R v Mathew Tate
[2010] ACTSC 144
•15 November 2010
R v MATHEW TATE [2010] ACTSC 144 (15 November 2010)
CRIMINAL LAW – charges of assault occasioning actual bodily harm – actual bodily harm not established – verdicts of guilty of alternative charges of assault.
CRIMINAL LAW – assault occasioning actual bodily harm – whether concussion constitutes actual bodily harm.
CRIMINAL LAW – assault of custodial officer – consent to “physical contact arising from the exigencies of everyday life” – whether custodial officer gives implied consent to being pushed aside by prisoner in a hurry.
Australian Security Intelligence Organisation Act 1979 (Cth), s 92
Crimes Act 1900 (ACT), ss 24, 26, 49
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 91(1)(d)
Supreme Court Act 1933 (ACT), s 68C
Collins v Wilcock [1984] 1 WLR 1172
R v Court [1989] 1 AC 28
Fitzgerald v Kennard (1995) 38 NSWLR 184
Fleming v R (1998) 197 CLR 250
Macquarie Dictionary ( SCC 276 of 2009
Judge: Penfold J
Supreme Court of the ACT
Date: 15 November 2010
IN THE SUPREME COURT OF THE )
) No. SCC 276 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
MATHEW TATE
ORDER
Judge: Penfold J
Date: 15 November 2010
Place: Canberra
THE COURT ORDERS THAT:
On the charge of assaulting Jason Low and occasioning him actual bodily harm, a verdict of not guilty be entered, but a verdict of guilty be entered on a charge of assaulting Jason Low contrary to s 26 of the Crimes Act 1900 (ACT).
On the charge of assaulting Joanne Albrighton and occasioning her actual bodily harm, a verdict of not guilty be entered, but a verdict of guilty be entered on a charge of assaulting Joanne Albrighton contrary to s 26 of the Crimes Act 1900 (ACT).
The order made on 10 June 2010 under s 91(1)(d) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibiting publication of the names of the custodial officers who gave evidence is revoked.
Background
The accused Mathew Tate was arraigned before me on two counts of assault occasioning actual bodily harm under s 24 of the Crimes Act 1900 (ACT), the complainants being Jason Low and Joanne Albrighton.
Mr Tate pleaded not guilty to both charges.
Trial by judge alone
Election
Mr Tate elected to be tried by judge alone.
Procedures for trial
Section 68C of the Supreme Court Act 1933 of the ACT specifies the procedures to be followed for a trial by judge alone. In summary:
(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b) the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v R (1998) 197 CLR 250 at 263); and
(c) the judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case.
In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions are set out in the Appendix to this judgment; they relate to the presumption of innocence, the burden of proof generally, the way evidence should be dealt with, and the way the two charges should be considered.
Background
On 5 January 2009 Mathew Tate was one of about a dozen remand prisoners assigned to F Yard in the Belconnen Remand Centre (BRC). Floor plans tendered at trial showed the details of F Yard and its Officers Station.
F Yard was a roughly rectangular wing of the BRC. At one corner was the Officers Station, a square area raised a bit above the floor level of the rest of the wing with windows giving an uninterrupted view of the centre open area of the yard and the entrances of most of the cells. Access from the Officers Station to the rest of F Yard was through a door at one corner of the Officers Station, next to Cell 1 (the F Yard door). Access from the Officers Station to the rest of the BRC was through a door at the back of the Officers Station (the BRC door), directly opposite the F Yard door. Beside the BRC door was a toilet cubicle accessible from within the Officers Station.
Between the F Yard door and the BRC door ran a corridor with a hard floor. The corridor was bounded by the two doors already described, and one solid wall abutting other parts of the BRC. The fourth side of the corridor consisted of a wall extending about a metre from the BRC door, and a waist-high counter extending a couple of metres from the F Yard door. Between the short wall and the counter was a gap giving access to the rest of the Officers Station, which had a carpeted floor.
The significant feature of the area described is that the corridor between the two doors is fairly narrow, about one and a half times the width of a normal door, and the only opening off the corridor apart from the two doors was the gap, not much more than a metre wide, giving access into the carpeted office area.
The day of the incident was a very hot day, and by 4.30 pm some of the custodial officers assigned to F Yard had noticed a tense atmosphere among the prisoners. One of the custodial officers suggested that equipment left in the yard (including mops and buckets and some sporting equipment) should be put away, and some of the custodial officers began gathering up various items. One of the custodial officers picked up some boxing equipment and took it towards the Officers Station. One of the prisoners challenged her about this and followed her into the Officers Station. Many of the other prisoners also approached the Officers Station, and some of them entered it. There was an incident involving several prisoners and several custodial officers. The charges against Mr Tate arise out of his alleged actions at certain points in that incident.
The elements of the offences charged
The elements of assault occasioning actual bodily harm in this case are as follows:
(a) A striking, touching or application of force by the accused to the complainant.
(b) That such conduct of the accused was without the consent of the complainant.
(c) That such conduct was intentional or reckless.
(d) That the assault occasioned actual bodily harm to the complainant; “bodily harm” means any hurt or injury likely to interfere with the health and comfort of the victim; the hurt or injury need not be permanent but it must be more than trifling and transient.
(e) That the accused’s conduct was without lawful excuse.
If all the elements except actual bodily harm are proved beyond reasonable doubt, the offence of assault is made out. In that situation, under s 49 of the Crimes Act, I may find Mr Tate not guilty of the offence charged but guilty of assault under s 26 of that Act.
General comments about evidence
Witnesses
Evidence was given for the prosecution by the two complainants and two of their colleagues, Michael Stottmeister and Scott Campbell, who had been on duty at the BRC on the day of the incident. Mr Stottmeister was also involved in the incident, while Mr Campbell arrived in F Yard at the end of the incident.
Mr Tate gave evidence in the defence case.
Neither Mr Low who was hit from behind, nor Mr Stottmeister, was able to give direct evidence linking Mr Tate with the assaults charged. The only direct evidence was given by Ms Albrighton, who said that she saw Mr Tate hit Mr Low and also gave evidence of Mr Tate’s assault on her.
Ms Albrighton’s evidence
There were some discrepancies in Ms Albrighton’s evidence, and I have rejected parts of it for that reason. However, I found Ms Albrighton to be a witness who was doing her best to tell the truth, while hampered to some extent by the time that had elapsed since the events she was describing. She was probably also hampered to some extent by the fact that even immediately after events of the kind concerned, it would have been difficult to give a complete and completely accurate description of what had occurred and the order in which it had occurred.
Ms Albrighton was honest about matters of which her recollection was not clear, and at times indicated that her evidence reflected, for instance, an assumption drawn from an inability to work out any other explanation for something. Such evidence must be treated with great caution, but it need not detract from the reliability or credibility of other evidence that is given with more certainty. Indeed, it may enhance the reliability or credibility of that other evidence.
Ms Albrighton’s evidence gave no sign of having been embroidered in an attempt to support the case against Mr Tate. Most noticeably, despite the prosecution case statement and the evidence that Mr Low had at least two bumps on his head, Ms Albrighton did not claim to have seen more than one blow inflicted on Mr Low. Nor did she hesitate to give evidence that, after the encounter with Mr Tate during which, she said, he assaulted her, and despite Mr Tate’s superior strength, she was able to pull him off Mr Stottmeister’s back without meeting real resistance and restrain him until help arrived.
Mr Tate’s evidence
Mr Tate’s evidence was not so convincing. I am conscious that Mr Tate is not particularly articulate, and this should not be held against him. I am also conscious that an accused’s evidence is, as in this case, likely to appear self-serving. Allowing for those issues, however, Mr Tate’s evidence did not impress me. In particular, I note that the general flavour of Mr Tate’s evidence was that the prisoners had been unfairly treated in relation to the sports equipment and that his involvement in the incident reflected only his wish to protect his friend Mr Massey from, by implication, excessive restraint by custodial officers. That flavour can be found in the following evidence given by Mr Tate in cross-examination:
I suggest to you that you were in fact amongst a group of inmates in that doorway area when Mr Massey was having a confrontation with [other officers]?---No, no. I was actually sort of arguing as well with her, with - with her really because she was taking the bag. You see, we use the boxing gear, me and Mr Massey together, and they took it and then arguing with them. You know what I mean, Mattie was like, it was a bit more heated with him and then that’s when it broke out. Do you know what I mean? But I - I was arguing as well, because - because we always use it at the same time.
...
You wanted to get Mr Stottmeister off Mr Massey?‑‑‑Yes. I heard
Mr Massey saying he couldn’t breathe, you know what I mean? Just saying he couldn’t breathe.But he was still speaking?‑‑‑Yes, yes.
So he was obviously still breathing?‑‑‑Of course, yes, of course.
Even on Mr Tate’s own evidence, Mr Massey had entered the Officers Station to argue with the custodial officers and Mr Tate himself was also yelling at the officers about the equipment that had been taken away. In these circumstances, I found it hard to accept the underlying premise that Mr Tate’s actions were justifiable, and the fact that his evidence seemed to be given from that starting point affected the general credibility of that evidence.
A specific aspect of the credibility of Mr Tate’s evidence is dealt with at [35] below; for the moment it is sufficient to note that I have not been convinced by Mr Tate’s evidence where it conflicted with evidence that seemed otherwise reliable.
Other evidence
Certificates were tendered establishing that witnesses Albrighton, Stottmeister and Campbell were all employees of ACT Corrective Services on 5 January 2009. No such certificate was tendered in respect of Mr Low. The offences do not relate specifically to custodial officers, so the absence of evidence concerning Mr Low’s employment does not affect the determination of issues arising in this trial.
Photographs of injuries to the two complainants were admitted in evidence. However, they were taken three days after the incident, and the apparently minor injuries they show are not clearly consistent with the assaults alleged.
The first count
The first count alleges assault occasioning actual bodily harm to custodial officer Jason Low. The prosecution’s case statement said that, after several inmates including Mr Tate entered the Officers Station, Officers Low and Stottmeister, who had been in F Yard, pushed past them into the Officers Station. Officer Low, says the prosecution, “met with some resistance from the inmates”, and while trying to force his way through, “was struck, forcefully, at least three times to the back of the head”. The case statement also refers to CCTV footage that “shows [Mr Tate] punching Officer Low in the back of the head”.
The evidence given at the trial was not as clear-cut as the prosecution’s case statement. Mr Low, who is no longer a custodial officer, only remembers receiving one blow to the back of his head shortly after he entered the Officers Station from F Yard. His initial evidence was of receiving “blows”, but he clarified that as “a thump to the back of the head and that was it”. This, he said, rendered him unconscious; when he opened his eyes he was lying on the floor of the corridor near the BRC door.
The crucial evidence in relation to this charge was given by custodial officer Joanne Albrighton. She was inside the Officers Station when the prisoners approached the F Yard door, and saw the prisoners trying to come in through that door, and other officers trying to come into the Officers Station through the group of prisoners. She said that Mr Low was one of those officers. She gave evidence as follows:
He was actually coming over to help get prisoners away from the door so he could help the officers obviously that were at the door ... And it was a short time after that that I seen Mr Tate punch Mr Low in the back of the head.
...
And where did you see Mathew Tate going for Officer Low?---That was pretty much at the door, like right in the doorway. I’m not sure if he was outside or just inside of, but it was at the doorway.
...
When you say you saw Mathew Tate going at Officer Low, if you could describe exactly what you saw, to the best of your recollection?---Yes, I seen Officer Low, his - his attention was obviously drawn to the prisoners who were already at the door speaking with - or yelling at the officers I guess, and it was Mr - sorry Mr Tate, Matthew Tate, had actually come up behind him and punched him in the back of the head.
...
After you saw Mathew Tate punch Officer Low in the back of the head, what did you see of Officer Low after that?---I didn’t.
What do you mean you didn’t?---I didn’t see him after that, because he fell down.
You saw him fall down?---I - I didn’t really - I didn’t actually see Mr Low fall down. I didn’t see Mr Low after that for some time, because my attention was drawn to the prisoner who’d just attacked the officer.
Who was the prisoner who attacked - - -?---Which was Matthew Tate.
So you were looking at Mathew Tate?---Yes.
In cross-examination Ms Albrighton confirmed her recollections:
All right. So what do you recall next? What’s your next
recollection?---The next thing that I seen would have been when Mr Low was trying to move prisoners away from the door, and then I seen Mr Tate, Mathew Tate, come up behind him and punch him....
So you’re saying that Mr Tate was behind Officer Low, is that right?---Yes.
And it’s quite clear to you now that Mr Tate was behind Officer
Low?---Yes.Okay. And then, what do you say you saw?---I seen Mr Tate, Mathew Tate, punch Officer Low in the back of the head.
And who else was present? Who else was in that group of prisoners by the door?---When that happened my focus was on Mr Low and Mr Tate, so I wouldn’t - I wouldn’t know immediately who was there. I do recall a number of prisoners being in that area.
So you’re saying that they were standing apart from the other prisoners. Is that your recollection?---No, no, there was a number of people of the door, but my focus was on Mr Low and Mr Tate.
So there were a number of people crowding around the door, is that
right?---Yes.And you say that Mr Low came in first, came to the door first before Mr Tate?---Yes.
...
Yes, all right. Now did Mr Low come over the threshold at that
point?---I’m not sure.You don’t know. Was Mr Tate over the threshold at that point?---Not when he hit Mr Low, no.
What you’re saying is that any contact between Mr Tate, or the contact that you’ve described between Mr Tate and Officer Low occurred outside the door. Is that correct?---At the door, at the doorway. Like, I’m not sure if he was just inside of or just outside of it, it was at the doorway.
...
And at what point do you say that you saw Mathew Tate hit Officer Low?---It would have been at the door.
So in amongst this big jostle?---Yes.
All right. And you said that Officer Low was pretty much right in the doorway when you say you saw him hit?---He was at the door, yes.
Okay, and where do you say Mathew Tate was?---He was behind him.
Immediately behind him?---Just behind him.
There was a whole group of people behind him?---Yes.
How could you see his arms, for example? There’s a whole group around him, where did you see his arms come from?---Because the officer was there, Mathew Tate had actually came up behind him and then punched him in the back of the head. It was - - -
Sorry, and how did he do that? You’ve described a whole - - -?---Well he’s quite tall, compared to Mr Low he’s actually quite tall, so it was - it was very obvious that it was him.
...
All right. And you say - how did Mr Tate render the blow? How did he strike Officer Low? How do you say he struck Officer Low?---Punched him.
Can you describe how he punched him? How you say he punched him?‑‑‑Using his arm. I - I’m sorry, I’ve just - - -
Okay?---What do you mean?
Which arm do you say he used?---I’m not sure which arm he used.
You don’t know?---I don’t recall, no.
But you recall him delivering a punch?---Yes.
And what kind of punch?---It was a - a punch to the back of the head. Like I said, he’s - he’s quite tall compared to Mr Low. It certainly wasn’t up and over - sorry. It wasn’t up and over the top. It was at - like, it was directly at the back of the head.
Counsel for Mr Tate cross-examined Ms Albrighton about evidence she had given when charges against one of the other prisoners were heard. In that hearing she had not mentioned Mr Low entering the Officers Station ahead of Mr Tate, but she explained this by reference to the fact that at the earlier hearing she had not been asked about Mr Low’s location or movements. She was further cross-examined as follows:
Do you understand what the concern is that arises out of that in that in the evidence you’ve given in those proceedings it would appear that you put Mr Tate coming into the proceedings if you like before Officer Low. Do you understand that that’s a concern?‑‑‑I understand that is a concern but there was nothing asked about Mr Low either. That case was in regards to Mr Massey. That’s why there was nothing really mentioned a lot about Tate’s assault on Mr Low because that wasn’t a concern at that stage. It was Mr Massey.
...
So basically it’s your assumption that the fist you saw coming or connecting with the officer was Mr Tate’s?---It’s my belief that it was Mr Tate’s, yes.
So it was an assumption, it wasn’t actually what you saw?---No, it’s not an assumption, I seen Mr Tate hit Mr Low.
All right. Are you saying you can’t remember or you didn’t see his arm?--- I seen his arm.
You’ve seen his arm, all right?---Yes.
So which arm did you see?---I don’t recall.
And yet there were other prisoners crowding around him. Is that
correct?---Yes.There were other prisoners crowding around him. I suggest that you couldn’t have seen his arm because of the other prisoners crowding around. What do you say to that?---No, I could see him.
So you say you could see his arm but you can’t remember which one?---No, I can’t recall which one.
I suggest to you that in fact you could not see Mr Tate hit Officer Low because in fact Mr Tate was in front of Officer Low, and had gone into the Officers Station before Officer Low arrived on the scene?---No, that’s incorrect.
Custodial officer Michael Stottmeister gave evidence to the effect that as he entered the Officers Station, pushing past several prisoners, he was focussing on another prisoner, Matthew Massey, who, he said, was assaulting an officer, and did not see Mr Low or what was happening to him.
Mr Tate gave evidence as follows:
Now you’ve heard it alleged that you punched Officer Low - - -?---Yes.
- - - to the back of the head. What do you have to say about that?---No, no, that’s - I - yes, it’s not me. You know what I mean? It can’t have been.
Did you punch Officer Low to the back of the head?---No, no.
Did you punch him anywhere?---No, I didn’t. No, I didn’t.
Did you punch him anywhere on his body at all?---No, I didn’t, miss. No.
Mr Tate was not invited to explain why it “can’t have been” he who punched Mr Low.
All right. I suggest to you that in fact Officer Low pushed past you. You felt the bump. You describe that you felt a bump. I suggest to you that the bump you felt was in fact Officer Low pushing past you?---No.
Do you say that that didn’t happen or you don’t recall it?---No, no, that didn’t happen.
Didn’t happen? I suggest to you that it did. He pushed past you, and you’ve just punched him straight in the head?---No.
The back of the head?---No, no, definitely not.
He’s fallen to the ground?---No, no, definitely not.
You say you didn’t even see him there at all?---No, I didn’t see him, he was behind me. You know what I mean? I - I definitely didn’t see him once I was in the office.
You’ve heard the evidence - I withdraw that - and after you’ve punched Officer Low in the back of the head and he’s fallen to the ground, you’ve then moved towards Mr Massey. Do you say that didn’t happen?---Yes, no. I - I didn’t - I didn’t hit Mr Low in the head. Do you know what I mean?
CCTV footage was shown in court; it did not show anything of the events inside the Officers Station and it did not show Mr Low being punched. However, it did show a group of prisoners forming a crush around the door from F Yard into the Officers Station, several of whom then pushed through the door into the Officers Station, followed by some custodial officers. Mr Stottmeister gave evidence, in conjunction with the showing of CCTV footage, that Mr Tate followed Mr Massey into the Officers Station, followed in turn by several other prisoners and then by himself and Mr Low. Mr Stottmeister said he forced his way through the other prisoners to reach Mr Massey, but was not aware of what was going on behind him.
Mr Low said that he also pushed his way through the other prisoners until he was hit on the head. His last memory before being hit was of being not far inside the F Yard door, but when he opened his eyes he was further along the corridor towards the BRC door. Mr Campbell gave evidence that when he entered the Officers Station through the BRC door, Mr Low “was standing basically directly in front of me as I came through the door ... He was unsteady on his feet, just sort of looking around”.
The defence submission was that since Mr Tate had passed through the F Yard door before Mr Low, he could not have been the person who hit Mr Low on the back of the head. However, it is apparent that Mr Stottmeister managed to get through the crush of prisoners to Mr Massey, and I see no basis to reject the evidence of Mr Low that he also made it through the crush of prisoners to a point inside the door where he was hit, or to reject the evidence of Ms Albrighton on the basis that Mr Tate could not have been behind Mr Low.
One of the problems with Mr Tate’s evidence is that his description of the incident inside the Officers Station does not account for the presence of Mr Low at all. Mr Low undoubtedly entered the Officers Station via the F Yard door at the beginning of the incident and he was seen at the other end of the short corridor, near the BRC door, at the end of the incident. He, or possibly his unconscious body, must have been somewhere around or in the middle of the scuffle in the Officers Station corridor that involved Mr Tate, Mr Massey, Mr Stottmeister and Ms Albrighton (described at [53 and [57] below). Mr Tate’s denial of having seen Mr Low in the Officers Station (“I definitely didn’t see him once I was in the office.”, see [31] above) suggests a deliberate attempt to shore up the story that when Mr Low was hit from behind, he was somewhere behind Mr Tate and therefore Mr Tate could not have been his assailant.
I am satisfied by Mr Low’s evidence that Mr Low was struck about the head, and am willing to infer, although he was not asked specifically to confirm this, that he had not consented to any such blow. I am also satisfied that whoever hit Mr Low did so intentionally.
I am further satisfied, on the basis of Ms Albrighton’s evidence, that Mr Tate struck one blow to the back of Mr Low’s head. Neither Mr Tate’s denial, nor the evidence about the order in which people entered the Officers Station, raises what I consider to be a reasonable doubt in my mind about Ms Albrighton’s evidence as to the single blow. In the absence of any suggestion to the contrary, I am satisfied that Mr Tate had no lawful excuse for striking Mr Low.
Whether that blow inflicted actual bodily harm on Mr Low is a more complex question. The prosecutor particularised “concussion” as the actual bodily harm relied on. Photographs taken three days after the incident were tendered showing injuries that Mr Low sustained during the incident; these included a “snick” out of his ear, a graze and possibly some swelling behind his right ear, and a graze and bruise to the left corner of his left eye. Mr Low said that one of the photographs, 005 of Exhibit B, showed another lump in the middle of the back of his head, but this is very difficult to detect in the photograph.
As far as Mr Tate’s involvement is concerned, there is only evidence of the one blow that Ms Albrighton saw. Mr Low’s evidence confirms that he suffered one blow at around the same time Ms Albrighton says she saw a blow.
Mr Low had told police that he received a number of blows to the back of the head, but he conceded at the trial that he had no recollection of multiple blows and had mentioned a number of blows because he had a number of lumps on his head. He did not recall where the blows came from, and in particular did not recall a prisoner hitting him and then coming around to the front and then hitting him again from the front. He was not asked when he became aware of the lumps on his head or how long they lasted.
There is scant evidence of the consequences of the single blow attested to by Ms Albrighton and Mr Low. Mr Low gave evidence of finding himself in the Nurses Station of the BRC, and then being taken to Calvary Hospital, but he could not recall how long he was there. He gave the following evidence:
When did you next return to work after that day?---I don’t recall exactly. I believe I missed at least two shifts.
And why did you miss two shifts?---I was concussed and told not to return to work for at least 72 hours minimum.
No medical evidence, such as a discharge sheet or medical certificate from the hospital, was tendered.
The most significant gap in the evidence of actual bodily harm is this. Mr Low’s evidence was that he sustained several lumps on his head, which suggests that he suffered more than a single blow to his head. Because Mr Low’s head seems to have suffered several blows or other contacts with hard surfaces, it is impossible to be sure about the connection between the blow that I find was struck by Mr Tate and the actual bodily harm said to have been suffered by Mr Low. Apart from anything else, Mr Low may have sustained any or all of his injuries while making his way (conscious or unconscious) through the Stottmeister/Albrighton/Massey/Tate scuffle to the other end of the corridor.
The difficulty in establishing a link between the blow struck by Mr Tate and the injuries sustained by Mr Low arises partly because the evidence of actual bodily harm is in any case problematic. There was evidence of Mr Low being on the floor, and evidence from Mr Low that he could not remember what happened between when he was hit and when he “woke up” at the other end of the corridor. He may have been unconscious for a brief period. He gave evidence that in his original statement to police he had said he had been semi-conscious but “in fact I would have been unconscious which, after speaking to other people and going over the incident was more evident”.
The only evidence of concussion as such is the evidence given by Mr Low about his condition, namely that he “was concussed and told not to return to work for at least 72 hours”. Whether the concussion was Mr Low’s own diagnosis, or whether he was told this at Calvary Hospital, is not clear from his evidence. Nor is there any evidence before me that the diagnosis was made by anyone with appropriate expertise, and so it is evidence whose probative value must be low.
Even if I were satisfied that Mr Low had suffered concussion, it is not clear to me that concussion, strictly speaking, would constitute actual bodily harm; in the absence of medical evidence about what concussion really is, I have turned to dictionaries, which suggest that concussion is the experience, or immediate impact, of a blow rather than necessarily any damage or injury attributable to the blow; for instance, the Macquarie Dictionary (viewed at on 9/11/2010) gives the following meanings:
Concussion
1. the act of shaking or shocking, as by a blow.
2. shock occasioned by a blow or collision.3. Pathology jarring of the brain, spinal cord, etc., from a blow, fall, etc.
I suspect that “concussion” is a word used fairly loosely in normal parlance (perhaps even among medical professionals when dealing with patients) to refer generally to the non-specific effects of a blow to the head (much as “flu” is often used to describe the common cold or other minor respiratory tract infections). In the absence of any direct medical evidence, and noting the dictionary references to “shock” and “jarring”, I could not be satisfied beyond reasonable doubt that “concussion” in this case described an injury or other harm rather than Mr Low’s experience of having his head shaken, and that it described an injury or harm that was more than “trifling or transient”. This is not to dispute that the effects of a concussion might be very serious, and certainly more than trifling or transient; however, there is no evidence before me of such effects in this case.
Offered the opportunity to make written submissions about this issue, the prosecutor did not provide any authority for the proposition that “concussion” amounted to “actual bodily harm”; rather, her submissions were to the effect that she relied on the blow to the head, the loss of consciousness and the lump on the back of the head, to constitute the actual bodily harm. The blow itself could not amount to actual bodily harm; a loss of consciousness (as distinct from a memory loss) was not established by the evidence; and a lump on the head would seem to be at the very edges of actual bodily harm, if not outside the concept. However, because of the failure to link the blow struck by Mr Tate with any of the injuries sustained by Mr Low (see [43] above), I do not need to reach a final view on this question.
Thus, I cannot be satisfied beyond reasonable doubt that all the elements of assault occasioning actual bodily harm are made out. I have already indicated, however, that I am satisfied beyond reasonable doubt that Mr Tate assaulted Mr Low. Accordingly I find Mr Tate not guilty of assault occasioning actual bodily harm but, in reliance on s 49 of the Crimes Act, I find him guilty of assault.
The second count
The second count alleges assault occasioning actual bodily harm to Ms Albrighton. After observing Mr Tate punch Mr Low, Ms Albrighton saw Mr Tate push past two other officers and come into the Officers Station. She gave the following evidence:
Right, okay, and what did you see of him?---He’d actually pushed past ... and actually got into the Officers Station and I went to push him out, restrain him, and I was actually grabbed by Mr Tate and then pushed back over the amenities bench in the office, which was just down here.
...
So where did Mathew Tate grab you?---I believe it was on my right arm, I’m not 100%. It was sort of, like, with the arm and pushed my shoulder, so.
Okay. How sure are you that he grabbed you on the arm?---I’m 100% sure that he grabbed me on the arm, I’m just not 100% if it was the left or the right arm.
Right, okay?---Almost certain it was the right.
And you say that he - how did he push you? Describe that?---Yes, he grabbed a hold - like, he was coming towards me, grabbed my arm and pushed my shoulder.
Okay. And you’re gesturing with a pushing action with your hand out in front of you?---Yes. Yes.
And you say you went over to the bench?---Yes. Yes, I was pushed backwards over the bench.
What happened after that?---I then went - well, I went to the floor.
Ms Albrighton identified photographs of her taken two or three days after the incident. The photographs showed bruising on the back of her upper right arm which, she said, started to show on about the day after the incident. She was asked how she got the bruises.
I believe that was from when Mr Tate actually grabbed my arm and pushed me back onto the bench, because I don’t recall being grabbed at any other stage.
Ms Albrighton had earlier been unsure whether Mr Tate grabbed her on her right or left arm, but having looked at the photographs she said that he had grabbed her on her right arm and that she presumed he had done this with his left hand. She thought his thumb had been pointing upwards with his fingers around the back of her arm, and that he had shoved her with the palm of his other hand. The bruises in the photograph consist of five roundish yellowing bruises set roughly in an oval shape about 4 cm by 3 cm; four of the bruises are about 1 cm in diameter and the fifth, sitting in the middle of a “C” shape formed by the other four, is barely visible. They could have been caused by fingers pressed into the arm, but not in a grip as described by Ms Albrighton and not in any grab of the kind that would be used to get a firm grip on a person’s arm, although they could possibly have been made by a five-fingered pinch.
Ms Albrighton said she was pushed backwards over the edge of the counter, which was inside the carpeted area of the Officers Station near the BRC door, and her back connected with the edge of the counter. She described it as “a fair push”, which she thought was “about the chest sort of area”. After she got up, she saw Mr Tate trying to pull Mr Stottmeister off Mr Massey, at which point she grabbed Mr Tate around his ribs and tried to pull him away.
Ms Albrighton was cross-examined at length, but she held to the basics of her evidence that Mr Tate had grabbed her with one hand and pushed her with his other hand.
Mr Stottmeister, as already mentioned, said he was entirely focussed on Mr Massey, and saw nothing of any encounter between Ms Albrighton and Mr Tate.
Mr Tate gave evidence as follows:
You’ve also heard Ms Albrighton or Officer Albrighton tell the court that you got hold of her arm and squeezed it. Do you recall that?---No. I ‑ I ‑ when - when I went to grab Mr Stottmeister by the legs, like, I pushed - I might have pushed past her, but I never laid - I didn’t lay a hand on her, you know what I mean? I didn’t grab her. Not at all.
Okay. So you say that - what about squeezing her arm?---No, no, no. Definitely not.
You didn’t put you - - -?---No. No. I never laid hands on her, you know what I mean? I might have pushed past her to get to - to - to Mr Stottmeister, but I definitely didn’t grab her. (T112/40)
Then you say you rushed to grab Mr Stottmeister and that’s when you say you might have pushed past -?‑‑‑Yes.
Ms Albrighton?‑‑‑Yes.
Did you see her go backwards over to the bench?‑‑‑No, no I didn’t.
But you saw her there?‑‑‑Yes, yes, I saw her there, yes.
She was in the pathway between you and Officer Stottmeister?‑‑‑Wasn’t directly in the path but yes I did make contact with her for sure.
So you pushed past her?‑‑‑Yes.
You did that to get to Officer Stottmeister?‑‑‑Yes but I didn’t, you know what I mean?
Are you saying you didn’t - - -?‑‑‑I didn’t like grab her.
So you didn’t grab her?‑‑‑No not at all.
In cross-examination Mr Tate again denied grabbing Ms Albrighton:
Okay. And on your way to assisting Mr Massey, Officer Albrighton is in your way?---No, yes - yes.
And I put it to you that in the heat of the moment you’ve actually grabbed her. You’ve grabbed her by her right arm, and you’ve pushed her out the way? Well you know that you pushed her?---I - I - I - I didn’t - I didn’t put hands on her. Do you know what I mean? I pushed past her. Yes, I pushed past her, but I didn’t lay hands on her.
I put it to you that you did grab her, and you’ve pushed her and she’s fallen over the bench, or fallen into the bench as a result of you pushing her. What do you say about that?---I didn’t, like you know - I - I - whatever happened, I - I - I pushed past her but I did not grab her. I didn’t. I swear.
Okay. How do you say that you pushed past her without using your hands?---I just put my body past her. Do you know what I mean? Because - - -
She was standing in front of you?---M’mm. She wasn’t directly in front of me.
And you just pushed her through?---She wasn’t directly in front of me. There was like a gap about that much between me and Mr - between the - the end of that sign in bench, whatever, sign in bench here. And I - I was - like my - my main thought at that time was I better - I better get Mr Stottmeister off Mr Massey.
You’ve seen her there?---Yes.
And you’ve seen her between you and Mr Stottmeister?---Yes.
And you’ve just pushed your body into her?---Yes, yes. But - - -
And then you’ve tried to grab Mr Stottmeister’s legs?‑‑‑Yes, I did.
And then Officer Albrighton has pulled you away from that and then restrained you onto the ground?---She didn’t have to restrain me. I - - -
She pretty much told you to get down?---Yes, she - she grabbed me and ‑ and - I - I - I didn’t offer any resistance, you know what I mean? Like, I’m not - yes, like - - -
...
How was that?---I just made - I just - I - I had one - one goal, which was to - to get to Mr Stottmeister, who was on top of Mr Massey, and - and I did it and like, I didn’t have to use my arms or anything, you know what I mean? I just - - -
Pushed into her?---If you want to put it like that, yes.
I am satisfied beyond reasonable doubt that there was physical contact between Mr Tate and Ms Albrighton, that it was caused by Mr Tate, and that it was without Ms Albrighton’s consent.
The bruises sustained by Ms Albrighton do not seem to be consistent with what she described as Mr Tate’s grab at her; in particular, the location of all the bruises on the back of her arm is not consistent with her being grabbed from in front in a grip as described at [52] above (fingers around the back of the arm and thumb upwards). This discrepancy has two consequences. First it means that I cannot be satisfied beyond reasonable doubt that the bruises were caused by Mr Tate, which means that I cannot find that he occasioned actual bodily harm to Ms Albrighton. Secondly, it means that while I am satisfied that Mr Tate touched Ms Albrighton, I have some doubt whether Mr Tate touched Ms Albrighton in exactly the manner she described.
Mr Tate denied laying a hand on Ms Albrighton, but conceded that as he moved through the corridor on his way to help Mr Massey, he pushed past her using his body, and made contact with her. This contact would be sufficient for me to find that Mr Tate assaulted Ms Albrighton. Counsel for Mr Tate submitted, however, that pushing someone who is in your way while you are trying to get to another person, if you have no specific intention to assault the person in your way, is not an assault but “no more than a normal intercourse of life”.
Counsel for Mr Tate did not provide any authority for her submission that the contact admitted by Mr Tate did not constitute an assault. The legal position as I understand it is as follows.
First, as Lord Goff said in R vCourt [1989] 1 AC 28 at 47:
an assault is generally distinguished from a battery. In the case of an assault, the relevant act is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; in the case of a battery, it is the actual infliction of unlawful force on another person. The mental element in both an assault and a battery may consist of either intention or recklessness ... In either case, it is a defence that the defendant acted with consent or with lawful excuse.
Modern legislation (eg ss 24 and 26 of the Crimes Act) generally refers only to “assault”, but this covers both assault involving apprehended force and “battery assault”.
In Fitzgerald v Kennard (1995) 38 NSWLR 184 at 200, Cole JA said:
[I]n the case of battery assault the physical contact between the two persons, unless it falls within a recognised exception, constitutes and establishes the assault. ... The principle is that, subject to certain exceptions, a person has a right to his or her own ‘bodily integrity’. To interfere with that integrity by touching, absent lawful excuse or consent, constitutes an assault.
Consent is implied to some physical contact that occurs between people as part of everyday life. In Fitzgerald v Kennard, Cole JA referred at 201 to Collins v Wilcock [1984] 1 WLR 1172 at 1177 where:
it was said that in respect of physical contact arising from the exigencies of everyday life – jostling in the street, social contact at parties and the like – there is an implied consent ‘by all who move in society and so expose themselves to the risk of bodily contact’; or that such encounters fall ‘within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life’.
The contact described in Collinsv Wilcock was presumably the basis of counsel’s submission that Mr Tate’s pushing of Ms Albrighton, if it happened incidentally to Mr Tate trying to get past her in order to deal with Mr Stottmeister’s attempt to restrain Mr Massey, did not constitute an assault.
This submission must be rejected. Ms Albrighton might well be said to have given implied consent to some physical contact with prisoners as she and the prisoners went about their normal activities in the BRC. A degree of such contact might be inevitable, although in the environment of a custodial institution perhaps a lesser degree of contact than in the normal course of life outside custodial institutions. Maintaining order in such an institution requires custodial officers to be accorded at all times a recognition of their status and authority that is not necessary or expected between members of the community going about their normal activities in public places. That may well mean that the implied consent to incidental physical contact given by a custodial officer in the workplace is more limited than the implied consent given by a person who chooses, for instance, to walk along a busy street among people who are, in that environment, of equal status.
Specifically, I do not consider that a custodial officer can be taken to have given a general implied consent to being pushed by a prisoner because the prisoner was in a hurry to get somewhere in a relatively confined space (whether or not his hurry was to achieve a lawful goal, and whether or not he was lawfully seeking to move around in that relatively confined space).
As to Mr Tate’s intention, it is clear from his own evidence that he was aware of Ms Albrighton’s presence between him and Mr Stottmeister, and that he was aware that he was pushing her aside in his attempt to get to Mr Stottmeister. Whether or not he intended to do something that amounted to an assault, there is no doubt in my mind that Mr Tate came into contact with Ms Albrighton at least recklessly and probably intentionally, and that he had no lawful excuse for that contact.
I am, therefore, satisfied beyond reasonable doubt that Mr Tate assaulted Ms Albrighton, but I am not satisfied that he thereby occasioned her actual bodily harm. Accordingly, I find him not guilty of assault occasioning actual bodily harm but, in reliance on s 49 of the Crimes Act, I find him guilty of assault.
Request for suppression orders
At the end of the trial, the prosecutor sought orders under s 91(1)(d) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibiting publication of the names of the custodial officers who gave evidence. That provision empowers a court to forbid the publication of the name of a witness in a proceeding if the court is satisfied that “in the interests of justice, it is desirable that the name of ... a witness ... be not published”.
At that time I was unconvinced that a permanent suppression order could be justified. However, I recognised that while a decision in the trial was outstanding there might be some grounds for limiting the publication of relevant details, and that, if the information had already been published, there would be no scope for suppressing the information after the decision was handed down, should I be persuaded after proper argument that this was appropriate.
Accordingly, I made an interim order suppressing the names of the custodial officers during the period until this decision was handed down. Shortly before the decision was handed down, I invited further submissions in support of the application. The prosecutor referred to concerns apparently held by the custodial officers involved that their involvement in this trial would become known to other prisoners through reports of the decision, and also concerns that their employment as custodial officers would become more generally known. She was not able to point to any particular problems that might be caused by either outcome.
While I understand and have some sympathy with the concerns of the custodial officers in general, I cannot see that the issues raised by the prosecutor provide a basis on which I could suppress publication of their names.
It is possible that knowledge among prisoners about the officers’ involvement in this trial might lead to unpleasantness, or worse, within the Alexander Maconochie Centre (AMC) or other custodial institutions in the ACT. However, I cannot see that any such problems would be addressed by suppressing publication of the officers’ names at this stage. Mr Tate was, during the trial, an inmate of the AMC. As was proper, he was present throughout the trial, and he was well aware of the identity of the officers who gave evidence. If the identify of those officers is a matter of interest in the AMC, then it will be well known by now, and no suppression order will address that.
Nothing was put to me to the effect that there was anything about this particular trial that made it more important for the custodial officers to be able to retain whatever anonymity about their employment they currently have in the broader community. If there is in general a reason why custodial officers, like officers of some intelligence organisations but apparently unlike police officers, should be able to keep their occupations secret, then that would appropriately be addressed by legislation (see, for instance, s 92 of the Australian Security Intelligence Organisation Act 1979 (Cth)).
Orders
The following orders are made:
(a) On the charge of assaulting Jason Low and occasioning him actual bodily harm, a verdict of not guilty be entered, but a verdict of guilty be entered on a charge of assaulting Jason Low contrary to s 26 of the Crimes Act 1900 (ACT).
(b) On the charge of assaulting Joanne Albrighton and occasioning her actual bodily harm, a verdict of not guilty be entered, but a verdict of guilty be entered on a charge of assaulting Joanne Albrighton contrary to s 26 of the Crimes Act 1900 (ACT).
(c) The order made on 10 June 2010 under s 91(1)(d) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibiting publication of the names of the custodial officers who gave evidence is revoked.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 15 November 2010
Counsel for the Crown: Ms S McMurray
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Dr B Boss
Solicitor for the defendant: Legal Aid (ACT)
Dates of hearing: 10, 11 June, 11 November, 2010
Date of judgment: 15 November 2010
Appendix—General directions
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
(a) There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?” If the answer to the question is yes, I will find the accused guilty of that offence; if the answer is no, I will find the accused not guilty of that offence.
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