R v Alston

[1997] QCA 163

[1997] QCA 163

COURT OF APPEAL
MACROSSAN CJ
DAVIES JA

THOMAS J

CA No 73 of 1997
THE QUEEN
v.

KENNETH EDWARD ALSTON Appellant

BRISBANE
..DATE 16/05/97
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THE CHIEF JUSTICE: Mr Justice Davies will deliver the Judgment.

DAVIES JA: The appellant, who has asked this Court to treat his appeal on the papers and who has not attended, was convicted in the Magistrates Court on 10 February last of aggravated assault on 29 November 1996, the circumstance of aggravation being that the person assaulted is female.

The circumstances of the alleged assault are somewhat unusual. The complainant was apparently the appellant's probation officer and the appellant attended her in that capacity on the day in question. He brought with him a camera, which is described by the evidence as a computer camera, and it appears, in any event, to have been a fairly complex and expensive camera, apparently having the purpose of producing computerised photographic images.

The appellant had the camera in his bag and apparently produced it because the complainant asked him some questions about it and he then took it out of his bag and showed it to her. He told her that it was worth approximately $2,000. As he took it out of the bag, he began fiddling with it; pressing buttons and so forth. It appears to have been something which he had recently purchased and it was not suggested by the complainant who gave this evidence that the appellant was deliberately performing some task to activate any part of the camera's mechanism.

She said that he seemed to be fiddling with it and then described him a little later as actually pressing buttons on the 160597 T24/KE M/T COA94/97

camera; a little later again as pushing buttons on the camera.

He made a motion then, a little later, as if to photograph her and she said, "You cannot take a photograph in here," and said, "No," and put her arms above her head. What happened then was that he apparently pointed, or continued to point, the camera at her and whilst it was pointed at her the flash went off. He was then about three or four feet away from her apparently, and she said that the flash caused her a temporary blurring of vision and, in effect, some discomfort.

It was conceded, although, that what occurred came within the definition of assault by reason of the extended definition of "applies force," in section 245(2) of the Criminal Code, which extends the meaning of that phrase to include the application of light if applied in such a degree as to cause personal discomfort.

Mrs Clare, who appeared for the respondent in this Court, conceded that personal comfort is more than the subjective feelings of the complainant in this case but it is unnecessary, in my view, to say anything more about whether, as conceded below, what the appellant did here constituted an assault. That question, in my view, can be left to another day.

I say that because it seems to me, on the evidence which I have so far recited, that there was nothing in it which negatived accident, within the meaning of the first stem of section 23 subsection 1 of the Code; that is, as to whether it was an act which occurred independently of the exercise of the appellant's 160597 T24/KE M/T COA94/97

will.

In those circumstances, it is unnecessary to deal with the question whether, in any event, the event which occurred in this case occurred by accident. It may well be that that would, in any event, have negatived the commission of the offence in this case.

It is sufficient to say, in my view, that on those facts the prosecution has not negatived the reasonable possibility that, in those circumstances, the act or omission occurred independently of the exercise of the appellant's will.

I would therefore allow the appeal and set aside the conviction imposed below.

THE CHIEF JUSTICE: I agree.

THOMAS J: I would add the circumstance that the appellant had only just obtained the camera and that it seems to have had a somewhat complicated mechanism. In the circumstances that Justice Davies has outlined, I do not think that the Crown was able to prove beyond reasonable doubt that it was a willed act of the appellant that the flash should go off as and when it did; that is to say, some five to ten seconds after he had pushed buttons.

In short, it cannot safely be held that he pointed the flash at her knowing that it would go off. That was the essence of the alleged assault.

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I agree with what Justice Davies has said in relation to reserving the wider question of whether actions of this kind constitute an assault.

THE CHIEF JUSTICE: Thank you, Mr Clare. You appear to be an expert in this area. Under 668E (2) there is the provision that in appeals against convictions on indictment we are familiar with, we quash the conviction and direct a Judgment and verdict of acquittal to be entered. Under 668D it says a person convicted on indictment may appeal to the Court and then it goes on, and I just wonder whether there would be some requirement that we enter a verdict of acquittal in a case like this where it was an indictable offence heard summarily. But it cannot hurt, can it?

MRS CLARE: No, it is clear, through section 673, that the Court has power to deal with the summary determination of the indictable offence.

THE CHIEF JUSTICE: We will do that then. Yes, all right. Then the order that the Court will make in this case is: allow the appeal, quash the conviction, and direct judgment and verdict of acquittal to be entered.

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