Alexander v Commissioner of Police [2012] QDC 297

DISTRICT COURT OF QUEENSLAND CITATION: Alexander v Commissioner of Police [2012] QDC 297 PARTIES: ALEX ALEXANDER (Appellant) COMMISSIONER OF POLICE (Respondent) FILE NO/S: 86/12 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 26 September 2012 DELIVERED AT: Cairns HEARING DATE: 12 September 2012 JUDGE: Harrison DCJ ORDER: Appeal against conviction is dismissed CATCHWORDS: APPEAL AGAINST CONVICTION- CRIMINAL LAW AND PROCEDURE- Justices Act s 222 – convicted of common assault- whether there was a failure to provide a material particular-whether expert evidence was irrelevant- whether conflicting evidence should have been rejected- whether complainant was credible – whether there was a failure to negative defences Criminal Code, s 23, s 31, s 269, s 271 Justices Act 1886 (Qld), s 222 Police Powers and Responsibilities Act 2000 (Qld), s 52, s 615 Dare v Pulham (1982) 148 CLR 658 Gobus v Queensland Police Service CA No 163/2011 R v Juraszko [1967] Qd R 128 R v Saffron (1989) 17 NSWLR 395 R v Trifyllis CA No 358/2011 COUNSEL: A Kimmins for the Appellant R Griffith for the Respondent SOLICITORS: Mellick Smith & Associates for the Appellant Office of Director of Public Prosecutions (Queensland) for the Respondent -- 1 of 33 -- 2 [1] This is an appeal under s222 of the Justices Act 1886 (Qld) “(the Act)” against conviction. [2] On the 20 April 2012, following a two-day trial on 3 and 4 April 2012, the appellant was found guilty in the Magistrates Court at Cairns of an offence of common assault on the complainant Melanie Dellacris Burgoyne at Cairns on 30 August 2011. [3] He was, on 24 April 2012, sentenced to three months‟ imprisonment which was wholly suspended for 12 months. He has not appealed the sentence. Grounds of Appeal [4] The grounds of appeal are set out in the Notice of Appeal filed on 24 April 2012 as follows: “Ground 1 That the Learned Trial Magistrate erred in finding beyond reasonable doubt that: 1.1 The Defendant assaulted the female complainant in the manner as particularised by the Prosecutor; 1.2 The female complainant was an honest and reliable witness; 1.3 The witnesses Sergeant Melinda Flynn and Mark Webb were reliable witnesses; 1.4 The Prosecution negatived the various defences open to the Defendant which were raised on the evidence.” [5] The appeal was heard before me on 12 September 2012 and Mr Kimmins, who appeared on behalf of the appellant, verbally amended the appeal to read that there had been a miscarriage of justice and that the verdict of the learned Magistrate was against the weight of the evidence and/or unsafe and unsatisfactory. He then indicated that the matters contained in paragraphs 1.1 to 1.4 above were particulars of those grounds. [6] The matters argued were crystallised in the outline of submissions filed on behalf of the appellant, and I would summarise those arguments using the references as set out in the appellant‟s outline as follows: (a) failure to provide a material particular; (b) expert evidence; (c) conflicting evidence; (d) credibility of the complainant; and (e) failure to negative defences. [7] The argument, as crystallised in that form, was the one which the respondent dealt with, both in its written submissions and on the argument of the appeal before me. Appeals under s222 of the Act [8] Appeals such as this are appeals by way of a new hearing and I confirm that I am required to make my own assessment of the evidence and form my own conclusions on the issue of guilt, at the same time having due regard to the findings and conclusions of the learned Magistrate.1 1 Gobus v Queensland Police Service, Court of Appeal No 163/2011 at [3]. -- 2 of 33 -- 3 [9] The approach that I will take for the purposes of this decision is to consider separately the different matters raised by the appellant in his submissions and then to conduct my own assessment of the evidence. Witnesses in this case [10] The following witnesses were called by the prosecution in this matter: Senior Sergeant Larissa Miller, who at the relevant time was attached to the Ethical Standards Command; Melanie Dellacris Burgoyne – the complainant; Constable Samuel Peter William Voysey, who was working in the Cairns Watch-house at the relevant time; Mark Francis Webb, who was a civilian employed as a senior watch-house officer at the Cairns Police Watch-house at the relevant time; Sergeant Melinda Sue Flynn, who was in charge of the Cairns Police Watch- house at the relevant time; Constable Ben Matthew Rose, who was working with the appellant that evening, both at the time when the complainant was arrested and later in the watch-house; Sergeant Damien Lee Hayden, who at the time was in charge of the operational skills and tactics program at the Queensland Police Service Academy in Brisbane; Inspector David Charles Hickey, a principal investigator at the Internal Investigations Branch of the Queensland Police Service based in Brisbane; and Patricia Anne Lord, who was a director of the company which ran the Cairns Tropical Gardens Motel where the complainant was originally arrested that evening. [11] There were also several exhibits, including photographs of the complainant, the inside of the watch-house, of the appellant, as well as two videos. One of the videos shows the film taken from different cameras positioned in different places inside the watch-house.2 The second video shows enhanced views of the relevant images from the first one.3 [12] I confirm that I have perused all of the exhibits and have watched several times the videos described. [13] The appellant, who was represented by his solicitor on trial, did not give or call evidence. Allegations [14] It was accepted in this case that the complainant had attended at the Tropical Gardens Motel that day and had been drinking heavily and had been involved in arguments and altercations with family members. [15] It was also accepted that she was arrested by Constable Rose (who, at the time, was working with the appellant who was himself a serving police officer) for an offence 2 Exhibit 5. 3 Exhibit 7. -- 3 of 33 -- 4 of public nuisance, and that she was transported to the watch-house in the back of a police vehicle by Rose and the appellant. [16] Further, it was accepted that at some stage in the back of the police vehicle, which is depicted in Exhibit 7, she removed her bra. [17] It is clear from the video evidence that she did not cooperate with attempts, firstly by Constable Rose, and then by the appellant, to remove her from the police vehicle, and it was not until Watch-house Officer Webb went into the garage lock that she cooperated and commenced to walk inside the watch-house. [18] It is clear from the video evidence that she walked into the watch-house behind Webb, with Rose and then the appellant behind her. She slowed down as they approached the counter. Rose walked past her and, as the appellant came closer to her, she can be seen to swing the bra in his direction. She did not let go of the bra and she certainly swung it in the direction of his head, although it is not clear whether there was any contact. [19] The video evidence shows how he then took hold of her by the upper arm and forced her face-down onto the ground near the counter, at the same time applying an arm lock and a wrist lock and placing his left knee in her back. [20] The incident, the subject of the charge, occurred shortly after he removed the pressure from his knee on her back. At the outset of the trial the Police Prosecutor gave the following particulars: “At around 6.15 on 30/08/2011, at the Cairns Watch-house, the defendant, Alex Alexander, unlawfully assaulted Melanie Burgoyne by striking her in the head with his left foot twice whilst she was restrained on the watch-house floor.”4 [21] The video evidence shows views from two different cameras. One is taken from near the end of the counter, but it is not clear from that video what happened. The other is taken from a point near the counter, looking back towards the door that opens into the garage lock, and this is the one which shows what happened between the complainant and the appellant from when she entered the watch-house proper via the door in the background, up to where she swung the bra in the direction of the complainant, and then to her being forced to the ground and placed in the arm and wrist lock and the knee restraint, and then what happened after the pressure on the knee was released. This one is described in the index at the start of Exhibits 5 and 7 as “the vehicle lock”. [22] There was certainly contact between the underside of the appellant‟s foot and what appeared to me to be the back of the complainant‟s head on two separate occasions as he was getting up, but while he still had her in the arm and wrist lock. (a) Failure to provide a material particular [23] For the purposes of the appellant‟s argument on this point, I was referred to what different witnesses who were in the watch-house that day said about the contact between the appellant‟s foot and the complainant‟s body at the time of the alleged strikes. It was argued, in effect, that not one of the prosecution witnesses said that the appellant had struck the complainant on the head and only on the head. [24] In argument, it was advanced that: 4 T1-3 L15-20. -- 4 of 33 -- 5 (a) Constable Rose observed the appellant‟s foot around her shoulder/neck area; (b) Officer Webb stated that the appellant‟s boot hit at the back of the head/neck area or between the neck and the head area; (c) Sergeant Flynn observed the appellant putting his boot on the complainant‟s neck twice; the impact was from neck to lower head and “to the top of the neck to the head”; could not remember if the foot was placed on the complainant‟s upper body, rather her neck; (d) Constable Voysey observed the appellant‟s right foot on the complainant‟s upper body. [25] On that basis it was advanced that the allegation of a striking to the head was a material particular which had to be proved beyond reasonable doubt and that it could not, on that evidence, be proved beyond reasonable doubt. [26] It seems to me that this argument does not have proper regard to the purpose of particulars in a criminal trial. [27] At the outset, I must say that there are only ever two movements of the appellant‟s foot down onto the complainant, so this is not one of those cases where there may have been a number of actions, but only those as particularised are relied upon to constitute the alleged offence. [28] The case advanced on the trial clearly related to those two movements of the foot. There was nothing else. The case that the appellant attempted to meet through his solicitor on trial clearly related to those two movements. There was no unfairness whatsoever to the appellant, and he was given, the way the trial was conducted, a fair opportunity to meet the allegations that clearly related to those two movements of the foot. [29] In R v Trifyllis Court of Appeal 358 of 1998 Chesterman JA stated: “The Crown case was not one of a series of violent acts, one or more of which might have caused the bodily harm specified. The Crown case was one of assault, one episode in which the complainant was punched and suffered bodily harm. The episode was sufficiently described as to time, place and the nature of the assault. The number of blows which landed and the particular pose of the applicant and his juxtaposition to the complainant at the time of delivering the blows were evidentiary details which did not affect the essential aspects of the described offence.” [30] In that matter the Crown case was particularised “as the accused man punching the complainant repeatedly with closed fists at the upper body and head in a boxing style”.5 During the course of evidence in that matter the complainant gave evidence of being struck initially from behind, and later being punched in the mouth. [31] Different witnesses gave evidence of what happened and there was some variation in the accounts, as summarised in the reasons of Chesterman JA.6 In paragraphs 18 to 20 Chesterman JA said: 5 Trifyllis supra [1]. 6 Trifyllis supra [5-13] inclusive. -- 5 of 33 -- 6 “18. The function of particulars is to enable an accused to know the nature of the charge which he is called on to meet. See R v. Juraszko [1967] Qd R 128 at 135 per Stable J (with whom on this point Gibbs J agreed). Although it is often unhelpful and may be misleading to quote remarks directed to the facts of one case in another where the facts are different, there are passages in the judgment of Stable J which bear repeating in the present context. Juraszko involved an appeal from a conviction for dangerous driving. The defence asked for particulars and “the prosecutor took the Crown case on the depositions and notionally drew eleven vertical lines through it, thus dividing the whole alleged course of conduct...into twelve parts each of which was called a particular”. Stable J said (at 135): “The conduct complained of was essentially a course and manner of travel over a short distance. The defence had the depositions containing all of what had been said on the committal proceedings. It was not as if the appellant was an accused person for the first time facing a tribunal on the charge. In the Magistrates Court it is usual to get particulars, for without them the accused person may have only a slight idea of what is being alleged. And in some cases upon indictment ... particulars should be given ... . ... In the present case there were matters which were obviously described in the depositions and which ... were capable of being regarded ... as importing ... danger ... . .. Such matters and their context were all well known to the appellant and his advisors, and there could be no valid suggestion that anyone would be likely to be taken by surprise.” 19. The same conclusion as to the function of particulars was arrived at by Hunt A-JA in R v. Saffron (1989) 17 NSWLR 395 at 445-9. The point was discussed at a little more length than in Juraszko but, in essence, it was thought that the function of particulars is the same in criminal as in civil cases. Hunt A-JA said: “In a civil case, particulars once given cannot circumscribe or modify the cause of action upon which the plaintiff sues ... . The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded ... . Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied in support of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning ... . It is a matter within the discretion of the trial judge whether to permit the evidence ... or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars ... . The exercise -- 6 of 33 -- 7 of that discretion must necessarily depend upon many things, including the amount of warning which the other party has had that such evidence was to be led. The relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings ... . The appellant argues that the principles relating to particulars in criminal cases are different to those applicable in civil cases. No authority was produced for that submission. Nor is it easy to see why that should be so. Certainly, an accused‟s entitlement to particulars in a criminal case is the same as a defendant‟s entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him ... . Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have identified the specific transaction upon which the Crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge ... . If the Crown‟s obligation to give particulars in a criminal case is the same as a plaintiff‟s obligation to do so in a civil case, so should the consequences of having given those particulars be the same in each type of case – subject only to the trial judge‟s duty in each case to ensure that prejudice is not created by any departure from those particulars.” 20. One of the authorities referred to was Dare v. Pulham (1982) 148 CLR 658. In that case, Murphy, Wilson Brennan, Deane and Dawson JJ said (at 664): “Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ... . Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings ... . But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ..., though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily -- 7 of 33 -- 8 preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence”.7 [32] It is clear that unfairness can only arise if the particulars do not enable an accused person to know the nature of the charge which he is called upon to meet. [33] The fact that there may be discrepancies as between what different witnesses say as to the point of contact of those two movements does not in any way show that the appellant did not know the nature of the charge which he was called upon to meet, and there was clearly no unfairness. [34] This is reinforced by the fact that the incident is captured on video and both of those contacts can clearly be seen on the video. The video evidence speaks for itself. [35] Commonsense would suggest that different people may give slightly different accounts of what happened in front of them, and accounts slightly different to an actual videotape of what occurred. However, the fact that there are differences does not in any way affect an accused person‟s right to know the nature of the charge against him. The provision of the video evidence alone afforded him that right. [36] For these reasons, any argument based around the whole issue of particulars is clearly not sustainable. (b) Expert evidence [37] The appellant argues that the evidence of Sergeant Hayden was irrelevant and did not assist in the determination of this matter. [38] It argued that it was not relevant to the issue of the “appropriateness” or otherwise of the appellant‟s conduct, and “unreasonable application of force” which may have been relevant to certain potential defences and which may have been relevant in terms of the ongoing restraint of the appellant. [39] Certainly, this is evidence that I would never have admitted myself, as I believe that the matter should have been determined solely on the relevant evidence. [40] It does not appear as though the learned Magistrate placed any reliance on that evidence for the purposes of her ultimate decision and I do not believe that there was any unfairness to the appellant occasioned by the admission of that evidence. Conflicting evidence [41] In her decision the learned Magistrate clearly preferred the evidence of Sergeant Flynn and Officer Webb over that of Constable Rose and Constable Voysey.8 She summarised the evidence of Constable Voysey in her decision9 and noted that he was about seven metres away from the charge counter where the incident occurred. He described how the appellant had his right foot on the complainant‟s neck area and was holding her arm up, and that his foot slid off her neck and he replaced it in the same position, and that he then saw Webb push the appellant back from the complainant. [42] What Voysey said is totally inconsistent with the video evidence. There is no suggestion whatsoever of any slide of the foot off the neck area, and then replacement of the foot. It appears as though he was saying that the foot was being 7 Trifyllis supra [18-20]. 8 D1-13 L30-40. 9 D1-13 L10-30. -- 8 of 33 -- 9 used as some sort of restraint. A restraint would require continual downward pressure, but here what we have are two short, sharp contacts with what appeared to me to be the back of the head. [43] It is impossible to find any fault with the learned Magistrate‟s finding, rejecting the evidence of Voysey against the independent evidence of the video, and that of Flynn and Webb which was more consistent with what appeared in the video. [44] She also summarised the evidence given by Constable Rose.10 In effect, he said that the appellant had his foot on the complainant‟s shoulder. She noted that at one stage he was not even looking at what was happening between the complainant and the appellant, and this is consistent with what I saw on the video. More importantly, however, it is clear from the video that at no stage did the appellant have his foot on the shoulder of the complainant. I will be analysing the evidence further in my reasons, but what Rose said was also totally out of kilter with the video and totally out of kilter with what both Webb and Flynn said. Webb and Flynn were the two more closely involved in the incident at the time of the two foot movements, the subject of the charge. [45] Again, it is impossible to find any fault in the decision of the learned Magistrate to reject the evidence of Rose, and there was no substance whatsoever to that argument. (d) Credibility of the complainant [46] In her decision, the learned Magistrate accepted the complainant as a credible witness.11 [47] She went on to have regard to her level of intoxication (.12 per cent), coupled with her distress, and injuries that she had received earlier from her brother in an altercation, and to the events in the watch-house themselves, and accepted that this caused her to be confused about certain matters, but did not affect her overall assessment.12 In accepting the complainant‟s evidence, she also accepted that when an attempt was being made to remove her from the vehicle in the garage lock-up at the watch-house, the appellant had called her “a black cunt”.13 [48] She then went on to find that the name-calling probably had little relevance as to whether she was later assaulted, but that it went to her credibility and also the issue of provocation in regard to what she described as her actions towards the appellant.14 [49] I agree with the submissions for the respondent in this case to the effect that her credibility was not strictly relevant in this case. Ironically, she gave no evidence whatsoever of the two contacts which are shown on the video. It is clear from what I can see on the video and from what I can glean from the evidence of Webb and Flynn that she was extremely distressed at the relevant time. [50] It seems to me that the real issue of whether or not she was not unlawfully assaulted did not necessarily require any finding of credibility in relation to anything she said. (e) Failure to negative defences 10 D1-12 L40 to 13 L5. 11 D1-5 L20-30. 12 D1-5 L35-45. 13 D1-6 L10-16. 14 D1-6 L20-25. -- 9 of 33 -- 10 [51] In argument, the appellant claimed that the prosecution in this case had failed to negative a number of potential defences arising under the following legislation, namely: s52 of the Police Powers and Responsibilities Act 2000 (Qld) (the “PPRA”); s615 of the PPRA; s23 of the Criminal Code (accident); s269 of the Criminal Code (provocation); s271 of the Criminal Code (self-defence); and s31 of the Criminal Code (justification and excuse). Section 52 PPRA [52] The relevant section provides:: “Section 52 Prevention of offences – general (1) This section applies if a police officer reasonably suspects an offence has been committed, is being committed or is about to be committed; (2) It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the commission, continuation or repetition of an offence.” [53] Mr Kimmins on behalf of the appellant argued that the original offence was one of assault by the use of the bra by the complainant on the appellant, and he argued that the steps shown in the video, including the two movements of the foot apparent on the video were reasonably necessary to prevent the commission, continuation or repetition of that offence of assault. He also relied upon her earlier conduct at the scene of the original arrest by way of background. [54] It is significant to note that the complainant was completely immobilised, with her head down on the floor of the watch-house near the counter, with her arm in the arm lock which was designed to cause pain, coupled with the wrist lock and with his knee in the middle of her back. It is clear that she was screaming out at the time and it is clear that he did remove the knee shortly before the two contacts that I have described. His counsel has argued that there was the potential for the repetition of the offence because she was in a position on the floor where she could have spat at him. From what I could see, that would have been very difficult. At best, had she wanted to do so, all she could have done was spit on the floor, and it seems to me that she remained immobilised after he removed the knee from her back. It was argued that she continued to move and there is no doubt that her body was moving in the sense that she appeared to be wriggling at that stage, but that was totally consistent with someone who was in pain and in distress. [55] It seems to me quite clear that from the moment she was immobilised on the ground she did not constitute any threat to anyone, least of all him. It is significant that neither of the other two officers in the immediate vicinity had any such concerns and appeared only to be concerned for her. Sergeant Flynn can clearly be heard to say on the video “Alex, stop.” She even gestured her hand towards him. Officer Webb can clearly be shown pushing or attempting to push the complainant away from her. -- 10 of 33 -- 11 [56] From the video and from the evidence of Webb and Flynn which was consistent with what appears on the video, the contacts with her, after he removed her knee, could not possibly have been reasonably necessary to prevent the commission, continuation or repetition of an offence of assault, and I do not believe that there is any basis whatsoever to that argument. Section 615 PPRA [57] Section 615 of the PPRA provides: “615 Power to use force against individuals (1) It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual and anyone helping the police officer to use reasonably necessary force to exercise the power.” [58] My reasoning in relation to this defence is exactly the same as per any defence under s52 of the PPRA. On the evidence which is clear, it could not possibly be said that the force used in the two contacts was reasonably necessary to exercise any power. Section 23 Criminal Code [59] The appellant argues that all that was done with the foot was done to restrain the complainant and that this was not a deliberate application of force. [60] Firstly, there did not appear to be any need whatsoever to further restrain the complainant at the time of the two contacts. She was still in the wrist and arm lock with her head near to the ground. She did not appear to constitute a threat to anyone, particularly with Webb and Flynn so close by. Secondly, even if restraint was necessary, the movements of the foot were not consistent with its use for restraint purposes. In certain circumstances, it might be justified to place a foot on the head or upper body of someone and that would be done by means of continual downward pressure, not by means of the two short, sharp contacts which are apparent here. The evidence is so clear-cut in that regard that it could not possibly be said that the prosecution failed to negative any defence raised under s23 of the Criminal Code. Section 269 Criminal Code [61] Section 269 of the Criminal Code provides: “Defence of provocation 269 (1) A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self- control, and acts upon it on the sudden and before there is time for the person‟s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm. (2) Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.” -- 11 of 33 -- 12 [62] The appellant argues that the prosecution in this case did not negative the defence of provocation stemming from the use by the complainant of the bra on the appellant and the reference to “suck on this”. It was argued that for the purposes of considering whether or not the appellant was deprived of the power of self-control by the provocation on the part of the complainant, was an objective test which involved consideration of whether a reasonable police officer in those circumstances could have been so deprived. [63] I accept that the appropriate test would involve a consideration of the reasonable police officer in those circumstances and I would agree that it is certainly possible that a reasonable police officer in those circumstances could be deprived of the power of self-control in the short term. [64] The problem for the appellant here, however, is the way he did react. If he reacted instantaneously with a slap or a push, that would be consistent with someone who was deprived of the power of self-control and who acted on the sudden before there was time for his passions to cool. [65] Here, however, what he did was restrain her in a conventional way. He grabbed her hand and forced it up behind her back and placed her in the arm and wrist lock, and forced her to the ground, face-down, with his knee in the middle of her back. [66] This does not suggest that he had lost his power of self-control at that stage. No issue was taken with what he did up to the point where he commenced to stand up and took his knee away from the middle of her back. The fact that he actually removed the knee from the middle of the back would also appear to be consistent with the fact that she had been restrained. [67] It was argued that the whole incident took only about 10 seconds from when she flicked the bra up until the two relevant contacts, and that seems to me to be consistent. I fail to see, however, on the evidence how he was in fact deprived of his power of self-control, because he continued to adopt conventional methods up to that point. [68] The learned Magistrate was satisfied beyond reasonable doubt that the throwing of the bra by the complainant was not such that it would induce an ordinary person to lose control, and then went on to find that the appellant was not deprived of the power of self-control.15 [69] Whilst I do not necessarily agree in terms of whether or not a reasonable police officer in that situation could be induced to lose self-control, I do not believe that her ultimate finding was in error for the reasons that I have already summarised. [70] Another aspect of the defence of provocation is whether or not the force used was not disproportionate to the provocation and was not intended, and was not such as was likely to cause death or grievous bodily harm. There is no suggestion that force of the type shown on the video was likely to cause death or grievous bodily harm, but it does seem to me in the particular circumstances to be disproportionate to the provocation. He had already restrained her. The actions were not consistent with restraint and the two contacts were totally unnecessary. [71] Further, it was argued that there was no medical evidence which was relevant to the issue of whether or not disproportionate force was used. I find the appellant‟s argument in relation to medical evidence quite intriguing. During the course of the trial the prosecution attempted to lead evidence of injuries on the part of the 15 D1-20 L33-40. -- 12 of 33 -- 13 complainant. It is accepted that she had to sustain injuries in the earlier incident with her brother, but there was a blanket objection to any evidence at all. Having taken that stance during the course of the trial, the appellant argues now that there is no evidence to support the fact that the force used was disproportionate. [72] I fail to see how medical evidence is needed on that point. The charge was one of common assault, not one of assault occasioning bodily harm. I accept that very severe stomping could well have resulted in obvious marks or injuries, but it is not clear to me on my viewing of the video that the force used was such as you would automatically expect there to be some mark or marks on the back of the head. [73] Even if he was acting in circumstances where he had been deprived of the power of self-control and then did not have sufficient time for his passions to cool, the force used, namely by two downward strikes of the foot on what appeared to me to be the back of the head, was clearly disproportionate to what happened earlier, particularly after he had already restrained her and after there were two other officers in the immediate vicinity dealing with her. [74] The prosecution did not fail to negative any defence of provocation. Section 271 Criminal Code [75] In the written outline of submissions the appellant also raised self-defence under section 271 of the Criminal Code, although that was not developed to any great extent in oral argument. [76] I fail to see how the defence of self-defence could possibly have applied in this case. For reasons that I have already elaborated upon, she did not pose any threat whatsoever to him at the time of the two contacts. He still had her in the arm and wrist lock, her head was near the floor, and Webb and Flynn were in the immediate vicinity attending to her. [77] Whilst he was clearly assaulted by her earlier, it could not possibly be said that any force at all was reasonably necessary at that particular stage of the incident to make effectual defence against the assault. Once he had restrained her in the conventional manner, there was no suggestion whatsoever that he was under any further threat. [78] On the evidence, the defence of self-defence was clearly negatived. Section 31 Criminal Code [79] In the written outline the appellant has also raised a potential defence under section 31 of the Criminal Code on the basis that the acts relied upon by the prosecution were reasonable necessary to resist actual and unlawful violence to the person who did the act or another. For reasons I have already outlined it could not be said that the two contacts were reasonably necessary and the prosecution has not failed to negative this defence. Summary of evidence [80] Whilst I have dealt with the various grounds of the appeal as advanced, I must also review the evidence in this case, all of which I have read and, where necessary, seen. Evidence of complainant Melanie Dellacris Burgoyne [81] It is not necessary for me to go into her evidence in any detail for the purposes of this review of the evidence. This is because she had no recollection of what happened at the critical time. -- 13 of 33 -- 14 [82] There was no dispute that she was intoxicated on the day and there is no dispute that she was quite abusive to the police and others that day. It was accepted that she had been in an altercation with her brother at the motel earlier and that he had struck her on the left side of the cheek, and that she also had her knee grazed in the course of that incident. She accepted in evidence that she had been acting really aggressively that day, that she was angry towards her family, that filth was coming out of her mouth, and she was still swearing when the police arrived. [83] No issue was taken as to her arrest for public nuisance and I understand that she was eventually dealt with for that. [84] The mere fact that she does not recall the two contacts in question does not in any way affect what is clearly seen on the video evidence and what is also described in the evidence of Sergeant Flynn and Watch-house Officer Webb that I will deal with. I will deal also with what Flynn says about her state at this particular time and in the aftermath. [85] Because of her level of intoxication and because of her anger that day, I would not have been prepared to make any finding that she was a credible witness, but I fail to see how that would make any difference to the matter. Evidence of Watch-house Officer Webb [86] The following matters of relevance arose in the evidence-in-chief of Webb. He said that he had been a watch-house officer for approximately five and a-half years.16 He said that he had previously worked within the Australian Defence Force, retiring at the rank of Major after 33 years.17 He heard a vehicle come into the vehicle lock at the watch-house at around 6.05 to 6.10 on the evening in question.18 He could hear yelling and screaming from the vehicle lock, and then he placed on gloves and then proceeded to enter the vehicle lock where he noticed a paddy-van and where he could hear screaming from the vehicle.19 He saw Constable Rose initially and then he heard Constable Alexander‟s voice exchanging a conversation with what he referred to as the prisoner in the back of the van.20 He said that the woman was screaming out that she‟d done nothing wrong and that the officers had arrested the wrong person, and how somebody else was involved and how it wasn‟t her and how the police had got it all wrong.21 He said that the appellant was exchanging words with the prisoner and he was trying to get her out of the vehicle, and she made a lot of noise in the back of the vehicle which, to him, was an indicator that she was either kicking the sides or kicking the door. He said he couldn‟t say what the appellant said at that time, word for word.22 16 T2-3 L15-20. 17 T2-3 L49-56. 18 T2-4 L16-18. 19 T2-4 L30-41. 20 T2-4 L43-53. 21 T2-5 L1-8. 22 T2-5 L15-20. -- 14 of 33 -- 15 He said that the appellant told him that the prisoner wouldn‟t come out of the vehicle and that she was agitated, and he said that he could hear from the tone of her voice that she was agitated.23 He then offered assistance and spoke to Rose and the appellant, and he spoke to the prisoner and got her to get away from the back of the door whilst one of the officers (he could not say which) opened it.24 He then introduced himself to the female in the van and explained who he was, and what his role was going to be and what he required of her.25 When he first saw her she was basically on her backside and her feet were facing the door, reasonably close to the door.26 He said that after he offered her some assistance and explained himself, she seemed to calm down and she agreed to come out of the vehicle and into the watch-house. She slid out of the vehicle and he indicated to her where she had to go, and she followed him through the door into the main watch-house area.27 When she was walking in, he noticed that she wasn't handcuffed.28 He said that at that time she was quite compliant with him.29 After she moved into the watch-house he saw, out of the corner of his eye, what he described as something like a black blur. (This can only be the movement of the bra.)30 He said that at the time the appellant was basically to his left rear, right behind the prisoner.31 He then described how the appellant placed her on the ground to restrain her.32 He said that the complainant was complying with his directions when she came through the door, but said that she was involved in a verbal stoush with the appellant.33 He said that Rose was basically behind him.34 When asked to describe further what the appellant did after the blur that he saw, he said that the reaction from the complainant was pretty much instantaneous, that he grabbed her by the arm, placed her on the ground with one hand on her left arm and the other just behind the base of her neck area, and that he basically pushed her to the ground using body weight, and then it was either his left or his right knee which was placed roughly around just above her waist area to restrain her and keep her on the ground at that point in time.35 23 T2-5 L24-31. 24 T2-5 L32-36. 25 T2-5 L37-41. 26 T2-5 L46-50. 27 T2-5 L55-T2-6 L6. 28 T2-6 L8-10. 29 T2-6 L12-13. 30 T2-7 L24-26. 31 T2-7 L41-42. 32 T2-7 L48-49. 33 T2-8 L36-40. 34 T2-8 L42-46. 35 T2-9 L1-50. -- 15 of 33 -- 16 He said that was a normal way to restrain a prisoner.36 He was asked how many officers were standing around, and he said that there were at that stage, including himself, three officers.37 He said he did not hear any instructions from the appellant to anyone whilst the complainant was on the ground.38 When asked to describe further the restraint that the appellant had on the complainant when she was initially placed on the ground, he said that he had her left arm up behind her back and he had weight just above the centre of the waist, and he thought it was the right knee. He described it as a twofold position.39 When asked as to what happened then, he said: “Once the prisoner was on the ground, in that position as I‟ve explained, Constable Alexander then stood up and as he stood up he brought the left arm of the prisoner up, basically placing it into a straight-arm position. ... Some know it as a straight-arm bar...he then positioned both feet in line with the prisoner on the ground...and then tended to force the left arm forward over the back of – towards the head area ... in a backward motion. Again, this puts more pressure on the prisoner...righto? And the prisoner absolutely can‟t move.”40 In response to a question as to whether she was restrained on the ground, he then said, “Correct.”41 He was asked how close he was to the appellant at that stage and he said that he was basically on the other side of the prisoner, on the ground.42 He said that he never heard the appellant say anything in those circumstances.43 When asked whether or not the complainant was saying anything at that stage he said: “Ms Burgoyne is certainly screaming. She initially started to scream when she was placed on the ground...and then she was complaining it was hurting her...and then when Constable Alexander repositioned himself over the prisoner, she was definitely screaming at that stage...I was standing, basically, right beside her at that point in time as she was facing me...well, my feet.”44 After some legal argument he was taken back to what happened next after the complainant had come to a standing position and after she was on the ground, restrained and screaming that it was hurting, and was saying, “I‟ve done nothing wrong,” and he replied, “At that stage then, Constable Alexander then picked up his left boot...and struck the prisoner in the back of the head/neck area...and then quickly followed it with a second strike.”45 When asked further about that, he said: 36 T2-9 L52-54. 37 T2-12 L49-55. 38 T2-12 L56-T2-13 L3. 39 T2-13 L15. 40 T2-13 L30-48. 41 T2-13 L49-50. 42 T2-13 L55-56. 43 T2-13 L52-53, L58. 44 T2-14 L1-16. 45 T2-15 L23-38. -- 16 of 33 -- 17 “His right leg, initially, prior to the kick, he was just positioned evenly weighted – distributed...looking down at the prisoner, facing me basically directly opposite me.”46 He said that the appellant looked stable at that stage.47 When asked to describe the foot motion in more detail he said: “When I initially saw it, it was a deliberate kick to the prisoner on the ground...it was made with the base of the foot. It wasn‟t done with the toe or the heel...with the instep, basically, the inside of the foot, if I can show you, has the foot...just inside the instep.”48 He was then asked to, and gave, a demonstration which I did not see, but at the time said, “Predominantly it was just a sideward kick straight down onto the prisoner, at the back of the neck/head area.”49 He was asked to comment on the amount of force and he said that he could not comment on the amount of force that was applied.50 When asked whether it looked hard or soft he said, “Hard.”51 He was asked whether or not he could show the Court how hard it was and he replied, “No.”52 When asked whether or not the complainant did anything at the time of those blows he replied, “She screamed out in pain...saying, basically to stop. Stop, right, stop. The two kicks, as I described were fairly quick...all right, and rapid. And that was when I interjected with Constable Alexander.”53 When asked what he did he said, “I stepped over the prisoner...and stepped between Constable Alexander and the prisoner on the ground. I think I responded immediately by saying, „Stop‟ or „That‟s enough.‟”54 When questioned further about what he did when he said those things he said: “As I stated, I stepped over the prisoner and stepped between Constable Alexander and the prisoner on the ground. ... I don‟t think I touched Constable Alexander. Constable Alexander then stepped back. My immediate concern was for the prisoner on the ground.”55 When asked whether the prisoner was doing anything before he saw the kicks he said, “The prisoner was – pinned on the ground, head was facing me...I was on her right-hand side...and the prisoner didn‟t move, was only just screaming out about the pain.”56 When asked further about what happened when he stepped over he said, “Constable Alexander stepped back. I‟m not a hundred per cent sure where his partner was, I think his partner was down towards the feet, or a bit further back towards the – vehicle lock door. And then at that point in time Sergeant Flynn came around the 46 T2-15 L40-45. 47 T2-15 L47. 48 T2-15 L49-T2-16 L3. 49 T2-16 L6-8. 50 T2-16 L30-33. 51 T2-16 L45. 52 T2-16 L48-50. 53 T2-16 L52-T2-17 L2. 54 T2-17 L25-30. 55 T2-18 L17-22. 56 T2-18 L33-47. -- 17 of 33 -- 18 counter. She was the shift supervisor, wanting to know what was happening, because where she was positioned at that point, I‟m not sure if – if she had a clear view of what was happening.”57 He then described how and Flynn tended to the prisoner on the ground and how they rolled her over to see how she was, and how at that point in time they identified that she had wet herself and that she was going on about pain, and as he described it, “and that”.58 He said that it was very visible that she had wet herself and that there was a little bit of urine on the floor and also on the garment that she was wearing, and that the complainant also stated that she had wet herself.59 He said that he explained to both the appellant and Rose that they should go and put her details on the QPRIME management system and that he and Flynn then assisted the complainant up to the counter, and that she was saying at this stage that she had also had her period brought on. He then went on to describe how Flynn assisted her, which included the changing of clothes.60 He said he was present when Flynn was trying to ascertain from her whether she sustained any injuries in the immediate incident and that she was crying and sobbing during this, but had referred to injuries that she had sustained earlier which was something to do with her brother.61 [87] The following matters of relevance arose out of cross-examination: Firstly, he was questioned about a statement that had prepared following an electronically recorded interview between him and other officers, and he agreed that he had mistakenly included the date of 30 October 2011 instead of 30 August.62 When questioned about what happened up to the critical point in time, he agreed that all the appellant had done was to force her to the ground and immobilise and restrain her.63 He agreed with the proposition that the appellant‟s conduct up to that point was reasonable.64 He agreed that he had watched the video on one occasion.65 He agreed that he had said in his initial statement that he couldn‟t say how hard the kicks were.66 When questioned about how long the whole incident took, he did not quibble with an estimate of 10 seconds.67 When asked to accept that her head was face-down on the floor surface of the watch-house at the time she was being restrained, he said, “No, I believe I said her head was facing my feet and I was on the right-hand side of the prisoner, Constable 57 T2-18 L48-57. 58 T2-18 L58-T2-19 L5. 59 T2-19 L9-21. 60 T2-19 L23-48. 61 T2-19 L50-60. 62 T2-23 L15-35. 63 T2-23 L38-48. 64 T2-24 L30-36. 65 T2-25 L10-11. 66 T2-25 L21-23. 67 T2-25 L25. -- 18 of 33 -- 19 Alexander was on her left side with her left arm, and he was kneeling down on her so her head...”68 He agreed that the left side of her face was on the watch-house floor.69 He agreed that the watch-house floor was a hard surface with an industrial type vinyl or something of that sort on top.70 He agreed that he was standing immediately on the side that she was looking to, with her left side of the face on the ground, pretty much in line with her head area, and that the appellant was on the other side, kneeling down.71 When asked whether or not she was struggling whilst restrained, he said, “Possibly, but it wasn‟t a violent struggle. If she did, it would‟ve only been slight movement...the move – Constable Alexander had a fair amount of weight on her and it‟s basically designed to pin a prisoner down.”72 It was then put to him that once the appellant started to rise that pressure would come off, and he said, “If he did...(Mr Mellick then said, „I mean it would be obvious‟)...no, if you restrain in the – straightening arm to an arm bar, as I‟ve explained. Again, it keeps more pressure on the upper torso keeping the shoulder area, chest area, pinned to the ground. And more so, the head, because the head has no flexibility in it.”73 He agreed with the proposition that, if she was struck on the head whilst her face was on the ground with her cheek on the floor surface, that there would not be any cushioning effect from any kick.74 When asked to say which of the appellant‟s feet struck, he said the left foot.75 It was put to him, in effect, that the first strike had been contact with the upper shoulder area, with the front of the foot over the head, but not coming into contact with the head, and he replied, “Not from what I saw. What I saw was the base of the foot – Constable Alexander, make contact with the neck/head area. I didn‟t see any contact with the shoulder area.”76 When asked to demonstrate where the contact was, the record is noted by the learned Magistrate to the effect that he indicated from the base of the neck to the top of the head.77 When asked about the second kick he said that it hit the back of the head.78 He was then asked to demonstrate and the learned Magistrate noted the record to the effect that he was indicating the back of the head, in the middle of the head.79 The witness then clarified that by saying “to the right-hand side”.80 68 T2-25 L43-48. 69 T2-25 L50-51. 70 T2-25 L55-60. 71 T2-26 L10-21. 72 T2-27 L12-19. 73 T2-27 L21-28. 74 T2-27 L30-42. 75 T2-27 L44-45. 76 T2-27 L50-T2-28 L1. 77 T2-28 L14-15. 78 T2-28 L22-25. 79 T2-28 L30-36. 80 T2-28 L40. -- 19 of 33 -- 20 He agreed with the proposition that if there was force in that area of the head, that that would force the head into the floor or onto the floor.81 He then accepted a similar proposition in relation to the first kick.82 He was then asked a lengthy question about whether or not it was a case where there appeared to be contact with the head or neck area in circumstances where there was no such contact, bearing in mind the fact that the whole incident occurred in around 10 seconds, and he rejected that possibility.83 He was then read a passage from another witness‟s statement to the effect that the right foot was placed near her neck and had slid off onto the floor and had been replaced, and he disagreed with that proposition.84 Evidence of Sergeant Melinda Sue Flynn [88] The following matters of relevance arose in her evidence-in-chief: She said that she was sworn in on 9 December 1994 and that she was the supervisor in the watch-house for the 2 p.m. to 10 p.m. shift on 30 August 2011.85 She gave evidence of what she saw on the TV monitors of what transpired in the garage lock area.86 She described how she saw the complainant coming through the door and how she appeared to be affected by alcohol, how her hair was messy, her clothing dishevelled and how it looked like she‟d been in some sort of issue prior to coming in.87 She said that she (Flynn) was at the charge counter at the time the complainant came in.88 Asked further about what cues made her think that the complainant was drinking, she said: “I think she was sort of rambling in conversation, a bit like her words were slurring. And she was a – like, she was a bit unsteady, but she was walking unassisted. Like, no-one was holding onto her. She was walking by herself...but yeah, her – just her voice and – and her general appearance.”89 She described how Webb came through the door first, followed by the complainant, followed by Rose, followed by the appellant.90 She said that initially they all appeared to be quite normal, and then said, “Something changed. I think – like, I can‟t remember what it was, I think Constable Alexander made a comment. I don‟t know what it was, Melanie Burgoyne then threw something black towards him.”91 She said she recognised his voice because he had a distinct accent.92 81 T2-28 L50-53. 82 T2-28 L54-55. 83 T2-28 L58-T2-29 L10. 84 T2-29 L10-48. 85 T2-31 L15-45. 86 T2-31 L56-T2-32 L48. 87 T2-32 L50-T2-33 L1. 88 T2-33 L11-13. 89 T2-33 L16-24. 90 T2-33 L47-52. 91 T2-33 L55-T2-34 L10. 92 T2-34 L12-13. -- 20 of 33 -- 21 She then said, “Constable Alexander, who like Ben Rose was in the middle, came from behind Ben and grabbed her by the neck...and put her onto the ground.”93 When questioned further about where the appellant came from, she said, “So he‟s rushed past the other officer...and grabbed – placed his hand on her neck and she went to the – went to the ground, and she was down on the ground on her stomach.”94 When asked where the complainant was in relation to the counter at that stage, she said that she was on the other side of the counter, basically; namely, right in front of it but on the ground.95 She then described how the appellant got her right arm, whilst she was lying on the ground, and put it into an arm bar and then a wrist lock, with the arm coming up basically 90 degrees from the ground, and then described how he was over the top of her and used a knee to put some body weight onto her whilst she was lying on the ground and calling out.96 She said she did not hear any communications from the appellant to the complainant during the take-down and restraint.97 When asked whether the complainant was saying anything, she said that she was saying, “I‟m complying” and “Stop, I‟ve got a sore back”, and she thinks that she mentioned something about sciatic.98 She said that at that stage she was standing right at the corner, having moved around to the front of the counter, basically standing in line with what was happening near the complainant‟s head.99 When asked whether or not the complainant was doing anything, she said, “She was lying on – on the ground and just calling out.”100 When asked whether or not she was resisting, she replied, “I don‟t really – I don‟t think she could do very much in the position she was with him, like, with his weight on her lower back and her arm in the arm bar. She – she was on the ground.”101 She was asked whether or not there was any further communication from the appellant to the complainant once she got to the position she was in, and she said that she did not think so.102 When asked as to what happened then, she replied: “At some point, and as I said, I‟m not sure how all this came – came together, but I was saying – no, the – Alex then seemed to move and stand – like, come – not kneel anymore and stand up and then he proceeded to, like, put his boot onto her neck and at that point I‟ve said „That‟s enough‟.”103 93 T2-34 L38-43. 94 T2-34 L53-T2-35 L3. 95 T2-35 L4-10. 96 T2-35 L11-31. 97 T2-35 L33-37. 98 T2-35 L38-40. 99 T2-35 L48-52. 100 T2-35 L54-55. 101 T2-35 L58-T2-36 L5. 102 T2-36 L6-8. 103 T2-36 L9-15. -- 21 of 33 -- 22 When asked how many times that there was that boot onto the neck, she said, “I think twice.”104 When asked where she saw the boot impacting, she said, “It was the neck to the lower head.”105 The Police Prosecutor then, without objection, made a statement to the effect that the witness was indicating to the back of the skull, and Sergeant Flynn then said, “The top of the neck.”106 She was then asked to give a further demonstration and the Police Prosecutor, without objection, said, “To the back of the head and neck. All right?” and she replied, “Yeah, the upper part.”107 She then gave a demonstration of the motion that was used, which the learned Magistrate noted as, “The witness is indicating a downward motion, a bending of the knee and then a downward motion of the foot.”108 She was then asked what term she would use to describe what she saw, and she said, “I think I said stomp.”109 She was then asked whether she was in a position to comment on how hard they were, and she said, “No because I wasn‟t the person, ...”110 She was asked what she was referring to when she made the earlier reference to “That‟s enough” and she said, “Oh, the – the action, the whole – just the whole thing. She – to me wasn‟t moving, she was restrained. There were other officers, there was myself, Ben Rose, we can – we can deal with this.”111 She was asked as to who was in charge at the time, and she said that she was the senior person.112 She was asked if she took charge, and she said: “Yes, I wanted things to stop and we would look after it from there...he didn‟t seem to stop. What – Webb then actually got between – got in front of Alex and basically – I think from him getting in it moved Alex away from her.”113 She was questioned further about what she said and at what stage she said it, and she said, “Everything‟s jumbled...I – I – now (indistinct) I don‟t know if it was before...before the stomp or after the stomp...I don‟t – I don‟t know.”114 She was asked whether the appellant responded to her saying “Stop” and she said that she did not believe so.115 She said that Webb was right behind her when she said that and he was in a position to hear her saying that.116 104 T2-36 L17-18. 105 T2-36 L19-20. 106 T2-36 L23-27. 107 T2-36 L28-33. 108 T2-36 L37-43. 109 T2-36 L46-47. 110 T2-36 L49-50. 111 T2-37 L11-16. 112 T2-37 L17-19. 113 T2-37 L21-27. 114 T2-37 L29-36. 115 T2-37 L40-41. 116 T2-37 L43-46. -- 22 of 33 -- 23 She then went on to attempt to say how the video would have shown what happened in that regard, but she was stopped by the Police Prosecutor.117 She then went on to describe how the appellant moved back and walked away, and how the complainant was left lying face-down, crying out she was in pain, and how she and Webb rolled her onto her side to get her in a seated position to try and help her sit up. She said that the complainant was complaining that her lower back was very sore and that she couldn‟t put any weight on her right wrist.118 She then described how they managed to lift her up so that she could lean over the counter and put her weight on the counter, so they could see how she was, and how at this stage the complainant continued to complain that her right hand was sore. She said that the complainant was being quite compliant at that stage.119 She then described how the complainant told her that she‟d wet herself and how she was embarrassed by that, and how she took her to one of the holding cells and helped her take off her shoes and socks. She said that she noted that the complainant‟s clothes were wet and it was necessary for her to go and get some dry clothes for her from some old clothes that were washed and stored there.120 She then described how she got the clothes and assisted her with getting changed, and it was at that stage that she also told her that she had got her period as well, and then she had to take further action in that regard. She also said that, by that stage, the complainant had calmed down and she was talking quite freely to her about herself.121 She was asked further about the positioning of her face at the time of the kicks or stomps, and she replied, “I think her face was – like, I think it was turned to the right.”122 She was then asked whether or not the head was actually on the floor or whether there was a gap between the floor and the head, and she said that she thought that the head was on the floor, but not facing straight down, but facing to the side.123 [89] The following matters of relevance arose in her cross-examination: It was put to her that from the take-down to the end of the incident was basically 10 seconds. She said that it seemed slower than that and thought that it may have been longer than 10 seconds, but she did agree that everything happened very quickly.124 She was questioned about where the complainant was facing with her head on the ground, and she said that she (Flynn) was standing at around the crown of her head and that she would have been facing towards where Watch-house Officer Webb was standing.125 She agreed that the appellant was on the opposite side to Webb.126 117 T2-37 L48-51. 118 T2-37 L54-T2-38 L10. 119 T2-38 L15-28. 120 T2-38 L30-42. 121 T2-39 L1-11. 122 T2-39 L48-53. 123 T2-39 L55-T2-40 L4. 124 T2-40 L29-39. 125 T2-40 L43-50. 126 T2-41 L4-5. -- 23 of 33 -- 24 She was asked whether or not the complainant was struggling after she had been restrained on the ground or gave the appearance that she was struggling against the hold, and she replied, “No, she was calling – she was saying, „I‟m complying‟.”127 She was asked whether or not the complainant reacted to the knee in the lower back, and she said that the complainant said, “I have a problem with my sciatic.”128 She agreed that the knee was released from the lower back before there was any application of force by the foot.129 She was unable to say whether he stood up fully before the kicks.130 She was questioned further about her reference to things being “a bit jumbled” and she said that it had been a number of months on by the time she gave her evidence.131 She agreed that she provided a statement to the police on 21 September 2011 and that she had seen the video on the night of the incident, which was prior to the preparation of that statement. She also agreed that she saw it again shortly before the matter was due to come before the Court on or about 21 December 2011, but that she had not seen it since.132 She agreed that the application of force by the use of the appellant‟s foot was very quick, in quick succession.133 It was put to her that he did not use a kicking motion and she replied, “Yeah, he didn‟t use the front of his foot.” And when pressed further, agreed with the proposition.134 It was suggested to her that the shoe, or more particularly the foot, made contact with the complainant‟s upper shoulder on both occasions, and she replied, “No, my – I always thought it was the place I indicated, to the top of the neck and the head.”135 She then agreed that she was confident that it was always to the upper neck and lower head area.136 She was then reminded of paragraph 15 of her original statement which said that he had lifted his left boot and started to stomp it onto her neck area twice, and she agreed that that is what she had said. She agreed that she had not said upper neck, lower head area in the statement.137 There was then further questioning about this alleged discrepancy between upper neck, lower head and neck, and on different occasions she continued to say that it definitely wasn‟t the shoulder.138 127 T2-41 L6-11. 128 T2-41 L18-22. 129 T2-41 L25-36. 130 T2-41 L38-40. 131 T2-41 L43-46. 132 T2-41 L47-T2-42 L16. 133 T2-42 L28-30. 134 T2-42 L31-38. 135 T2-42 L40-46. 136 T2-43 L1-6. 137 T2-43 L9-16. 138 T2-43 L20-T2-44 L14. -- 24 of 33 -- 25 There was then questioning about her not mentioning the word “stomp” the first time she referred to the contact in the evidence-in-chief, and how she had referred to the foot being placed on that area. She replied that she would have to listen to the recording to know exactly what she said.139 She agreed that the reference to “stomp” was not designed to imply that there was a considerable application of force, and she went on to say, “That was the best way I could describe the action, because it wasn‟t a kick. To me, the action is a stomp.”140 She then agreed further that she was unable to say what the degree of force was that was applied, and she said, “No, because it wasn‟t applied on me.”141 It was put to her, in effect, that sometimes you can tell the degree of force from someone‟s conduct, and she replied, “At the time she was calling out to have – she was already calling out in pain.”142 She was then asked by the learned Magistrate whether the force used was the same degree as that indicated in the earlier demonstration, and she replied, “I wouldn‟t think so. I did that in a slow motion.”143 In response to a question from the learned Magistrate to the effect that she would say that it was more force than that earlier demonstration or less, she replied, “Yes. To me it was something I wouldn‟t do.” And then further on, in response to that same line of questioning, she said, “More force than I indicated in...”144 It was put to her that the appellant‟s foot was placed on the upper body of the complainant near her neck and right arm area on the two relevant occasions, and she replied that she did not think it was the upper body, that to her it was her neck.145 She was asked further whether or not that was possible. She replied, “I don‟t. We can – you can watch the video to see what happened...what I remember was the neck, not the upper body, as I said over and over.”146 Evidence of Constable Samuel Peter William Voysey [90] The evidence-in-chief of Constable Voysey was essentially led by the Police Prosecutor on trial with no objection from the solicitor for the appellant. I presume that there was some arrangement in that regard. [91] The following matters of relevance arose from his evidence-in-chief: He said that he had been a police officer for coming on for three years at the time he gave evidence.147 On Thursday, 3 August 2011 (this date had to be wrong, although everyone accepts he was there on the day in question) he was working a 2 p.m. to 10 p.m. shift at the Cairns Watch-house under the supervision of Sergeant Flynn.148 139 T2-44 L16-21. 140 T2-44 L30-35. 141 T2-44 L35-36. 142 T2-44 L39-41. 143 T2-44 L46-48. 144 T2-44 L50-56. 145 T2-45 L4-11. 146 T2-45 L16-25. 147 T1-95 L23-24. -- 25 of 33 -- 26 At approximately 6 p.m. he had been working in the medical room with Constable Dave Oldham dispensing medication to prisoners in accordance with their prescriptions.149 He was packing up after that when he heard a disturbance coming from the direction of the charge counter which was situated at the far end of a corridor from where the medical room was located, and that he was standing near the entrance of the medical room with Oldham at the time, and that this was probably about seven metres from where the disturbance was, probably less than 10 metres.150 He said that he looked down the corridor and saw the complainant laying face- down on the floor at the end of the charge counter with her upper body protruding out from the end of the counter.151 He said he could see Sergeant Flynn‟s back and could also see Webb who was standing next to Flynn, and that he could also see the appellant and Rose standing with the complainant. He said that he observed what appeared to be the complainant‟s right foot placed on the rear of the complainant‟s upper body near her neck, and her right arm was in a perpendicular position to her body, held in a vertical position by the appellant.152 He then said that whilst in that position he saw the appellant‟s foot appear to slide off the side of the complainant‟s back onto the floor, at which point he saw him replace that foot to its position.153 He then said that whilst he was observing what was occurring, Webb stepped forward and pushed the appellant back from the complainant and that she was then assisted to stand before being placed in one of the two holding cells situated adjacent to the counter.154 [92] The following matters of relevance are raised out of his cross-examination: He said that the first time he saw the complainant she was already on the floor and he did not see the take-down.155 He agreed that the watch-house floor was concrete with some form of industrial vinyl, and that it was a very hard surface.156 He was then questioned about whether or not she appeared to struggle or move around, and he replied initially, “I could only see the top portion of her body at the time...and there was obviously four officers standing around her so I couldn‟t see a great deal of movement.”157 When asked whether he could see movement of her body, he said, “Yes.”158 When asked what movement he could definitely detect, he said, “Not a great deal, but, yes, she moved.”159 148 T1-95 L39-41. 149 T1-95 L43-48. 150 T1-95 L50-T1-96 L3 151 T1-96 L7-13. 152 T1-96 L17-23. 153 T1-96 L26-28. 154 T1-96 L35-41. 155 T1-97 L5-10. 156 T1-97 L11-15. 157 T1-97 L17-24. 158 T1-97 L25. -- 26 of 33 -- 27 Evidence of Constable Ben Matthew Rose [93] His evidence was also substantially led by the Police Prosecutor without objection. The following matters of relevance arose during the course of his evidence-in-chief: He said that he had been a police officer for just over four years and was, at the time, attached to Cairns General Duties at the Cairns station.160 He was then taken through his statement as to events which occurred when he attended at the Cairns Tropical Gardens Resort on Mulgrave Road in response to a call regarding a disturbance. I will mention only those aspects of his evidence in that regard that are relevant to what happened later, because there is no dispute about her having caused a public nuisance and having been involved in an argument and altercation there. When Rose arrested the complainant he said that she informed him that she had issues with her back, so he was not inclined to use physical force with her at that point.161 It is not clear whether or not the appellant was in a position to hear that conversation. Shortly after that, he managed to walk her back to the police vehicle without any assistance, but then she became very aggressive, being abusive to other members of the group who were there and trying to walk past him to continue to confront that group.162 Eventually, he and the appellant grabbed one arm each and were able to put her into the back of the vehicle.163 He explained how they parked the police vehicle in the vehicle lock, and he said that they did this because there had been a bit of yelling when she was in the back and he was concerned that she was going to be difficult.164 He said that, when he opened the back of the vehicle, she was lying on her back in the vehicle with her head towards the front and her feet near the doors and she was not cooperating in any way, even after he tapped her on the ankle, telling her that they were at the watch-house and requiring her to get out.165 He said that, when she was lying there, she had her bra in her hands and that it was positioned somewhere around her knee area. He said that it seemed clear to him that she‟d taken that off while en route to the watch-house.166 He then said that the appellant told her to exit the vehicle and she took offence to something he said about her being removed by the ankles. When questioned further about that conversation he said he couldn‟t remember it.167 He then described how she sat up and exited the vehicle and how, by this time, Watch-house Officer Webb had joined them, and described how they were walking 159 T1-97 L30-32. 160 T2-48 L40-55. 161 T2-50 L10-13. 162 T2-50 L20-T2-51 L10. 163 T2-51 L11-17. 164 T2-52 L3-15. 165 T2-52 L21-52. 166 T2-53 L1-22. 167 T2-53 L35-T2-54 L3. -- 27 of 33 -- 28 back into the watch-house with he (Rose) walking behind the right shoulder of the complainant, and the appellant walking behind him.168 He then referred to extracts of his statement and to a conversation between the appellant and the complainant on the way in. This was all pretty vague, but he said that the appellant said something to her which ended with the word “maybe”, and she responded by saying to the appellant, “I‟m not your baby” or something like that, and that the appellant said, “I do not wish that you are my baby” or something like that.169 He then said that at that stage the complainant turned and threw her bra towards the appellant‟s head and the bra passed behind him.170 He said he could remember that the bra was red and he saw a red item go flying past him towards where the appellant was walking, and that she said something when she threw it, but he could not remember the exact words. When questioned further he said that it was, “Fucking suck on this” or “Suck on this, cunt” or something along those lines.171 He then described how he saw the complainant proceed past him and grab the appellant around the shoulder region with both hands, taking her to the ground whilst keeping hold of her, and that this all happened reasonably quickly.172 He then said that he could recall seeing the appellant standing with one of her arms restrained above her head, with his right foot around her shoulder and neck region, and that she was writhing on the ground and it looked like the appellant was trying to control her.173 When asked what he meant by “writhing”, he said that it looked to him like she was trying to get out, like she was moving from side to side on the ground.174 When asked what restraints he saw, he referred to the restraint on the arm whilst she was lying on the ground.175 At no stage did he give any evidence about the knee being positioned in her back. This is clearly shown in the video and also referred to in the evidence of both Flynn and Webb. When questioned further about the sequence of events, he said that he was paying attention, but he could not remember what position the appellant was in when he was on the ground after the take-down to the ground, and could not remember any transition from the point when the appellant was down on the ground to when he was standing.176 He said that, from memory, it was the right foot that was used, and it was used around the shoulder-neck region, but holding her like that.177 168 T2-54 L5-11. 169 T2-54 L12-19. 170 T2-54 L21-23. 171 T2-54 L25-41. 172 T2-54 L43-56. 173 T2-55 L1-5. 174 T2-55 L7-11. 175 T2-55 L19-22. 176 T2-56 L19-35. 177 T2-56 L40-48. -- 28 of 33 -- 29 He was asked to demonstrate this use of the foot, and after he gave a demonstration the Police Prosecutor said (without objection from the solicitor for the appellant), “So his right foot pushed – so his – all of his weight on his left rear leg, his right leg extended down, and what‟s that right foot on?” and he received the response, “Around her shoulder-neck area.”178 Further on, he said, “I think her left from memory. But I think he had her – one of her arms up behind her, so she was lying on her – from my memory she was laying on her chest and had his foot around her shoulder, neck area.”179 He later said that he heard the complainant saying words to the effect, “Get off me. Get off me.”180 He also said that he could hear both Webb and Flynn yelling out words to the effect, “Alex. Alex”, but he said that he did not know what this was all about.181 He then said that Webb shouldered his way between the appellant and the complainant, separating the two, and when asked to describe what force was used he said that he got his shoulder in front of where the appellant was and just sort of nudged him out of the way, and that the appellant then walked off to somewhere.182 He said he could not remember the appellant saying anything to the complainant during the course of the incident.183 He said that after the incident he had a conversation with the appellant and observed a cut to one of his hands, and he said he began the process to charge the complainant with assault police and public nuisance.184 As I understand it, she pleaded guilty to the public nuisance charge, and the assault charge was never proceeded with. [94] The following matters of relevance arose during his cross-examination: He said that he did not try to yank her by the ankles and drag her out of the police vehicle, and that this would have been improper.185 He was questioned further about what she said at the time there was the movement of the bra, and he agreed that she had used a swear word but he was unable to say exactly which swear word was used, but he was pretty certain that the words “Suck on this” were used.186 He was questioned further about what happened with the foot and he said again that he could not remember the transition from the appellant being on top of her to standing, and he did not know that that was because his view was blocked or whether he looked away or what, and he said that he couldn‟t say how long it was between him being on top and him standing.187 When asked whether or not the appellant was standing or half-standing up, or half- squatting when he used his foot, he says, “From my memory of his – as I 178 T2-56 L50-T2-57 L2. 179 T2-57 L4-9. 180 T2-57 L28-29. 181 T2-57 L31-39. 182 T2-57 L41-50. 183 T2-57 L52-57. 184 T2-58 L16-20. 185 T2-61 L35-41. 186 T2-61 L57-T2-62 L17. 187 T2-62 L33-45. -- 29 of 33 -- 30 demonstrated, it appeared that he was using that foot to hold her in place and his other foot – leg seemed bent, but that‟s from memory.”188 He was questioned about whether the complainant ever apologised to the appellant about what happened and he said that he spoke to her later and she said something along the lines of, “Tell that officer I‟m sorry. I shouldn‟t have done that. I shouldn‟t have thrown my bra.”189 He agreed that he charged her with assault police, pursuant to the provisions of the PPRA.190 He agreed that on 21 December she pleaded guilty to a charge of public nuisance.191 He agreed that on 22 December 2011 the charge of assault police, which he preferred, was withdrawn.192 Evidence of Detective Sergeant Larissa Nicole Miller [95] There is no necessity to analyse her evidence. She was questioned at some length about different things that happened, particularly in relation to charges. She did, however, have a conversation with the complainant on 1 September 2011, the day after the incident and she observed, along with Inspector Hickey, injuries and bruises to the complainant which she summarised as a graze to her left knee, a graze to her right elbow, a bruise to her lower back, and a bruise to her lower right collarbone, red marks behind the right ear and the hairline.193 There did not appear to be any other matters relevant to the determination of this matter in her evidence, although much time seemed to have been spent on the fact that the charge of assault was never proceeded with as against the complainant. Evidence of Inspector David Charles Hickey [96] He, too, was assigned to investigate the complaint by the complainant in this matter and saw the complainant, along with Sergeant Miller. What he said in relation to the injuries was consistent, and the bulk of his evidence seemed to relate to this whole issue of why the other charge did not proceed as against the complainant. Again, this was of no real concern for the purposes of this trial. Evidence of Sergeant Damien Lee Hayden [97] I have already touched on this in relation to the arguments on expert evidence. He gave extensive evidence about police procedures and the proper way to attend to the arrest of people. It seems to me that his evidence was totally unnecessary in this case, because no issue was taken about the appropriateness or otherwise of anything that the appellant did up to the point in time where he started to get up and when he used his foot. For these reasons, it does not seem necessary for me, on a rehearing of the matter, to analyse his evidence any further. Evidence of Patricia Anne Lord [98] Again, there is no need for me to analyse this evidence in any detail. She provides background as to what happened at the motel that day, and what she says clearly 188 T2-62 L44-51. 189 T2-64 L1-8. 190 T2-64 L13-15. 191 T2-64 L38-40. 192 T2-64 L45-49. 193 T1-5 L43-50. -- 30 of 33 -- 31 justifies the original arrest for public nuisance of the complainant. There was nothing in her evidence, however, which appears to me to be relevant to what happened back at the watch-house. Video evidence [99] In her decision, the learned Magistrate said, when referring to the video: “If that were the only evidence of the alleged strikes, I would not be satisfied that the prosecution had proved the striking as particularised. However, the footage is not the only evidence. The footage shows that Watch-house Officer Webb was standing just in front of where Ms Burgoyne was restrained on the floor and looking directly at her upper body. It is obvious that he would have had an excellent view of what took place.”194 [100] I have viewed Exhibit 5 and Exhibit 7 very closely. The relevant view in Exhibit 5 is the one named as “the vehicle lock”. Exhibit 7 consists of a series of enhancements, the bulk of which relate to the vehicle lock footage. The index at the start of Exhibit 7 sets out how those enhancements have been done and these are described as follows: Vehicle lock – 150 per cent zoom; Vehicle lock – 200 per cent zoom; Vehicle lock – half speed; Vehicle lock – half speed 150 per cent zoom; and Vehicle lock – half speed 200 per cent zoom. [101] Whilst the two contacts are clear on Exhibit 5 they are more easily seen on the various enhancements in Exhibit 7. [102] The video evidence clearly shows the swinging of the bra in his direction and that it may or may not have struck him. Certainly, the learned Magistrate in her decision accepted that she heard the appellant, after he stepped back after the incident, say to the complainant, “You hit me in the eye.”195 I did hear that on two separate occasions as well. [103] The video evidence clearly shows that she was totally restrained on the floor by the time he had her with her face on the floor, and with her in the arm and wrist lock, with his knee on her lower back. [104] She can be heard saying, “It was only a bra” while he had her in that position. [105] The video evidence clearly shows that she remained immobilised after he started to get up, and it is obvious that even at that stage Webb and Flynn were showing concerns for her. [106] The video vision and sound also shows that she was clearly distressed whilst she was on the ground and it was apparent that she did not constitute any threat whatsoever to him or any of the others. The two contacts shown on the video evidence are not in any way consistent with restraint. Even on the half speed images, the contact is short and sharp, and totally inconsistent with the case which was run by the appellant, namely that this was all part of his restraint of her. 194 D1-7 L23-35 195 D1-10 L29-33 -- 31 of 33 -- 32 [107] The video evidence alone shows two deliberate kicks with the underside of the foot to what appears to me to be the back of the head of the complainant, and, unlike the learned Magistrate, I would have had no difficulty concluding that the assault in this case was committed just on the video evidence alone. Analysis of evidence on rehearing [108] I have already said that I would have been prepared to convict just on the strength of the video evidence. The only matters advanced on behalf of the appellant were that he was trying to restrain her and, to this end, the defence relied heavily on the evidence of Constable Voysey and Constable Rose. [109] I must say that I find the evidence of Constable Rose totally unacceptable. He gave an account of something that was so inconsistent with what was apparent on the video evidence that it could be very easily rejected out of hand. [110] On the one hand, he was saying that he was watching what was happening, yet on the other hand did not purport to see anything that happened from the point when the appellant was on top of the complainant on the floor, to the point where he stood up. Had he been watching, then surely he would have seen what was happening. Like the learned Magistrate, I would have had no difficulty rejecting his evidence. [111] Similarly, Voysey was at least seven metres away in the medical room, yet he purports to see the foot being used as some sort of restraint. The video evidence clearly shows that that was not the case and he was clearly mistaken in that regard. Like the learned Magistrate, I would have had no hesitation in rejecting his evidence, particularly in the light of what is clear on the video evidence. [112] The evidence of Rose and Voysey may have been sufficient to create a doubt if we did not have the independent video evidence, but, to the credit of those who ran the watch-house, this footage was taken and, to the credit of those involved in the investigation of this matter, was made available to the Court. [113] I accept that at times Sergeant Flynn was vague about when she said what she said and describes herself as being “jumbled” at different times. She, nonetheless, described two downward motions using, in her original statement, the word “stomps” and referring to that again later on in her evidence, although she did not use that term in her initial description in evidence-in-chief. [114] Either way, the question of when she mentioned it was irrelevant, because I would accept that stomp was a fair description of each of the contacts that were plainly visible to me on the video evidence. [115] As she pointed out on two separate occasions to the solicitor for the appellant, when queried about just when in the sequence of events these two stomps (as she described them) occurred, this would be shown on the video. [116] Of all the oral evidence given in the case, Webb was the one whose account was most consistent with what was seen on the video, but there are discrepancies, even in terms of which leg was used. These discrepancies, however, do not make any difference in a case like this, where the relevant incident has been caught on video. The video clearly shows which foot he used and how he used it on those two separate occasions. [117] On my rehearing of this matter, I would have no hesitation being satisfied beyond reasonable doubt that the two contacts, which appeared to me to be to the back of the head, were caused deliberately by the appellant at a point in time after the -- 32 of 33 -- 33 complainant had clearly been restrained and was obviously in distress. The evidence was overwhelming. [118] I am satisfied on my rehearing of the evidence that the charge has been made out beyond reasonable doubt and the appeal is dismissed. -- 33 of 33 --