R v Elliott

Case [2020] QDC 243

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Elliott [2020] QDC 243

PARTIES:

THE QUEEN

v

THERESA LUAL ELLIOTT

(defendant)

FILE NO:

758/20

DIVISION:

Crime

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2020; 22 September 2020

JUDGE:

Cash QC DCJ

VERDICT:

I find the defendant guilty of the charge in the indictment.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – GENERALLY – where defendant charged with one count of serious assault with a circumstance of aggravation – where it was alleged the defendant bit the complainant police officer – where defendant argued the contact between her teeth and the complainant’s leg was the result of her head being pushed by the complainant – where defendant had poor memory of the event – whether on the evidence the defendant deliberately bit the complainant

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – ARREST AND DETENTION – POWERS OF ARREST – STATUTORY POWERS – where defendant charged with one count of serious assault with a circumstance of aggravation – where it was alleged the defendant bit the complainant police officer when the defendant was being restrained – where the defendant argued the complainant was not authorised to use force, and that the force used was excessive – whether the complainant police officer was acting in the execution of his duty

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 14A
The Criminal Code (Qld), s 23(1)(a), s 25, s 240, s 615B(1),
s 615B(3), s 615C(3)
Evidence Act 1977 (Qld), s 39PB
Police Powers and Responsibilities Act 2000 (Qld), s 615

Transport Operations (Road Use Management) Act 1995 (Qld), s 80

CASES:

Butera v DPP (1987) 164 CLR 180 at 188; [1987] HCA 5
Liberato v The Queen (1985) 159 CLR 50
Dookheea v R [2017] HCA 36; (2017) 262 CLR 402
R v A2 (2019) 93 ALJR 1106; [2019] HCA 35
R v DeVoss [1995] QCA 518.
R v LP [2020] QDC 218.
R v McDonald [2020] QDC 171
R v MMH [2020] QDC 70
R v Mulcahy [2010] ACTSC 98

Whitelaw v O’Sullivan [2010] QCA 366

COUNSEL:

J E Marxson for the prosecution
I A Munsie for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution
MacDonald Law for the defendant

Introduction

  1. In August 2019 the defendant was involved in an altercation with two police officers at her home at Stafford. She was suspected of drink driving earlier that day and when the police officers came to talk to her, she became aggressive and belligerent. When the defendant attempted to walk away from the police, a physical struggle occurred. It is alleged that during the struggle the defendant bit the complainant police officer on the thigh. As a result, the defendant faced trial on an indictment alleging a single offence of serious assault of a police officer with the circumstance of aggravation that the assault was constituted by biting the…

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Details
AGLC
R v Elliott [2020] QDC 243
Case
[2020] QDC 243
Decision Date

CaseChat Overview and Summary

In the case of R v Elliott, the defendant was charged with one count of serious assault with a circumstance of aggravation, specifically biting a police officer. The defendant argued that the contact between her teeth and the complainant's leg was the result of her head being pushed by the complainant, and she had poor memory of the event. The court was required to determine whether the defendant deliberately bit the complainant and whether the complainant was acting in the execution of his duty when he was assaulted.

The court concluded that the defendant deliberately bit Constable Johnson. The evidence of Constable Johnson was largely consistent with the audio recording and testimony of Sergeant Finch. The evidence of Dr Herron supported the conclusion that the injury was caused by the defendant's teeth closing on the complainant's leg. The defendant's aggressive and bellicose behaviour before, during, and after the bite pointed towards a deliberate act of retaliation. The court found beyond reasonable doubt that the defendant assaulted the complainant and that the assault was constituted by her biting him on the leg.

The court also found that Constable Johnson was acting in the execution of his duty when he was assaulted. The defendant's argument that Constable Johnson was using excessive force did not alter the fact that he was acting within the scope of his duty as a police officer. The court accepted that Constable Johnson's actions were reasonable and necessary given the defendant's conduct, and he was therefore acting in the execution of his duty when he was assaulted.

The court found the defendant guilty of the charge of serious assault with a circumstance of aggravation, specifically biting a police officer. The court noted that the defendant's poor memory of the event did not affect the court's ability to find her guilty based on the evidence it accepted. The court also noted that the defendant's argument that Constable Johnson was not authorised to use force or that the force used was excessive did not change the fact that he was acting in the execution of his duty when he was assaulted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In this case the defendant gave evidence. By doing so she did not assume any burden to prove any matter. The onus of proving her guilt remained with the prosecution. I do not have to accept the evidence of the defendant before I could find her not guilty. The critical question is always whether I am satisfied, beyond reasonable doubt, of the guilt of the defendant based upon evidence that I do accept. If, after considering all of the evidence, including that of the defendant, I am left with a reasonable doubt about an element or elements of the offence I must find the defendant not guilty.[10]Evidence in the prosecution case[10]Liberato v The Queen (1985) 159 CLR 50.Constable Mark Johnson Constable Johnson said that on the evening of 23 August 2019 he was working with Sergeant Finch when they were asked by police communications to attend an address in Stafford. The information given to Constable Johnson was that a vehicle had collided with a pole and there was a woman on the road screaming for help. The two police officers ended up at the defendant’s house in Stafford where they spoke to her adult daughter, who told police the defendant was heavily intoxicated and had been driving. The two police officers left to look for the defendant. About an hour later they returned to the defendant’s house. Upon arrival Constable Johnson noticed a car parked in the driveway. There was damage to the front of the car as shown in Exhibit 1. The defendant was standing in or near the driveway. Constable Johnson attempted to activate his body worn camera but the battery was flat. Instead he activated the audio recording function on this telephone. He did this within ten to 20 seconds of arriving. Constable Johnson said he ‘reasonably suspected’ the defendant had been driving the car in the driveway and wanted her to perform a breath test. His suspicion was based upon the information he had received from police communications and the defendant’s daughter. The defendant’s behaviour was erratic and aggressive. She appeared intoxicated and would not answer directly when Constable Johnson asked her if she had been driving. The defendant began to walk away and Constable Johnson put a hand on her, said his name, rank and police station, and said that she was detained. He thought he was acting pursuant to section 80 of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM’). The defendant flailed her arms around. Constable Johnson was concerned she would assault he or Sergeant Finch. They tried to put her in handcuffs but as she reached the stairs the defendant grabbed onto the railing. Constable Johnson was concerned ‘she was attempting to escape custody or escape us being able to perform a breath test’.[11][11]T.1-8.16-18. The two police forcibly removed the defendant’s hands from the railing, put her arms behind her back and put her in handcuffs.[12] Once she was handcuffed the defendant was lying face down on the stairs. Constable Johnson was higher on the stairs near the defendant’s head and Sergeant Finch below the defendant near her legs and feet. Constable Johnson was kneeling. The defendant tried to move her head toward Constable Johnson, so he put his right hand on the rear of her neck to prevent her turning. She appeared to calm down somewhat and he removed his hand. Constable Johnson felt a sharp pain and looked down to see the defendant biting his thigh. He saw ‘her mouth was attached to my right thigh and her head was leaning towards my body with her face facing me.’[13] He pushed her head from his thigh as she was still biting.[12]There is a difference between the evidence of the two police officers in this regard. Constable Johnson said the handcuffs were applied to both of the defendant’s hands and tightened later. Sergeant Finch said the handcuffs went on one hand and then the other followed later. In my view the difference is insignificant.[13]T.1-10.23-24.

Decision

Reasons for decision

There is another matter to consider that was not raised by either party. Section 391 of the PPRA requires a police officer who arrests someone pursuant to section 365 to inform the person, as soon as it is reasonably practicable, they are under arrest and the nature of the offence for which the person is arrested. Toward the end of the audio recording Constable Johnson reminded the defendant ‘I told you before that you were detained, okay? The reason is suspect you were driving that vehicle, so…’ He was then interrupted by the defendant. Earlier the defendant said she had been ‘arrested’, ‘detained’ and was ‘going to the watchhouse’. What occurred was in my view sufficient to comply with section 391. It must have been clear to the defendant that she was in police custody because she was suspected of driving while intoxicated.Conclusions I am satisfied, beyond reasonable doubt, of the following matters. Constable Johnson suspected, on reasonable grounds, the defendant had committed an offence by driving while intoxicated. The defendant was aggressive and uncooperative when police spoke to her. She attempted to leave and go into her house. Constable Johnson acted lawfully when he used force to detain the defendant. The force he used was not more than reasonably necessary given the conduct of the defendant. While being restrained the defendant bit Constable Johnson causing the injury shown in the photographic exhibits. It follows that I am satisfied, beyond reasonable doubt, that:(a)the defendant assaulted Constable Johnson;(b)Constable Johnson was at the time a police officer;(c)Constable Johnson was at the time acting in the execution of his duty;(d)The assault was constituted by a bite. For these reasons I find the defendant guilty of the charge in the indictment.

Ratio Decidendi

Legal Principle Established

Because I do not accept what the defendant said it is necessary to consider the remaining evidence to decide if, on evidence that I do accept, the prosecution have proven the guilt of the defendant.Consideration and factual findingsThe defendant deliberately bit Constable Johnson I am satisfied from the evidence of the prosecution witnesses that the defendant deliberately bit the complainant. First, I accept Constable Johnson’s evidence that he saw the defendant actually biting him on the thigh. His account was in mind plausible and reliable. The fact that he appears to be wrong about the defendant calming down for a period before he was bitten is not a matter that makes me doubt the rest of his evidence. It is unsurprising that when recalling events like this there will be a degree of confusion. Constable Johnson said that the defendant calmed for ‘maybe 30 seconds’. That is contradicted by the audio recording. But experience shows that time estimates in a situation like this are notoriously inaccurate. The inconsistency between Constable Johnson’s evidence and other evidence does not cause me to think his evidence is unreliable, much less dishonest. His account is otherwise largely consistent with what I heard on the audio recording and the testimony of Sergeant Finch. Secondly, the evidence of Dr Herron provides some support for a conclusion there was a deliberate biting. It seems very unlikely that the defendant’s head could be pushed with enough force to cause the injury shown in the photographs and described by Dr Herron, especially when Constable Johnson was wearing trousers. It was Dr Herron’s opinion that the injury he observed was caused by the closing of the jaw on the complainant’s leg, rather than just the mouth of the defendant coming into contact with the leg. This opinion accords with common sense and was accepted by the defendant in closing address. Thirdly, the conclusion that the defendant deliberately bit Constable Johnson fits comfortably with the behaviour of the defendant at the time of these events as shown in the audio recording. Immediately before, during, and after, the bite the defendant was extremely aggressive and bellicose. She was angry with her daughter and clearly angry and uncooperative with the police. The sounds she was making immediately before the complainant said he had been bitten were close to incoherent. This behaviour points toward a conclusion that the defendant, in anger or retaliation, bit Constable Johnson after she was restrained on the staircase. I am satisfied beyond reasonable doubt that the defendant assaulted the complainant and that the assault was constituted by her biting him on the leg.Constable Johnson was acting in the execution of his duty The defendant submitted I would conclude that when the defendant bit Constable Johnson, he was applying pressure to the back of her neck. This was not said to give rise to any issue of unwilled acts[20] or emergency,[21] but was said to represent ‘excessive’ force such that Constable Johnson was not acting in the execution of his duty at the point when he was assaulted. Adopting the language of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’), he used more than ‘reasonably necessary force’[22] and was therefore acting outside of the ambit of his duty.[20]Section 23(1)(a) of the Code.[21]Section 25 of the Code.[22]PPRA, section 615.