R v Alincic

[2001] QCA 541

[2001] QCA 541

COURT OF APPEAL

DAVIES JA
WILLIAMS JA
MULLINS J

CA No 184 of 2001

THE QUEEN

v.

OLIVER ALINCIC  (Appellant)

BRISBANE

..DATE 27/11/2001

JUDGMENT

DAVIES JA:  The appellant was convicted of assault occasioning bodily harm after a trial in the District Court on 14 June this year.  On the same day he was sentenced to two years imprisonment.  The appeal is against that conviction and the appellant seeks leave to appeal against that sentence.

On 6 April 2000 the appellant was an inmate in the maximum security section of the Woodford Correctional Centre.  He was due to appear on a video link to a magistrate's court hearing on that day.  About 20 minutes prior to the time before his appearance three correctional officers came to his cell for the purpose of strip searching him and then ensuring that he was dressed and had possession of whatever papers he needed for his appearance.

Prior to that day, and earlier on that day, the appellant had indicated that he was not prepared to undergo a search of his person which included permitting a correctional officer lifting his foreskin for the purpose of ascertaining whether anything was concealed thereunder.  He maintained that such a requirement was illegal.

When the prison officers entered his cell the appellant was completely undressed lying on his bed under a cover.  The officers then attempt to restrain him and whilst he was restrained to dress him.  It was during a struggle in which one of the officers was attempting to put his trousers over his feet that the appellant bit the finger of the complainant officer.

That the appellant severely bit the complainant's finger was not disputed.  However, it was contended in this Court that the learned trial Judge should have left open to the jury the possibility that the biting was accidental.  That was one ground of appeal. 

The other ground of appeal concerns the lawfulness of the proposed procedure and, if it was unlawful, the consequences of that.  The appellant had been previously tried on the same offence.  He relied on rulings made by the trial judge in respect of both of the matters the subject of the grounds of appeal here.

As to the ground based on s 23 of the Criminal Code the learned trial judge, in the earlier trial, had indicated that the simplest approach to this question was to say to the jury:

"The Crown has to satisfy you that there was an intentional biting of the finger.  If the Crown doesn't satisfy you on that, you can put your pencils down and go home."

The fact that the trial judge, at the earlier trial, was prepared to give such a direction did not, of course, bind the trial judge here nor was the indication given in the previous trial, a pre-trial ruling pursuant to s 592A, nor do I think that a defence under s 23 was, in the circumstances of this case, open. On the contrary there was strong evidence emanating from the appellant at the time that the biting was intentional and the appellant did not give evidence at the trial.

There was a video recording of the relevant events.  It recorded the appellant threatening the complainant and other officers before this assault including a threat to the complainant during the course of the struggle to which I have referred to "bite your fucking neck off".  And after the assault the appellant said words to the effect, speaking with respect to the complainant's finger, "Put it back.  If you put it back I'll bite you worse, you bastard".  When those words are taken into account it is plain, in my opinion, that there is no substance in this ground. 

As to the other ground, the appellant relies on the implied limitation contained in s 48(1) of the Corrective Services Act 1988. That provision was as follows:

"The general manager of a prison may authorise a medical officer, a registered nurse who is a corrective services officer or a legally qualified medical practitioner, to search the person of a prisoner, including the orifices of the prisoner's body..."

No other provision was relied on to authorise the search which was proposed here. None of the correctional officers present that day came within any of the categories of persons referred to in s 48(1). I would accept as the correct inference from that section that no other person was authorised to search the person of the prisoner including the orifices of the prisoner's body.

The appellant then submitted that a search under the foreskin is a search of the person of the prisoner within the meaning of that section.  I think that is undoubtedly correct in the sense in which the word "person" is used in that section.  It means, I think, the body of a person as distinct from his or her clothes or belongings.  Consequently a body search, including under a male person's foreskin, is a search of the person of the prisoner.

Mr Heaton, for the respondent, quite properly conceded that he could not advance any satisfactory argument to the contrary.  It is, therefore, unnecessary to consider whether such a search was one including the orifices of the prisoner's body.  My tentative view is that it was not.  An orifice is a mouth-like opening or hole.  It would undoubtedly include nostrils, ears, anus and the inside of a penis as well as a mouth but I would be inclined to think that it did not include a search under the flap of a foreskin.

It follows from what I have said that a body search which involved touching the prisoner's body so as to lift the foreskin of his penis would have been an unlawful search.  The directions which were given to officers at the relevant time, it should be emphasised, did not authorise such a search.  That sort of search would, if authorised, involve requiring the prisoner to remove his clothes, having him stand facing the officer with no clothes on, having him lift his own testicles enabling the officer to look underneath, having him pull his own foreskin back enabling the officer to see that there was nothing concealed therein but not, I emphasise, to permit the officer to touch the prisoner's testicles or foreskin.

Nevertheless, it appears either that that was what was intended on that occasion or, if that is not what was intended, it is arguable that the appellant could have had an honest and reasonable but mistaken belief that that was intended.  That is so because that is what Officer Sullivan had done on a previous occasion when the prisoner had refused to move back his foreskin or lift his foreskin himself.

It is true that, in the event, what the officers were doing when the prisoner bit Officer Sullivan was not attempting to lift the prisoner's foreskin but it seems attempting to dress him.  They were, it seems, attempting, whilst some were restraining him, to put his trousers over his feet.  How far they had got in that respect is unclear. 

It is also unclear whether or not they had abandoned their original intention which, it seems, they had to carry out the search themselves under his foreskin if he refused to do that himself.  They had indicated to him, before coming in that day, that that is what they intended to do or, at least, as I have said, if they did not make that clear, because of previous conduct, the appellant could have had an honest and reasonable but mistaken belief that that is what they intended to do.

The appellant was, in those circumstances, in my opinion, entitled to defend himself against an unlawful assault which he had or he might reasonably have believed already commenced.  In those circumstances the appellant contends that the learned trial judge should have directed on provocation, self-defence against unprovoked assault and prevention of repetition of a provocative act.

The success of these defences may seem unlikely but that is not the question before this Court.  I think they are open and having been open they should, in my opinion, have been left to the jury.  It follows, in my opinion, that the appeal against conviction should be allowed, the verdict of guilty set aside and a new trial ordered.

WILLIAMS JA: Davies JA has set out the terms of s 48(1) of the Corrective Services Act 1988. To my mind, the search of the person of a prisoner therein referred to relates to a search by a person other than the prisoner which involves some touching of the prisoner's body.

So construed, a strip search as detailed in the operational procedure, which became Exhibit 2 at the trial, would not be a search caught by section 48(1). That is because a strip search conducted in accordance with that operational procedure would only involve the prisoner touching his own body. It would involve, for example, the prisoner lifting up his testicles and pulling back his own foreskin.

However, as Davies JA has outlined in his reasons, on previous occasions when the appellant was strip searched, upon his refusal to pull back his own foreskin, a correctional officer, in one case Sullivan, performed that procedure.  That, to my mind, could be an unlawful assault.  It follows, in my view, that on the occasion in question  the appellant was, at least, reasonably justified in believing that if he maintained his refusal to comply with the strict requirements of a strip search then the correctional officers would assault him by pulling back his foreskin.

At least that is an issue which, as Davies JA has said, should have been left to the jury.  I agree that in the circumstances the defences referred to were reasonably open and it was for a jury to determine whether or not they afforded the appellant a defence to the offence with which he was charged.  I agree with the orders proposed.

MULLINS J:  I agree with the reasons of Justices Davies and Williams and the orders proposed.

DAVIES JA:  The orders are as I have indicated.

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