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Taylor v Commissioner of Police[2022] QDC 101

Taylor v Commissioner of Police[2022] QDC 101

DISTRICT COURT OF QUEENSLAND

CITATION:

Taylor v Commissioner of Police [2022] QDC 101

PARTIES:

SUELLEN JAN TAYLOR

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

BD 3224/20

DIVISION:

Criminal

PROCEEDING:

Appeal – Justices Act 1886 (Qld) s 222

ORIGINATING COURT:

Magistrates Court of Queensland at Brisbane

DELIVERED ON:

13 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2022

JUDGE:

Loury QC DCJ

ORDER:

  1. The appeal is allowed;
  2. The conviction is set aside;
  3. The complaint of common assault is dismissed;
  4. I order the respondent pay the appellant’s costs of the trial, in the amount of $1500.

CATCHWORDS:

CRIMINAL LAW – APPEAL – OFFNCES AGAINST THE PERSON – ASSAULT – CONSENT – where the learned Magistrate did not give consideration to whether the prosecution had proved beyond reasonable doubt that the complainant did not consent to the application of force – whether the complainant’s actions before and during the meeting with the appellant suggests that she impliedly gave her consent to the application of force

CRIMINAL LAW – APPEAL – CRIMINAL LIABILITY – DEFENCES – PROVOCATION – whether the complainant’s conduct, although not unlawful, could constitute a wrongful act or insult under section 268(1) of the Criminal Code 1899 (Qld) – whether the phrase “wrongful act or insult” was intended to be confined to unlawful acts – whether the prosecution proved that the appellant was not acting under provocation 

CRIMINAL LAW – APPEAL – PARTICULARS OF CHARGE – where there is a material discrepancy between the offence particularised and the evidence which the learned Magistrate found proved the offence – where there is an injustice in letting the verdict stand as the appellant had no notice of the case which the learned Magistrate found

LEGISLATION:

Criminal Code 1899 (Qld), s 268(1), s 268(3), s 269(1)

Justices Act 1886 (Qld), s 158, s 158A(2), s 225(3), s 232(4)

CASES:

Oxer v Grant (Supreme Court of Western Australia, SJA 1065 of 1994, unreported judgment of White J, 3 November 1994)

Rex v Nakayama [1912] St R Qd 287

Roche v The Queen [1988] WAR 278

APPEARANCES:

R Pearce for the appellant

S Poplawski (solicitor) for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

Introduction

  1. [1]
    On 30 October 2020 in the Brisbane Magistrates Court, the appellant was acquitted of a charge of stealing and convicted of common assault.  She appeals her conviction on the charge of common assault on three grounds:
    1. the learned Magistrate erred in not concluding the complainant had consented to the application of force, and that the appellant had therefore committed no offence;
    2. the learned Magistrate erred in law and acted contrary to the evidence in concluding that the complainant’s actions cannot enliven the defence of provocation;
    3. the learned Magistrate erred in convicting on a basis contrary to that particularised (added at the hearing of the appeal). 

The nature of the appeal

  1. [2]
    The appeal is pursuant to s 222 of the Justices Act 1886 (Qld) and is by way of rehearing. Such an appeal requires the court to conduct a real review of the evidence and the learned Magistrate’s decision and make its own determination giving due deference and placing a good deal of weight on the Magistrate’s view to determine whether the learned Magistrate has erred in fact or in law.[1]  In Lee v Lee[2] a majority of the High Court said:

“A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.” (footnotes omitted) 

The evidence at trial

  1. [3]
    The complainant, Ms Thelma Anderson was a removalist.  She met with the appellant by arrangement in the lobby of the Gambaro Hotel at around 12:10 pm on 23 January 2020. The purpose of the meeting was for Ms Anderson to give to Ms Taylor $200 which was intended to be a refund for storage fees Ms Taylor had paid to Ms Anderson to store her furniture.
  2. [4]
    Ms Anderson’s evidence as to what occurred in the lobby was as follows: 

“We just introduced and then Suzi sort of said, you know, she started to talk about for what reason I was there and I said I’m here to just give you this money can I – and then Suzi turned over her right shoulder and saw someone videoing her and then with that she screamed out “Someone’s videoing me. Stop them from doing that” and then with that she got up and proceeded over to the person that was filming her.”  

“She went over to that other person and was screaming at him to stop filming, dah, dah, dah, and I was standing back and I had my phone up and she sort of turned back to walk to me, hit the phone out of my hand, hit me and with that we scrambled to the floor to find my phone and then I never saw her after that.”

  1. [5]
    Ms Anderson went on to say that Ms Taylor picked up her phone.  She never saw the phone again.  
  2. [6]
    The only evidence relevant to the issue of consent was as follows:

Did you do anything that showed her that you – you know, you were trying to fight with her or -? - no, not at all.  I mean, not at all.  I wasn’t there to fight.  I mean, not exactly how I conduct myself nor my business.  I was simply there to give Suzi a partial refund and a voucher.  That’s all I went there for. 

So did you not indicate anyway or by your conduct that you were prepared to -? – No

--argue or fight with her? – Not at all.  

  1. [7]
    In cross-examination Ms Anderson said that she could see that Ms Taylor became agitated when she saw that she was being filmed.  Ms Anderson admitted that she herself then filmed Ms Taylor.  She went on to say that Ms Taylor was attacking the man who was filming her and that she didn’t know who he was or what he was filming.  Ms Anderson, a short time later said, that she didn’t know that Ms Taylor did not want to be filmed.  She agreed with the proposition though, that it became apparent to her that Ms Taylor did not want Ms Anderson filming her.  A short time later she said that she had no idea how upset Ms Taylor was and was not taking any notice of her screaming and yelling.  She conceded that it was possible that Ms Taylor said to her, prior to knocking the phone out of her hand, to stop filming her.  She nonetheless continued to film Ms Taylor until she knocked the phone from her hand.  During the course of this incident Ms Anderson conceded she might have told Ms Taylor that she was “a fucking cunt”.  She denied saying to her “You’re that fucking cunt off The Block”.  She initially denied knowing that Ms Taylor had been a contestant on the television show ‘The Block’ however a short time later admitted that she did know.  She also denied saying to Ms Taylor “Look at you. You think you’re so good, but you’re just a filthy slut”. 
  2. [8]
    In cross-examination the appellant’s solicitor asked a number of questions of Ms Anderson which established that Ms Taylor made contact with Ms Anderson when she snatched or hit the phone out of her hand. The questioning established that Ms Taylor struck Ms Anderson’s arm on the outer area of her forearm.  The following evidence was given:

And after she took the phone off you she never touched you again; you agree with that? – As we leant down, we nudged, we - and, you know, had contact.

Accidental contact? – yep

  1. [9]
    Mr David Gibbs gave evidence at the trial. He was the person in the lobby of the hotel who commenced filming the meeting between the two women.  He said that there was a heated exchange between them. The appellant approached him.  She asked him if he was filming and she tried to take his phone but grabbed his wrist instead. He said that the other woman (Ms Anderson) approached the appellant from behind and commenced filming on her phone. He said that the two women returned to the lounge area where they were initially seated. The appellant took the other woman’s phone and then the pushing and shoving started. Mr Gibbs’ recording became an exhibit in the proceedings. 
  2. [10]
    In cross-examination it was established that Mr Gibbs worked for Channel 9 and that he was asked by his employer to attend the meeting. There was a journalist outside the hotel who had a conversation with Ms Anderson prior to the meeting in the lobby. Mr Gibbs was not a party to the conversation between the journalist and Ms Anderson but he was told that Ms Anderson would be meeting with Ms Taylor in the lobby of the hotel.  His job was to film the meeting between the two women.  He agreed that Ms Taylor was clearly distressed by his filming her. She became more distressed when Ms Anderson commenced filming her. 
  3. [11]
    Mr Daniel Hakes gave evidence in the trial.  He was working at the Gambaro Hotel as a front office receptionist.  He spoke to Ms Taylor prior to the meeting between herself and Ms Anderson.  She asked him to mediate the meeting which he declined.  He heard Ms Taylor and Ms Anderson have a bit of an argument about money. He heard reference to a shipping container or storage container.  He said that it got quite heated between the two women.  Ms Taylor then saw another man secretly filming her.  She walked over to him and lashed out at him.  Ms Anderson then approached and a physical altercation occurred between the two women. There was pushing and shoving with Ms Anderson pushing Ms Taylor to the extent that she fell backwards into a chair. Mr Hakes called the police.  In cross-examination he said that Ms Taylor was saying that she did not want to be recorded. He heard Ms Anderson say to Ms Taylor “Look at you.  You think you’re so good, but you’re just a filthy slut.”  He heard Ms Anderson say that she was not going to pay Ms Taylor.  He also heard Ms Anderson say “You’re that fucking cunt off The Block”.  Those statements were made prior to the phone being knocked out of Ms Anderson’s hand. 

The video footage

  1. [12]
    There were two pieces of footage tendered. One of those was Mr Gibbs’ recording.  The other was from the cameras in the lobby of Gambaro Hotel.  Mr Gibbs’ recording shows Ms Taylor and Ms Anderson meeting in the lobby of the hotel where they sit in some lounge chairs. They can be heard discussing money. Ms Taylor is in possession of some documents. She notices Mr Gibbs filming her and holds her documents up to cover herself. She asks someone to stop him filming her. Ms Anderson is heard to laugh.  Ms Taylor then approaches Mr Gibbs where she attempts to take the phone from his hand.  She grabs his hand for a short time.  She notices Ms Anderson is then filming her and asks whether Mr Gibbs is her son.  She states that Ms Anderson has stolen $710 from her.  She repeatedly asks for security.  Ms Taylor walks back across the lobby to where she was initially seated. Ms Anderson follows her continuing to film her and asking her a series of questions although the details of those questions cannot be heard. It is perhaps likely that the statement “Look at you. You think you’re so good, but you’re just a filthy slut” made by Ms Anderson was made at this point in time however in light of the reasons which follow, I do not need to make any finding.
  2. [13]
    It is clear Ms Taylor is distressed by the filming of her.  Ms Anderson holds the phone out from her body in the direction of Ms Taylor as Ms Taylor is collecting her belongings. Ms Taylor asks for security to stop the two people filming her.  She snatches the phone from Ms Anderson’s hand. They both bend down to pick up a piece of paper.  Ms Anderson shoulders Ms Taylor out of the way causing her to fall.  She pursues Ms Taylor and pushes her with both hands into a chair.  Ms Anderson is saying “you hit me first”.  Ms Taylor then retreats from the lounge area to the lifts.
  3. [14]
    The camera footage from the Gambaro Hotel does not contain sound. It depicts the same sequence of events from a different angle.   

The learned Magistrate’s decision

  1. [15]
    The learned Magistrate found that Ms Taylor snatched the phone from Ms Anderson but considered that the evidence did not establish that at the time of doing so that Ms Taylor had an intention to permanently deprive Ms Anderson of the phone.  She found the appellant not guilty of the charge of stealing. 
  2. [16]
    The learned Magistrate noted that the prosecution had opened their case on the charge of common assault on the basis that Ms Taylor pushed Ms Anderson to the shoulder.  She said that she considered that the actions of Ms Taylor in grabbing the phone from Ms Anderson’s hand as she was filming was an application of force sufficient to constitute an assault.  She went on to consider whether Ms Anderson had provoked that assault. She said that she did not consider that the filming by Ms Anderson of Ms Taylor was a wrongful act.  She said that it was an action she was entitled to undertake and one that was not unlawful.  The learned Magistrate further found that Ms Taylor was aware that Ms Anderson was filming her and she had implored others to assist her in stopping Ms Anderson from filming her. When no assistance was provided she grabbed the phone.  The learned Magistrate said that the filming of Ms Taylor “cannot be considered a wrongful act”. She then proceeded to convict the appellant of the charge of common assault.  
  3. [17]
    As to the argument that the offensive words used by Ms Anderson to Ms Taylor referring to her as a “fucking cunt” were provocative, the learned Magistrate found that there was a lapse of time between the remarks and the confrontation that occurred such that they were too remote in time to be considered provocative. 
  4. [18]
    Before turning to sentence the learned Magistrate made some findings relevant to sentence.  Relevantly, she found that Ms Anderson set up the meeting for the purpose of there being filming.  She considered that what flowed from that would not be unexpected.  During her sentencing remarks she again referred to, what she considered to be, the expectation of Ms Anderson in meeting Ms Taylor at the hotel.  She said that Ms Taylor reacted in a way that “might have been entirely predicted”. 

Ground 1

  1. [19]
    The appellant contends that implicit in the findings that the learned Magistrate made, that what occurred between Ms Anderson and Ms Taylor was predictable or not unexpected, is a conclusion that Ms Anderson acquiesced to the event and should have been taken to have consented to the relevant application of force. 
  2. [20]
    Reliance is placed on a statement of McPherson J in Horan v Ferguson:[3]

“It is scarcely possible to restrict the word ‘consent’ in s. 245 to a consent that is conveyed in express words.  It plainly includes consent that is tacit or implied.  Just as the absence of consent may be inferred from circumstances, so too equally its presence may be inferred.

…What is, however, essential to the concept of assault as defined in s. 245 is that it should take place ‘without consent’ whether express, tacit, or inferred from the circumstances.” 

  1. [21]
    The learned Magistrate’s comments do suggest, consistent in my view with the evidence, that Ms Anderson set out to incite Ms Taylor into reacting in a manner which would excite the news media.  Otherwise there would be no necessity for, or indeed interest in, a cameraman employed by a television station, filming the meeting.
  2. [22]
    In her reasons, the learned Magistrate did not turn her mind to the element of consent and give consideration to whether, upon the whole of the evidence, the prosecution had proved that the complainant did not consent to the application of force.  She found only that there was an application of force. That was an error of law.  
  3. [23]
    Giving weight to the factual findings of the learned Magistrate, I would infer that Ms Anderson, by her conduct in setting up the meeting to be filmed by the news media, and herself filming Ms Taylor, knowing as she must have that Ms Taylor was verbally and physically objecting to being filmed by Mr Gibbs and herself, that she impliedly gave her consent to the application of force which the learned Magistrate found, that is, the snatching of the phone out of Ms Anderson’s hand.  I certainly could not be satisfied beyond reasonable doubt that Ms Anderson was not consenting to the application of that force.  Ms Anderson was not asked if she consented to being pushed as was the prosecution’s case.  She was only asked if she agreed to a fight.  There was, as such, no direct evidence from the complainant that she did not consent to the application of force involved in snatching the phone from her hand.  The inference which the learned Magistrate drew, and which was the only reasonable inference open on the evidence was that Ms Anderson filmed Ms Taylor in order to incite some violence from her which would be of interest to the television media.
  4. [24]
    Having conducted a review of the evidence and the findings of the learned Magistrate I would dismiss the complaint. 

Ground 2

  1. [25]
    The appellant contends that the learned Magistrate erred in determining that the complainant’s actions in filming the appellant could not constitute a “wrongful act or insult”. 
  2. [26]
    Section 269(1) of the Criminal Code 1899 (Qld) provides:
  1. (1)
    A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.
  1. [27]
    Provocation is defined in s 268 of the Criminal Code. Section 268 provides as follows:
  1. (1)
    The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.
  2. (2)
    When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.
  3. (3)
    A lawful act is not provocation to any person for an assault.
  4. (4)
    An act which a person does in consequence of incitement given by another person in order to induce the person to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.
  5. (5)
    An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.
  1. [28]
    Section 268(3) of the Criminal Code provides that a lawful act is not provocation to any person for an assault.  The learned Magistrate found that the filming of Ms Taylor was a lawful act and one that Ms Anderson was entitled to undertake.  The argument made by the appellant’s representative was in effect that once it became apparent that Ms Taylor was distressed by the filming of her by Mr Gibbs, it became wrongful for Ms Anderson to film Ms Taylor. 
  2. [29]
    The conduct of Ms Anderson was not limited to simply filming Ms Taylor.  Ms Anderson’s evidence was that she did not know the man who was recording Ms Taylor, that she saw Ms Taylor assaulting him, so she commenced to film Ms Taylor.  She claimed initially that she did not know that Ms Taylor did not want to be filmed despite her clear protestations to that effect.  Later in her evidence she admitted that Ms Taylor had said that she did not want to be filmed to Mr Gibbs. Ms Anderson stated that she did not recall Ms Taylor saying anything similar to herself.  Ms Anderson ultimately agreed with the proposition that it became apparent to her that she knew that Ms Taylor did not want her to film her.  She claimed that she didn’t then stop filming because she did not know what was going on.  She claimed that she did not know that Ms Taylor was distressed and was not taking any notice of Ms Taylor’s “screaming and yelling”.  She agreed that she continued to film Ms Taylor until the phone was knocked from her hand. 
  3. [30]
    The conduct of Ms Anderson in filming Ms Taylor needs to be considered in its full context. The footage of Mr Gibbs and the Gambaro Hotel demonstrate that Ms Anderson moved to a position close to where Mr Gibbs was already filming Ms Taylor. She then followed Ms Taylor whilst continually filming her as Ms Taylor moved across the lobby in what appears to be an attempt by her to get away from both persons who are filming her. Ms Taylor is quite clearly objecting to being filmed and asking for the assistance of security. Ms Anderson however continues to film her as she retrieves her belongings.  It is only then that Ms Taylor snatches the phone from Ms Anderson’s hand. 
  4. [31]
    It is clear enough from the findings of the learned Magistrate that she did not accept the evidence of Ms Anderson in many respects and relied upon what could be seen in the footage and the inferences to be drawn from that evidence and the evidence of Mr Gibbs. In my view Ms Anderson’s evidence was in many respects, glaringly improbable. It was inconsistent with the video footage and it was internally inconsistent. 
  5. [32]
    The “wrongful act or insult” which was relied upon by the appellant was not limited to simply filming her, but rather continuing to film her in close proximity when Ms Anderson well knew that Ms Taylor was objecting to that conduct.  I accept that such conduct is not unlawful.  The question which arises is whether that conduct, although not unlawful, is nonetheless sufficient to amount to a wrongful act or insult. 
  6. [33]
    Historically a view appears to have been taken that whilst an act might not be unlawful it nonetheless might still amount to a wrongful act of such a nature that is likely, when done to an ordinary person to deprive him/her of the power of self-control and to induce him/her to assault that other person. In Rex v Nakayama[4] it was held that cheating in a card game amounted to a “wrongful act”. Cheating in a card game, in the circumstances of that case, was not, of itself, unlawful. Real J said “..but to say that a man might not be induced to grasp the hand of another man who was cheating – to say that cheating would not constitute a provocation for an assault – seems to be wrong”.[5] 
  7. [34]
    In Oxer v Grant[6] it was said of a child’s conduct in pressing an intercom bell of a householder who went on to assault the child, that in doing so what he did was not to pursue a legitimate desire to communicate with the householder but rather to annoy him. The child was therefore deliberately committing, a nuisance and a trespass and such conduct could not be considered lawful. 
  8. [35]
    In Roche v The Queen[7] it was conceded by the Crown that the act or insult of a man who was found in bed with another man’s wife was a wrongful act or insult of such a nature that when done to an ordinary person is likely to deprive him of the power of self-control. That concession was made despite adultery not being unlawful.  Whether the act was lawful and thus excluded from consideration as a “wrongful act or insult” was not a matter that was argued on appeal, however Burt CJ said that in his opinion the word “lawful” in a similar provision of the Western Australian Criminal Code was used in the sense of being “by the Code…declared to be lawful”.[8]  Otherwise, he said the word “wrongful” would be inappropriate and would be required to be read as “unlawful” so requiring that it be an offence. 
  9. [36]
    There are multiple provisions in the Criminal Code which refer to the use of force against another person as being lawful.  For example, s 258 provides that when any person has lawfully arrested another person for any offence, it is lawful for the person to use such force as the person believes, on reasonable grounds, to be necessary to prevent the escape or rescue of the person arrested.  Section 260 provides that it is lawful for a person who witnesses a breach of the peace to use force that is reasonably necessary to prevent its continuance. Section 261 provides that it is lawful to use force to suppress a riot. Section 266 provides that it is lawful to use such force as is reasonably necessary to prevent the commission of an offence for which the offender can be arrested without warrant. Section 267 provides that it is lawful for a person in peaceable possession of a dwelling, to use force to prevent or repel a person entering or remaining in a dwelling.
  10. [37]
    All of these provisions declare that the use of force, which would otherwise amount to an assault, to be lawful.  The Criminal Code therefore provides that certain conduct, which involves an application of force, to be lawful and thus is prohibited pursuant to s 268 of the Criminal Code as giving provocation for an assault.  If the “lawful act” referred to in s 268(3) is construed as applying to acts which the Code declares to be lawful, then the words “wrongful act or insult” in s 268 would encompass acts that might not be unlawful but nonetheless are wrongful, offensive or insulting. In my view, it seems unlikely that the phrase “wrongful act or insult” was intended to be confined to unlawful acts.  If that were so, the provision would have read “unlawful act” rather than “wrongful act or insult”. There are, as demonstrated above, a multitude of acts which are not unlawful which can nonetheless be wrongful or offensive or insulting and which can be of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. 
  11. [38]
    The act of saluting in the manner in which German citizens saluted Adolf Hitler, whilst not an unlawful act, would be construed by any right-minded member of the community as being deeply offensive, wrongful, insulting and hateful.  It is however not unlawful.  Such conduct would readily come within the phrase “wrongful act or insult” of such a nature that is capable of depriving an ordinary person of the power of self-control.
  12. [39]
    I consider that it was an error for the learned Magistrate to determine that the filming of Ms Taylor could not give rise to a defence of provocation because it was lawful.  As this incident was captured on Mr Gibbs’ recording I am, in as good a position as the learned Magistrate, to determine whether the prosecution proved that Ms Taylor was not provoked into assaulting Ms Anderson. 
  13. [40]
    Ms Anderson’s actions in filming Ms Taylor were, as the learned Magistrate found, to incite in Ms Taylor the very response that she engaged in, which was a violent one.  Accordingly, I consider that Ms Anderson’s conduct in filming Ms Taylor knowing that she was objecting to it and was distressed by it; continuing to do so after Ms Taylor asked her to stop; and, following her whilst filming her, was a wrongful act of such a nature as to be sufficient to deprive an ordinary person of the power of self-control to the degree that Ms Taylor exhibited which was to strike the phone from the hand of Ms Anderson. I do not consider that the prosecution excluded beyond reasonable doubt that Ms Taylor was acting under provocation when she struck the phone from Ms Anderson’s hand. 
  14. [41]
    Having conducted a real review of the evidence and the learned Magistrate’s reasons I would dismiss the complaint. 

Ground 3

  1. [42]
    The prosecutor at the commencement of the trial particularised the assault as Ms Taylor pushing Ms Anderson’s shoulder after snatching the phone from her hand.  At no time during the trial did the prosecutor make any application to amend the particulars.  The respondent at the hearing of the appeal, equally did not make an application for the particulars to be amended. 
  2. [43]
    The purpose of particulars is to give to a defendant sufficient indication of the nature of the case that he/she is called on to meet.[9]  Particulars also provide a foundation for a defendant to object to the admissibility of particular pieces of evidence on the basis of relevance.  They also enable the defence to make forensic judgements in relation to the cross-examination of witnesses; and the gathering and calling of its own evidence.[10] 
  3. [44]
    The evidence that the appellant struck the complainant on the hand when striking the phone from her hand, arose as a result of the cross-examination of the complainant by the appellant’s legal representative.  The prosecutor did not lead any such evidence from Ms Anderson.  Had the assault been particularised as the striking of the phone from the hand of the complainant, I would infer that the appellant’s legal representative, would not have deliberately made the prosecution’s case for them through cross-examination. The cross-examination by the appellant’s legal representative which elicited the evidence that the appellant struck the phone from Ms Anderson’s hand, can therefore be seen to be a forensic decision, made on the basis of particulars of the prosecution’s case.  
  4. [45]
    There was a material discrepancy between the offence alleged and particularised, and the evidence which the learned Magistrate found proved the offence.  If application were made to amend the particulars I would have refused such a request on the basis that it was a material change and it prejudiced the appellant’s trial.  There is, in my view, an injustice which arises by letting the verdict stand.  The appellant had no notice of the case which the learned Magistrate found.  It was not as alleged by the prosecution.  I would set aside the verdict on this ground.
  5. [46]
    As I have determined that the complaint ought to be dismissed on two other grounds it is unnecessary to make any orders with respect to this ground of appeal. 

Costs

  1. [47]
    The appellant applies for her costs of the summary hearing pursuant to s 226 of the Justices Act 1886.  Written outlines of argument on the issue of costs were received on 21 April 2022 (appellant) and 6 May 2022 (respondent).
  2. [48]
    Section 232(4) relevantly provides that no order as to costs may be made on the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by justices.  Common assault and stealing are both indictable offences within the meaning of that term in both the Justices Act 1886 and the Criminal Code.[11] The appellant submits and the respondent does not argue otherwise, that s 225(3) of the Justices Act 1886 provides that this court may exercise any power that could have been exercised by the Magistrate including the making of a costs order.  Section 232(4) does not preclude, it is submitted, the making of a costs order pursuant to s 225(3).  That was the position taken by the respondent in the matter of Tierney v Commissioner of Police (No 2)[12] and appears to be the position taken by the respondent in this appeal.  In the absence of any argument on that issue, I will proceed to determine the matter pursuant to s 158 of the Justices Act 1886
  3. [49]
    Section 158A(2) sets out the matters that must be taken into account in determining whether it is proper to make an order for costs. The appellant argues that the proceedings against the appellant were commenced and continued to be pursued, in circumstances where, firstly, by virtue of the video footage, the police (and prosecutor) were aware that the complainant had been complicit in bringing about the confrontation; secondly, the mobile telephone was not recovered in circumstances where the appellant had no opportunity to dispose of it; and, thirdly, the level and nature of the provocation offered to the appellant. 
  4. [50]
    The respondent, despite being afforded the opportunity to respond to these three considerations has not addressed them other than to say that the evidence raised finely balanced legal and factual issues of some complexity and that there was a case to answer which required an objective assessment of the evidence.  
  5. [51]
    As the learned Magistrate found, and with whom I agree, the complainant was complicit in bringing about the confrontation with Ms Taylor. There was very little evidence led on the element of consent. Ms Anderson effectively denied the conduct which was particularised as the assault. On that basis alone there was insufficient evidence to convict the appellant.
  6. [52]
    Further, Ms Anderson’s actions in filming Ms Taylor were to incite in Ms Taylor a violent response.  The level and nature of the provocation offered to Ms Taylor was apparent from the video footage. Bearing in mind the context in which the confrontation occurred, Ms Anderson’s conduct was sufficient to deprive an ordinary person of the power of self-control and clearly did provoke Ms Taylor to react in the manner in which she did. There was, in my view, insufficient evidence for the prosecution to exclude beyond reasonable doubt, that the appellant was acting under provocation when she struck Ms Anderson. 
  7. [53]
    With respect to the charge of stealing, that was brought and continued in good faith. The video footage showed, in my view, the appellant snatch the phone from Ms Anderson’s hand.  It also showed Ms Taylor placing a phone into her handbag.  I do not consider that the appellant had no opportunity to dispose of the phone.  Ms Taylor moved to inside a lift whilst awaiting police arrival. A man, whom she appeared to know, also got into the lift with her. Whilst the phone was not found in Ms Taylor’s possession, it is not the case that there was no opportunity for her to dispose of it. There was evidence upon which the appellant could have been convicted.  The charge of stealing was brought and continued in good faith.
  8. [54]
    The appellant seeks only her costs in accordance with the prescribed scale. The trial took place in one day.  The same witnesses were required to be called with respect to the charge of stealing as for the charge of common assault.  In those circumstances, given that costs are intended to indemnify the appellant and not punish the respondent, I will award the appellant her costs in the amount of $1500. 
  9. [55]
    My orders are:
    1. The appeal is allowed;
    2. The conviction is set aside;
    3. The complaint of common assault is dismissed;
    4. I order the respondent pay the appellant’s costs of the trial, in the amount of $1500.

Footnotes

[1] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 [43].

[2] (2019) 266 CLR 129, 148-9 [55].

[3] (1995) 2 Qd R 490, 495.

[4] [1912] St R Qd 287.

[5] Ibid 290.

[6] Supreme Court of Western Australia, SJA 1065 of 1994, unreported judgment of White J, 3 November 1994.

[7] [1988] WAR 278.

[8] Ibid 280.

[9] R v C [2000] QCA 145 at [3]; R v Logan [2012] QCA 210 at [102].

[10] Patel v The Queen (2012) 247 CLR 531; R v Knight [2022] QCA 31.

[11] Flynn v Queensland Police Service [2012] QDC 99.

[12] [2020] QDC 33.

Close

Editorial Notes

  • Published Case Name:

    Taylor v Commissioner of Police

  • Shortened Case Name:

    Taylor v Commissioner of Police

  • MNC:

    [2022] QDC 101

  • Court:

    QDC

  • Judge(s):

    Loury QC DCJ

  • Date:

    13 May 2022

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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