R v JOL[2016] QCHC 15

CHILDRENS COURT OF QUEENSLAND

1. [1]
   The defendant is charged with one count of assault occasioning bodily harm; two counts of serious assault of a police officer with a circumstance of aggravation; and one count of serious assault of a police officer. The defendant pleaded guilty to the serious assault of a police officer (count 4) on the first morning of the trial. These reasons relate to the remaining three counts.

Count one – assault occasioning bodily harm

2. [2]
   The complainant, Mr Colin Fewquandie, knew of the defendant. They lived in the same street in Churchhill, Ipswich. He did not, however, know the defendant. The defendant had at times, when he was younger, attended Mr Fewquandie’s home and there played with the Fewquandie children.

3. [3]
   In September 2014 Mr Fewquandie’s wife had told him of an incident in which the defendant and another person had been walking in the middle of the street, not for the first time, and she had to swerve around them to get off the road. His wife had told them to get off the road and the defendant’s “mate gave her the finger as she was driving off”.

4. [4]
   Mr Fewquandie thought that it was two days later that he saw the defendant and his mate walking up the road. At the time, Mr Fewquandie was in the front yard of his house. Mr Fewquandie engaged the defendant and the person he was with. He described how this occurred as follows:

“I just walked out and approached JOL, and asked JOL and his mate why they were being smartarses to my wife, and – yeah.  Basically told them to stop being little shits because it’s – it’s continuous.  They’re walking in the middle of the road, and then cars are driving down the road, and my wife doesn’t want to be responsible if she hits JOL and his mate on the road”.

5. [5]
   Mr Fewquandie was positioned in front of the defendant who he said responded by telling Mr Fewquandie to step back, because he was “not a poofter”. Mr Fewquandie’s evidence was that he was a metre from the defendant at that time.

6. [6]
   Mr Fewquandie said that he “basically told them to stop being little shits and stay off the road”, and also asked the defendant if he had been “giving my wife the finger”.

7. [7]
   Mr Fewquandie said that the defendant had responded, although he could not recall what the response was, and had walked off. He asked the defendant to apologise to his wife, and told him to do so. The defendant continued walking away and Mr Fewquandie said “you do it again and I’ll break your finger”.  It was then that the defendant “king hit” him.  That blow was to Mr Fewquandie’s eyebrow. 

8. [8]
   Following this, he and the defendant “started scuffling and fighting”. He said that at the time at which the defendant hit him, he did not know where the defendant was as he, Mr Fewquandie, had turned to talk with the defendant’s friend. He said that when he turned to the defendant, after he had been struck but before they scuffled and fought, the defendant was “ready to go”, “ready to fight”.

9. [9]
   The fight ended when the defendant’s mother arrived at the scene in her car, although Mr Fewquandie said that the defendant was trying to continue the fight at that stage and was being encouraged by his mother to do so. He described the defendant kicking at him and his blocking the kicks with his arm. He said that he did not consent to the defendant punching him or kicking at him.

10. [10]
    Shortly after this the police arrived.

11. [11]
    In cross-examination Mr Fewquandie said that his wife having been given the finger, did not upset him and that he was not angry, he “just had to say something”. He did not accept that when he told the boys to stop being “little shits” he did so in an aggressive way.

12. [12]
    When it was put to him that he was yelling at the boys he said that he was talking to them.

13. [13]
    He did not accept that he was gesticulating with his arms or that he was pointing at them at different times. He denied having said “you aren’t going anywhere until we resolve this”. He said that he did not clench his fists at any stage during the argument with the boys. He denied knowing that there was the possibility of a fight when he approached the boys.

14. [14]
    He agreed that when he got punched in the face he did not say “hang on, I don’t want to fight”, or put his arms up to show that he was not interested in fighting. Nor did he walk away when the defendant was shaping up to him.

15. [15]
    Mr Fewquandie sustained injuries to his left eyebrow and lip.^[1]  It was admitted that these injuries constituted bodily harm and that they were consistent with being punched.^[2] 

16. [16]
    The complainant’s wife, Ms Davidson-Fewquandie, gave evidence. She had been alerted to a situation by her niece. She had gone out of the house to find the complainant and the defendant fighting. She did not witness the commencement of the fight.

17. [17]
    Ms Davidson-Fewquandie said that she observed that the defendant was bleeding from the nose, but she was not sure if he was bleeding from the mouth.

18. [18]
    The complainant’s niece, Tylisha Pitt, had been with the complainant’s wife on the occasion on which she had been given the finger. On the day of the alleged assault, Ms Pitt saw the defendant and his friend walking towards her and her uncle. The complainant was at the front of his house gurneying the driveway.

19. [19]
    Ms Pitt said that “because of the recent incident” she “knew something was going to happen”, causing her to walk faster. She realised that there had been an exchange of words, and when she got closer she could hear her uncle saying “you need to apologise to my wife”.

20. [20]
    She described the complainant having left the driveway and having gone onto the road. She described the complainant yelling at the defendant, saying that the defendant needed to apologise to the complainant’s wife himself. She said the defendant had said “I’m so sorry…sorry, tell her I’m sorry”. Her uncle then had said that the defendant needed to “tell her yourself”. The defendant said that he didn’t want to and he and his friend tried to keep walking. Her uncle again asked the defendant to go inside and apologise to her and said “next time you poke the finger at my wife, I’m going to break your fingers”. She described the complainant and the defendant as being physically “very close” and “kind of in each other’s faces”.

21. [21]
    She described the defendant having hit the complainant as he said that he would break the defendant’s fingers if he poked a finger at his wife again. She said “like, he just – out of nowhere just punched him straight in the face”. She was unsure of whether the blow was to the left or the right side of his face but she knew it was to his mouth “because he split his mouth open”. She said that the complainant was looking at the defendant at the time at which he was punched. She described a fist fight following.

22. [22]
    In cross-examination Ms Pitt agreed that she knew something was going to happen because her uncle was angry about what had happened between the defendant, Ms Pitt and her aunty.

23. [23]
    She also confirmed the defendant tried to keep walking but was unable to do so because her uncle stopped him by standing in front of him.

24. [24]
    The friend who had been with the defendant on the day in question, KT, also gave evidence. He described the events as follows:

“I asked [the defendant] to go for a walk again to the servo, walked up the street and the lady’s husband came out of his yard and stopped us, and said ‘why’d you give my wife the finger’.  Like he was talking to JOL, and he said ‘it wasn’t me’.  He asked ‘why’d you give my wife the finger’.  I said ‘I didn’t.  I waved at her.  And escalated’.  He got in JOL’s face.  First off, I tried to walk off.  He stopped me and said ‘you’re not going anywhere until it’s resolved’, and, like, he pushed me back and got into JOL’s face again, yelling abuse.  Can’t really remember what he said.  Then JOL hit him and got into a fight, ran and got [the defendant’s mother] from her house.  She drove up the street, tried stopping it, but she couldn’t, and the cops came and physically broke up the fight, and that was it.”

25. [25]
    He described the complainant as standing about 1.5 metres from himself and the defendant when he first engaged them. He said that the complainant first asked the defendant why he had given the complainant’s wife the finger. The defendant had said that he had not. The complainant then looked at Mr KT and asked whether he had given the finger to the complainant’s wife. KT responded by telling the complainant:

“It wasn’t me.  I waved at her.  Like, I waved at her”.

26. [26]
    Mr KT said that he had tried walking off and the defendant stopped him by walking in front of him and telling him that he wasn’t going anywhere. He said that the defendant was still behind him at that point. Mr KT told the complainant to get out of his way and the complainant responded saying “you’re not going anywhere until this is resolved”.

27. [27]
    He said that the complainant “then just got into our faces”. At that stage he said that the complainant was standing in front of him and the defendant was standing about a metre behind him: that is, that Mr KT was in between the complainant and the defendant.

28. [28]
    He said that the complainant gently pushed him (Mr KT) away and then pointed his finger at him and the complainant had said “you ain’t going anywhere”. He said that at that point the complainant was about 30 cm in front of him and the defendant 30 cm behind him and off to his side.

29. [29]
    The defendant responded, according to Mr KT, saying “don’t, like, point your finger at me”. He said “then, like, it just got out of hand a little bit more”.

30. [30]
    His evidence continued:

“Then he said ‘if I catch you giving the finger to my wife again, I’m going to break your fingers.  And JOL said ‘don’t be threatening me like that.’   And then he got in JOL’s face and yelling abuse”.

31. [31]
    He said that the complainant got into the defendant’s face by starting to walk up to him and that the defendant pushed the complainant back and told him to get out of his face. At this stage Mr KT said that he had moved backwards about 50 cm. The defendant, having pushed the complainant away, Mr KT said the complainant “just got back in his face and yelling abuse again, said something and JOL punched him”. When asked by the prosecutor whether he remembered what the complainant said, Mr KT could not clearly remember but thought “he said something about his mum. That is when JOL snapped and punched him”.

32. [32]
    He thought that the punch was to the right side of the complainant’s face and that this was “when the fight broke out”.

33. [33]
    In considering count one, the relevant blow is the first punch to Mr Fewquandie’s face. What followed was a consensual fight.

34. [34]
    It is not in issue that the defendant threw the first punch. The issues are: whether the complainant consented to a fight and, therefore that punch; whether the defendant honestly and reasonably believed the complainant was consenting to a fight; whether the blow was struck by the defendant in self-defence; or whether he was provoked.

35. [35]
    In my view, on the whole of the evidence in the Crown case, consent has not been negatived. Whilst the complainant’s evidence was that he did not consent to a fight, including the initial punch by the defendant, his conduct as described by Mr KT and his niece, Ms Pitt, in my view leaves doubt that he was not consenting to a fight with the defendant, which fight commenced with that first punch.

36. [36]
    Mr KT’s description of the complainant’s conduct is a description of aggressive conduct. It included: the complainant’s approach to the pair of youths; his stopping the defendant’s attempt to walk away by standing in front of him; his yelling abuse at the defendant at close range; his persistence in that even after he was initially pushed back by the defendant telling him to get out of his face; and his stating that he would do violence to them in the future should they again give the finger to his wife. He did all of this in circumstances in which he was aware that the defendant was an aggressive person.

37. [37]
    This doubt that the complainant was not consenting to a fight, including the first punch thrown by the defendant, remains notwithstanding the defendant’s own evidence that he was not consenting and that he did not have his fists clenched. Much of Mr KT’s description of events is supported by the evidence of Ms Pitt.  Particularly as to Mr Fewquandie being angry, which he himself denied; her belief that something was going to happen given that anger about what had previously happened to her and her aunty; her description of the complainant and the defendant being in each other’s faces and the complainant yelling at the defendant; and the complainant stopping the defendant from walking on by standing in front of him.

38. [38]
    For the same reasons, I am of the view that the prosecution has not negatived that, even if the complainant was not consenting to a fight, the defendant had an honest and reasonable but mistaken belief that he was consenting.

39. [39]
    Those findings are sufficient to find the defendant not guilty on count 1 on the indictment. I should, however, record that I am also of the view that the prosecution has not negatived the defence of self-defence.

40. [40]
    In my view, there is also doubt that the defendant did not hold an honest and reasonable belief that there was an unlawful assault upon him by the complainant, being the threat of an immediate attack. The matters concerning the complainant’s conduct establish that a belief on the defendant’s part that there was such an assault was reasonable.

41. [41]
    In any event, as explained in my earlier ruling in this matter at paragraphs [26]–[29], there being a concession by the prosecution that self-defence was open on the Crown case, I ought move to consider whether the force used by the defendant was reasonably necessary to make effectual defence. As explained in my earlier reasons, this question should be approached in the manner explained in R v Hagarty.^[3] 

42. [42]
    In all the circumstances confronting the defendant, the likely attack was some act of physical violence by the complainant, most likely a punch. The defendant’s response was reasonably necessary to make effectual defence against that attack for two reasons. First, it was not disproportionate to the likely attack. It was itself one punch. What followed in the fight was not of itself the response to the likely attack. Secondly, a lesser response, pushing the complainant away, had not resulted in the complainant desisting from his conduct. He persisted in that conduct by again getting in the face of the defendant. That fact is relevant to the reasonableness of a belief of an imminent attack by the complainant; the likely nature of that attack; and whether the response was reasonably necessary to defend against it.

43. [43]
    In light of these findings it is unnecessary to consider the defence of provocation.

44. [44]
    On count 1 of the indictment, the defendant is found not guilty.

Counts 2 and 3 – Serious assault with the circumstance of aggravation

45. [45]
    Counts 2 and 3 on the indictment allege serious assaults on two police officers, Kim Brett and Adam Hooper. Officers Brett and Hooper were working as partners on the relevant day. They were the first police to arrive at the incident in the street in Churchill involving the complainant and the defendant. Both were uniformed officers. They arrived at the location in an unmarked police car.

46. [46]
    Upon arrival, Officer Brett saw a group of about six people. The defendant, his mother and a person she thought was a friend of the defendant were in the middle of the road. The remaining people in the group were towards the footpath. They were separated by a distance of 2-3 metres.

47. [47]
    Immediately upon arrival, the defendant’s mother informed Officer Brett that the defendant had been assaulted by the complainant. Officer Brett went straight to the defendant to see if he was alright because he had blood on his face and to see if he wanted an ambulance. She said that the defendant then “got straight in my face, like, within - and just said “I don’t give a fuck,” and all this blood just landed on my face and on my lips and on me. So I just backed off, away from him”. This is count 2.

48. [48]
    She described the defendant as being “15cm, if that” from her face when he first approached her. He was taller than Officer Brett. Officer Brett described blood being spat onto her face as the defendant said, at that range, “I don’t give a fuck”. When she gave her evidence she, in relating what the defendant had said and the manner in which he had said it, emphasised the annunciation of the word “fuck” as the moment at which blood was spat onto her face. She said that after this occured she did not want to talk because she “could feel it on my lips”.

49. [49]
    She described the blood which she saw on the defendant’s face as “dripping down into his mouth”. She did not know if it was his nose that was bleeding.

50. [50]
    Officer Hooper then intervened.

51. [51]
    When cross-examined about the defendant’s spitting Officer Brett agreed that every time the defendant spoke blood was coming out of his mouth. She said that was because he was yelling. She said he was “really angry” and agreed that he was saying “fuck” a lot.

52. [52]
    It was put to her that it was “not the case that he spat in the ordinary sense of it that he deliberately” to which she responded “well, he didn’t do a golly or anything”.

53. [53]
    These events, and subsequent events, were recorded on an audio recording device activated by Officer Hooper.^[4]  The first six minutes of the recording were played in the trial.

54. [54]
    Having listened carefully to the audio recording, it accords with Officer Brett’s description of the defendant’s conduct, although one is unable to discern whether the emphasis on the word “fuck” was as demonstrated by her in her evidence.

55. [55]
    Officer Brett gave the following evidence about further instances of spitting by the defendant:

“Alright.  You described that first occasion where he came up to your face and you felt blood hit your face? --- Yep.

Did that happen at any other times throughout your engagement with him? --- Yeah, because obviously when he was bent over the fence he kept turning around and struggling, saying “get off me get off me, cunts,” and – and every time he was speaking, blood was coming out.  He got told – warned several times that – stop spitting.  Stop spitting.  But he continued to struggle.

Alright.  At some point, he’s on the ground.  You and Officer Hooper leave him restrained.  He’s being taken care of by other officers.  Did you make any particular observations of Officer Hooper? --- He had blood on his face and on his arms and his shirt, and so did Sergeant  - well Sergeant Silcock had it on her face.  So I let her know, so – I don’t know if she noticed, but I let her know so that we could all wash it off.”

56. [56]
    It was put to Officer Brett that the defendant was told to stop spiting only once. She said:

“No.  He was told to stop spitting at least twice that I know of, and that – not in that first part where I’ve asked him about the ambulance stuff which when I first got spat in the face- but when we were wrestling with him, trying to handcuff him he was told a couple of times to stop spitting, but, obviously he kept turning around and, like, in or face saying “get your effing hands off me.”

57. [57]
    Officer Brett’s account accords with the audio recording. The defendant was told to stop spitting twice in quick succession. At three minutes and nine seconds into the recording and again at three minutes and fifty seconds.

58. [58]
    Officer Hooper gave evidence that when he first arrived at the scene, he engaged in conversation with the complainant and did not particularly take any notice of what officer Brett was doing.

59. [59]
    His attention was drawn to the defendant who was “yelling and swearing and appeared to be pretty close to me”. He described the defendant “standing pretty much behind me and was still yelling and making reference to the person that I – the aboriginal guy I was talking with”. That person was the complainant. Officer Hooper described turning to look at the defendant who tried to step around him and putting his arm up against the defendant to prevent him from getting access to the complainant.

60. [60]
    The defendant then pushed Officer Hooper in the chest with both hands and tried to get around him at which time the Officer grabbed the defendant by the shirt and “started to push him back away to gain distance and separate him from the aboriginal male”.

61. [61]
    The defendant was telling Officer Hooper that he “didn’t give a fuck and let go of – called me a cunt and to let go of him”. The distance between them at that point was the length of the Officer’s forearm and they were facing each other.

62. [62]
    He gave the following evidence of what occurred next:

“Whilst I am holding on to him, I’m walking him back.  He is continuing to yell at me to let him go and calling me a cunt.  Not quite sure exactly what he was saying.  He had a lot of blood on his face and there was spit and blood going all over the place.  I’m not quite sure when it happened, but when he realised that there was spit and blood going everywhere and that it was landing on me – I wasn’t particularly taking too much notice of it at that time but I could see that … he’s then more - become more fixated on me as myself, and the spit, I felt, was - become more directed to go on to my face and the blood be come on to my face.”

63. [63]
    Officer Hooper said that the blood on the face of the defendant appeared to be coming from his nose and maybe a mouth injury, although he was not quite sure.

64. [64]
    The defendant then assaulted Officer Hooper by kneeing him in the groin. This assault was the subject of count 4 to which the defendant pleaded guilty.

65. [65]
    Following that assault Officer Hooper yelled to the defendant that he was placing him under arrest. He described that this “was all happening so quickly” and that whilst this was happening there was more blood being spat towards him. He then “pushed him away towards the fence and I’ve had to spin him around, and I’ve used a hand to grab the fence, and the hand that I had I was holding him with – the forearm against the back of his head to avoid more spit coming towards me”. He held him in that manner and position “so that he couldn’t turn and spit anymore blood towards me”.

66. [66]
    He describes the defendant as “definitely not” being compliant with his attempt to restrain him; but he continued to yell and swear; use the back of the heel of his right leg to thrash out connecting with Officer Hooper’s left shin, striking him in the front of the shin each time. Officer Hooper said:

“He was trying to turn and spit and yell.  He was yelling, and whilst he was yelling there was more spit and blood being directed straight towards me”.

67. [67]
    In cross-examination Officer Hooper described the blood on the defendant possibly coming from his mouth “or if it was from his nose, it was, like, bleeding quite a bit because it was covering right down over his face and down his neck”.

68. [68]
    Officer Hooper was asked:

“Alright.  So he’s swearing at you, “you fucking cunt”, you’re getting blood and spittle in your face?”

69. [69]
    To which he answered:

“Initially it was going everywhere because he’s – I believe he’s – he wasn’t directing – his initial contact was more towards the aboriginal male, but then when it became directed at me, he was more – it was in my face.”

70. [70]
    He was asked about what his use of the word “spit” meant. He was asked:

“So do you mean that as he was yelling blood and spittle was coming out of his mouth?”

71. [71]
    Officer Hooper answered:

“I agree, yes, but I believe he knew that blood and spit was coming, - I could see that in his demeanour- - that he knew it was coming out of his mouth, and by him yelling and directing it towards us, he knew he was getting blood on me.”

72. [72]
    He agreed that it was not the case that the defendant did a spit in the traditional sense.

73. [73]
    Ms Pitt also gave evidence of the defendant having spat at the time at which police were trying to place him in handcuffs. When asked in evidence-in-chief to describe what he was doing she said:

“He was just, like, spitting and just trying to, like, get out of the arrest.  Yeah.”

74. [74]
    Later, in cross-examination she was asked about her evidence that he was spitting as follows:

“Would you accept this description that he was saying “fuck” and there was blood coming out – down his face and out his mouth as he was saying “fuck”.  So do – what I am trying to get to you is that, yes, there was blood and spittle coming out but it wasn’t spitting as you would normally think of it.”

75. [75]
    Ms Pitt answered as follows:

“No.  He was directly spitting at one of the female officers.  I did see that.  Yeah.”

76. [76]
    The female officer to whom Ms Pitt was referring could only have been Officer Brett. Her rejection of the suggestion put to her, and her contrary evidence that the defendant was directly spitting at Officer Brett, is inconsistent with the Officer’s own evidence.

77. [77]
    Mr KT’s evidence concerning the defendant’s spitting was:

“At no stage did you see him spit at police officers? - - well he was yelling abuse at the – like the aboriginal fellow.  It could have just come out.  I didn’t see him actually spit on them.”

I have listened carefully to the audio recording.  The defendant shouts throughout his interactions with the police.  He repeatedly says “fuck” or “fucken”, the annunciation of the word “fuck” having been identified by Officer Brett in her evidence as being when the defendant spat on her. 

The defendant’s interactions with police during that part of the recording are quite uncontrolled and irrational.  As well as swearing at police and calling them “cunts”, he continually yells for them to “get your hands off me”, and “get off me”.  At one point early in the recording his mother is heard telling police that the defendant is autistic and on medication.  In the defendant’s protests to the police he suggests that he would be compliant, or would have been compliant, with their requests if they had not had their hands on him. 

The defendant’s demeanour changes quite dramatically at one point of the recording and he speaks quite rationally and calmly to police and provides them with his name and address.  His demeanour and rationality at this time is in complete contrast to how he had conducted himself immediately before when yelling and swearing at police.  On numerous occasions he said he would have done what he had been told by police if they had not had their hands on him.  He attributes his having kneed Officer Hooper to the fact that the officer had his hands on him.  On a number of occasions he says that if they took their hands off him he would be fine.

78. [78]
    At one stage a female police officer says that they will “ease off a little bit if you remain calm”. The defendant says he will and that he has been saying that for the past five minutes. It is when the police have sat him up and, so it seems, released their hold on him, that he becomes quite calm and compliant.

79. [79]
    Whilst the defendant’s reactions were irrational and entirely inappropriate to avert legitimate police action, they were nonetheless clearly reactions to that, and particularly the police placing their hands on him. This appears to escalate as they attempt to handcuff him having placed him under arrest in the manner described in his evidence by Officer Hooper.

80. [80]
    Much of the focus of the parties’ respective submissions was upon whether the circumstance which aggravates the maximum penalty, that being that the offender “spits on the police officer”, requires the spitting to be deliberate, or whether the circumstances will be satisfied if the offender spits on the officer recklessly indifferent to the foreseeable consequences of his act.

81. [81]
    Mr Crowley of counsel for the defendant submitted that the spitting must be deliberate. He seeks to support his submission by reference to the Explanatory Memorandum to the Criminal Law Amendment Bill 2012 which introduced the amendment by which increased the maximum penalty for the serious assault of a police officer and in which such assaults involving spitting were said to “represent serious displays of contempt for civil authority”.  It was also said in the Explanatory Memorandum that “acts of spitting … are particularly degrading”.

82. [82]
    Mr Crowley submitted that those descriptions “implied a deliberateness of action on the part of the accused in an attempt to degrade or show contempt for police”. This, he submits, is in keeping with the ordinary meaning of the word “spit” which is identified by the shorter Oxford dictionary to mean “deliberate expulsion of saliva from the mouth”.^[5]

83. [83]
    Mr Crowley submitted:

“It is not in issue that blood and saliva of JOL’s got on to the police.  It is submitted that that transfer was not deliberate; it was accidental, inadvertent or at done [sic] with reckless disregard.”^[6]

84. [84]
    The typographical error in that submission makes it unclear whether Mr Crowley was conceding that the transfer of the blood and saliva was done with reckless disregard. In my view, the submission should not be read as though that concession was being made. In oral submissions which preceded the making of the written submissions Mr Crowley was asked whether it was his position that for there to be an assault constituted by spitting it would be insufficient for the defendant to have foreseen the consequences of saying “fuck” up close to the first police officer and seeing blood and spittle land on her, and that if he were to do that again on a later occasion with the same result having seen what had occurred on the earlier occasion, but with reckless disregard for that result. Mr Crowley confirmed that such was his position but added:

“My primary submission is that it was inadvertent.”^[7]

85. [85]
    With that qualification having been given by Mr Crowley, the written submissions should not be read as containing a concession as to the defendant having acted with reckless disregard such that no finding of fact would be necessary in that regard. Rather, the submission should be understood as though it read “or at worst done with a reckless disregard”.

86. [86]
    Mr Crowley’s submissions then proceeded to address why the court would not find, as a matter of fact, that the defendant deliberately spat on police.

87. [87]
    Ms Kelso of counsel for the prosecution submitted that “the defendant deliberately engaged in an act that propelled spit into the faces and or body of the complainant officers”.^[8]

88. [88]
    She submits that the defendant must have been aware of the presence of blood on his face towards his nose and mouth area at the time at which police arrived as referred to by other witnesses. She submits that the way the defendant approached Officer Brett, he being taller than her and with him deliberately positioning himself in a way to be in close proximity to yell in her face, causing spittle to land on her face, leaves open no other explanation than that the defendant so positioned himself to allow spittle to be expelled into Officer Brett’s face.^[9]

89. [89]
    I do not accept that submission. The defendant may have deliberately positioned himself in that way so as to yell into Officer Brett’s face; indeed the submissions of the Crown make that plain. However, that does not lead to the further conclusion that he so positioned himself so that when he yelled spittle would be expelled into her face. It may have been the consequence of yelling in that position at close range; but not the purpose.

90. [90]
    Ms Kelso further submitted in respect of the spittle which was projected on to Officer Hooper that the officer had given evidence that at first when the defendant was yelling he observed general spittle landing on his arms and shirt front and that he then observed a deliberateness and change in the defendant’s behaviour in that the defendant turned his attention and positioned his face in a way so that he began yelling into the face of Officer Hooper, causing spittle to land on his face.^[10]

91. [91]
    Ms Kelso submits:

“The defendant was either engaged in this conduct deliberately or he was recklessly indifferent to the foreseeable consequence of his act, in circumstances where;

• The defendant knew he had blood on his face, and he chose to deliberately position himself in close proximity of both officers’ faces and yell obscenities while expelling spit from his mouth onto their faces.
• It occurred on more than one occasion, to separate officers.
• He continued to struggle and obstruct police, including kneeing Officer Hooper to the groin, demonstrating his attitude towards police at the time.
• While positioned at the fence police gave evidence he was deliberately turning his head towards them and spitting.  The recording reflects police telling the defendant to stop spitting at least twice.
• The mannerism of the defendant, described by Officer Hooper, which also immediately followed the spitting towards Officer Brett.”

92. [92]
    I cannot be satisfied beyond reasonable doubt that the defendant deliberately spat in Officer Hooper’s face in that he deliberately yelled into his face so as to cause spittle to project on to it.

93. [93]
    It is clear upon the evidence that when the defendant was yelling fluids from his mouth, both blood and saliva, were being expelled. It is clear that this was occurring when Officer Hooper first became involved. At that point in time, the defendant’s attention was upon, and the abuse he was yelling was directed toward, the complainant. The complainant was by that time separated by some distance from the defendant. It could not be concluded in any way on the evidence that the defendant was projecting spittle from his mouth as he yelled at that point in time with an intention that it be directed at the complainant. The only conclusion open on the evidence is that at that point the defendant’s yelling, although resulting in the spittle being projected, was not being engaged in by him with that intention.

94. [94]
    It is also evident from the recording that the defendant turns his attention from the complainant to the police and they, and particularly Officer Hooper, become the focus of his abusive yelling. No doubt, as a consequence of that, Officer Hooper perceived or “felt” as he said, that the spitting became more directed to his face. However, the spittle becoming more directed to his face is equally consistent with the spittle continuing to be expelled in the course of the defendant’s yelling and that yelling becoming more directed towards the officer’s face.

95. [95]
    Under s 340(1)(b) of the Criminal Code, the act which provides the circumstance of aggravation, whether it be spitting, biting, throwing or otherwise apply bodily fluids or faeces, is the act which constitutes the assault of the police officer.  It is the assault which is the crime.

96. [96]
    In R v Venna^[11], a case involving resisting arrest, James LJ held that a battery occurred if the facts prove that the defendant intentionally or recklessly applied force to the person of another.

97. [97]
    Barwick CJ discussed recklessness in Pemble v R^[12].  His Honour said:

“But it is of paramount significance to observe that recklessness to be relevant involves foresight of or, as it is sometimes said, advertence to, the consequence of the contemplated act and a willingness to run the risk of the likelihood, or even perhaps the possibility, of those consequences maturing into actuality.  This aspect of recklessness entails an indifference to a result of which at least the likelihood is foreseen.  An awareness of the consequences of the contemplated act is thus essential.

…

The state of mind of the accused is rarely so exhibited so as to enable it to be directly observed.  Its reckless quality if that quality relevantly exists must almost invariably be a matter of inference.  Although what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards a conclusion as to the accused’s actual state of mind, a firm emphasis on the latter as the fact to be found by the jury is necessary to ensure that they do not make the mistake of treating what they think a reasonable man’s reaction would be in the circumstances as decisive of the accused’s state of mind.  They need also to be reminded that the accused’s circumstances are relevant to the decision as to his state of mind; for example his age and background, educational and social, his current emotional state and the state of his sobriety.”

98. [98]
    Whilst I am inclined to the view that a spitting on a police officer which is reckless in the sense explained by Barwick CJ in Pemble would constitute a serious assault under s 340(1)(b) with the relevant circumstance of aggravation, it is unnecessary for me to decide that issue because, even assuming that to be correct, I am not satisfied beyond reasonable doubt that the defendant acted with recklessness so explained. 

99. [99]
    Having listened carefully to the audio recording, I am not satisfied that in the course of this continuing transaction, the defendant, who was a child of 15 and who suffered from autism, who was in an abundantly evident extremely agitated state, must have foreseen, in the sense that he did foresee, the consequences of his yelling with a mouthful of blood and saliva. In my view, that was clearly not so at the start of the transaction and when he spat on Officer Brett. I am also not satisfied beyond reasonable doubt that it was not so at the conclusion of the transaction. Whilst it might have been foreseen by a reasonable man, or indeed even by the defendant when acting more rationally, I am not satisfied that it was foreseen by the complainant in his actual state of mind at the relevant time. The difference between his state of mind at the time of his yelling and a more rational and calm state of mind on his part when the police have eased their hold on him is also obvious from the audio recording which captures both.

100. [100]
     It is also to be recalled that Officer Hooper described everything that occurred as happening very quickly. As I have already stated, the defendant’s conduct at the relevant time was an inappropriate response to entirely legitimate and appropriate policing. However, that does not make him guilty of the serious assault offences as charged unless the Crown proved that the spitting was either deliberate or reckless. I am not satisfied that recklessness has been proven. Therefore, even if it is sufficient for the spitting to be a reckless act rather than a deliberate or intentional one, I am not satisfied beyond reasonable doubt that it was in this case.

101. [101]
     For those reasons, the defendant must be acquitted of each of the serious assault counts, being counts 2 and 3 on the indictment.

102. [102]
     Orders

1. On each of counts 1, 2 and 3 on the indictment the defendant is found not guilty.

2. The defendant is discharged from each of counts 1, 2 and 3.

3. The sentencing of the defendant of count 4 will be listed on a date to be fixed.