R v NATHAN FRANCIS WONDER
[2011] ACTSC 101 (10 June 2011)

CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – offence not proved beyond reasonable doubt – accused found not guilty

Supreme Court Act 1933 (ACT), 68B
Intoxicated People (Care and Protection) Act 1994 (ACT), s 4(1)
Crimes Act 1900 (ACT) s 212
Crimes Act 1914 (Cth) s 3W

George v Rockett (1990) 170 CLR 104

No. SCC 263 of 2009

Judge:	Gray J
Supreme Court of the ACT
Date:	10 June 2011 

IN THE SUPREME COURT OF THE	)
	)	No. SCC 263 of 2009
AUSTRALIAN CAPITAL TERRITORY	)

R

v

NATHAN FRANCIS WONDER

ORDER

Judge:	Gray J
Date:	10 June 2011  
Place:	Canberra

THE COURT ORDERS THAT:

1.	The accused be found not guilty of the charge of assault occasioning actual bodily harm.

1.	Nathan Francis Wonder (the accused) was arraigned before me on an indictment charging one count of assault, two counts of resisting a Territory public official (police officer) and one count of assault occasioning actual bodily harm.  
2.	The charges all arose out of an incident that occurred on 5 March 2009.  
3.	Before the date allocated for the trial, the accused elected to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT).
4.	As a consequence of certain legislative amendments affecting the jurisdiction of the Magistrates Court, the determination of the charges of assault and resist police fell to be determined by that court.  The Director of Public Prosecutions determined that he would not proceed with those charges and accordingly, the accused was arraigned before me only on the one charge of assault occasioning actual bodily harm.  To that charge he pleaded not guilty.
5.	Mr A Doig appeared as counsel for the Director of Public Prosecution and Mr T Sharman appeared as counsel for the accused.
General directions
6.	There are certain general directions to which I have regard.  They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict.  The accused is entitled to have a fair trial according to law.  As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts.  I must deliver my verdict according to the evidence.  The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused.  If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it.  It is for the prosecution to disprove it or show that it is irrelevant; otherwise the prosecution will not have proved its case.  The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt.  The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt.  It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned.  If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
Preliminary events
7.	On the evening of 5 March 2009, the accused came to the attention of the police within the precincts of the Canberra Stadium where a sporting event was taking place.  The accused intervened in an incident where the police were seeking to remove a person from the Stadium.  The accused, according to the police officers, aggressively questioned that removal and became belligerent and argumentative.  The three police officers who gave evidence of this incident were all of the view that the accused was highly intoxicated and they were all of the view that he was behaving in a disorderly manner.  The accused, for his part, complains that it was an excessive reaction by the police to his remonstrating on behalf of a person who he considered was being unfairly and violently dealt with by the police.  One of the police officers, Constable Lawrence, took him into custody having formed the opinion that he was intoxicated and was behaving in a disorderly way (Intoxicated People (Care and Protection) Act 1994 (ACT), s 4(1)).
8.	The accused arrived at the City Police Station Watch House just before 10:00 pm.  Constables Pritchard and Hackett brought him in to the charge counter.  Closed circuit television (CCTV) footage was shown of his intake conducted at the Watch House by Sergeant Ghirardello.  Also present at that time was Constable Walsh who received the accused’s property.  During the reception process, the accused was argumentative, spoke loudly and was uncooperative.  At the time, Sergeant Ghirardello administered a breath screening test which indicated a blood alcohol of .189.  Such a reading is quite inconsistent with the accused’s assertions at the time that he had not had very much to drink and that his blood alcohol was .03.  
9.	The accused was placed in a cell and some 20 minutes later Constable Walsh provided him with a telephone to call his mother.  An altercation took place in the cell with Constable Walsh as a result of what Constable Walsh said was the accused’s vociferous verbal abuse of her.  Other police officers attended.  
10.	Shortly after the phone call, the accused’s mother attended at the Watch House to take her son home and the CCTV shows and records the interaction between the accused, his mother and the police.  It is pertinent that, when his mother attended, the accused became particularly argumentative and abusive towards the police and that his mother’s attempts to calm him down had no apparent effect, even after she physically slapped him, held his nose and attempted to cover his mouth.  His railings against the police were highly argumentative and abusive.

The circumstances giving rise to arrest
11.	At around 11:15pm the accused was escorted out of the Watch House by three police officers.  His mother accompanied them.  The exit taken from the police station was by way of the sally port, a garage area for vehicles which is accessed from Knowles Place by a ramp with an electronically operated gate at the top.  Two of the police officers, Constable Pritchard and Sergeant Clark were closely behind the accused and his mother near the gate at the top of the ramp leading from the sally port entrance to the outside roadway.  The other police officer, Constable Walsh was walking back down the ramp.
12.	Sergeant Clark and Constable Pritchard give a broadly similar description of what took place at the top of the ramp.  Constable Walsh heard Sergeant Clark say “You’re under arrest” but did not see what caused that to be said.  The accused and his mother also gave a broadly similar account which differed in several material respects from the police officers account.  I think that each of these witnesses were doing their best to give honest and reliable evidence.  They were each recounting the event giving rise to the charge from their own perspectives but the differences in their accounts as to certain matters are difficult to reconcile.

The evidence of the witnesses concerning the act charged
Sergeant Clark
13.	At the time of the incident, Sergeant Clark was the second sergeant in the Watch House, he is now a Federal Agent.  Sergeant Clark had nothing to do with the accused during the induction process at the charge counter.  He was first involved with the accused when he went to the cell to retrieve the accused as he was to be released into his mother’s custody.  Sergeant Clark took the accused to the charge counter for his release and helped escort him out of the Watch House.  At this stage according to his evidence the accused “was still verbally aggressive towards police and particularly focused again at Constable Walsh”.  Sergeant Clark said that halfway up the ramp the accused turned to him and said “You’re the only person that’s treated me decently tonight”.  
14.	Sergeant Clark’s evidence as to what happened at the top of the ramp was:
Now did Mr Wonder leave the area or did he come back onto the police premises, or what was the situation?---He didn’t come back onto police premises, your Honour, his aggression didn’t appear to abate and at one point he raised his left hand and poked Constable Pritchard in the chest.

15.	Sergeant Clark said that he could not recall the conversation that led to the “poke” but remembers it was along the lines of “seeing us in court”.  Sergeant Clark moved forward and attempted to take a hold of the accused’s left hand and told him he was under arrest for “assaulting police”.
16.	Sergeant Clark said that as he attempted to effect the arrest, the accused evaded that attempt and started to move backwards.  At that point the accused took a hold of the front of Sergeant Clark’s overalls with both hands.  The accused and Sergeant Clark then fell to the ground in the middle of Knowles Place, which Sergeant Clark said he later found out was a result of Constable Pritchard tripping the accused to take him to the ground. 
17.	On falling to the ground Sergeant Clark said that he landed on his left shoulder and the accused landed on his right shoulder.  The pair were quite close together lying on the ground with Sergeant Clark saying his head was slightly above the accused’s head.  However, in Sergeant Clark’s next few statements in giving evidence he said his recollection was that they were “face to face”.  For example:
Were one of you leaning onto the other, I mean were you leaning onto him or was he leaning on to you?---No that’s not my recollection.  We were – my recollection is, your Honour, we were face to face.

18.	Whilst on the ground Sergeant Clark said that he felt the accused pull him closer towards him and saw the accused’s head move forward and Sergeant Clark immediately felt pain at the top of his left bicep, near the armpit.  Sergeant Clark said he saw the accused’s head again moving forward to that left bicep area and he said to the accused at that stage “Don’t bite me” and “let go” and that he only said these phrases once.  On his account those words were said after what is said to be the bite.
19.	At that time Sergeant Clark noticed Constable Pritchard place the accused in a headlock and say to the accused “Let go mate or I’ll put it on tight”.  At that time Sergeant Clark delivered three elbow strikes to the accused’s left eye/temple area.  The elbow strikes had no apparent effect on the accused and it was at this point that he said that Constable Richardson came to Sergeant Clark’s assistance by immobilising the lower part of the accused’s body.  This enabled Sergeant Clark to free himself from the accused’s grasp and retrieve the capsicum spray from Constable Richardson’s duty belt.  Upon doing so, Sergeant Clark held the capsicum spray towards the accused’s face and threatened to spray him.  Sergeant Clark says that at this point the accused became more compliant. The accused was then handcuffed, and taken back into the police station.  The accused remained verbally abusive.

Constable Pritchard
20.	Constable Pritchard gave evidence that he and Sergeant Clark escorted the accused out of the Watch House with Constable Walsh accompanying the accused’s mother.  Whilst escorting the accused out of the Watch House, Constable Pritchard said the accused was still being argumentative and aggressive and that this was mainly focused on Constable Walsh.
21.	At the top of the ramp Constable Pritchard observed Constable Walsh heading back down the ramp towards the first roller door.  At this point in time Constable Pritchard said the accused pointed at him and said to him that he would lose his job.  He said that the accused then took a step over to the gate and poked him in the chest with his left index finger with moderate force.  He said that the force was just enough to move him slightly.  Constable Pritchard then observed Sergeant Clark take a step forward towards the accused and tell him he was under arrest “for assault on me”.  It is never clear on Constable Pritchard’s evidence whether Sergeant Clark used the word assault or assault police.  Constable Pritchard was not asked whether the only words used were “under arrest”. 
22.	Constable Pritchard described the next event:
Now did he come voluntarily with you back to the police station, or did something occur? --- At that stage, your Honour, Sergeant Clark has attempted to take hold of the defendant and the defendant has managed to twist his upper torso to make that not possible and that is when I’ve stepped in and tried assisting Sergeant Clark in basically gaining control of the defendant.  
How did Sergeant Clark attempt to take hold of Mr Wonder? ---He tried to grab him by the arm.  I can only guess that he was attempting to use some sort of armour or similar.
Can you say which arm or was it both arms that he was trying to take hold of?---I would assume, look, there was a lot of twisting and turning so it is a little bit confusing but I ended up taking hold of his right hand so I would only assume that Sergeant Clark was hanging off his left.
And did the three of you manage to stay on your feet or did at some point did the three of you go to the ground, or what?---Initially both Sergeant Clark and I couldn’t take control of the defendant, the defendant is extremely strong and we were twisting around and being basically thrown around a little bit.  So at that stage we were facing down the hill and we travelled from the watch house side of the gate to out onto the bitumen.  At that stage momentum was moving us down the hill and I put my leg in front of the defendant, causing him to trip.  At that stage he maintained his grip on Sergeant Clark and basically they both fell directly in front of me on my feet.  I believe Sergeant Clark landed on his left shoulder and the defendant on his right and they were facing each other.

23.	Neither Constable Pritchard nor Sergeant Clark describes what the accused and his mother say first happened.  Both say that the accused’s arm was dragged behind his back and that he was forced to the ground.
24.	As to the actual conduct which is the subject of the charge Constable Pritchard’s evidence was:
Now did you go to the ground or did you stay on your feet?---I dropped to one knee directly behind the defendant.  I was down on my right hand knee.  And I then heard the sergeant say – or he said it several times, “Let go”, and then he said, “Don’t bite me”.  At that stage I put my left arm around the defendant’s neck hoping to stop him from biting the sergeant, and as I did that, I remember quite distinctly the sound of what I would take to be teeth coming together, and my nose was probably about two centimetres away from the defendant’s ear so as – because I was holding him like that, I was quite close to him and could hear - - -
Now you said that you heard the sergeant say, “Let go”, and “Don’t bite me”, did you sneak any observation of the sergeant being bitten?---I couldn’t say your Honour, that I observed any biting as the defendant’s – the back of his head was what was facing me, I couldn’t see what his mouth was doing.
Did you see Sergeant Clark do anything around the time that he said, “Don’t bite me”?---Around that time, your Honour, Sergeant Clark performed three elbow strikes.  As I said I was very, very close to the defendant and I saw these made contact with his face.

25.	On a close analysis Constable Pritchard’s evidence is not consistent with that of Sergeant Clark in an important respect.  On Sergeant Clark’s evidence the pain he felt took place before he said anything.  I do not accept that Constable Pritchard heard “teeth coming together” after Sergeant Clark said “Don’t bite me”.
26.	It is also unclear whether if Sergeant Clark said those words they were words of complaint or precautionary admonition.  If the latter they could be consistent with the account given by the accused.

Constable Walsh
27.	Upon the accused’s release, Constable Walsh gave evidence of escorting the accused and his mother from the premises by taking them up the ramp and to the exit gate.  Upon reaching the exit gate she said the accused was still focused on calling her a “fucking cunt” and was not “calming down”.  She went back down the ramp immediately as she thought that her presence “was probably making him worse”.  Upon arriving back down the bottom of the ramp Constable Walsh says that she heard a commotion then heard Sergeant Clark say “you’re under arrest”.  At this time Constable Walsh looked up and saw the accused, Sergeant Clark and Constable Pritchard standing upright and wrestling and said “they all had hold of each other’s shirts”.  The accused’s mother was caught up in the scuffle.
28.	Constable Walsh says that she then observed Sergeant Clark and Constable Pritchard trying to place the accused on the ground and the accused resisting all attempts by them to do so.  She recalled the officer’s saying “get on the ground, get on the ground”.  Constable Walsh did not actually see what caused the accused being taken to the ground as she was attending to the accused’s mother.  Once they were on the ground, Constable Walsh says she thought she heard either Sergeant Clark or Constable Pritchard say “get your arms out, get your arms out”.
29.	Whilst attending to the accused’s mother, Constable Walsh heard the accused’s mother say “Why is he doing that?” at which point Walsh turned around and saw Sergeant Clark use his elbow to strike the accused.  She responded to the accused’s mother by saying “I don’t know why he’s doing that, but something must’ve happened”.  Constable Walsh said that immediately after the incident Sergeant Clark “showed me a bite mark to, I believe his left arm, just under his armpit.”  She was not asked any questions in cross examination on this aspect.

Constable Richardson
30.	Constable Richardson was outside the rear of the police station and saw a group of people on the road outside the exit from the station.  He saw the accused “vigorously struggling” with the two male police officers.  His evidence is inconsistent with that of Sergeant Clark and Constable Pritchard in that Constable Richardson says that it was when he arrived that the accused was placed on the ground.  If that were so the occasion which Sergeant Clark and Constable Pritchard deposed to could not have occurred.  His evidence is also at odds as to what the accused says occurred.

The accused
31.	The accused gave evidence of the events which led to him being taken to the City Police Station that night and of calling his mother from the cells.  His evidence was that he was very upset about what he regarded as the unfair treatment of his friend by the police.  He said he was frustrated, upset and angry.  He did however deny the force of his interaction with Constable Walsh and in particular that he had ever directed the words “Fucking cunt” towards her.  In that regard, I have carefully reviewed the CCTV footage and I accept his evidence and not that of Constable Walsh, at least as far as the incident at the Watch House charge desk is concerned.
32.	His evidence as to what happened when he was being release from the police station was:
We were led towards the gates.  I was – or had been sort of ushered, the small of my back, his palm as has been previously indicated.  I was taken to the sliding gate.  Both officers were always within a foot behind me.  When we got to the gate, just outside the gate, I turned to Constable Pritchard, placed my arm out on him and told him, “You can’t treat people like this”, at which point Sergeant Clark immediately yelled at me, “You’re under arrest”, and grabbed my right arm and ripped it up behind my back.
What happened then?---I tried to get my arm free because it was hurting, which sort of – we struggled sort of away from the gate a little bit, and I was pretty much just thrown to the ground.

33.	The accused also gave the following evidence in relation to the alleged biting:
Being on your stomach, what happened then?---I was tangled up with Sergeant Clark and Pritchard.  I had – I did have a hold of him as he had a hold of me.  I believe his neck – sorry, his hand came around my face and neck area, at which point I told him to let go.  I was struggling to breathe, I put my mouth around his arm at which point he immediately let go.
Why were you struggling to breathe?---His arm was sort of pushing my chin in like this and it was around my mouth.
And so in response to that, what did you do?---I put my mouth around his arm, to hope that he’d let go.  He did immediately, at which point I felt a big blow to my eye.
Just one blow or---? It was multiple times.
	
34.	In cross-examination the accused gave a further detailed version of the events in relation to the alleged biting incident:
So you bit him?---well I put my mouth around his arm, immediately he let go.
Well did you bite him, did you suck him, did you lick him, did you give him a kiss?  What do you do?---I wouldn’t call it a bite.  I probably would’ve if he continued not to let me breathe.
So you wouldn’t have called it a bite?---No.
So he hit you in the head for no reason?---Well I’m not saying it was no reason.  I had my mouth around throat, sorry his arm.
No we’re not saying you had it around his throat, don’t worry about that?---No.
But he hit you because you had your mouth around his arm?---Yes.
Did you see the photographs that were produced of Sergeant---?---Yes.
He says that’s as a result of your bite on his arm?---Yes that’s right.
It would have been more than just having your mouth around his arm to produce a result like that?---Yes I think so too.
You bit him didn’t you?---No, I put my mouth around his arm at which point he belted me in the face.
So that injury couldn’t have come from a bite?---It could have come from a bite but not on that night.
So you bit him some other way?---No.
Did you bite him at all?---As I’ve just described.
No[w] you keep saying you had your mouth around his arm.  You’re not saying you bit him.  Did you bite Sergeant Clark?---I put my mouth around his arm.
Did you close your mouth---?--- Yes and no, sorry.  It’s maybe better if I explain it.  His arms around my face, I’ve done that around there.  There would have been teeth on his arm but as soon as I did that like he put his arm away and I felt a blow to the eye.
Because you were immediately thrown to the ground weren’t you when you were outside?---We were, when my arm was ripped up around my back I tried to free it because it was hurting and we sort of struggled for a little bit and then, yes, I fell to the ground.
You take no responsibility for any of this?---I never said that, no.
Well I’m asking you a question, do you take any responsibility for any of this?---Yes.

The accused’s mother
35.	The accused’s mother also gave evidence.  She impressed me as a witness.  I do not consider that she was doing anything other than giving honest and reliable evidence.  She was adamant her son did not use at any time the words “Fucking cunt” in respect of anybody.  To an extent that undermines the reliance I might place on Constable Walsh and Sergeant Clark, both of whom alleged that expression was consistently used.
36.	Her evidence of what took place at the gate area of the police station was:
Can you tell his Honour what happened as you came to the – near the gate area?---Well, as we got to the gate and I got on the footpath, Nathan turned to one of the Policemen and said, “You can’t treat people like this.”
I’ll stop you there?---Yes
When he turned and said that where were you?---I was on the footpath because I know because I could see down – I didn’t know exactly which exit we were coming out of so I was looking down – directly down the footpath to London Circuit.
Were you in front of Nathan or behind him – sorry, that might be---?---I was on the side of him.
You heard him – you saw him turn and those words, did you see him do anything else at that time?---No, I said to him, “Come on Nathan” because I figured we were free to go at that stage.
Once he’d turned what vision did you have of him?---Side vision.  I didn’t see his right arm if that’s what you mean.
So you said “Come on Nathan, let’s go”, what happened then?---The other policeman yelled, “You’re under arrest”, grabbed Nathan’s arm, swung him around.  I got shoved to the side and the arresting officer dragged Nathan’s arm up his back, Nathan doubled over because he was in pain.  I yelled out “Please stop” because I could see Nathan was in pain but they kept pushing  him down and the two of them were pushing him across the road.  At that stage I was standing on the edge of the footpath just watching and a policewoman came up behind me and dragged my arms behind me and held me.  They forced Nathan down on the ground and sat in a pile on top of his back.  One of them seemed to have him in a headlock and one of them sort of threw a punch well hit him or slapped – I’m not sure whether he had a fist or just slapped him, I’m not sure.

37.	I think that this evidence is the most reliable account of what took place.  It confirms the relatively innocuous actions of the accused which are said to give rise to Sergeant Clark’s belief.  It supports the accused’s evidence, confirmed by Constable Walsh, that the accused was simply told that he was under arrest and not the charge.  It also confirms the police forcing the accused to the ground in the manner deposed to by the accused.

Consideration
38.	The circumstances which gave rise to the incident were largely of the accused’s own making.  It is understandable that right at the end of a lengthy period of aggressive abuse the police officer’s were prone to over react.
39.	I consider that it is reasonably possible that Sergeant Clark misinterpreted the accused’s action.  I also think that Sergeant Clark overreacted in the sense that he immediately physically intervened in a situation between the accused and Constable Pritchard which possibly did not call for an arrest to be made.  In the words of the accused’s mother, the arresting officer “pounced”.  
40.	The accused puts in issue whether it is possible that Sergeant Clark’s action in that regard was an unreasonable exercise of his power of arrest.  In cross examination the following questions were put to him:
At the point where Mr Wonder turned and, on your evidence, poked Constable Pritchard in the chest you determined that he had assaulted him?---Yes, that’s correct.
And that he had assaulted a police officer?--- Yes, that’s correct.
You determined that you would proceed to arrest him?---Yes, that’s correct.
Why was that?---I beg your pardon?
Why was that?---Because he had just assaulted a member of the Australian Federal Police.  His level of belligerence was increasing, his mother was obviously having no effect in controlling him and I believe that if he continued – if he continued in the current vein he would cause either harm to himself or his mother so I thought it prudent to take him back into custody at that point.
Well, it’s not taking him back into custody, you arrested him? ---I arrested him, yes.
And just to focus on your words, your belief was that if he continued he might do harm to either a police officer or his mother?---That’s correct, yes.
Is that the thought process that went through your mind immediately as you saw him poke Constable Pritchard?---Yes, I feared a continuation of the offence.
Okay, and the continuation of the offence was poking Constable Pritchard?---Yes.
And was it the case, and correct me if I’m wrong, that you suspected of having poked Constable Pritchard he might attempt to do something else to him?---That’s correct.
Did you suspect that or believe that?---No, well at the time I suspected it.
Thank you, and that prompted you to – as you’ve described in your evidence to move forward and grab him and tell him he was under arrest for assaulting a police officer?---Yes, those actions happened concurrently.

41.	Mr Sharman pointed to the difference in wording in s 212 of the Crimes Act 1900 (ACT) and s 3W of the Crimes Act 1914 (Cth).  Both provisions were arguably applicable.  The Territory Act is predicated on suspicion on reasonable grounds, the Commonwealth Act on belief on reasonable grounds.
42.	In George v Rockett (1990) 170 CLR 104, the High Court analysed the different states of mind constituted by suspicion and belief.  The court observed that “the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief...(at 115).  As to belief the court said (at 116):
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
43.	I regard the circumstances in which Sergeant Clark formed his belief as justifying its formation.  In my view, it is not to the point that he described it as a suspicion.  The facts that he observed were clearly sufficient to ground a belief.  Further, the cross examination to which I have referred does not cause me to find that there were not reasonable grounds for him having the belief.
44.	What is more problematic are the actions taken to effect the arrest and the accused’s response to them.
45.	I have pointed to the inconsistencies in the accounts between the police officers and the accused in respect of the circumstances giving rise to the charge.  As far as what happened is concerned I am not prepared to reject the accused’s account supported as it is in material respects by the accused’s mother.
46.	I accept the accused’s evidence as to the police officers forcing him to the ground and as to the struggle that ensued.  The accused’s evidence as to placing his mouth around Sergeant Clark’s arm takes its colour from my acceptance generally of what the accused and his mother said took place.
47.	The offence of assault occasioning actual bodily harm requires a striking, touching or application of force by the accused.  That conduct must be intentional.  Having regard to the accused’s evidence as to what he said took place I am not satisfied beyond reasonable doubt that the prosecution have proved that the accused’s actions were deliberate or that he intended to bite Sergeant Clark.
48.	I find the accused not guilty of the charge of assault occasioning actual bodily harm.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date:	 10 June 2011

Counsel for the prosecution:	Mr A Doig
Solicitor for the prosecution:	Director of Public Prosecutions (ACT)
Counsel for the accused:	Mr T Sharman
Solicitor for the accused:	Rachel Bird and Co
Dates of hearing:	11, 12 and 17 November 2010 and 3 December 2010
Date of judgment:	10 June 2011