R v M

[1997] QCA 86

[1997] QCA 86

COURT OF APPEAL

DAVIES JA
AMBROSE J
WHITE J

CA 577 of 1996

THE QUEEN

v

M  Appellant

BRISBANE

DATE 04/04/97

JUDGMENT

PROCEEDINGS IN CAMERA

DAVIES JA:  The appellant was convicted in the Magistrates Court on 18 December last year of two offences, one to which he pleaded guilty, which was escaping lawful custody and the other to which he had pleaded not guilty, which was assaulting a female police officer with intent to prevent his lawful detention.  Both offences occurred on 20 November last year.

The evidence of the police officers was that the female police officer was escorting the appellant from the Court room initially without touching him.  She opened the door for him to pass through.  He then started to move quickly and she grabbed his upper arm to restrain him.  He then lifted his forearm and with a clenched fist in a circular motion punched her on the left shoulder.  He continued that circular motion and struck her again on the left wrist, forcing her to break her grip and he then ran away and escaped.

When apprehended, he was asked why he ran away and he was asked why he punched the policewoman.  He replied that he just shoved her.  He later denied having said that he just shoved her and the question which really seemed to be the main question in dispute at the trial in the Magistrates Court was whether he had said he shoved her or whether he had said he just shrugged and ran off.

The question however which has occupied this Court is whether the Magistrate was satisfied as to the matters necessary to be satisfied in view of the appellant's age under section 29(2) of the Criminal Code, namely that at the time when he punched the police officer he had the capacity to know that he ought not to have done so.

The appellant was about 14 years and five months of age when he committed the offences to which I have referred and about a month later when he gave evidence.

No mention is made in the Magistrate's judgment of section 29(2) nor does it appear to be referred to in the transcript. It may be assumed in the appellant's favour, I think, that the point was overlooked.

It was put to Mr Hamlyn-Harris, who said everything that could be said in the appellant's favour, that this Court could by inference from the transcript be satisfied to the required degree that the appellant had the relevant capacity at the time this offence was committed.

Mr Hamlyn-Harris' answer to that was that we did not have the advantage which the Magistrate had of seeing and hearing the appellant; in other words, the advantage of observing his demeanour.

There is no doubt that we do not have that advantage.  On the other hand, a perusal of the transcript in my view shows plainly that the appellant here had the capacity to know that to punch a police officer in order to facilitate his escape from lawful custody was wrong.

The appellant's own evidence given at his trial shows that he was a quite mature young man and he expressed himself articulately and confidently.  When it was put to him that he hit the police officer he said, "I know what I did."  When it was put to him that he lifted his right arm and punched her, he said he didn't, "I never lifted my arm at all."

He then put forward specifically his defence that he said to the police officer that he never touched her and that he only shrugged and ran off.  He then put his version of the conversation in some detail in circumstances in which it may be inferred, it seems to me, that he was accepting that if he had shoved, or, as it appears from the police evidence, punched the police officer, that that was plainly wrong, his defence being in effect that he did not do that but by inference accepting that if he had done that, it would have been wrong.

He defended his version quite strongly by suggesting that what was put to him was "the biggest load of bullshit I ever heard in my life".  He also put the version of the police officers as to what they had said and again denied it.  He said, "I never pushed her.  Don't put words in my head please".

I would have no hesitation in being satisfied that the appellant at the relevant time had the capacity referred to in section 29(2) and for that reason I would dismiss the appeal.

AMBROSE J:  I agree.  On my perusal of the evidence given by the appellant really the only inference available was that on the day in question when he gave that evidence about a month after the commission of the offences to one of which he pleaded guilty he did have the capacity to know that he ought not assault the police officer and in my view had the Magistrate turned his mind to that question he could only have come to the conclusion that the appellant did have the capacity.  I agree that the appeal should be dismissed.

WHITE J:  I agree.

DAVIES JA:  The appeal is dismissed.