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R v WEB[2021] QCHC 44

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v WEB [2021] QChC 44

PARTIES:

R

v

WEB

(applicant/defendant)

FILE NO/S:

273 of 2021

DIVISION:

Criminal

PROCEEDING:

Judge alone trial

ORIGINATING COURT:

Childrens Court of Queensland at Brisbane

DELIVERED ON:

1 September 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2021 to 1 September 2021

JUDGE:

Dearden DCJ

ORDER:

  1. Application for no case to answer granted in respect of each of counts 1, 2, 3 and 4. 
  2. The defendant is found “not guilty” in respect of each of counts 1, 2, 3 and 4. 
  3. The defendant is discharged in respect of counts 1, 2, 3 and 4 on indictment CCJ 273 of 2021. 

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – PRIMA FACIE CASE TO ANSWER – NO CASE TO ANSWER APPLICATION – where the applicant charged with four counts of serious assault – where the alleged offending involves assaults of police officers employed as temporary youth detention centre employees – whether the complainants were temporary youth detention centre employees – whether the complainants were performing a duty imposed by law – whether there is evidence to support all essential elements of the charges – whether there is a case to answer

CRIMINAL LAW – SERIOUS ASSAULT – JUDGE ALONE TRIAL – whether the defendant child is guilty or not guilty of 4 counts of serious assault – whether the offences charged are proved beyond a reasonable doubt

LEGISLATION:

Criminal Code 1899 (Qld) s 340, 639

Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 s 68

Youth Justice Act 1992 (Qld) ss 102, 264A, 307

Youth Justice Regulation rr 16, 21

CASES:

Doney v R [1990] 171 CLR 207

COUNSEL:

S Harrison for the Crown

I Munsie for the applicant/defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

MacDonald Law for the applicant/defendant

Introduction

  1. [1]
    This is an application submitting that there is no case to answer by the defendant, WEB, in respect of each of counts 1, 2, 3, and 4 on the indictment. Those counts read as follows:-

Count 1 – On the 5th day of September 2020, at Wacol, in the State of Queensland, WEB unlawfully assaulted DK while he was performing a duty imposed by law.

Count 2 – On the 5th day of September 2020, at Wacol, in the State of Queensland, WEB unlawfully assaulted DK, while he was performing a duty imposed by law. 

Count 3 – On the 5th day of September 2020, at Wacol, in the State of Queensland, WEB unlawfully assaulted GW, while he was performing a duty imposed by law. 

Count 4 – On the 5th day of September 2020, at Wacol, in the State of Queensland, WEB unlawfully assaulted KR, while she was performing a duty imposed by law. 

The law – offence

  1. [2]
    Each count alleges an offence pursuant to Criminal Code 1899 (Qld) (‘Criminal Code’) s.340(1)(c), which relevantly provides:
  1. (1)
    Any person who –

  1. (c)
    unlawfully assaults any person while the person is performing a duty imposed on the person by law; 

is guilty of a crime.

Elements

  1. [3]
    It is necessary for the Crown to prove, beyond reasonable doubt, the following elements:-

The defendant –

  1. (1)
    unlawfully
  2. (2)
    assaulted
  3. (3)
    any person while a person was performing a duty imposed on the person by law.

Particulars

  1. [4]
    Written particulars were provided by the Crown (exhibit A) in the following terms:-

Count 1 – serious assault

The defendant struck DK with a shoe, while DK, a police officer, was a temporary detention centre employee under the Youth Justice Act 1992

Count 2 – serious assault

The defendant bit DK, while DK, a police officer, was a temporary detention centre employee under the Youth Justice Act 1992. 

Count 3 – serious assault

The defendant kicked GW, while GW, a police officer, was a temporary detention centre employee under the Youth Justice Act 1992. 

Count 4 – serious assault

The defendant spat at KR, while KR, a police officer, was a temporary detention centre employee under the Youth Justice Act 1992.

The law – no case to answer

  1. [5]
    The test is set out in Doney v R [1990] 171 CLR 207 in these terms:

…if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.  Or, to put the matter in more useful terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty (pp. 214-215).

  1. [6]
    The trial before me proceeds as a “no jury” trial, pursuant to Youth Justice Act 1992 (Qld) (‘YJA’) s. 102. 

The Evidence 

  1. [7]
    The trial before me proceeded with evidence from the arresting officer, Senior Constable NB, and each of the three complainants, Senior Constable GW, Senior Constable DK and Senior Constable KR.
  1. [8]
    Each of the complainants gave evidence that they were working as temporary youth detention centre workers at the Brisbane Youth Detention Centre, Paperbark Wing, on 5 September 2020, because of a lack of staff due to the COVID crisis.
  1. [9]
    The exhibits tendered were CCTV footage of the relevant incidents, the subject of the charges (exhibit 1); still photographs taken from that CCTV footage (exhibits 2-4, 7); photographs of an injury to Senior Constable GW (exhibit 5); and photographs of an injury to Senior Constable DK (exhibit 6).
  1. [10]
    Relevantly, there was no evidence called from an identified youth detention centre worker, CM, who was seen to be involved in the incidents shown on the CCTV footage, nor another unnamed person, apparently working at the youth detention centre, who was seen in the footage in respect of charge 4.

The issues

  1. [11]
    There are a number of issues to be considered in respect of the “no case” submission, which include:
  1. (a)
    what evidence, if any, is required that each of the complainants was a “temporary detention centre employee” (YJA s. 264A).
  1. (b)
    what duty each of the complainants was carrying out at the time of the alleged assaults.
  1. (c)
    what entitlement each of the complainants – Senior Constable GW and Senior Constable DK had to use force during the relevant incidents.
  1. (d)
    what basis any of Senior Constables GW, DK and KR had to undertake the separation or segregation of the defendant (Youth Justice Regulation (‘YJR’) r. 21).

Temporary detention centre employee status 

  1. [12]
    Each of the complainants gave evidence that, as of 5 September 2020, each was a “temporary youth worker” (Senior Constable GW, T1-10 ll 14-19); “temporary youth justice worker” (Senior Constable DK, T1-28 ll 1-2); or “temporary youth detention centre worker” (Senior Constable KR, T1-42 ll 42-43). Each complainant gave evidence of being employed under the Youth Justice Act.
  1. [13]
    The power to appoint temporary detention centre employees is contained at YJA s. 264A (inserted originally by s.68 of the Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020, effective 25 May 2020).
  1. [14]
    YJA s. 264A(1)-(7) provides:-
  1. (1)
    The chief executive may, during the COVID-19 emergency period, appoint an appropriately qualified person as a temporary detention centre employee.
  1. (2)
    However, subsection (1) applies only if the chief executive is satisfied the appointment is reasonably necessary for the security and management of detention centres and the safe custody and wellbeing of children detained in detention centres.
  1. (3)
    A temporary detention centre employee is appointed under this Act and not the Public Service Act 2008.
  1. (4)
    A temporary detention centre employee holds office on the terms and conditions, not provided for by this Act, decided by the chief executive.
  1. (5)
    An appointment under subsection (1) ends on the COVID-19 legislation expiry day, or an earlier day stated in the instrument of appointment, unless the appointment is earlier revoked.
  1. (6)
    If the chief executive is satisfied an appointment under subsection (1) is no longer reasonably necessary for the purpose mentioned in subsection (2), the chief executive must revoke the appointment.
  1. (7)
    A person appointed as a temporary detention centre employee under this section is taken to be a detention centre employee under this Act
  1. [15]
    Apart from the evidence of each complainant that they were appointed pursuant to the Youth Justice Act, there is no instrument of appointment, nor any other evidence, written or oral, in respect of their appointment – in particular, for example, identifying the start and finish dates of that appointment as referred to in YJA s. 264A.
  1. [16]
    YJA s. 307 titled “Evidence” provides:
  1. (1)
    This section applies to any proceeding.
  2. (2)
    It is unnecessary to prove the appointment of a department’s chief executive, a public service officer, a community visitor (child), child advocacy officer or anyone appointed under this Act.
  3. (3)
    It is not necessary to prove the authority of any person to take any action under this Act.
  4. (4)
    (4) Subsection (2) or (3) does not apply if a party to the proceeding, by reasonable notice, requires the appointment or authority to be proved.
  5. (5)
    This section does not affect a person’s right to adduce evidence to disprove the appointment or authority
  1. [17]
    To the extent that it may be relevant, Criminal Code s.639 provides:

On the trial of a person charged with any offence of which the fact that some person was at some particular time a public officer or public service officer or employee is an element, the averment in the indictment or complaint that any person therein mentioned was a public officer or public service officer or employee at any time therein stated is sufficient evidence of the fact, until the contrary is shown.

  1. [18]
    It is acknowledged on behalf of the applicant that no notice was given pursuant to YJA s.307(4), requiring the appointment or authority to be proved (pursuant to YJA s.307(2) or (3)), and given this is a “no case” submission, it must be decided on the basis of the evidence in the Crown case.
  1. [19]
    I note that the Crown particularises each complainant as being a “temporary detention centre employee” (exhibit A).
  1. [20]
    It follows (as unsatisfactory as the situation may be) that YJA s.307 does not, on its face, require the Crown to prove the appointment of each of the complainants as “temporary detention centre employees”, despite a lack of an averment in the relevant counts on the indictment (see Criminal Code s. 639).

Duty of each complainant and use of force

  1. [21]
    Although the Crown particularises the status of each complainant, it does not particularise the relevant “duty”.
  1. [22]
    The use of force in a youth detention centre is governed by YJR r.16. Relevantly, that regulation provides:
  1. (1)
    A child detained in a detention centre must comply with a reasonable instruction given to the child by a detention centre employee for maintaining the security or good order of the centre or ensuring the safety of a child in the centre.
  2. (2)
    If a child detained in a detention centre does not comply with an instruction mentioned in subsection (1), or otherwise misbehaves, the chief executive may discipline the child.
  3. (3)
    The chief executive must ensure the misbehaviour is disciplined in a way that—
    1. respects the child’s dignity;  and
    2. has regard to—
  1. (i)
    the nature of the misbehaviour;  and
  1. (ii)
    the reason, if any, given by the child for the misbehaviour;  and
  1. (iii)
    the child’s age and maturity;  and
  1. (iv)
    the child’s cultural background or beliefs;  and
  1. (v)
    any trauma experienced by the child that the chief executive knows about and believes may have contributed to the misbehaviour;  and
  1. (vi)
    any vulnerability of the child that the chief executive knows about.
  1. (4)
    The chief executive must not use, as a way of disciplining the child—
    1. corporal punishment;  or
    2. physical contact;  or
    3. an act that involves humiliation, physical abuse, emotional abuse or sustained verbal abuse;  or
    4. deprivation of sleep, food or visitors;  or
    5. withholding letters or other mail sent to or from the child;  or
    6. withholding access to a telephone or other means of communication;  or
    7. exclusion from cultural, educational or vocational programs;  or
    8. medication or deprivation of medication.
  2. (5)
    A detention centre employee may use reasonable force to protect a child, or other persons or property in the centre, from the consequences of a child’s misbehaviour if—
  1. (a)
    the employee has successfully completed physical intervention training approved by the chief executive;  and
  2. (b)
    the employee reasonably believes the child, person or property cannot be protected in another way.
  1. (6)
    If a detention centre employee uses forces mentioned in subsection (5) the chief executive must ensure a record is made of the use of the force.
  1. [23]
    Senior Constable GW gave evidence of undertaking training on 4 September 2020 (the day before the events the subject of this indictment) (T1-10 ll 21-28; T1-21 ll 1-46). The witness GW did not undertake physical intervention training (T1-21 ll 32-33). He gave evidence that he was told that if a youth worker said he could use force, then he could get approval retrospectively (T1-21 ll 35 36).
  1. [24]
    Senior Constable DK gave evidence of receiving training via a “Teams meeting” (I infer a Microsoft Teams online process) the day before the incident (i.e., 4 September 2020) for two or three hours (T1-28 ll 6-7). After some to-ing and fro-ing in cross-examination, Senior Constable DK was asked:

What training, if any, did you receive in relation to physical intervention training?

To which he replied:

I don’t recall any training, as I’ve said. (T1-33 ll 19-20). 

  1. [25]
    There was no evidence from Senior Constable KR in respect of her training.
  1. [26]
    In my view, the evidence clearly demonstrates that neither of the complainants Senior Constable GW nor Senior Constable DK had “successfully completed physical intervention training approved by the chief executive” (YJR r.16(5)(a)), or at the very least, there is simply no evidence before me that either of them has completed any such training.
  1. [27]
    It follows that neither Senior Constable GW nor Senior Constable DK were entitled to use “reasonable force” in dealing with the defendant. I conclude then, in respect of counts 2 and 3, relating to the physical interactions between Senior Constable GW and Senior Constable DK, and the defendant, in the defendant’s cell, that there is no evidence that Senior Constable DK was “performing a duty imposed by law” in respect of count 2, nor that Senior Constable GW was “performing a duty imposed by law” in respect of count 3.
  1. [28]
    It follows that, in respect of issue 3, neither of those complainants had an entitlement to use the force that they clearly used during the course of the matters relating to each of count 2 and 3.
  1. [29]
    Count 1 relates to the interaction between the defendant and Senior Constable DK in the common area.
  1. [30]
    In evidence-in-chief, Senior Constable DK described the event in these terms:

So I was positioned – there’s a kitchenette, sort of in the centre of the exercise area.  I was on one side of that.  The defendant’s come around, sort of, like, bouncing side to side – what I would describe as kind of like shadowboxing.  He’s made a sudden movement with one of his hands, I thought he was going to take a strike at me;  he didn’t.  But I’ve directed him back to his cell, he’s then refused and then run around the exercise yard and then got under a ping-pong table that’s in the centre.  At that time, one of the BYD staff, CM, came back in, she gave him an official direction that they issue.  And as he’s gone to come out he said, “I’m going to thong you.”  He took his thong off his foot and then hit me with the thong.  I’ve then taken him by the arm and sort of tried to walk him back to his cell.  He’s resisted, thrashing, he was kicking, he kicked me in the shins a few times as I was trying to shut the door, throwing punches and then I must – managed to shut the door. (T1-29 ll 9-21).

  1. [31]
    In cross-examination, Senior Constable DK gave the following evidence:

Q:  Well, I would suggest what happened is my client gestured like he was going to hit you with a thong but didn’t actually hit you with the thong before getting to the entry to the cell? ---Yeah. I would say that is fair.

Q:  I would suggest my client was being jovial, playing with you, joking around when he had the thong in the hand? ---Well, he had already told me he was going to hit me, so I don’t believe that was a joke.

Q:  So you didn’t take it as a joke? ---No.

Q:  All right.  I would suggest he was joking with you at the time;  what do you say?  ---I don’t accept that.

Q:  Now, in relation to the movement towards the cell and the first interaction, I suggest that you didn’t need to use physical force to have my client go into the cell the first time;  do you accept that? ---No.

Q:  Why did you need to use physical force? ---Because he was not compliant with any of the direction and then he’d…

Q:  Which directions? ---Of the detention centre work (sic) would give him a direction to return to his cell.  (T1-37 ll 24-45).

  1. [32]
    What is clear from that evidence is that:
  1. (1)
    On reviewing the video, there was no hit of Senior Constable DK with the thong before the defendant entered the entry of the cell;  and
  2. (2)
    The complainant, Senior Constable DK, used physical force to move the defendant towards and into his cell.
  1. [33]
    As I have just identified in the discussion in respect of counts 2 and 3, Senior Constable DK had not completed the training required pursuant to YJR r.16(5) and, I conclude, was consequently not entitled to use “reasonable force” in dealing with the defendant, in moving him to his cell. It follows, as with counts 2 and 3, that Senior Constable DK was not “performing a duty imposed by law” in respect of count 1.
  1. [34]
    I should note, for completeness, that there was no evidence from the person identified by the complainants Senior Constable DK and Senior Constable GW as CM, whom they described as a youth detention centre worker; no evidence as to her appointment or role; no evidence as to her compliance or otherwise with YJR r.16(5); nor any evidence or other legal basis submitted for her to be able to give directions to non-qualified persons to use “reasonable force”; nor for any basis for any such direction to receive retrospective approval. I note also in passing that there appears to be another person, presumably a youth detention worker who appears in respect of the matters relevant to count 4, who is unnamed and who has not given evidence.

Separation or segregation of the defendant

  1. [35]
    Count 4, although similarly charged to counts 1, 2 and 3 (and relating to the complainant Senior Constable KR) requires consideration of a separate issue. Senior Constable KR gave evidence-in-chief as follows:

Q:  Now, on the – what happened on the 5th of September 2021?  ---Yes.  So I was working in the Paperbark Unit in the Youth Detention Centre.  It had two wings, wing A and wing B.  At about 2 pm on that date, the – we – there was a decision made to remove the – to remove the young person from his cell into another cell, which we called the time-out cell, for his previous behaviour.  And at that point, we made the decision to go in there.  Two other officers I was working with at that time entered.  Same with a youth detention centre worker I was working with on the day, and I was tasked to hold the door open between the cell and – between the – where he was and where the time-out cell was. 

Q:  All right.  So at any point, did you go into his cell or his room? ---No. 

Q:  Okay.  When did you – or what happened when they came out? ---Yes.  So the – when they came out, he was still struggling with two BRIS – the detention centre workers.  I was still holding the door, and he’s – as he’s walked past, he’s then spat on me.

Q:  Okay.  And where did that land? ---It’s – it – I was – because of COVID at the time, we were wearing gowns and facemasks.  So it landed – landed on the gown, sort of on the bottom right, sort of where my right thigh would be. (T1-42 l 45 – T1-43 l 17).

  1. [36]
    In cross-examination, Senior Constable KR accepted that the defendant spat down, to her right, and it got her on the base of her gown:

Q: All right.  And it was being used as a way to discipline him for acting up, effectively, wasn’t it? ---So that wasn’t my decision at the time.  But they said due to his behaviour previously the decision was made by the youth detention centre worker to put him in that cell. 

Q:  But instead, he spat to the right bottom area of where you were standing? ---Yes. (T1-44 ll 16-19;  T1-45 l 16)

  1. [37]
    The power to separate a child in a locked room arises pursuant to YJR r.21(1)(a), which relevantly provides:
  1. (1)
    A detention centre employee may separate a child in a locked room in a detention centre only:
    1. if the child is ill;  or
    2. at the child’s request;  or
    3. for routine security purposes under a direction issued by the chief executive;  or
    4. for the child’s protection or the protection of another person or property;  or
    5. to restore order in the detention centre.
  1. [38]
    There is no evidence, whether from CM or any other youth detention centre employee, in respect of count 4.
  1. [39]
    Senior Constable GW gave evidence that is relevant as follows (it’s relevant to note that he was being cross-examined about the use of segregation for children and the rules, and then, after identifying the matters the subject of count 4, the following exchange occurred in cross-examination):

Q: Is that the only time [a reference to the defendant being placed in the time out cell]?As far as I’m aware, yes. 

Q: And it’s the case, isn’t it, that my client was being disciplined to be put in a box or the time out cell, wasn’t it? My understanding is that because there was water thrown on an electrical, that would cause – or potentially, expose the defendant to significant harm of electrocution.  So the cell would no longer be a safe environment for him to be in, and removing him and placing him into that cell for the time being…

Q: Do you understand?  …would prevent him from being electrocuted. (T1-22 LL34-41)

  1. [40]
    The cross-examination proceeded further:

Q: Do you understand the lawful obligation that you’re required to comply with when you’re looking to segregate a child?  ---I don’t recall – I don’t understand what you’re asking, sorry.

Q: So if you’re going to isolate a child, I’m asking you what the lawful requirements – that exist for you to do that? ---When I was at the youth detention centre, I was working under another youth worker.  So I was working – I was being directed to do duties, and I was relying on that direction considering that was their sole job.

Q:  So you, really, have no understanding whatsoever in relation to…?   ---No, I don’t.

Q: …what needs to happen? ---No.

Q: Because what I’m asking you, effectively, is this child was about to be isolated or segregated, wasn’t he? ---Yes.

Q: And what I’m asking you is what’s your understanding of what needs to happen to make that a lawful process.  If you’re going to isolate a child, I’m just asking you, to your understanding, what needs to happen, and is it the case that you just don’t know? ---Correct.

Q: Do you know about any approval processes that need to take place before a child can be segregated? ---No.  (T-23 ll 1-23)

  1. [41]
    Senior Constable DK gave evidence on this issue as follows:

Q:  All right.  Now, the second incident.  My client was being moved into – separated as discipline, wasn’t he? ---Yes, due to the unrest of the other prisoners.

Q:  All right.  Now, what’s your understanding of the lawful basis of disciplining a child [sic] by way of separation? --- I’ve got no idea. (T1-39 ll 8-12)

  1. [42]
    Senior Constable KR gave evidence on this issue as follows:

Q:  All right. And it was being used as a way to discipline him for acting up, effectively, wasn’t it? ---So that wasn’t my decision at the time.  But they said due to his behaviour previously the decision was made by the youth detention centre worker to put him in that cell. (T1-44 ll 16-19)

  1. [43]
    What flows from that evidence, is that the separation of the defendant to the locked room, the door of which was being held open by Senior Constable KR, as the evidence stands in this trial, was not for one of the purposes set out in YJR r.21(1)(a)-(e). Although such evidence may exist, it was not called in this trial.
  1. [44]
    It follows that Senior Constable KR was, consequently, at the time of the spitting, not “performing a duty imposed by law”.
  1. [45]
    The discussion deals then with each of issue (3), the entitlement to use force during the relevant incidents by Senior Constables GW and DK, and; issue (4), the basis for any of those persons to be involve in the separation or segregation of the defendant pursuant to YJR r.21.

Conclusion 

  1. [46]
    What follows from my reasoning identified above, is that in respect of each of counts 1, 2, 3 and 4, for different reasons in respect of count 1, counts 2 and 3 considered together, and count 4, the essential element of “performing a duty imposed by law” fails.
  1. [47]
    It is not a case in which the evidence in respect of that element might be considered to be weak, vague or tenuous – it is a situation where there is simply no evidence to sustain that element for the reasons I’ve identified, in respect of each of counts 1, 2, 3 and 4.
  1. [48]
    It follows, given how the counts have been framed and how the Crown has chosen to litigate these proceedings, that the “no case” application should be granted.
  1. [49]
    I find that there is no case to answer in respect of each of counts 1, 2, 3 and 4, and conclude that the defendant should be found “not guilty” in respect of each of each count.

Orders

  1. [50]
    I make the follow orders:
  1. (1)
    Application for no case to answer granted in respect of each of counts 1, 2, 3 and 4. 
  2. (2)
    The defendant is found “not guilty” in respect of each of counts 1, 2, 3 and 4. 
  3. (3)
    The defendant is discharged in respect of counts 1, 2, 3 and 4 on indictment CCJ 273 of 2021. 
  1. [51]
    I order that the exhibits be returned to the Crown.
Close

Editorial Notes

  • Published Case Name:

    R v WEB

  • Shortened Case Name:

    R v WEB

  • MNC:

    [2021] QCHC 44

  • Court:

    QChC

  • Judge(s):

    Dearden DCJ

  • Date:

    01 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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