The Queen v Elliott[2020] QDC 243

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In August 2019 the defendant was involved in an altercation with two police officers at her home at Stafford. She was suspected of drink driving earlier that day and when the police officers came to talk to her, she became aggressive and belligerent. When the defendant attempted to walk away from the police, a physical struggle occurred. It is alleged that during the struggle the defendant bit the complainant police officer on the thigh. As a result, the defendant faced trial on an indictment alleging a single offence of serious assault of a police officer with the circumstance of aggravation that the assault was constituted by biting the police officer. Pursuant to an order made on 22 June 2020, I heard the trial sitting alone without a jury. At the beginning of the trial the defendant pled that she was not guilty. It is my role to decide, based upon the evidence, whether she is guilty or not guilty.

The charge and what is in dispute

2. [2]
   The charge alleged:

that on the twenty-fourth day of August, 2019 at Stafford Heights … THERESA LUAL ELLIOTT assaulted MARK KENNETH JOHNSON, a police officer, while MARK KENNETH JOHNSON was acting in the execution of his duty

and THERESA LUAL ELLIOT bit the said police officer.

3. [3]
   The alleged offence is contrary to section 340 of the Criminal Code (Qld) (‘the Code’). To prove the defendant is guilty the prosecution must prove, beyond reasonable doubt, the elements of the offence. That is, the prosecution must prove:

1. The defendant assaulted the complainant, the applicable definition of assault being that contained in section 245 of the Code;
2. The complainant was a police officer;
3. The complainant was acting in the execution of his duty when he was assaulted; and
4. The assault was constituted by the defendant biting the complainant.

4. [4]
   The only matter not in dispute in the trial was that the complainant was a police officer. While it was clear that the complainant suffered an injury as a result of contact between the defendant’s teeth and his thigh, the defendant did not admit that she deliberately applied force to the complainant so as to constitute an assault. Her evidence presented the possibility that the contact between her teeth and the complainant’s leg was the result of her head being pushed by the complainant. It followed from this that the defendant also disputed that she ‘bit’ the complainant. As well, the defendant submitted that the complainant police officer was acting outside of the ambit of his duty at the time, such that he was not acting in its execution. Each of these matters is considered below.

Legal principles

5. [5]
   In this trial I must apply, so far as is practicable, the same principles that would apply in a trial by jury.^[1] I must take into account any warning or direction that would be given if a jury were deciding this trial.^[2] I must set out my findings of fact and the legal principles I have applied so as to arrive at my verdict.^[3]
6. [6]
   The essential legal principles relevant to a trial by judge alone were summarised by Neild AJ in R v Mulcahy^[4] and they have been adopted in this court.^[5] Many of these principles are common sense and familiar, but they bear repeating as it is through the application of these principles that it can be ensured the defendant receives a fair trial according to law.
7. [7]
   The prosecution bears the onus to prove the guilt of the defendant. The defendant does not have to prove that she did not commit that offence. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The defendant cannot be found to be guilty of the offence unless the evidence I accept satisfies me beyond reasonable doubt of her guilt. If the evidence I accept fails to satisfy me beyond reasonable doubt of her guilt, then she remains presumed to be innocent and the appropriate verdict would be not guilty. Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the ‘balance of probabilities’. That is, the case must be proved to be more likely than not. In a criminal trial, the standard of satisfaction is much higher.^[6]
8. [8]
   The prosecution need only to prove the elements of the alleged offence beyond reasonable doubt. There is no other matter in dispute in this trial of such significance as to require that matter also be proved beyond reasonable doubt. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill will.
9. [9]
   I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally. I may use my common sense, individual experience and wisdom, in assessing the evidence given by the witnesses. I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what the witness has said if I consider it unworthy of acceptance.
10. [10]
    I am permitted to draw inferences from facts I find to have been proved. However, I may only draw reasonable inferences; and there must be a logical and rational connection between the facts I find and my deductions or conclusions. I am not to indulge in intuition or in guessing.
11. [11]
    In addition to these general principles there are specific matters relevant to this trial. One witness, Dr Herron, gave evidence over the telephone. His evidence included some opinion evidence and the parties appeared to proceed on the basis that he was an ‘expert witness’ as that term is used in section 39PB of the Evidence Act 1977 (Qld). As such I do not ‘give [his] evidence any more or less weight, or draw any adverse inferences against a party to the proceeding, only because [he] on gave the evidence by audio visual link or audio link’.^[7] I am entitled to scrutinise, and I am not obliged to accept, the evidence of Dr Herron. But where, as here, there was no real challenge to his opinion I should not reject his evidence unless the matters on which it is based have not been proved, or I consider that there is other evidence which casts doubt on his view.^[8]
12. [12]
    Part of the evidence was an audio recording made by the complainant police officer at the time of the events. The defendant admitted that she was one of the voices that can be heard in this recording. I was provided with a transcript of the recording. I am conscious that the transcript is not itself evidence, the evidence being the sounds I heard on the recording.^[9]
13. [13]
    In this case the defendant gave evidence. By doing so she did not assume any burden to prove any matter. The onus of proving her guilt remained with the prosecution. I do not have to accept the evidence of the defendant before I could find her not guilty. The critical question is always whether I am satisfied, beyond reasonable doubt, of the guilt of the defendant based upon evidence that I do accept. If, after considering all of the evidence, including that of the defendant, I am left with a reasonable doubt about an element or elements of the offence I must find the defendant not guilty.^[10]

Evidence in the prosecution case

Constable Mark Johnson

14. [14]
    Constable Johnson said that on the evening of 23 August 2019 he was working with Sergeant Finch when they were asked by police communications to attend an address in Stafford. The information given to Constable Johnson was that a vehicle had collided with a pole and there was a woman on the road screaming for help. The two police officers ended up at the defendant’s house in Stafford where they spoke to her adult daughter, who told police the defendant was heavily intoxicated and had been driving. The two police officers left to look for the defendant.
15. [15]
    About an hour later they returned to the defendant’s house. Upon arrival Constable Johnson noticed a car parked in the driveway. There was damage to the front of the car as shown in Exhibit 1. The defendant was standing in or near the driveway. Constable Johnson attempted to activate his body worn camera but the battery was flat. Instead he activated the audio recording function on this telephone. He did this within ten to 20 seconds of arriving. Constable Johnson said he ‘reasonably suspected’ the defendant had been driving the car in the driveway and wanted her to perform a breath test. His suspicion was based upon the information he had received from police communications and the defendant’s daughter.
16. [16]
    The defendant’s behaviour was erratic and aggressive. She appeared intoxicated and would not answer directly when Constable Johnson asked her if she had been driving. The defendant began to walk away and Constable Johnson put a hand on her, said his name, rank and police station, and said that she was detained. He thought he was acting pursuant to section 80 of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM’). The defendant flailed her arms around. Constable Johnson was concerned she would assault he or Sergeant Finch. They tried to put her in handcuffs but as she reached the stairs the defendant grabbed onto the railing. Constable Johnson was concerned ‘she was attempting to escape custody or escape us being able to perform a breath test’.^[11]
17. [17]
    The two police forcibly removed the defendant’s hands from the railing, put her arms behind her back and put her in handcuffs.^[12] Once she was handcuffed the defendant was lying face down on the stairs. Constable Johnson was higher on the stairs near the defendant’s head and Sergeant Finch below the defendant near her legs and feet. Constable Johnson was kneeling. The defendant tried to move her head toward Constable Johnson, so he put his right hand on the rear of her neck to prevent her turning. She appeared to calm down somewhat and he removed his hand. Constable Johnson felt a sharp pain and looked down to see the defendant biting his thigh. He saw ‘her mouth was attached to my right thigh and her head was leaning towards my body with her face facing me.’^[13] He pushed her head from his thigh as she was still biting.
18. [18]
    Constable Johnson’s evidence was that he screamed out, ‘You just bit me,’ and the defendant responded by saying she could not help it as she was being held by the neck.^[14] He said he used a moderate amount of force or a ‘firm hand’ on the rear of the defendant’s neck but was not applying pressure when he was bitten. He guessed his hand had been off the defendant’s neck for maybe 30 seconds before he was bitten by the defendant. The two police kept the defendant restrained until more police arrived and she was taken away. Constable Johnson identified photographs showing marks to the trousers he was wearing and the injury he said was produced by the defendant’s bite.
19. [19]
    Constable Johnson’s evidence that the defendant had calmed before he was bitten was challenged in cross-examination. After listening to some of the audio recording Constable Johnson maintained that she ‘settled down slightly’ in her physical behaviour, if not her speech.^[15] Constable Johnson confirmed the defendant was handcuffed before she bit him and identified a point in the audio recording when he said the handcuffs were first applied. He rejected the suggestion that when the defendant walked away toward the stairs he tackled her onto the stairs. He denied that after restraining the defendant on the stairs he forced her head into his thigh with such pressure she had difficulty breathing.

The audio recording

20. [20]
    The recording starts with the defendant seemingly apologising for being ‘dramatic’. She is voluble and perhaps agitated but at this early stage does not sound aggressive. Less than a minute and a half into the recording the defendant loudly asks the police what she did wrong. Constable Johnson asked the defendant to calm down, identified himself as a police officer and explained that the police had received reports the defendant had been driving while drunk.^[16]
21. [21]
    The defendant then became loudly aggressive. She demanded to know if the police were going to arrest her. She was told to put her hands down and not to act in a threatening way. A little more than two minutes into the recording the defendant said, ‘I’m trying to calm down, ‘cause I haven’t had my meds and I told you that … like fucking ten minutes ago.’ I pause to note that on the evidence of the police officers there was no possibility that the defendant mentioned her medication ten minutes earlier – they had only been talking to the defendant for a few minutes by this stage. The defendant swore and yelled. When she was cautioned against swearing in public she screamed, ‘I’m on my property.’ Constable Johnson warned the defendant she would be arrested for public nuisance if she continued swearing. The defendant continued to yell, scream and swear while demanding her ‘meds’.
22. [22]
    Constable Johnson asked the defendant, ‘Were you driving the car?’ By this point the defendant was completely uncooperative. The following exchange occurred (I have added some notations in brackets):

CON JOHNSON:  Were you driving the car?

ELLIOTT:  I don’t know. I need my meds, please.

CON JOHNSON:  When we ---

ELLIOTT:  I am pleading. (Said loudly talking over the police officer.)

CON JOHNSON:  Stop, talking over me.

ELLIOTT:  Don’t fucking --- (Defendant yelling.)

CON JOHNSON:  Were you ---

ELLIOTT:  --- point you finger in my face.^[17]

CON JOHNSON:  Were you driving this car or not?

ELLIOTT:  I don’t know. You tell me. Apparently you’re telling me something. I’m telling you that I’m pleading with you. Do you want me to get down on my knees? I need my meds hours ago, okay?

CON JOHNSON:  Whats ---

ELLIOTT:  Do I need an injection?

CON JOHNSON:  What’s the damage to the front of the car?

ELLIOTT:  I don’t know. You tell me. Give me my meds.

CON JOHNSON:  It looks like you’ve hit a pole.

ELLIOTT:  Oh, me hit a pole? Don’t fucking ---

CON JOHNSON:  Stay here.

ELLIOTT:  Don’t fucking touch me. (Yelling.)

23. [23]
    It is apparent that this is the point at which the defendant walked away from the police, going toward the stairs leading into the house. Constable Johnson told the defendant she was detained. It is at this point, according to Constable Johnson’s evidence, that he put a hand on the defendant’s back and she started flailing her arms. It is at this point the defendant becomes almost completely irrational. Her behaviour was such as to prompt her daughter to say, ‘Stop it Mum.’^[18] The words spoken and noises made by the defendant from this point could be described as incoherent screaming. It is apparent to me, and must have been apparent to anyone present during this tirade, that there was no chance at all of the defendant cooperating with the police.

Sergeant Mark Finch

24. [24]
    Sergeant Finch was with Constable Johnson. He recalled it was close to 11.00 pm when they were first asked to go to Stafford and found themselves talking to the defendant’s daughter. He described leaving to look for the defendant before being diverted on a more urgent task. When the police officers returned to the defendant’s house Sergeant Finch saw a blue car in the driveway and the defendant nearby. She was having a bit of an argument with her daughter. Constable Johnson started the audio recording and began talking to the defendant. She tried to walk away up a set of stairs. Constable Johnson told her she was detained and struggle followed. The defendant grabbed the handrail and resisted the police. She was doing so quite violently. The police removed the defendant’s hands from the railing and put her in handcuffs. The defendant was face down on the stairs with Constable Johnson on the stairs above her. The defendant was still struggling and Constable Johnson used his hand on her shoulders, head and neck to keep her down. Sergeant Finch was holding the defendant’s legs. He heard Constable Johnson say he had been bitten but did not witness the bite.
25. [25]
    In cross-examination Sergeant Finch said that the defendant did not stop struggling between her grabbing the handrail and Constable Johnson saying he had been bitten. When asked about the defendant being handcuffed he said only one hand was cuffed at first with the other following later.

Dr Craig Herron

26. [26]
    Dr Herron is a general practitioner who works in the emergency department at St Andrews Hospital. He saw the complainant at the hospital and noted the injury shown in the tendered photographs. He thought the injury looked consistent with being a bite. The skin had been broken to some extent which caused Dr Herron to think a significant degree of force had been used. He thought an injury of this kind ‘required an active closing of the jaw, a bite.’^[19]

The defendant’s evidence

27. [27]
    The defendant’s evidence commenced at the point in the evening when Constable Johnson and Sergeant Finch arrived at the house for a second time. The defendant said she was on the driveway out the front of the house when they arrived. Early in her evidence the defendant described her recollection of the evening as ‘pretty hazy’. She said the two officers approached her on the driveway. She remembered one of the officers pointing a finger in her face and the next thing she remembered was being tackled on the stairs. The defendant testified that early in her conversation with police she told them that she wanted to go inside, explaining to the police she was wearing a dress with no underwear. It was not suggested to the police officers this conversation occurred and is not contained in the recording that Constable Johnson said he began almost as soon as he arrived.
28. [28]
    The defendant went on to say that after being tackled on the stairs she found her head trapped in Constable Johnson’s lap. She said she was being very forcefully held down by the back of her head, her neck and shoulders. She felt she could not breathe and explained the sensation she experienced as ‘suffocating’. At this time the defendant continued to scream out for her medication. Her head was pushed into Constable Johnson’s leg, but she did not recall biting him. She could not recall at which point she was handcuffed.
29. [29]
    In cross-examination the defendant denied intentionally biting Constable Johnson but acknowledged she had not memory of this part of the events. She agreed she was angry with her daughter. When it was suggested that the defendant was ‘pretty angry’ she said she was very upset having recently experienced a miscarriage and being on the verge of what she described as a ‘breakdown’. She said that when the police officer pointed a finger at her on the driveway, she felt attacked. It was apparent that the defendant could not recall substantial parts of that evening. She could not recall how the officer went from tackling her to being in front of her on the stairs. She could not explain why she had not taken her medication earlier in the evening. At one stage she seemed to suggest it may have been because she wanted to be able to drive her daughter to work and the medication made her drowsy.
30. [30]
    The defendant said that earlier in the evening she had left the house and when she returned, she was wearing different clothing and no underwear. She had no memory of what happened when she was away from the house. Before the police arrived and spoke to her the defendant had drunk a bottle and a half of Moscato. In re-examination it was put to the complainant, without objection, that she was breathalysed that night and had a blood alcohol concentration of 0.039%.
31. [31]
    I consider the defendant’s evidence completely unreliable. As she acknowledged, there are large gaps in her memory of the day. Those parts of the events she did recall were remembered by the defendant in a way that is inconsistent the audio recording. The defendant portrayed herself in evidence as if she were attacked by the police when all she wanted was to obtain her medication. The audio recording presents a starkly different picture. As already noted, the defendant is vocal and belligerent to an alarming degree. I do not think anything the defendant said represents an accurate description of what actually occurred between her and the police. That is, much of what she said appeared to me to be reconstructed rather than a genuine recollection.
32. [32]
    Because I do not accept what the defendant said it is necessary to consider the remaining evidence to decide if, on evidence that I do accept, the prosecution have proven the guilt of the defendant.

Consideration and factual findings

The defendant deliberately bit Constable Johnson

33. [33]
    I am satisfied from the evidence of the prosecution witnesses that the defendant deliberately bit the complainant. First, I accept Constable Johnson’s evidence that he saw the defendant actually biting him on the thigh. His account was in mind plausible and reliable. The fact that he appears to be wrong about the defendant calming down for a period before he was bitten is not a matter that makes me doubt the rest of his evidence. It is unsurprising that when recalling events like this there will be a degree of confusion. Constable Johnson said that the defendant calmed for ‘maybe 30 seconds’. That is contradicted by the audio recording. But experience shows that time estimates in a situation like this are notoriously inaccurate. The inconsistency between Constable Johnson’s evidence and other evidence does not cause me to think his evidence is unreliable, much less dishonest. His account is otherwise largely consistent with what I heard on the audio recording and the testimony of Sergeant Finch.
34. [34]
    Secondly, the evidence of Dr Herron provides some support for a conclusion there was a deliberate biting. It seems very unlikely that the defendant’s head could be pushed with enough force to cause the injury shown in the photographs and described by Dr Herron, especially when Constable Johnson was wearing trousers. It was Dr Herron’s opinion that the injury he observed was caused by the closing of the jaw on the complainant’s leg, rather than just the mouth of the defendant coming into contact with the leg. This opinion accords with common sense and was accepted by the defendant in closing address.
35. [35]
    Thirdly, the conclusion that the defendant deliberately bit Constable Johnson fits comfortably with the behaviour of the defendant at the time of these events as shown in the audio recording. Immediately before, during, and after, the bite the defendant was extremely aggressive and bellicose. She was angry with her daughter and clearly angry and uncooperative with the police. The sounds she was making immediately before the complainant said he had been bitten were close to incoherent. This behaviour points toward a conclusion that the defendant, in anger or retaliation, bit Constable Johnson after she was restrained on the staircase.
36. [36]
    I am satisfied beyond reasonable doubt that the defendant assaulted the complainant and that the assault was constituted by her biting him on the leg.

Constable Johnson was acting in the execution of his duty

37. [37]
    The defendant submitted I would conclude that when the defendant bit Constable Johnson, he was applying pressure to the back of her neck. This was not said to give rise to any issue of unwilled acts^[20] or emergency,^[21] but was said to represent ‘excessive’ force such that Constable Johnson was not acting in the execution of his duty at the point when he was assaulted. Adopting the language of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’), he used more than ‘reasonably necessary force’^[22] and was therefore acting outside of the ambit of his duty.
38. [38]
    As well the defendant argued that in the circumstance the police were not authorised to use any force against the defendant. It is convenient to commence with this proposition then deal with the question of the degree of force used.
39. [39]
    The argument of the defendant focussed upon Constable Johnson’s evidence that he had section 80 of TORUM in mind when he acted to detain the defendant as she walked away. The defendant submitted that to the extent this provision authorises the use of force by a police officer, it was not engaged during the altercation with the defendant. The argument proceeded, wrongly in my view, upon an assumption that if Constable Johnson thought he was authorised by section 80, that is the only provision to consider and it does not matter if, on the facts as I find them to be, he was authorised to use force by some other provision.
40. [40]
    Section 80 of TORUM is a very lengthy provision. Relevantly, it provides:

80 Breath and saliva tests, and analysis and laboratory tests

…

1. (2)
   Request for specimen of breath or saliva

A police officer may require any person found by the officer or who the officer reasonably suspects was during the last preceding 3 hours—

1. (a)
   driving a motor vehicle, tram or train on a road or elsewhere; or
2. (b)
   attempting to put in motion a motor vehicle, tram or train on a road or elsewhere; or
3. (c)
   in charge of a motor vehicle, tram or train on a road or elsewhere; or
4. (ca)
   otherwise operating, or interfering with the operation of, a motor vehicle dangerously on a road or elsewhere; or
5. (d)
   driving or in charge of or attempting to put in motion a vessel being used or apparently about to be used in navigation;

to provide a specimen of breath for a breath test by the person, a specimen of saliva for a saliva test by the person, or both.

…

1. (3)
   Time and place for provision of specimen

A police officer who is exercising a power conferred on the officer by subsection (2) or (2A) may require the person in question to provide the specimen of breath or saliva—

1. (a)
   at the time when and the place where the police officer makes the requirement including at any police station where the person may then be; or
2. (b)
   at the police station nearest to that place or at some other police station conveniently located as soon as practicable after the police officer makes the requirement if the police officer believes on reasonable grounds that it is reasonable for such person to be taken to a police station for the purpose, having regard to the circumstances of the case; or
3. (c)
   without limiting paragraph (b) , as soon as practicable after the police officer makes the requirement, at a place at which the police officer believes on reasonable grounds there is located a device that the police officer may use for carrying out a breath test or saliva test if the police officer does not have a device for the relevant test with him or her.

…

1. (5)
   Forcible taking of person to police station or other place

If a person required by a police officer under subsection (2) or (2A) to provide at a police station or other place a specimen of breath for a breath test, or of saliva for a saliva test, by the person fails to go voluntarily to the police station or other place for that purpose, any police officer, using such force as is necessary, may take the person to the police station or, as the case may be, other place for that purpose.

…

1. (8)
   Particular persons under arrest or detained may be required to provide specimen

Any person who—

1. (a)
   is arrested for an offence against section 79 or 83; or
2. (b)
   is arrested for any indictable offence in connection with or arising out of the driving of a motor vehicle by the person (including any offence against any provision of the Criminal Code , section 328A ); or
3. (ba)
   is arrested for an offence against the Criminal Code , section 328A in connection with or arising out of the operation, or interference with the operation, of a motor vehicle, other than an offence mentioned in paragraph (b); or
4. (c)
   is, for the purposes of subsections (8) to (8L), detained at or taken to a police station, or detained at or taken to a vehicle or vessel where facilities are available for the analysis by a breath analysing instrument of a specimen of breath or by a saliva analysing instrument of a specimen of saliva, or taken to a hospital or other place authorised under this section;

may, while at a police station, vehicle, vessel, hospital or other place authorised under this section as aforesaid, be required by any police officer to provide 1 or more of the following as any police officer requires—

1. (d)
   a specimen of the person’s breath for analysis by a breath analysing instrument;
2. (e)
   a specimen of the person’s saliva for saliva analysis;
3. (f)
   a specimen of the person’s blood for a laboratory test.

41. [41]
    The defendant argued that subsection (5) authorised the use of force only in circumstances where a person has been required to provide a specimen for analysis and subsequently failed to go voluntarily to the place where the specimen is to be provided. Where, as here, the police officer did not, or even could not because of the actions of the defendant, make the request, the provision was not engaged. On that basis it was said that the police officer was not acting in the exercise of his duty when he restrained the defendant.
42. [42]
    The construction proposed by the defendant appears to give effect to the actual words of the section. Subsections (2) and (3) use the phrase ‘may require’ to speak of some potential future event. Subsection (5) cites a past event when referring to ‘a person required … to provide … a specimen’. On its face the provision requires there to have already been a request or direction to provide a specimen. There may be scope for an argument that the section should be construed with an eye to its apparent purpose – to allow the police to properly and efficiently investigate suspected cases of intoxicated driving. As has been said in the High Court:^[23]

When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

43. [43]
    Such a construction may involve reading section 80 as permitting the use of force where circumstances are such that it is apparent the suspect will not comply with any requirement to provide a specimen. I do not find it necessary to resolve this issue as, for the reasons that follow, I am satisfied the use of force by Constable Johnson was authorised by the PPRA and it does not matter that he may have misidentified the source of his authority.
44. [44]
    In Whitelaw v O'Sullivan, McMurdo P stated:^[24]

The purposes of this Act are clearly and unequivocally stated in it. They are to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law; to provide powers necessary for effective modern policing and law enforcement; to provide consistency in the nature and extent of the powers and responsibilities of police officers; to standardise the way the powers and responsibilities of police officers are to be exercised; to ensure fairness to and protect the rights of persons against whom police officers exercise powers under this Act; and to enable the public to better understand the nature and extent of the powers and responsibilities of police officers. (Footnotes omitted.)

45. [45]
    It would be inconsistent with these purposes to read the Act as requiring a police officer, who might be engaged in dynamic and possibly dangerous events, to precisely and correctly identify the source of their authority to take action. There is certainly no express provision in the Act to this effect and such a construction would produce nonsensical results. It is easy to imagine situations where a police officer is wrong about the source of their authority to take action. A police officer is not a lawyer. Even if they were, lawyers often disagree about the nature and extent of the powers contained in the PPRA, as the decision in Whitelaw itself demonstrates. If there is a question to be decided about the authority or power of a police officer, it is to be decided by applying relevant legislation to the facts as they are found to be. The subjective state of mind of the police officer may be relevant to, or even determinative of, this question; but the mere identification by the police officer of a source of power does not limit or restrict the enquiry to be made only to that source.
46. [46]
    Were the actions of Constable Johnson authorised by legislation other than section 80 of TORUM? Section 365 of the PPRA provides:

365 Arrest without warrant

1. (1)
   It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—

1. (a)
   to prevent the continuation or repetition of an offence or the commission of another offence;
2. (b)
   to make inquiries to establish the person’s identity;
3. (c)
   to ensure the person’s appearance before a court;
4. (d)
   to obtain or preserve evidence relating to the offence;
5. (e)
   to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;
6. (f)
   to prevent the fabrication of evidence;
7. (g)
   to preserve the safety or welfare of any person, including the person arrested;
8. (h)
   to prevent a person fleeing from a police officer or the location of an offence;
9. (i)
   because the offence is an offence against section 790 or 791;
10. (j)
    because the offence is an offence against the Domestic and Family Violence Protection Act 2012, section 177, 178 or 179;
11. (k)
    because of the nature and seriousness of the offence;
12. (l)
    because the offence is—

1. (i)
   an offence against the Corrective Services Act 2006, section 135 (4); or
2. (ii)
   an offence to which the Corrective Services Act 2006, section 136 applies.

47. [47]
    This section gives police the power to arrest a person reasonably suspected of having committed an offence in a wide variety of circumstances. Here Constable Johnson suspected, on reasonable grounds, the defendant had committed an offence. Once the defendant demonstrated her complete lack of cooperation and started to walk away from the police, it was reasonably necessary for the police to arrest her for any one of a number of the reasons listed in the section. What was reasonably necessary is to be determined objectively and does not depend upon a particular state of mind held by the police officer.^[25] Section 615 of the PPRA permitted Constable Johnson to use ‘reasonably necessary force to exercise the power’ of arrest.
48. [48]
    Given the behaviour of the defendant I have no doubt that the force used by Constable Johnson in breaking the defendant’s grip on the rail, handcuffing her and otherwise restraining her was reasonably necessary. Because I consider Constable Johnson’s evidence essentially reliable, I accept that at the time he was bitten he was not applying pressure to the defendant’s neck. But even if he was, this was in my view still within the bounds of reasonably necessary force. The defendant had demonstrated a complete unwillingness to cooperate with the police. She remonstrated with them loudly and belligerently. She flailed her arms when Constable Johnson tried to stop her walking away. She took told of the railing to obstruct the police. In these circumstances the use of force, even force involving pressure to the shoulders or neck, was reasonably necessary.
49. [49]
    There is another matter to consider that was not raised by either party. Section 391 of the PPRA requires a police officer who arrests someone pursuant to section 365 to inform the person, as soon as it is reasonably practicable, they are under arrest and the nature of the offence for which the person is arrested. Toward the end of the audio recording Constable Johnson reminded the defendant ‘I told you before that you were detained, okay? The reason is suspect you were driving that vehicle, so…’ He was then interrupted by the defendant. Earlier the defendant said she had been ‘arrested’, ‘detained’ and was ‘going to the watchhouse’. What occurred was in my view sufficient to comply with section 391. It must have been clear to the defendant that she was in police custody because she was suspected of driving while intoxicated.

Conclusions

50. [50]
    I am satisfied, beyond reasonable doubt, of the following matters. Constable Johnson suspected, on reasonable grounds, the defendant had committed an offence by driving while intoxicated. The defendant was aggressive and uncooperative when police spoke to her. She attempted to leave and go into her house. Constable Johnson acted lawfully when he used force to detain the defendant. The force he used was not more than reasonably necessary given the conduct of the defendant. While being restrained the defendant bit Constable Johnson causing the injury shown in the photographic exhibits.
51. [51]
    It follows that I am satisfied, beyond reasonable doubt, that:

    1. (a)
       the defendant assaulted Constable Johnson;
    2. (b)
       Constable Johnson was at the time a police officer;
    3. (c)
       Constable Johnson was at the time acting in the execution of his duty;
    4. (d)
       The assault was constituted by a bite.
52. [52]
    For these reasons I find the defendant guilty of the charge in the indictment.