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Isitt v The Commissioner of Police[2016] QDC 308

Isitt v The Commissioner of Police[2016] QDC 308



Isitt v The Commissioner of Police [2016] QDC 308












Magistrates Court at Pine Rivers


Ex tempore reasons delivered 25 November 2016




25 November 2016


Smith DCJA


  1. The appeal is allowed.
  2. The conviction is quashed and the appellant is found not guilty.


CRIMINAL LAW- APPEAL- OFFENCE AGAINST THE PERSON- ASSAULT- whether intention to apply force must be proved

CRIMINAL LAW- EXCUSES- Whether Magistrate correctly directed herself as to s 23 of the Criminal Code  

Criminal Code 1899 (Q) ss 23, 245

Justices Act 1886 (Q) s 222

Hall v Fonceca [1983] WAR 309

Murphy v Spencer (2013) 232 A Crim R 74

R v McIver [1928] QJPR 173

R v Taiters ex parte Attorney-General [1997] 1 Qd R 333

Teelow v Commissioner of Police [2009] 2 Qd R 489


D Wells and M Thomas for the appellant

J Bishop for the respondent


Ian Kendrick, Solicitor for the appellant

Office of the Director of Public Prosecutions (Qld) for the respondent

  1. [1]
    This is an appeal against a conviction on one count of serious assault in the Magistrates Court at Pine Rivers on 2 February 2016. The appellant was ordered to be of good behaviour for six months with a recognizance in the sum of $300 with no conviction recorded. The appeal is pursuant to s 222 of the Justices Act 1886 (Qld).  The appeal is by way of re-hearing.  A real review of the evidence must be conducted with due weight accorded to the Magistrate’s decision.  In order to succeed, the appellant must establish legal or factual error (see Teelow v the Commissioner of Police [2009] 2 Qd R 489 at para 4).  The charge against the appellant read:

“That on 21 October 2014 at North Lakes in the State of Queensland, the defendant unlawfully assaulted one Janice Jean Dewar, a person 60 years or more.”

  1. [2]
    The appellant alleges the magistrate erred in finding the appellant guilty of assault in that there was no evidence on which she could have found the appellant intended to make contact with the victim, and she erred in treating mere foreseeability as sufficient to uphold the conviction. The second ground is that the magistrate erred in finding the appellant guilty of serious assault, in that there was no evidence on which she could find the appellant struck, touch, moved, or otherwise applied force of any kind to the victim either directly or indirectly. A further ground argued in argument today was that even if the magistrate was correct in her determination that intention was not required to be proved, Her Honour failed to properly direct herself on the question of accident.
  1. [3]
    The evidence in this trial was heard on the 16 of November 2015. James Nelson, the investigating officer, gave evidence that he made four video files. These were played to the Court below. Exhibit 7, the video of the relevant incident, was played in this Court. The video files have also been reduced to screenshots – Exhibit 6. Exhibit 6 and 7 show that appellant caused a rubber snake to be attached to a fishing line which was then placed on a path along which the complainant was walking. They show the appellant reeling the snake in towards him as the complainant approached the snake. They show the snake to the right-hand side of the complainant and the fishing line and/or snake becoming entangled on the complainant’s legs. The officer also took photographs of the relevant area, which were marked as exhibits.
  1. [4]
    In cross-examination the officer conceded it was hard to determine because, “The snake is attached to a fishing line which is attached to the fishing rod, which may not be clearly visible” (T1-15.15). He conceded the images showed that the complainant trod on the snake (T1-17.10). He conceded it was a situation where she trod on the snake and then got tangled up with the line (T1-17.25). The basis of the prosecution case was that she was tangled up and force was applied to her (T1-20.10).
  1. [5]
    The complainant gave evidence that she was 61 years of age at the time of the alleged offence. She said that on 21 October 2014 at 1.30 pm, she and her husband went in a car to Lake Eldon at North Lakes.  They arrived there at 1.45 pm and walked around the lake to do three laps (T1-32.41).  On the second lap, she felt something get tangled on her legs and when she looked down there was a snake, which frightened her.  It was attached to a fishing line wrapped around her legs.  She ripped it off, and threw it at the appellant who came towards her smiling and she said to him, “You think this is funny?” he said, “Yes, I do,” she said, “Well, I could have hurt myself,” he said, “How?” she said, “I could have fallen over and hurt myself”.  And there was another man also laughing.  She threw the snake, told them to “piss off”, and walked away (T33 lines 15 to 30). In cross examination she disputed the appellant apologised to her (T1-37.17). 
  1. [6]
    Mr Dewar, the complainant’s husband gave evidence that he walked ahead of his wife and he noticed the plastic snake when he got closer. It was reeled in, he got tangled, and he kicked it away (T1-43.5).
  1. [7]
    Defence counsel submitted to the magistrate there was no case to answer. It was submitted a close examination of the video showed the appellant did not strike, touch, move or apply force to the complainant, even indirectly. The situation was the complainant trod on the snake, which was conceded by the officer. By way of reply, the police submitted there was sufficient evidence of assault, submitting there was sufficient evidence of indirect application of force because the actions of the defendant were foreseeable. The magistrate ruled there was a case to answer (T1-52.45).
  1. [8]
    The defence called three witnesses. Drew King gave evidence he knew the appellant and gave evidence it was not unusual to find the appellant with a smile on his face (T1-55.12).
  1. [9]
    The appellant gave evidence he was a disability support worker. As to the incident – the purpose of the snake prank was to place it on a YouTube video to receive a positive reaction. He said that in the videos the snake never touched people concerned, and he never intended any physical contact between the snake and the person concerned (T1-55.25 to 32). By reference to the screenshots, he gave evidence he expected the snake would travel in a straight line ahead when he pulled it and did not foresee the line might get caught up in such a way that the snake would move forward along the path rather than across the path (T1-56.32). He said he assisted the complainant untangle herself from the snake and apologised to her.
  1. [10]
    In cross-examination, he did not agree it was foreseeable that the fishing line would come into contact with the complainant (T1-57). When shown the screenshot, he accepted the snake moved (T1-60.5).
  1. [11]
    JB, a juvenile, was called to give evidence. He was a friend of the appellant’s. He said at no stage was it intended the snake would touch a person (T1-65.10).
  1. [12]
    In final addresses, the defence repeated its submissions this was not an assault, and the prosecution repeated its submissions that it was.
  1. [13]
    The magistrate handed down her decision on 2 February 2016. Her Honour found that the elements of serious assault had been made out. She found that it should have been foreseeable that someone like Ms Dewar would come into contact with the line and/or snake and not only be caught up in it but could have also fallen to the ground. The magistrate found there was an indirect application of force.
  1. [14]
    Importantly, the magistrate accepted that there was no intention on the part of the appellant to apply force to the complainant (pp 2.17 and 3.5). But despite this, found it was foreseeable that it would happen.
  1. [15]
    The appellant submits that intention is an element of assault and foreseeability is not and the appellant should not have been convicted on the basis of more foreseeability. It was submitted that the appellant, on the evidence, did not indirectly strike, touch, move or otherwise apply force to the complainant.
  1. [16]
    The respondent originally submitted in written submissions that intention was not an element of the offence, but after considering the defence authorities, concedes that it is. The respondent submits that there was evidence upon which it could be inferred that there was such an intention. That is true. But of course the difficulty with that is the magistrate found to the contrary, as she was entitled to.
  1. [17]
    I note the case was not brought on the basis of criminal negligence.
  1. [18]
    Section 245 of the Criminal Code 1899 (Qld) relevantly provides:

“A person who strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without the other person’s consent…is said to assault that other person, and the act is called an assault.”

  1. [19]
    In R v McIver [1928] QJPR 173, Macrossan SPJ held that, “Assault implies intention”.  The report does not greatly assist otherwise with this point. 
  1. [20]
    In Murphy v Spencer (2013) 232 A Crim R 74, Corboy J of the Western Australian Supreme Court held, at paragraph 35:

“In my view, the offence of assault incorporates an element of intention – a deliberate use of force.  The intentional element of the offence is further discussed later in these reasons.”

  1. [21]
    Then at paragraph 50 His Honour said:

“In Hall v Fonceca [1983] WAR 309 at 314, Smith and Kennedy J held that ‘an intention on the part of the assailant, either to use force or to create apprehension in the complainant, is an element of assault.’

Their Honours noted that Macrossan SPJ apparently had no doubt in R v McIver [1928] QJPR 173 that the relevant intention on the part of the assailant was necessary to constitute an assault under the Code.  They also noted that it was generally accepted that s 222 of the Code adopted the common law as understood at the time that the Code was enacted, and that:

‘At common law, the weight of opinion clearly favours the view that there must be, on the part of the assailant, an intention either to use force or to create an apprehension of the use of force on the part of the person being assaulted.’  It is to be noted that when, as is usually the case, the word assault is used at common law to mean a battery, it simply means an act by which a person              intentionally applies unlawful force to the complainant – the actual intended use of unlawful force to another person without his consent.”

  1. [22]
    And then further, at paragraph 52, His Honour stated:

“Accordingly, I do not propose to further dissect the reasoning in Hall v Fonceca.  I accept and adopt the reasoning to find that the prosecution was required to prove that the appellant intentionally touched the complainant as an element of the offence charged.  I would add, however, that I consider that the reasoning in Hall v Fonceca applies to those provisions of the Criminal Code that make it an offence to commit an assault.  At common law, an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate unlawful violence.  The act must be accompanied by a hostile intent, calculated to cause apprehension in the mind of the complainant – see Archbold Criminal Pleading, Evidence and Practice, 2012.

The element of intent distinguishes an assault from the unintentional contact between persons that is an everyday occurrence.  In my view, the Code imports that element by the very use of the word assault.  It would seem unlikely that it was intended that every application of force within the meaning of s 222 would constitute an offence under, for example, s 324 of the Code, for which the person applying the force would be criminally responsible, unless the provisions of s 23A and/or s 23B applied.  That is not a conclusion that is contrary to the requirement that the Code is to be construed as a statutory instrument.  It merely reflects that the Code is to be interpreted in a particular context - as was recognised by the Full Court in Cox v R and in Hall v Fonceca.

Accordingly, the offence created by s 324 of the Code requires the prosecution to prove beyond a reasonable doubt that the accused intentionally struck or touched the complainant or otherwise applied force of some kind without consent, ‘accompanied with circumstances of indecency.’  An unintentional, accidental touching of a person would not constitute an assault.”

  1. [23]
    His Honour thought it was unnecessary to consider s 23A or s 23B as to criminal responsibility i.e. accident.
  1. [24]
    I consider that the reasoning of Corboy J to be persuasive and correct. I therefore consider that the magistrate erred in finding at the no case stage and later that it was not necessary to establish that there was a deliberate act on the part of the complainant – i.e. intention – and therefore an error occurred in the conduct of this trial. The magistrate specifically found no intention on the part of the appellant. In those circumstances, the appeal should be allowed and the conviction quashed.
  1. [25]
    Even if I am incorrect as to the first ground, it is my respectful view a further error occurred in the conduct of these proceedings. It seems to me the magistrate ought to have specifically considered the provisions of s 23 of the Code. It seems to me the issue of accident was raised by the evidence. The magistrate ought to have specifically considered that excuse and given herself a direction in accordance with the R v Taiters ex parte Attorney-General [1997] 1 Qd R 333 i.e.:

“The Crown is obliged to establish that the accused intended that the evidence in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of accused would reasonably have foreseen the event as a possible outcome.”

  1. [26]
    It is true the magistrate referred to questions of foreseeability, but not in terms of Taiters.  As I read the decision, Her Honour specifically did not mention the requirement of the prosecution to prove that beyond reasonable doubt.  In those circumstances, regardless of my conclusion concerning intention, I would have allowed the appeal on that ground.
  1. [27]
    In conclusion, by reason of the legal errors here, I allow the appeal and quash the conviction. If the only ground of appeal were on the question of accident, the question would be whether there should be a new trial. In my opinion, the prosecution case here was, at best, marginal, the penalty was nominal and the events occurred two years ago now. It would not seem to be in the public interest for the matter to have continued.
  1. [28]
    So, in all of the circumstances, in the exercise of my discretion, I would decline to order a new trial and enter a verdict of not guilty regardless.
  1. [29]
    So my formal orders, then, gentlemen, are one: the appeal is allowed and the conviction is quashed, and secondly the appellant is found not guilty of the charge.

Editorial Notes

  • Published Case Name:

    Isitt v The Commissioner of Police

  • Shortened Case Name:

    Isitt v The Commissioner of Police

  • MNC:

    [2016] QDC 308

  • Court:


  • Judge(s):

    Smith DCJA

  • Date:

    25 Nov 2016

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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