by trade. The terms of her employment were disputed at trial. She described herself as a chef-manager and the defendant described her as a chef. For the purposes of this trial it is sufficient to find that she was employed for about four months as a chef with her role sometimes encompassing duties beyond cooking. For example, she gave evidence of bringing plants for the garden and improving the appearance of the restaurant.
The complainant’s principal residence was at Burringbar New South Wales. However, during her employment she was permitted to reside in a room above the restaurant to save her the trip, late at night, back to Burringbar. There was dispute about this arrangement during the trial. The complainant contended that the residence was part of her pay. She said she lived there about three days a week. The defendant denied she was a tenant. Rather, it was an arrangement for the convenience of the complainant. He had no objection to her leaving some possessions overnight. As the evidence emerged I find that the complainant had, as part of her employment the use of the premises upstairs. This was not a residential tenancy but rather a convenience provided to her. That is, she had a license to use the upstairs premises. However, the defendant could revoke the license that the claimant had to be at the property and, having given her reasonable time to comply with the order, the complainant would, if she remained on the property, become a trespasser.[1] What is a reasonable time will depend on the circumstances. For example, a police office entering under an implied license should leave immediately by the most direct route.[2] This issue is further discussed below when considering lawful excuses to assault.
[1]Cowell v Rosehill Racecourse Co. Ltd. (1937) 56 CLR 605 where Dixon J (as he then was) said:
A licence which is not coupled with or granted in aid of an interest is revocable at law. It operates as a bare permission to do what would otherwise be an invasion of the licensor's rights. If the permission is terminated, further continuance of the acts it authorized becomes wrongful. A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v. Stubbs) But, if he then refuse to leave the premises, he cannot complain of his forcible removal.
[2] For example, Diplock LJ in Robson v Hallett [1967]2 All E R 407
In those circumstances, Sgt McCaffrey, whilst in the dwelling-house on the invitation of the son, was no trespasser. The licence, however, could be withdrawn by the father who was the person entitled to give it. He withdrew it and, on its being withdrawn, the sergeant had a reasonable time to leave the premises by the most appropriate route for doing so, namely, out of the front door, down the steps and out of the gate, and, provided that he did so with reasonable expedition, he would not be a trespasser while he was so doing.
Sometime in May or June 2005 the defendant determined to end the complainant’s employment. He expressed much dissatisfaction with her services in the trial and made a number of serious imputations on her character and behaviour. I permitted him to give evidence of his state of mind at this time which he noted was informed by his information about the complainant. The complainant (as is evidenced in the transcript of 3 January 2007) denied nearly all of these allegations.[3] I have treated the defendant’s allegations against the complainant with extreme caution. The defendant impressed as a very careful individual. I do not consider that he would have left a person whom he totally distrusted in his property alone. His evidence can be best understood as a growing disillusionment with the complainant whom he found to be somewhat mercurial. That is, on occasion she impressed him as a good cook and at other times her behaviour concerned him. As their relationship deteriorated he appears to have been prepared to entertain the allegations that he had previously dismissed and began to consider the complainant unsuitable for further employment. Hence his search for a replacement in late May/early June 2005.
[3]It should be noted that the allegations against Ms Bartley had all the usual problems with hearsay evidence: they were vague, scurrilous and not asserted to by any witness on oath. Even Mr. Zemek conceded they could be untrue but asserted he believed them. Nevertheless, a person’s views of another may well be shaped by scurrilous, wrong gossip. There was an identifiable basis for the admission: the issue of reasonable necessity in s 277 discussed below: R v Masters [1987]2 Qd R 272 per Thomas J at 274
The complainant appears to have found out about the defendant’s plans when two people came to the restaurant and announced they were the new cook and hostess to another waitress. She was, unsurprisingly, very upset. She says she rang him on 10 June 2005 and told him she wanted to know if the position was ongoing. The complainant agreed that a telephone call had taken place and that she had asked for a contract to give her some security. The defendant testified he refused her request and considered that she had resigned as she had intimated that if she did not have a contract she would not be coming to work. She was adamant that she did not resign but rather that she would come in tomorrow (11 June 2005) and that they would talk about it
[10]The next day was an important day for those associated with Ingleside Cottage, including Mr Harvey and Ms Watts (the tenants of the defendant) as there was a launch of what was anticipated to be a new business venture – a massage business/relaxation destination. Guests were expected and plans had been made for the preparation of food by the complainant. Nevertheless the defendant arranged for a new chef to be in the restaurant on the 11 June 2005 to cope with the day’s business.
[11]I find that there was some confrontation on the telephone between the defendant and the complainant on the evening of the 10 June 2005. At the very least all was not well between them and the complainant was agitating for some permanence in her employment which the defendant would not provide on the telephone. She may well have believed that she could sort matters out on the Saturday. He clearly considered they could not. There was, even on his own evidence, no unequivocal statement from him she should not attend. Rather he considered by rejecting her ultimatum for a contract she was signalling an intention not to continue employment. In the complainant’s original police statement[4] there is no mention of any conversation of the evening of 10 June 2005.
[4] Exhibit 14
[12]The complainant attended at the restaurant at about 8.45am on the morning of 11 June 2005. She parked her vehicle in her usual spot. She was immediately approached by the defendant. Her testimony was to the effect that he came up to her as she got out of the vehicle and asked her where the cash tin was. She responded that it was in the boot of her car. As she opened the boot he then grabbed her shirt collar and stated that he wanted her off his property. She said she was unaware of what was going on and told him not to touch her as this was assault. She then said she: [5]
[5] Transcript p 4. Day 4 (1 December 2006)
And by the grab on the collar, he'd actually scratched my neck and he lashed out with a kick. And I'd only had a knee operation on the 15th of March of that year and to protect my knee which I was still hobbling around on, I put my left leg forward which copped a kick from him and so I picked up a stick to wave him off away from me.
….He was saying, "I want you off my property." And I said, "That's fine, I'll go off your property", after the kick, "but I need to get my personal effects from the residence upstairs", which he refused to allow me on the - on the premises to do such thing…
… I picked up a stick to wave him off, to keep him away but there was so much rain at the time, the stick that I was waving at him was waterlogged and it just literally broke off in my hand, to having a hand of the stick.
[13]The complainant stated that the defendant was telling her the whole time to get off his property. However, she wished to retrieve her personal property which she said she made plain to him during this initial altercation. She was also calling to “Chris” (Ms Watts the tenant of the second house on the property). At this time another waitress, Renee, arrived and she ran over to her. She then:
And when I walked over to her car, I thought I'd just run around and try and get inside the front of the restaurant there to go upstairs to get my things and he ran after me and I'd planted - or, potted these little tubs of impatiens with some violets in there to put on the tables, the outdoor tables, and I used them as a deterrent, throwing them at him as I tried to get away from him.
[14]She said at this time she was still hobbling from a March knee operation and got into the house and up the stairs to the loft/ bed-sit area. As she entered the room the defendant grabbed her leg and she fell face forward into the bedroom. She was trying to kick the door closed when:
and had his knee in my back and my neck, right back to the point to not being able to get any air out or even the words, "Yes, I'll leave your property." He's going, "You get off my property now. Promise me, you'll get off my property now." And I couldn't even say yes. I just tried to make the motion, "Yes, I will" like that...And I couldn't breathe. And then he picked me up and walked me down with no feet on the ground down the stairs.
[15]It is this incident described above that the prosecution rely upon as the particulars of the assault. The complainant testified that the arm around her neck she was gasping for air, in pain and in fear of her life. She was adamant she was held off the ground by the defendant:
Then he picked me up off the floor in the same head - with his arm around my neck, and I tried to touch the floor with my toes, and not even my feet or my toes would manage to touch the floor - any of the stairs, and it was like he was with his body pushing - pulling me down the stairs, and in the distance all I could hear - I felt like I wasn't there.
[16]When cross-examined she continued to maintain her feet did not touch the floor.[6]
[6]Page 10 Transcript Day 4 (1 December 2006) and at p. 11 “You proceeded on carrying me down the stairs so that my feet didn't even touch the ground, and I felt that I was going unconscious at that stage.”
[17]In her statement to police she was not so adamant – she says the defendant picked her up by the toes and her toes were just touching the floor. This first account appears more likely. The defendant is not a particularly big man – he testified 190 centimetres and 85 kilograms – and is 59 years old with various medical conditions. The complainant was not a large woman. She was 47 years old, five foot two inches and between 45 – 50 kilograms. Nevertheless, given the steepness of the stairs and the relative sizes it would have been extraordinarily difficult for the defendant to effectively carry the complainant by the neck in the way described.
[18]The complainant further stated that when they reached the bottom of the stairs, that open out to a small landing, two steps and a brick entrance area [7] she said she was thrown onto the grass. Chris Watt came over to her and then told her to go. She did leave in her car and went to Palm Beach Police Station. As that station was not attended she went to the Palm Beach Medical Centre and then later made a statement to police.
[7] Shown in exhibit 4
[19]The defendant participated in a record of interview on audio tape and testified in Court. His account follows essentially the same sequence as that of the complainant. He testified that he was sorting out the day’s menu with the cook (“Gordon”) who he had engaged for the day when he saw the complainant’s car arrive. He went to see her about the cash box. He said she started to open up the boot when she started to walk towards the restaurant. He did not want her in the restaurant as he considered she had quit. She continued to walk forward and his hand made contact with her upper chest. She became very upset saying don’t touch me and kicked out at him (not making contact as they were some distance apart). She then shaped up in a martial arts pose which he appeared to mimic and again told her to get off his property. She then picked up a stick and came at him swinging at him. He ducked down behind the car and then picked up a stick also. During the ‘stick fight’ his glasses were knocked off and he said he hit her as well. Her stick broke and he recalled seeing another waitress, Renee, arrive. The complainant had a short conversation with her and then headed towards the restaurant.
[20]The defendant stated he did not run after her but followed her telling her to get off his property. She then went up the stairs and he followed and found her on her stomach in the bed sit area. His description of what follows is:
And so I got down on top of her, certainly not with my knee in her back and I put a head lock on her. And I was right down on top of her, we were touching because you can't put a head lock on someone - it's very hard. ……. So I was right on top of her. And I said to her - I said, "Jeannie, are you going to get off my property now?". And she said, "Yes". And that is - that is all I said to her and that is all she said to me. And we got up off - we got up off the floor, I lifted myself up, she lifted herself up, we walked over towards the door, she was in front of me, I was holding her in the head lock and she was being co-operative. And then we went down steps. Now, steps are quite steep and the treads are narrow; they're narrow both sides. …
………. And we went down the steps and because we were touching we had to move together. She had to move her foot as I moved my foot because I couldn't move my foot forward if she didn't move her foot forward. At no time ever was Jeannie ever suspended off the ground with her feet not touching.
[21]The defendant described in evidence how he thought at one time in the upstairs room that the complainant might judo throw him. He also described how at the top of her stairs he put his knee behind hers and bent it to encourage her to go down the stairs. He was adamant that the complainant cooperated on the stairs and if she had not then the descent would have been extremely perilous for them. He said that he did not throw her out the landing but walked her out and then let her go when he became aware of the comments being made and also he considered her considerably more passive. She sank to her knees on the grass and then left with Ms Watts. He denied there was ever any mention by her, during their initial confrontation, of her wanting to get her things.[8]
[8] Page 12 Transcript Day 5 (19 December 2006)
[22]The complainant visited a medical centre, on 11 June 2005, after the assault. Doctor Williams, who testified by telephone, gave evidence that he examined the complainant and found injuries consistent with being held by the neck:
Both sides of her neck, left and right side of her neck there was an area of bruising[9] and there was also some breaks in the skin which I'd describe as superficial laceration approximately one, one and a half centimetres in length.[10]
[9] Page 3 Transcript Day 10 (28 November 2006)
[10] Page 3 Transcript Day 3 (28 November 2006)
[23]There was also bruising on her left leg, abrasion to her knee and tenderness over the injured areas and on her right arm. She was upset and shaken. The doctor had not recorded, and thought he would have done so, had the complainant said she had been held by the neck for up to two minutes. Such a hold he considered might well result in serious neck injuries or a hypoxic episode. Rather, his notes were recorded she was grabbed around the neck and thrown to the ground.
[24]Two witnesses to these events, Mr Harvey and Ms Watts, testified. As noted both Mr Harvey and Ms Watts considered 11 June 2005 an important day as they were launching their business. Mr Harvey stated that the defendant informed him that the complainant was being sacked that morning[11] so when she arrived he let the defendant confront her. He then heard yelling and, after pausing to put his shoes on, went into the main area of the house and observed:
[11] Page 45 Transcript Day 2 (27 November 2006).
I could see John and Jeannie on the stairs. John had his arm around - on Jeannie's shoulder but sort of slightly under her neck and he was sort of walking her down the stairs by putting his leg underneath her knee and walking her down the stairs.
[25]Near the bottom of the stairs he describes a flurry of rapid movement and then when going outside sees the complainant on the ground. He states that she and the defendant were still yelling at each other. When asked to elaborate on the meaning of ‘flurry’ in cross-examination Mr. Harvey said it could be a push or a stumble but that in effect it was a very fast movement.
[26]Mrs Watts testified to her observations. She said she heard the argument and at the behest of another waitress came into the restaurant where she saw the defendant and the complainant on the stairs. She said she saw the defendant with his arm around the complainant’s neck and she was hanging over the stairs very red in the face. She said she was dragged or pushed down the stairs with a lot of scuffling down the stairs. At the bottom of the stairs she said that she saw Ms Bartley go ‘flying through the air’[12] and land on her hands on the ground.
[12] Page 90 Transcript Day 2 (27 November 2006)
[27]Mrs Watts’ credit was attacked strongly by the defendant. Initially she had told the investigating police officer that she did not really see anything and did not make a statement. A statement was not given by her until October 2005 when she said the complainant rang her and left a message threatening to subpoena her to Court. The making of the statement also coincided with substantial disputation with the defendant over the tenancy. From the good relations enjoyed on or about 11 June 2005, where a business relationship was contemplated between the parties, their relationship had deteriorated. Emails exchanged between the parties in October, before the making of the statement, testify to some animosity. On 2 October 2005 the defendant effectively banned Ms Watts and Mr Harvey from the restaurant. They wanted to leave the tenancy early because they considered he had invaded their privacy. The statement by Mrs Watts was made on 10 October 2005.
[28]I consider Mrs Watts explanation as to the delay not unreasonable. Essentially she felt embarrassed about giving a statement implicating her new landlord and business partner. However, the delay between the event and the first written record is some months. Coupled with this delay is the animosity between the defendant and Mrs Watts at the time of giving her statement. Her statement and testimony portrays a very different scene to that given in testimony by Mr Harvey. In particular it has the defendant and the complainant struggling the whole time coming down the stairs. I find such a struggle inherently improbable given the angle of the stairs.
Conclusions
[29]Having seen and heard the witnesses as well as perusing the transcript I prefer the account of the defendant and Mr Harvey in determining what occurred on the stairs in Ingleside Cottage for the following reasons:
Mr Harvey, as is plain in the long cross-examination by the defendant, had no reason to favour the defendant. He was upset by the incident but never resiled from his initial account that the defendant was walking the complainant down the stairs with his arm around her neck. There was no struggle on the stairs. He considered the complainant was upset.
There was some inconsistency between the complainant’s statement and her testimony. In the complainant’s initial statement she did state she was held by the neck which caused considerable discomfort she also stated that her toes were just touching the floor. In evidence she however maintained her toes could not touch the ground. I consider it unlikely given the physical comparison between the parties that the defendant would have the physical strength to achieve this feat. Further, the complainant’s initial report to the Doctor included being held by the neck but not the additional detail of being suspended for a considerable period of time off the ground. I accept that had Doctor Williams being told this fact then he would have recorded that detail.
Mrs Watts gave her statement a considerable time after the events in question at a time when she was in serious dispute with the defendant. Given her initial disavowal of seeing any relevant events I consider it unsafe to rely on her account particularly as it diverges from the evidence of Mr. Harvey with respect to what was observed during the descent down the stairs.
The steepness of the stairs, as depicted in exhibit 8, supports the defendant’s contention that without the cooperation of the complainant no safe descent would have been possible.
[30]In reaching my conclusions as to the version of events to be preferred I have not considered some of the more lurid allegations made by the defendant in questions to the complainant. These were denied by the complainant and were not proved by any acceptable evidence to have any foundation in fact. Rather, in determining the version to accept I have looked at consistency in accounts, inherent probabilities and supporting evidence.
[31]Having accepted the defendant’s account as to the events in Ingleside Cottage it is necessary then to consider whether the prosecution has proved their charge of common assault.
COMMON ASSAULT
[32]For me to convict the defendant of the offence of common assault[13] the prosecution must prove each element of the offence beyond reasonable doubt. That is:
[13] Section 335 of the Criminal Code
(1)the defendant assaulted the complainant at the date and time alleged; and
(2)the assault was unlawful, that is not authorised, justified or excused by law.
[33]With respect to the first element assault is defined in s 245 of the Criminal Code:
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.
[34]The defendant has admitted conduct that amounts to an assault within the meaning of the definition in s 245, namely the holding of the complainant around the neck and the walking while restrained down the stairs. There is no dispute as to time, date and place.
[35]The defendant submits that the assault was not unlawful. That is, the assault upon the complainant was authorised, justified or excused by law. The following defences were referred to:
section 267 (Defence of a dwelling)
section 269 (Provocation)
section 271(Self defence against unprovoked assault)
section 277 (Defence of premises against trespassers)
[36]If any, or all, of these defences or excuses is raised by the evidence then the prosecution must exclude the defence or excuse beyond reasonable doubt. On the evidence section 277 (Defence of premises against trespassers) is clearly raised.
[37]Section 277 provides, relevantly, that:
(1) It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or in order to remove there from a person who wrongfully remains therein, provided that he or she does not do grievous bodily harm to such person.
(2) It is lawful for a person who is in peaceable possession of any land, structure, vessel, or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person acting by his or her authority, to use the force that is reasonably necessary in order to remove there from any person who conducts himself or herself in a disorderly manner therein, provided that he or she does not do the person grievous bodily harm.
[38]The Court of Appeal has said “the crucial aspect of s 277 of the Criminal Code for present purposes is that it renders it lawful for a person to use such force as is reasonably necessary to remove there from a person who wrongly remains there..[14]
[14] Pavolovic v Commissioner of Police [2006]QCA 134
[39]With respect to s 277(1) I have already traversed the aspect of the status of complainant when she arrived at Ingleside Cottage. I do not consider she was a trespassor. The status of her employment, at least in her mind, when she arrived was not settled. She came with food for the day’s function. The status of her employment in that of the defendant’s mind was, I accept, that he considered her no longer employed. The engagement of another cook for the day who was present at the residence supports this inference. When the defendant told the complainant to leave he rescinded her license to remain. He may have done this in an unmannerly, abrupt and unfair way in her mind. She was entitled to leave, with her possessions in an orderly manner. However, her response was to dispute the ultimatium to leave. To reach the cottage she used extreme means. I do not consider it likely that the defendant, given the circumstances of the day, initiated an assault upon her. Her behaviour included participating in the ‘stick’ fight and then, using the interruption of another employee to make a run for the cottage. To delay or hinder the defendant she threw pot plants at him. She then entered knowing full well he had told her to leave. At this time I do not find that she communicated she wanted her property. Her behaviour was such that she was wrongfully in the cottage having gained entrance by evading the defendant and throwing items at him. The defendant was entitled to use such force as was reasonably necessary to remove provided that he did not do to her grievous bodily harm. I am satisfied on the evidence that he did not do to her grievous bodily harm. Therefore, was the force employed reasonably necessary?
[40]The force, as is clear from the findings of fact already made, consisted of restraining her behind the neck while she lay on the floor and then rising with her and walking down the stairs. The force was such that it subdued her and undoubtedly humiliated her, particularly in the presence of the others in the stairway area. The defendant did not hit her or otherwise try and injure her but removed her from the cottage. The photographs of the complainant demonstrate a relatively small amount of bruising to the neck area. There are few ways that a person who was clearly upset and angry could be removed from the cottage. I am not satisfied that the prosecution has excluded, to the requisite standard, that the defendant did not use force reasonably necessary in the circumstances.
[41]In considering the question of reasonableness of force I have been concerned with the incident at the bottom of the stairs where the complainant found herself on the ground.
[42]Mr Harvey describes the final moments at the bottom of the stairs as a flurry. The complainant testified was thrown from the doorway to the grass which meant going over the verandah, the stairs and the stones. In her police statement she said that at the bottom of the stairs he took me outside and onto the landing and then released his hold on my throat. John then pushed me in the back causing me to fly off the landing over three steps and onto the grassed area. Doctor Williams reported the complainant complained of being thrown by her boss.
[43]The defendant’s account is that, once at the bottom of the stairs, he walked somewhat faster out and then down the stairs and released her whereby she sunk to her knees. Mrs Watts uses the description that the complainant was pushed off the landing by the defendant.[15] The distance of any alleged throw from the doorway to the grass would take considerable force. Given the various accounts, including the complainant’s different versions, I am not satisfied that the defendant threw the complainant the distance alleged rather then releasing her whereby she, exhausted by the ongoing struggle, fell to her knees.
[15] Page 94 Transcript Day 2 (27 November 2006)
[44]Section 277(2) permits the removal of disorderly persons from the premises. The conduct of the complainant with respect to her actions, in particular, her throwing of the plants was disorderly. She may well have been angry and frustrated at the arbitrariness of the defendant’s actions. Nevertheless, her conduct was not going to resolve the matters and it was disorderly. The defendant did not use grievous bodily harm and I consider that the prosecution have not excluded that the force was reasonably necessary in the circumstances to remove the complainant
[45]Thus, I find that the assault was lawful pursuant to s 277 and hence I must acquit the defendant. Having reached this conclusion it is not necessary to consider the other defences or excuses raised upon the evidence.
[46]I was asked by the defendant to make certain findings as to the police investigation and witness’s statements. I decline to do this. This case raised real issues as to the reasonableness of force. As is clear from the judgment the findings of reasonableness were made after findings of fact as to which version of events should be accepted. My findings do not endorse the defendant’s methods of dismissal of the complainant from her employment. The findings are limited to finding the defendant’s conduct was not criminal.
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