Queensland Police v Timbrell[2016] QMC 17

MAGISTRATES COURT OF QUEENSLAND

1. [1]
   Francis Kevin TIMBRELL is charged with an offence that on the 20th day of June 2015 at Gracemere in the State of Queensland he unlawfully assaulted one Peta Jamie ELMER and thereby did her bodily harm.
2. [2]
   Mr Timbrell has represented himself. It is plainly unfortunate that he has not had the benefit of legal representation. It is apparent that he has experienced difficulty meeting the demands which the adversarial system places upon a person without professional skill and in understanding the role of the court within that system.
3. [3]
   The prosecution has called Peta Jamie ELMER and Constable Christopher Johnson to give evidence on their behalf.
4. [4]
   The defendant gave evidence as well as Margaret Dulce and Frederick Huemiller.
5. [5]
   The burden of proof lies with the prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt.
6. [6]
   The defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he has done so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the prosecution. As I have said, the prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
7. [7]
   There was also no testimony from a Doctor. Whilst it may appear they might have been able to give some relevant evidence I cannot speculate about what they may have said if they had been called. I can only act on the basis of the evidence that has been called and only that evidence.^[1]
8. [8]
   With regard to witnesses, they being human they often vary greatly in memory, recall, expression, personality and demeanour and this variation of witness performance may have nothing to do with accuracy or honesty.
9. [9]
   Contradictions between witnesses does not imply that one is honest and the other dishonest.  Either or both might be dishonest, mistaken, have poor memory or have merely reconstructed the facts unconsciously.  A consequence of a witness not being believed is not that the opposite has been proved.
10. [10]
    In relation to this particular matter I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of the witnesses that have given evidence.  This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of the other more objective considerations.
11. [11]
    Often enough cases are described as ones of “word against word”. In a criminal trial it is not a question of making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant. The proper approach is that the prosecution case depends upon accepting that the evidence of the prosecution’s principal witnesses was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; so I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
12. [12]
    Where there is defence evidence, usually one of three possible results will follow:

1. a)
   the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, the defendant would be not guilty;

or

1. b)
   although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, the defendant will be not guilty;

or

1. c)
   the defence evidence should not be accepted. However, that is not an automatic conclusion of guilt. If the defence evidence is unconvincing, it is set to one side, and consider whether such evidence as I accept I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.

Assault Occasioning Bodily Harm - The law

13. [13]
    The prosecution must prove that:

1. The defendant assaulted the complainant; Any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without that person’s consent is said to assault that other person;

2. The assault was unlawful, that is not authorised, justified or excused by law;

3. The defendant thereby did the complainant bodily harm; that is, any bodily injury which interferes with health or comfort.

14. [14]
    What is essential for an unlawful assault is that it be “without consent”. It can be express, tacit or to be inferred from the circumstances.
15. [15]
    The matter of consent, or its absence, is an element of the offence which it is for the prosecution to prove beyond reasonable doubt as part of its case. Lergesner v. Carroll [1991] 1 Qd.R. 206.
16. [16]
    Therefore proof of absence of consent need not be proved through the mouth of the complainant and the nature and extent of the touching or the identity of the person touched will often be such as to enable it to be inferred that it took place without the consent of the complainant: Horan v. Ferguson (1994) 75 A Crim R 31.
17. [17]
    An assault will be “unlawful” unless it is authorised, justified or excused by law: s. 246.
18. [18]
    As to “bodily harm”, the term is to be interpreted widely and is not restricted to “harm to the skin, flesh and bones” of a victim, but includes any harm to all the complainant’s organs, their nervous system or their brain: R v Morrison; Ex parte West [1998] 2 Qd R 79 at 81. 
19. [19]
    Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67.
20. [20]
    Out of an abundance of caution I also indicate bodily harm includes pain or hurt such as persisting headaches, vomiting, pains in joints, stomach aches caused by physical trauma as mentioned in R v. Morris (Clarence Barrington) [1998] Cr App R 386 although in that case the pain or hurt was not caused by physical trauma.
21. [21]
    The term was considered in Scatchard v R  (1987) 27 A Crim R 136. In that matter the only evidence in support of bodily harm was the evidence of the complainant that, when he was placed in a headlock, “It was hard; it was hurting my neck.” The matter was left to the jury and the jury convicted but the Full Court on appeal allowed an appeal and quashed the conviction on the basis that the evidence that it was hurting his neck was not of itself evidence of a bodily injury.
22. [22]
    Burt CJ said: “It is not necessary for the purposes of this appeal to attempt a definition of 'bodily injury'. It is, I think, enough to say that to apply force to another which 'hurts' in the sense of producing a sensation of pain is not of itself and without more to do that person a 'bodily injury' and without such an injury the sensation of pain cannot of itself and without more satisfy the definition of 'bodily harm'.”
23. [23]
    At 138 Kennedy J said: Mr Murray for the Crown argued that, in this case, the injury was the pain. The difficulty which he faced, however, was that he was unable to identify the bodily injury which is required to satisfy the definition, that being an element in addition to an interference with comfort. In effect his submission was that the pain was at once the bodily injury and the interference with comfort. But this cannot be so. No doubt a physiologist could explain the process by which the pain was perceived by Mr Johns and on that evidence it is, perhaps, conceivable that a bodily injury might be capable of identification; but there was, in my view, no evidence which justified the jury in this case in concluding that there was a bodily injury. It is not legitimate to progress from the evidence that the application of the headlock 'hurt' to the conclusion that there was therefore 'a hurt', in the sense of a wound or an injury, and then to equate that with 'a bodily injury'. A hurt may well constitute a bodily injury; but a person who has been hurt does not necessarily and invariably sustain a bodily injury. Pain is a perception activated by a stimulus which does not necessarily originate in a bodily injury.
24. [24]
    At 140 Franklyn J said: “To establish the existence of bodily harm as defined, two matters must be made out, the first being the existence of 'bodily injury' and the second being the fact that such established bodily injury interfered with health or comfort.”
25. [25]
    This accords with the generally accepted judicial explanation of the meaning of the expression “bodily harm” given in R v Donovan [1934] 2 KB 498: “… we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling” (at 509);

26. [26]
    This definition was adopted in R v Tamcelik; Ex parte Ozcan [1998] 1 Qd R 330 at 332.

27. [27]
    There is no medical evidence in this case. The following cases indicate expert evidence is not required in all cases except an assault causing bodily harm that has caused some psychiatric injury. R v Chan-Fook [1994] 2 All ER 552; [1994] 1 WLR 689; (1994) 99 Cr App Rep 147.

28. [28]
    I note in R v Barratt [2014] QCA 94 at [38] Holmes JA (as she then was) indicated that “although the appellant argued that in the absence of medical evidence that conclusion could not be reached (bodily harm), His Honour indicated counsel for the respondent was correct in submitting that the jury would be entitled to use its common sense, and the obvious fact of the level of the damage done, to infer that the blows were of those proportions.”
29. [29]
    In Smejlis v Matthews [2004] WASCA 158, the facts of the case were that complainant’s evidence established a bodily injury, a bruise. Jenkins J said at [54]:

“but there was no express evidence that the bruise interfered with her health or comfort. In my opinion it does not necessarily follow that a bruise interferes with health. Whether a bruise interferes with health because it is an adverse change to the soundness of the body will depend upon the evidence given at the trial. I can also readily contemplate situations where a person receives a bruise but it does not hurt or interfere with the recipients comfort. Thus in cases of bruising there must be some direct or circumstantial evidence to support a finding that the bruise interfered with health or comfort. By this I am not suggesting that the evidence must be of a particularly technical or sophisticated nature. For example it may be from a medical practitioner who gives an opinion as to the effect of the bruise on health or it may be from the recipient who gives evidence about the nature of the bruise and its effect: Cramer v R, unreported; CCA SCt of WA; Library No 980620; 28 October 1998, is an example of a case where there was sufficient circumstantial evidence to establish the existence of bodily harm.”

30. [30]
    Therefore it follows that medical evidence is not required in all cases of physical assault to prove bodily harm and, as was said in R v. Campbell [2009] QDC 61 at [23] by McGill DCJ, the point that was being made in Scatchard was that the fact that something is being done to somebody which causes pain to be suffered at that time does not mean that the pain is emanating from a bodily injury. But where there is continuing pain, then the inference is that that continuing pain is a symptom of a continuing condition which could easily amount to an injury, because that is the characteristic of an injury, that it produces symptoms such as continuing pain or interference with the functioning of the body. I note the High Court recently indicated in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 per FRENCH CJ, KIEFEL, NETTLE AND GORDON JJ the term ‘injury’ is to be read in its ‘primary sense’ as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (see at [41]–[46]).

31. [31]
    Heenan J made similar comments in Brown v Blake [2000] WASCA 132 at 5 — 6. In that case, the appellant had kicked the complainant twice to the stomach on the right side, near her ribs. In evidence, the complainant said that when she was kicked she felt pain which "lasted for a couple of days". Because of the pain she went to see her doctor on the following day, but he gave her no treatment. The medical report which was accepted into evidence made no reference to any injury in the region of that complainant's ribs or stomach.

32. [32]
    After referring to comments by Burt CJ in Scatchard, Heenan J said: For present purposes, I take 'bodily injury' to mean something in the nature of damage to bone, muscle, tendon, skin, organ or any part of which the human body is constructed. The word relates to more than merely a sensation of pain.

In this case the question to be answered is whether, in the light of the evidence before him and in the absence of expert evidence as to the significance of the pain of which Ms Ward complained, the learned Magistrate was entitled to infer that she had suffered damage to part of her body and not merely the sensation of pain. In my opinion the learned Magistrate was entitled to draw that inference. The available evidence was meagre, but I am satisfied that as a matter of ordinary human experience one knows that, if pain has lasted, as Ms Ward said, for a couple of days then the body has suffered damage. In such a case the pain originates from the damage and is more than merely 'a perception activated by a stimulus', the phrase used by Kennedy J in Scatchard at 138. See also Robinson v Smith [2005] WASC 99,

33. [33]
    In Trewin v Western [2015] WASC 358, Ms Halton, a nurse practitioner at Sir Charles Gairdner Hospital gave evidence that when Ms Swann first presented she had a broken thumb and a large amount of swelling and bruising to the left side of her face. The next day Ms Swann returned to the hospital and seen again by Ms Halton with pain from the injury to her head and Ms Halton observed Ms Swann’s “head area” was extremely swollen and describing the bruise as a “very, very large bruise” to her head and was in pain in the form of a headache. It was held that as Ms Swann had suffered a bodily injury in the form of bruising and swelling and pain which interfered with her comfort (at [123]).
34. [34]
    So what is “trifling and transient” injury?

35. [35]
    I can find no case in Australia on this point and the only jurisdiction it is really discussed at length is Canada.

36. [36]
    I note in Marshall v Director-General Department of Transport (2001) 205 CLR 603 at 632-633, McHugh J cautioned at [62]:

,,, principles laid down in the English cases and frequently followed in this country can be persuasively distinguished because of differences in the texts of [the legislation]. But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation.

37. [37]
    The following decisions from Canada are helpful in my opinion.
38. [38]
    Esson J.A. in R. v. Dixon (1988), 42 C.C.C. (3d) 318 (B.C.C.A.) indicated “transient or trifling” as follows (at pp. 331-32):

“.… The judge clearly found a number of facts. The victim suffered bruises on her arm and head and a laceration two to three inches in length on the back of her head. That wound took “some 10 days to heal”. She was “all better within a matter of a month”. Having found those facts, the judge had to apply the Code’s definition of bodily harm. That required him to decide whether the hurt or injury interfered with the victim’s health or comfort and whether it was more than merely transient or trifling in nature. I leave aside the question whether there was interference with health because, if there was interference with comfort, that is enough. Transient, trifling and comfort are all words in common usage. The Shorter Oxford English Dictionary, 3rd ed., vol. II, defines “transient” at p. 2346 as: “Transient 1. Passing by or away with time; not durable or permanent; temporary, transitory; esp. passing away quickly or soon, brief, momentary, fleeting”. At p. 2362, it defines “trifling” as: “Trifling . . . 3. Of little moment or value; trumpery; insignificant, petty”. At pp. 373-4, vol. I, it defines “comfort” as: “Comfort . . . The condition or quality of being comfortable”.

Clearly, as employed in s. 245.1(2) [now s. 267(b)], those words import a very short period of time and an injury of very minor degree which results in a very minor degree of distress. The findings that “there is no evidence of any interference with the victim’s health or comfort” and that “an injury that lasts no longer than a month would fall within the definition of being transient and trifling” demonstrate, in my view, an absence of any reasonable regard for the ordinary meaning of the words. From the time of the assault at least until the medical treatment was completed, it is clear that the victim must have been deprived of any sense of comfort which she might have had before being assaulted. The element of interference with comfort, which is all that the definition requires, must have continued for some time after that. The interference with comfort resulted from a significant injury – one which cannot be described as trifling. There is no necessary connection at all between the duration of the injury and the question whether it is trifling – a life-threatening injury is often resolved in a short time. Transient does relate to time but, in this context, it is simply insupportable to describe as transient an injury that “lasts no longer than a month”.

39. [39]
    In that case, the accused had been charged with assault causing bodily harm as the result of an assault on his wife.  The evidence was that in the course of the assault, the victim had suffered bruises to her face and a laceration at the back of the head which required several days to heal.  The complainant said that she was all over her injuries within a month.  The trial judge stated: “There is no evidence of any interference with the victim’s health or comfort.  And in terms of whether or not the injury was transient or trifling it would seem to me that an injury that lasts no longer than a month would fall within a definition of being transient and trifling.”
40. [40]
    "Transient" therefore has been interpreted in Dixon as "Passing by or away with time; not durable or permanent; temporary, transitory". "Trifling" has been interpreted as "Of little moment or value; trumpery; insignificant, petty". There is not necessarily a requirement of an injury being present for a certain duration to be considered bodily harm. The injury may be short and still not be trifling.
41. [41]
    An injury must be both transient and trifling to be excluded from the definition: R v J.A., 2010 ONCA 226.
42. [42]
    In R v Moquin, 2010 MBCA 22, the accused and the complainant formed what was called a “good snapshot of a classic abusive domestic relationship.” The incidents at issue on appeal were the following:

1. As part of a greater assault, the accused pulled the complainant’s hair so hard as to pull some out, leaving her with a sore scalp for a few days;
2. As part of another greater assault, the accused grabbed the complainant by the throat, thereby choking her hard enough to make it difficult for her to breathe and leaving her with a sore throat and causing difficulties when swallowing for a few days;
3. The accused squeezed the complainant’s hand so hard so as to bruising, soreness, and an inability to bend it for a week or so; and
4. The accused committed an assault leaving the complainant with bruised arms and a sore throat.

The trial judge held that these physical injuries did not amount to “bodily harm” as required by s. 267(b), and accordingly convicted the accused of common “assault.”

43. [43]
    The court stated: “Interference with comfort – that is, discomfort – is sufficient to constitute bodily harm, if it is more than trifling and transient. Pain causing discomfort, if it is more than trifling and transient, is sufficient, even if it does not impair a person’s ability to function.”

44. [44]
    The court noted (1) that it was incorrect to find that an injury that would heal within a week could not constitute bodily harm, as life-threatening injuries can be of short duration, and, (2) one must look at the overall effect of a number of injuries, each of which may be trifling, but taken together may be more than trifling and transient. The court also noted that medical evidence is not required before making a finding of bodily harm.
45. [45]
    The definition of “bodily harm” has a low threshold and means something more than “a very short time period and an injury of very minor degree which results in a very minor degree of distress”: R v Dixon (1988), 1988 CanLII 2824 (BC CA), 42 CCC (3d) 318 at 332, [1988] 5 WWR 577; R v Dorscheid, 1994 ABCA 18 (CanLII) at para 11, [1994] AJ No 56 (CA)

The Evidence

46. [46]
    Peta Jamie Elmer testifies she and Timbrell were in a relationship for approximately five years from 2009 to 2014. They have a child, FGK born in 2013 who resides with her.
47. [47]
    As part of a Family Law Court order, once a month Timbrell has contact with the child E from Saturday morning at 8am at his house to 4pm Sunday.
48. [48]
    Elmer drove up from Brisbane to Rockhampton on the evening and night of 19 June 2015 and arrived at Rockhampton at approximately 7:30am on 20 June 2015. She stopped at Gracemere McDonald’s for breakfast and at 7:55 she put F in her car to travel to Timbrell’s property. It took approximately three minutes to drive down the road. She left her boyfriend, Christopher Allen who provided company for the drive at McDonalds.
49. [49]
    She arrived at about 8:02am, knocked on the door and there was no answer.
50. [50]
    She knocked on the front door and there was no answer.
51. [51]
    She went back to her car and made two, three nearly four phone calls to Timbrell. He was not answering and on the third call he answered and she said “I am out the front with F. Your son wants to see you.” Timbrell said “Yeah, I’ll be out in a minute.”
52. [52]
    She went to the front door with F. Timbrell opened the door and he appeared fine to her although a little hung over and smelt of alcohol.
53. [53]
    Timbrell asked if there was anything he needed to get F and she said “Just some cough mixture” which she could not get as no chemist was open at that time of the morning and she had left the medication at her home by accident. She handed F to Timbrell through the screen door and he locked it. They were speaking through the screen door and he asked what’s it called and walked down to the kitchen to write it down. She replied “Little Coughs” that has an ivy extract which she prefers as it is natural.
54. [54]
    The child was born on 9 September 2013 and was roughly one and a half at that stage.
55. [55]
    She thinks Timbrell wrote this down and asked “have you got it” and he said “yep.” She was standing at the screen door peering down the hallway of the house towards the kitchen. She said all right no worries and started walking back to her car and Timbrell walked back and closed the front wooden door.
56. [56]
    As she was walking towards her car and had pressed central locking she heard the wooden door open and she turned around to see Timbrell rattling the front door. He kicked the screen door underneath the door handle, it flew open and came rushing towards her carrying on about “you think that you won in court, it’s my turn next time. You think you’re so tough. Bring your family up here and F this and f that.”
57. [57]
    Elmer believes Timbrell was talking about part of the Family Law court proceedings involved a recovery order when Elmer moved to Brisbane from Rockhampton. The reference to her family she indicates related to a fight between her brother and Timbrell about eight months previous.
58. [58]
    He swore and at one stage shoved her. He approached her and took her sunglasses off her head and threw them at his front doorway on the cement. He then stepped on them and crushed them into pieces.
59. [59]
    He was swearing saying “hop in your fucking car you fat fucking slut and go back to Brisbane.” She said she was not there to cause trouble and went to walk back to her car to get her phone to call the police.
60. [60]
    He has followed her to her car and saw an IPad strapped to the back of the passenger seat which F could see.
61. [61]
    Timbrell has gone and grabbed the Ipad. She has tried to stop him and they had a physical altercation. He ripped it off the back seat. He has also reached over the door and pushed her with his left hand on her side and she slipped between the door and the edges of the car into the gutter. She indicates she twisted her ankle although she did not notice that until later when she hopped in her car and went to drive.
62. [62]
    Later that day she felt a tingling pain and when she took her shoe off she noticed it was swollen. She took a photograph of it.
63. [63]
    Elmer has stuck her phone in her left side of her chest and stepped back and twisted her leg stumbled into the gutter. She grabbed the door and stood herself back up.
64. [64]
    He has grabbed the IPad and she said to him “Please don’t. It doesn’t belong to me.” She pleaded with him for a good 40 seconds with him saying “You want to see what I’m fucking like.” And talking himself up. She was saying don’t smash it; it doesn’t belong to her and he was saying he didn’t give a fuck.”
65. [65]
    He’s gone to the end of the driveway approximately a metre and a half from the vehicle and held the IPad up high above his head. He has jumped and slammed the IPad screen first into the driveway.
66. [66]
    He has walked back towards her and has seen that her phone has fallen out of her pocket, she thinks when she fell in the gutter, and grabbed it off the grass.
67. [67]
    She has heard her son and started walking towards the front door and Timbrell was walking towards the front door on the other side of the hedge. When they got to the front door she asked Timbrell for her phone back.
68. [68]
    She asked him not to smash it. He said “you want your f’en phone. You don’t effing answer it.”
69. [69]
    He then smashed the phone at the front doorway.
70. [70]
    She became upset and distraught and went to bend down to pick up the pieces.
71. [71]
    When she bent down Timbrell has come up and palmed her in the side of the face. He seemed to have hesitated as he has gone to swing his arm in an uppercut motion has hit her in the left side of the face mostly on the temple.
72. [72]
    A photograph was produced which she had taken that afternoon of her face.
73. [73]
    The photograph she says shows a mark where the sunglasses she wore scratched her nose when Timbrell pulled them off her face as well as swelling around the corner part of her eye towards the temple.
74. [74]
    Elmer indicates as a result of Timbrell swinging his arm with an open handed palm that hit her cheek she suffered a bit of swelling and a bit of a headache.
75. [75]
    She then stood up, he has walked down towards where the IPad was smashed and she has walked towards her car. He has picked up the IPad pieces and walked over to the bin and thrown the IPad cover in the bin mouthing to her “go on, hop back in your car, you fat slut. Fuck off back to Brisbane.” She asked to see her son as she could hear him and he said “fuck off. It’s my time, not yours now.” He had the IPad in his hand and threw onto the back seat of her car and landed on the back driver’s seat and has gone all over the place.
76. [76]
    Elmer has got in her car and gone to drive off and he has started to walk to his front door. She has started the car, he started to run towards her car and as she has driven off he has kicked the left hand side mirror of the car.
77. [77]
    She has driven back to McDonald’s, had a conversation with her partner and driven to the Rockhampton Police Station.
78. [78]
    When Elmer went to the Police Station she was sent her to the Rockhampton Hospital to be examined before Police took statements.
79. [79]
    In cross examination Timbrell asked about phone calls the night before at about 11pm where Elmer denies telling Timbrell to “Fuck off, I don’t have to bring him up.” She says she told Timbrell she was on her way to Rockhampton and he was screaming at her to answer her phone. After the second or third phone call she recorded them because he was threatening her. She told Timbrell she was on her way up, she was driving; she will see him at 8am at his house like the court order said. He wanted to meet somewhere else but she says the court order says 8am at his house and she will be there at 8am.
80. [80]
    Mr Timbrell put that was not what the court order said.
81. [81]
    Mr Timbrell did ask Elmer about dropping the charges when asked and she indicated she was willing to drop the charges to common assault as they share a child together and am “sick of this rubbish”.
82. [82]
    Timbrell put his version to Elmer as follows.
83. [83]
    He put that he said hello to her, he took F and asked if anything he needs and she said medicine and stuff. He brought him in and he went straight into his bedroom and he closed the bedroom door. He saw Elmer standing with a cigarette in her mouth and he said to her “What are you standing there for? When you going to go?” She said “Well yeah. After I finish my smoke.” Elmer denies she was smoking at all. She denies a conversation as put by Timbrell and says she left the doorway saying goodbye.
84. [84]
    His version that he put to Elmer is that he walked inside, closed the door, and then walked back out, couldn’t get through the door, pushed that is kicked the door and broke the door, did not chase her to her car as she was still at the front of the garden bed.
85. [85]
    She dropped her phone and he put his foot on it and her sunnies fell down at the same time. Elmer denies this.
86. [86]
    He puts that he put his foot on her phone and she’s gone to push him off as she said she was going to ring the “coppers”. Elmer denies this happening as her phone was in her car and the phone struggle came after the IPad was smashed.
87. [87]
    He puts that she pushed him and he pushed her and that’s all it was. He then picked up her phone and said “You want your fucking phone? You never answer it, you never tell me – inform me about my little boy. You never send me photos of him. Never have. And every time I ring you, you always be nasty to me over the phone, call me names, this, this and that.
88. [88]
    Elmer denies he said anything about that. All he did was hold the phone up and say you never fucking answer your phone.
89. [89]
    He further put that he went to her car and said “How about you get in your car and fuck off.” He then slapped the passenger side mirror, he then saw the passenger side window was down and the IPad. He grabbed the IPad and asked “Whose IPad is this? Elmer replied “Frank, it’s not mine” He asked “Who get the IPad?” “It’s F’s” He said “I see. Who got it?” and she wouldn’t tell him.
90. [90]
    She denies this happened.
91. [91]
    He then puts that he picked it up and said “Well, if you ain’t going to tell me whose is it, you don’t need it”, and threw it on the ground beside her car where the kerb is. At that point the IPad is smashed, the IPad was on his right side next to the car tyre and the kerb and she picked it up crying and screaming and threw herself in the back of the car, he picked up the case and walked towards the bin and put it in the bin.
92. [92]
    Elmer insisted the IPad was in pieces in the back of her car with “glass all over her son’s car seat and everywhere.” She denies picking up the IPad.
93. [93]
    He puts that Elmer came towards him, he has her phone and he says to her “You don’t need this phone” and she says “Yes I fucking do”. He says “What for? You don’t call me and let me know how my little boy is going” and at that point they were three metres away. She was next to the garden bed and he was at the bin next to the garage. He said “Do you want your phone back?” He then pegged it at her feet and smashed all over the concrete driveway.
94. [94]
    Elmer agrees he was at the front door and he smashed her phone and he did ask why she did need the phone as she never fucking answers it and she replied “I need it for the drive home.” She was concerned if she broke down or something happened she needs her phone.
95. [95]
    He puts that she screamed and cried a bit, hopped in her car and left. She states she was crying because she could not ring anybody and was concerned for her child.
96. [96]
    Constable Christopher Johnson testifies he was stationed at Gracemere at the time of the incident and he attended 15 Bronco Crescent Gracemere, Timbrell’s address to speak with Timbrell and a potential witness Frederick Heumiller.
97. [97]
    The conversations were recorded and indicate at 2:43pm on 21 June 2015 Constables Johnson and Cook arrived at 15 Bronco Crescent Gracemere.
98. [98]
    Timbrell indicates he rang the Police straight after it happened. He says he told Elmer to meet him at the shops.
99. [99]
    After Johnson states Elmer has made a complaint about domestic violence, Timbrell said “Does it say I punched her and shit cause I never touched her.” Said he would talk as there was a little boy and Fred was a witness and a female.
100. [100]
     He agreed to speak with Johnson.
101. [101]
     He said every time she comes up there is a barney. She is using the DVO against him and he was going for custody of the kid.
102. [102]
     He generally complains about Elmer and family law matters including saying it was not worth her coming up and for him to go there to see their child. He complained to the officer about her taking off to Brisbane and not coming back and he has to travel down to see his child and she has to travel to Rockhampton. He says she “fucked off down there. She took off.”
103. [103]
     His mum picks up the child when down there to stop all this. He accuses Elmer of picking on him.
104. [104]
     He states he is not a violent person and she pushed him. He admitted to damaging the IPad and would buy a new one if he had to.
105. [105]
     He said he didn’t threaten her but she threatened him. He said to Johnson to look at the door damage as “she just ripped it open.”
106. [106]
     When Johnson puts “she says you kicked it” says “No, she’s ripped it.”
107. [107]
     He states to Johnson he had slept in and heard the phone ringing and heard banging on the door.
108. [108]
     He has come out, she is standing there going off her head in front of the little boy. He picked him up and put him inside.
109. [109]
     She kept going, kept going kept going so I’ve opened the door. He did not kick it to open it and closed it and said “Just fuck off, just go.” She’s ripped it, she’s literally ripped it.
110. [110]
     His son has fallen down and he has gone to pick him up and she pushed him.
111. [111]
     When she pushed him, he pushed her back – like shoved her to the side, her sunnies fell off and he threw them at her. Her phone fell down and he threw that back at her and she went to throw it back at him. He says she dropped it. He said he picked it up and said “Do you want the phone do you?”
112. [112]
     He was standing on the footpath as they had gone to car and that’s when he damaged the car.
113. [113]
     He tells the officer that he should “realize she is a compulsive liar.”
114. [114]
     He states he never touched her, never punched her, and never laid a hand on her.
115. [115]
     When Johnson put the allegations by Elmer to him he said it never happened. They were involved in a verbal argument. Timbrell’s version is that his sunnies came off, he bent down to pick them up, she gave him a shove and in retaliation pushed her back.
116. [116]
     Timbrell says that’s all he did, didn’t touch her and just pushed her. He asks Johnson: “what was he meant to do if someone is coming at you?” He didn’t hit her, didn’t do nothing.
117. [117]
     He says she never picked up the pieces of her phone. She jumped in her car and went.
118. [118]
     He denied kicking the mirror and says he didn’t hit it very hard.
119. [119]
     Margaret Elizabeth Dulce gave evidence. She says at 8 o’clock she heard an altercation and was about to leave for an appointment. She was about to walk out the door when she hear yelling and she waited. She sat back down and had a cigarette waiting for the altercation to finish. It finished before she finished her cigarette.
120. [120]
     She heard a woman yelling, heard a man swearing saying eff off and then a woman yelling and then “Don’t Frank don’t” and a smash and then the woman yelling again. She said it went for less than 5 minutes.
121. [121]
     She lived directly across the road from Timbrell.
122. [122]
     She says both were angry. She says she never heard the woman being bashed or hit.
123. [123]
     In cross examination she indicates she was on her back patio with the house between her and the altercation and could only hear what was said. She was deliberately trying not to hear and was more concerned with getting to her appointment.
124. [124]
     She indicated that it ended abruptly and did not hear if the woman was upset or crying.
125. [125]
     Francis Timbrell testifies on the night before the 20^th he gave her (Elmer) a phone call saying “Are you coming up?” and she told me to eff off, I don’t have to do what you say I’s got to do. He then said “You know. It’s my time with the little boy. You moved so you can bring him up. It’s court ordered.” She said “I do whatever I want to do.” So he said “Well just let me know because I’ve got to make plans. If you’re not coming, just let me know please.” That’s when he hung up.
126. [126]
     He then went to the pub with a few mates. He had a few drinks and went back home.
127. [127]
     He had a feeling she would come up so set his alarm and slept through and woke up to a call from Peta. She was at the front door kicking and screaming. Fred was on his way and met him halfway up the hall and he was saying there’s someone at the door, think it’s your missus – your ex-missus.
128. [128]
     He went to the front door, F came and greeted him and I’ve kissed and hugged him and put him straight down. He went straight into the house to the back room, his room. He followed him and then came back and said to Peta ‘Anything – anything you need – anything he need?” She relied his asthma – his cough medicine. He said “Nothing else?” You’re not leaving me nappies, no nappies whatever?” She goes “no you can get them yourself.” He says he had nappies and formula for the kid.
129. [129]
     He testifies she stood there and had a smoke. He said “Aren’t you going?” and she replied “No” and she went off her head.
130. [130]
     So he came out and followed her, he went to her car to start off with and came back and slapped her car door. He said “get in your fucking car and fuck off.”  At that time they were at the front of the house next to the garden bed. Her sunnies fell off and at the same time she dropped her phone. So he put his foot on her phone and she pushed him and he pushed her. He picked up the phone and said “You don’t answer your phone. Why do you need a phone? You don’t keep in touch with me about the little boy.” They argued and he kept her phone and then went back to her car.
131. [131]
     He says the IPad was in the back passenger side, the window was unlocked and he grabbed it and smashed it. He knew that was wrong. He says he was angry and in the heat of the moment smashed her phone and later told her to fuck off.
132. [132]
     He does not see where he was supposed to throw a punch or uppercut or anything towards her.
133. [133]
     In cross-examination Timbrell indicates he met Elmer at the door, took F and then she was outside having a smoke. He says Elmer is a chain smoker. He says he put F in the house and he ran straight to Timbrell’s bedroom at the back of the house.
134. [134]
     He went outside to talk to Elmer and opened the door as it wasn’t locked and asked her a few questions about medicine. She didn’t leave and she verbally abused him and he verbally abused her.
135. [135]
     At some stage he says he went and checked on F who was in his bed.
136. [136]
     He came out again and saw Elmer having a smoke and then went outside a third time.
137. [137]
     He does not remember whether he pushed the door and kicked it the second or third time. He had locked the door so she couldn’t come into the house. He says he kicked the door because she was verbally abusing him and he couldn’t unlock it. He admits at this stage he was heated up.
138. [138]
     He further testifies that when she pushed him and he pushed her he is “pretty sure it was on her shoulder.” Then says “Positive. Pretty sure.”
139. [139]
     He then says when asked could have pushed her somewhere else says “No.”
140. [140]
     He denies open palming her in the face when put by the prosecutor.
141. [141]
     He indicates she pushed in his chest when bending over to retrieve her phone.
142. [142]
     He then says later that she pushed him on her way up then later again “I haven’t pushed her when she was trying to stand up. She’s pushed me and stood up – she was already up when she pushed me …”
143. [143]
     In further cross examination Timbrell says she lent down to pick up her sunnies, she dropped her phone as she was leaning down, she stood back up and he put his foot on her phone and she pushed him and he lost some balance he pushed back and grabbed her phone. He then states he told her to get in her fucking car. You have a phone for no reason.
144. [144]
     He admits the version he now says is difference to the version he put to Elmer.
145. [145]
     He admits he lied to the Police about kicking the door.
146. [146]
     He also admits he does not understand the Family Law Order.
147. [147]
     He also states when asked “You called about the drop off? – No. Just to see if she was coming up with her little boy. Then says Well, if she’s coming up she’s got to drop you know, meet me down the shopping centre.
148. [148]
     He accuses her of not following the court order and the orders are not what he agreed to or thought them to be.
149. [149]
     When shown the photograph of her face he asked where the injury was and when suggested the cheek was a bit red indicated that could be from her crying. He admitted he did not put that to her. When pressed he said “I didn’t palm her in the face” but the shoulder.
150. [150]
     He also believes the court order states the drop off for the child was at a shopping centre. The Prosecutor put there had been previous times drop offs were at the house and no at the shopping centre and Timbrell agreed.
151. [151]
     Frederick Thomas John Huemiller testifies he was asleep and then he was woken up to Peta (Elmer) banging on the door. He wasn’t real sure who it was because Frank (Timbrell) made it quite clear to him the night before that Elmer wasn’t coming up from Brisbane to pick his son up.
152. [152]
     He got up and walked out and opened the timber door and realised it was Peta. He then headed back down to Frank’s bedroom to get him.  Frank was already on his way down and he thinks Frank went out and grabbed F and brought him inside.  Frank then went back out because Peta was still out the front carrying on. He stayed inside with F trying to get him settled, make sure he was all right.
153. [153]
     He saw them arguing, saw Frank smash a phone.  He didn’t actually see Frank take the iPad. He was led to believe that F had dropped an iPad originally because when Frank went out to grab F, he had the iPad.  He thinks Frank told him that F had a smashed iPad.

154. [154]
     He first see them arguing near the garden bed out the front of the house. Frank was there yelling at Peta saying yeah, you want to fuck around?  And Peta’s going no.  And then, yeah, Frank was jumping around and grabbed the phone and smashed the phone on the driveway and she was by this time, starting to yell.

155. [155]
     Heumiller testifies he is pretty sure she dropped it and then he’s stood on it because she went to try and get it and I think the only reason why he stood on it because he could see her ex-partner on the phone.

156. [156]
     She’s then half gone to try and get the phone and he’s saying you’re not getting your phone. She’s stood back up again and started yelling at him, “No, Frank, please don’t”.  And Frank’s saying, “No, you want to fuck around.  You can’t answer your phone when you get in Brisbane but then when you come up here, you [indistinct] your phone.”

157. [157]
     He grabbed the phone and threw it on the driveway to smash it.

158. [158]
     That’s all he saw.

159. [159]
     When asked in cross examination How is your recollection of that particular day?‑‑‑Yeah, partially vague [indistinct] just woken up [indistinct] and yeah.

Discussion

160. [160]
     As with many of these types of cases where a family unit has broken down, this can lead to high emotions and volatility.
161. [161]
     Ms Elmer and Mr Timbrell have a child, F and a Family Court Order made by Her Honour Judge Cassidy on 26 March 2015 in the Federal Circuit Court of Australia in Brisbane on 26 March 2015 provides for, amongst other things, “That the child spend time and communicate with the father as agreed between the parties and if they fail to agree then as follows: (a) The mother travel to Rockhampton on the third weekend in each month at her own expense so that the father can spend time with the child from 8:00am Saturday ,morning until 4:00pm Sunday …”
162. [162]
     This was an interim order and the parents have on going proceedings in that Court.
163. [163]
     Mr Timbrell either a) did not take care and time to read and understand the consent orders he has obviously agreed to or, b) has deliberately ignored them as he does not agree with them. It is not for this Court to decide a) if the orders are appropriate and b) if either party has failed to comply with any of the Orders.
164. [164]
     With regard to witnesses, I believe Dulce gave honest and forthright evidence although her evidence is limited because she did not see anything.
165. [165]
     Frederick Huemiller evidence indicates he has a limited memory of the incident and only saw parts of the incident as he was caring for the child. He says he did not see any physical contact between Timbrell and Elmer.
166. [166]
     The evidence suggests Francis Timbrell was very worked up and angry which lasted a number of minutes where he has lost his temper and damaged Elmer’s property and abused her.
167. [167]
     The difficulty Mr Timbrell faced was the disadvantage of not being legally represented and suffered from the traps of our adversarial system offers to the unwary and untutored. I found Mr Timbrell evidence, at times, not convincing. Nor is it corroborated by any of his witnesses who saw no physical altercation. Timbrell’s evidence was difficult to follow about the chronology of events as it kept changing and versions differed from what he put to Elmer in cross examination, what he told Police on 20 June 2015, his own evidence and what he said in cross examination. There are too many discrepancies and conflicts in his evidence to accept his evidence. He himself admits that he lied to police.
168. [168]
     For instance, in cross examination of Elmer when putting his version which is F goes straight to bedroom and he closed the door. Elmer is still at the door and he asked why she was still there. He walks back out, couldn’t get out, pushes and kicks the door. She has dropped her phone, he put his foot on it and sunnies fall down at same time. When he has put his foot on her phone, she has pushed him and he pushed her. He has picked up her phone.
169. [169]
     He tells the officer Johnson Elmer “ripped” (damaged) the door. She was going off, he picked up the boy and took him inside. She kept going and he opened the door but didn’t kick it. He told her to fuck off. She pushed him and he pushed her. Her sunnies fell off and he threw them at her. Her phone fell down and he picked it up and threw the phone at her.
170. [170]
     His evidence in chief was that Elmer was at the front door, he was handed the child, he put the child down and F goes to his bedroom. He followed the child and came back and asked her if the child needed anything. She stood there with a cigarette and he asked if she was leaving. She went off. He came out and followed her to her car, slapped her car door and told her to fuck off. At the garden bed her sunnies fell off and at the same time she dropped her phone. He put his foot on her phone and she pushed him and he pushed her. He picked up her phone.
171. [171]
     When Timbrell was cross examined he states he met Elmer at the front door, took F and he ran to his bedroom. He says he came out 2 or 3 times to Elmer but does not remember if he kicked the door the second or third time. He states she pushed him and he pushed her and “pretty positive pushed her on her shoulder and nowhere else.” He later says she dropped her sunnies, then dropped her phone, she stood up, she pushed him and he lost some balance and he pushed her and grabbed her phone.
172. [172]
     I found Ms Peta Elmer to be a generally reliable and credible witness although she found the occasion difficult but considering the circumstances understandable. She answered questions in a forthright manner and has a good memory providing detailed and specific evidence of events. Her evidence was consistent and had an air of reality. She gives clear evidence of Timbrell swinging his arm and palming her in the face which is consistent with the injuries she has suffered in the form of slight redness to the left side of her face near the cheek bone and pain caused by a headache.
173. [173]
     The only evidence of what happened from the beginning is from the two protagonists who tell very different stories.
174. [174]
     The photograph taken by Elmer the night of the incident indicates redness on the cheek which she testifies was caused by Timbrell palming her in the face and a mark on her nose when she says Timbrell took her sunglasses off her. They are supportive of her version.
175. [175]
     As to the ankle injury, Elmer said it was only after she started driving that she felt it and up till then the appearance may well have been that she had not suffered any injury.  It does not appear to be a serious ankle injury and she gave no evidence of it requiring treatment.
176. [176]
     I find that Peta Jamie Elmer and Francis Kevin Timbrell were in a relationship for approximately 5 years from 2009 to 2014. They have a child, F born on 9th September 2013 and was roughly one and a half at that stage. The child lives with her in Brisbane.
177. [177]
     As part of a Family Law Court order, once a month Timbrell has contact with the child F from Saturday morning at 8am at his house to 4pm Sunday.
178. [178]
     The night of the 19^th June 2015, Timbrell has rung Elmer to find out if she is bringing F to Rockhampton for a contact visit. The phone calls were around 11pm. Timbrell has gone out with friends drinking.
179. [179]
     Elmer drove up from Brisbane to Rockhampton the evening and night of 19 June 2015 and arrived at Rockhampton at approximately 7:30am. She stopped at Gracemere McDonald’s for breakfast and at 7:55 she put F in her car to travel to Timbrell’s property. It took approximately 3 minutes to drive down the road. She left her boyfriend, Christopher Allen who provided company for the drive at McDonalds.
180. [180]
     She arrived at about 8:02am, knocked on the front door and there was no answer. Timbrell was in bed and had overslept.
181. [181]
     She went back to her car and made 3 phone calls to Timbrell. He wasn’t answering and on her third call he answered and she said words to the effect “I am out the front with F. Your son wants to see you.” Timbrell said “Yeah, I’ll be out in a minute.”
182. [182]
     She went to the front door with F. Timbrell opened the door and he appeared fine to her although a little hung over and smelt of alcohol.
183. [183]
     Timbrell asked if there was anything he needed to get F and she said “Just some cough mixture”. She handed F to Timbrell through the screen door and he locked it. They were speaking through the screen door and he asked what’s it called and walked down to the kitchen to write it down. She replied “Little Coughs”.
184. [184]
     She said all right no worries and started walking back to her car and Timbrell walked back and closed the front wooden door.
185. [185]
     As she was walking towards her car and had pressed central locking she heard the wooden door open and she turned around to see Timbrell rattling the front door. He kicked the screen door underneath the door handle, it flew open and came rushing towards her carrying on about “you think that you won in court, it’s my turn next time. You think you’re so tough. Bring your family up here and F this and f that.
186. [186]
     He swore and at one stage shoved her. He approached her and took her sunglasses off her head and threw them at his front doorway on the cement. He then stepped on them and crushed them into pieces.
187. [187]
     He was swearing saying hop in your fucking car you fat fucking slut and go back to Brisbane. She said she was not there to cause trouble and went to walk back to her car to get the phone to call the police.
188. [188]
     He’s followed her to her car and saw an IPad strapped to the back of the passenger seat which F could see from his seat.
189. [189]
     Timbrell’s gone and grabbed the IPad, she has tried to stop him and they had a physical altercation. He ripped the IPad off the back seat. At some stage he has also reached over the door and pushed her with his left hand on her side, she has picked up her phone from inside the car and she slipped between the door and the edges of the car into the gutter. She indicates she twisted her ankle although does not notice that until later when she hopped in her car and went to drive. She grabbed the door and stood herself back up.
190. [190]
     He’s gone to the end of the driveway approximately one metre and a half from the vehicle and holding the IPad up high above his head. She said to him “Please don’t. It doesn’t belong to me.” She pleaded within him for a good 40 seconds with him saying “You want to see what it’s fucking like.” And talking himself up. She was saying don’t smash it; it doesn’t belong to her and he was saying he didn’t give a fuck etc. He has jumped and slammed the IPad screen first into the driveway.-
191. [191]
     He has walked back towards her and has seen that her phone has fallen on to the ground and grabbed it off the grass.
192. [192]
     I am not sure if this the time, he put his foot on her phone and, she has pushed him when trying to pick up her phone. I suspect this happened when he later smashed the phone.
193. [193]
     She has heard her son and was walking towards the front door and he was walking towards the front door on the other side of the hedge and when they got to the front door she asked Timbrell for her phone back.
194. [194]
     She asked him not to smash it. He said “you want your f… phone. You don’t f… answer it.”
195. [195]
     He then smashed the phone at the front doorway.
196. [196]
     She became upset and distraught and went to bend down to pick up the pieces.
197. [197]
     When she bent down Timbrell has come up and palmed her in the side of the face. He has gone to swing his arm in an uppercut motion has hit her in the left side of the face mostly on the temple area.
198. [198]
     The photograph, exhibit 2, shows a mark where the sunglasses Elmer wore scratched her nose when Timbrell pulled them off her face as well as slight redness below the corner part of her left eye towards the cheek bone.
199. [199]
     Elmer indicates as a result of Timbrell swinging his arm with an open handed palm that hit her she suffered a bit of swelling and a bit of a headache.
200. [200]
     She then stood up, he has walked down towards where the IPad was smashed and she has walked towards her car. He has picked up the IPad and walked over to the bin and threw the IPad cover in the bin mouthing to her “go on, hop back in your car, you fat slut. Fuck off back to Brisbane. She asked to see her son as she could hear him and he said fuck off. It’s my time, not yours now. He had the IPad in his hand and threw it through the back seat of her car and landed on the back driver’s seat and gone all over the place.
201. [201]
     Elmer has got in her car and gone to drive off and he has started to walk to his front door and when she has started the car, he started to run towards her car and as she has driven off he has kicked the left hand side mirror of the car.
202. [202]
     The prosecutor did not ask Elmer specifically if she consented but the circumstances surrounding the altercation indicate she did not consent.
203. [203]
     The assault was not authorised justified or excused by law.
204. [204]
     As to the element of the offence of bodily harm, it is defined to mean 1) any bodily injury; 2) which interferes with health or comfort.
205. [205]
     Like in Brown v. Blake (supra), the available evidence of bodily harm is meagre,
206. [206]
     I accept Ms Elmer has suffered pain in the form of a headache after being hit although not particularly hard as she says in her evidence “He can punch a hell of a lot harder than that.”
207. [207]
     Redness and or swelling to the cheek area does not amount to bodily harm by interfering with health or comfort in this case without more.
208. [208]
     Elmer testified as a result of being hit she suffered “a little bit of a headache.” There is no evidence how long the headache lasted, whether a few minutes or days. The headache appears very mild as there is no evidence of treatment or tests required or medication taken.
209. [209]
     I am being asked to draw inferences that after being hit Elmer suffered “a little bit of a headache” which interfered with her comfort which is more than transient or trifling.
210. [210]
     A headache, as a matter of ordinary human experience, indicates the body has suffered damage with resulting pain. In other words, anything that stimulates the pain receptors in a person’s head or neck can cause a headache including an injury to the head.
211. [211]
     As to the second point regarding interfering with health or comfort, the inference I am being asked to draw is that Elmer’s headache interfered with her comfort. Pain causing discomfort, if it is more than trifling and transient, is sufficient, even if it does not impair a person’s ability to function.
212. [212]
     The onus of proof is with the prosecution to prove that Ms Elmer has suffered bodily harm. With nothing more than she suffered “a little bit of a headache”, I cannot be satisfied the resulting headache was more than transient or trifling without more evidence in this case. Ms Elmer never indicated it was a “persisting headache” as mentioned in Morris (supra).
213. [213]
     There is insufficient evidence to prove bodily harm.

Conclusion

214. [214]
     The criminal standard of proof is “designedly exacting”. ^[2]
215. [215]
     I accept the evidence of Ms Elmer and reject that of Mr Timbrell. I am satisfied beyond a reasonable doubt that on 19 June 2015 the defendant swung his arm and palmed Ms Elmer to the left side of her face thereby assaulting Ms Elmer resulting in her having a “a little bit of a headache”. I am not satisfied beyond reasonable doubt that Ms Elmer suffered bodily harm.
216. [216]
     As to whether Mr Timbrell can be convicted of a lesser offence than the one charged I note section 575 of the Criminal Code 1899 provides:

575 Except as hereinafter stated, upon an indictment charging a person with an offence committed with circumstances of aggravation, the person may be convicted of any offence which is established by the evidence, and which is constituted by any act or omission which is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment.

217. [217]
     Under that section a verdict of common assault is open on a charge of assault occasioning bodily harm on indictment: R v Vella [1938] St R Qd 252; (1938) 32 QJPR 133: R v Sullivan & Marshall [2000] QCA 393 ; [2002] 1 Qd R 95 at [41]However this section relates to an “indictment” and as section 1 in the definitions section of the Code provides: indictment means a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. See also s 560; Acts Interpretation Act 1954 s 36.
218. [218]
     Section 575 does not apply in the Magistrates Court as it is a court exercising summary jurisdiction: See s 44, Acts Interpretation Act 1954.
219. [219]
     I also note a charge assault occasioning bodily harm to which this section applies must be heard and decided summarily unless the defendant informs the Magistrates Court that he or she wants to be tried by jury subject to section 552D: s 552B
220. [220]
     I find the defendant not guilty.

Mark Morrow

A/Magistrate