DISTRICT COURT OF QUEENSLAND

CITATION: 	Young v The Commissioner of Police [2022] QDC 44	

PARTIES: 	ANA MARIE DE MAGALHARES YOUNG
(Appellant) 
v 
THE COMMISSIONER OF POLICE
(Respondent) 	

FILE NO/S: 	
DIS-1035/21 	
DIVISION: 	Criminal 	
PROCEEDING: 	Section 222 Appeal 	
ORIGINATING COURT: 	
Magistrates Court of Queensland at Brisbane 	
DELIVERED ON: 	10 March 2022  	
DELIVERED AT: 	Brisbane 	
HEARING DATE: 	
4 November 2021 with further written submission received on 26 November 2021 and 10 December 2021 	
JUDGE: 	Moynihan QC DCJ 	
ORDER: 	The order of the Court is that: 
1.	The appeal is allowed.
2.	The orders of the Magistrate are set aside.
3.	A judgement of acquittal is entered. 	

CATCHWORDS: 	CRIMINAL LAW – APPEAL – Elements of offence – Proof of elements – Error in process of trial – Causation – Duty imposed by law – Unreasonable verdict – Substituting offence on appeal

Criminal Code (Qld) ss 23, 31(1)(d), 275, 335, 339, 340(1)(c), 340(1)(d), 340(2AA) 
Criminal Code and Other Acts Amendment Act 2008 (Qld)
Criminal Code and Other Acts Amendment Bill 2008 (Qld)
Justices Act 1886 (Qld) ss 48(1), 222, 223, 225, 232
Nursing Act 1992 (Qld) (repealed) s 77
Allesch v Maunz (2000) 203 CLR 172, cited
Fox v Percy (2003) 214 CLR 118, considered
House v The King (1936) 55 CLR 499 at 504-505, considered
Dinsdale v The Queen (2000) 202 CLR 321 at 325, considered
R v Raymond [2018] QSC 97, considered
March v Stramare (1991) 171 CLR 506, considered
Griffiths v The Queen (1994) 76 A Crim R 164, at 167, 168, cited
R v Rose [2021] QCA 262 [59], cited
R v Maguire [2021] QCA 203 [16], [20]-[22], cited
R v Fahey, Solomon and A [2001] QCA 82, considered
Felix v Smerdon (1944) 18 ALJ 30, considered
Maher v The Queen (1987) 163 CLR 221, considered
Spies v The Queen (2000) 201 CLR 603, considered

	  COUNSEL: 	       R Carroll appeared for the appellant. Written submissions by 
                                        A Cappellano and R J Clutterbuck
    A C Spiteri for the respondent 
	  SOLICITORS:   	Beven Bowe & Associates for the appellant  
    Director of Public prosecutions for the respondent 
 Introduction
[1]	The appellant was convicted after a trial in the Magistrates Court of one count of serious assault under s 340(1)(d) of the Criminal Code (the Code).
[2]	The appellant was sentenced to two months imprisonment, suspended immediately, with the operational period fixed at 12 months. The appellant was also ordered to pay $3000 “restitution” by 5 May 2020.
[3]	The appellant appeals her conviction and sentence under s 222 of the Justices Act 1886 (Qld) (the Act).
[4]	The grounds of appeal raise the following primary issues:
•	Was there an error in the process of the trial?
•	Was the verdict otherwise unreasonable?
•	Was the sentence manifestly excessive?

The respondent concedes that the sentence is manifestly excessive, and I will return to that issue if necessary.
The Act
[5]	Section 222(1) of the Act provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
[6]	Section 223 of the Act relevantly provides that:
“(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.”
[7]	In Allesch v Maunz (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ, at p.180 [23], when defining the difference between an appeal by way of rehearing and a hearing de novo said:
“the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.”  See also Fox v Percy (2003) 214 CLR 118 at p. 127-128 [27].
[8]	If the ground alleges the wrong exercise of discretion in passing sentence, then the principles in House v The King (1936) 55 CLR 499 at p. 504-505 are engaged and the appellant must show either a specific error or that the sentence is unreasonable or plainly unjust: see Dinsdale v The Queen (2000) 202 CLR 321 at p. 325.
[9]	The power of the court in disposing of the appeal are set out in s 225 of the Act, which relevantly provides:
“(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.”

The grounds of appeal
[10]	The appellant’s grounds of appeal against her conviction are that the Magistrate: 
i.	“erred in convicting the appellant against the weight of the evidence.”
ii.	“erred in ruling against the admissibility of evidence.” 
iii.	“erred in taking into account inadmissible evidence.”
iv.	“acted upon a wrong principle in determining the matter, in her approach to the relevance of character evidence at trial.”
v.	“acted upon a wrong principle in determining the matter by taking into account sentencing principles regarding serious assault cases in the determination of the issue at trial.”
vi.	erred by acting on the basis that an intentional touching of the complainant would negate any implied consent.
vii.	failed to consider evidence of the appellant’s capacity to do the acts relied on to constitute the offence.
viii.	failed to consider an element of the offence.

The facts
[11]	The appellant was a 67-year-old woman with no criminal history.
[12]	At about 10:45 am on 27 September 2019, the appellant was a patient in Ward 9B South (the Ward) of the Royal Brisbane and Women’s Hospital (the Hospital). The Ward is a multi-bed ward shared by several patients, with the beds able to be separated by privacy curtains. There was a patient in the bed next to the appellant. That patient’s son (Shelliah) was present. Keeleigh Robyn Smart (the complainant) is a registered nurse who was working in the Ward. The complainant and another nurse (Bonnick) were attending to the patient in the next bed with the curtain between the beds drawn closed. The appellant could not see through the curtain; however, there was evidence that the appellant assumed that Shelliah and the nurses were on the other side of the curtain. There were other people in the area.
[13]	Whilst the complainant was with the patient, she brushed against and through the curtain, moving into the area around the appellant’s bed. As that happened, the complainant felt that she was hit four times on the left lower back.
[14]	The only particulars of the offence provided by the prosecution during the trial were:
“… the application of force - whether that be a touch or a punch or a slap - to the body of the complainant nurse Keelie Smart which was sufficient to cause her discomfort.” 
[15]	The complainant said the touching was “not very hard” and that she experienced some pain and red marks on her back. While the red marks were observed by others, Dr Chu, who examined the complainant soon after the incident did not see any red marks, but he explained that they can come and go. The complainant was diagnosed with a soft tissue injury and prescribed Panadol.
The appeal against conviction
[16]	It is convenient to first consider the ground in paragraph [10] viii. The question is - did the learned Magistrate fail to determine an element of the offence? The short answer is yes, as the respondent concedes.
[17]	The prosecution elected to charge and prosecute the appellant with an offence under s 340(1)(d) of the Code rather than an offence under sections 335, 339, 340(1)(c) or 340(2AA) of the Code. It is also worth noting that when the Criminal Code and Other Acts Amendment Act 2008 (Qld) (the CCAA) amended the Code to insert sections 340(1)(c) & (d) and (2AA), the Legislature made clear (see the explanatory notes to Criminal Code and Other Acts Amendment Bill 2008 (Qld)) that the CCAA inserted the “new subsection (2AA) to apply to assaults on public officers performing a function of their office or employment”. And, that the definition of public officer in s 1 of the Code was extended as “Subclause (5) inserts into section 340 an inclusive definition of ‘public officer’ to ensure assaults on emergency services personnel, health service employees and child safety officers are captured by the provision.”
[18]	Each of those offences required the prosecution to prove that the act relied on to constitute the offence was done “unlawfully”. The word “unlawfully” does not appear in s 340(1)(d) of the Code.
[19]	Section 340(1)(d) of the Code relevantly provides that:
“Any person who assaults any person because the person has performed a duty imposed on the person by law is guilty of a crime.”
[20]	By electing to proceed under s 340(1)(d) the prosecution was relieved of the burden of having to prove that the act relied on was unlawful, but instead was required to prove the necessary causal link between the assault and the duty performed.
[21]	The elements of the offence under s 340(1)(d) of the Code that the prosecution must prove beyond reasonable doubt are:
•	First, a person (the defendant) assaults (the assault) any person (the complainant).
•	Secondly, a duty imposed on the complainant by law (the duty).
•	Thirdly, the complainant has performed the duty.
•	Fourthly, the assault was because the complainant has performed the duty (underlining added).

[22]	Section 340(1)(d) of the Code is directed at a person who, in retaliation or retribution, assaults another person because that person has performed a duty imposed on them by law. Its purpose is to protect people who have performed a duty imposed on them by law.
[23]	In relation to the second element, the prosecution must identify the law, prove on the proper construction of the law (as a matter of law) that it imposes a duty on the complainant, and prove (as a matter of fact) that the act performed is within the scope of the duty. As the “law” imposing a duty is not limited by the section it may be common or statutory law (see R v Raymond [2018] QSC 97); and a duty is an act the person is required or obliged to do by the law.
[24]	The word ‘because’ in the fourth element has its ordinary meaning of denoting a causal link between the duty that has been performed and the acts relied on to constitute the assault. ‘Because’ ordinarily means “for the reason that” or “due to the fact that”: (see Macquarie Concise Dictionary 7th edition).
[25]	The resolution of whether X caused Y as a matter of fact must be resolved by applying common sense to the facts of each particular case. The matter is not resolved simply by asking whether but for X, Y would not have happened: see March v Stramare (1991) 171 CLR 506 per Mason J (with whom Toohey and Gaudron JJ agreed) at p. 515.
[26]	The appellant entered a plea of not guilty and did not admit any element of the offence. In Griffiths v The Queen (1994) 76 A Crim R 164, Brennan, Dawson and Gaudron JJ. said at p.167:
“A plea of not guilty puts all elements of the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be. That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element.”
And at p. 168:
“With respect, the ultimate onus of proving all elements of the offence, including either the voluntary or criminally negligent firing of the fatal bullet, rested upon the Crown and, if the evidence available to the Crown did not discharge the onus, the appellant was entitled to be acquitted.”
[27]	The parties conducted the case on the basis that the real issue was whether the prosecution could prove that the acts relied on to constitute the offence happened; and if they did happen, that they were done without the actual or implied consent of the complainant. This approach did not, as the Magistrate expressly acknowledged, relieve the Magistrate of the requirement to decide whether the prosecution had on the evidence proved each element of the offence to the requisite standard. This is particularly so when the evidence itself raises an issue with the existence of an element, as I will explain later in these reasons.
[28]	The learned Magistrate did consider the first element of the offence and found that: 
i.	The defendant struck the complainant four times on the back with sufficient force to cause immediate pain, red marks on her back, and for which she needed to take paracetamol for two weeks thereafter. 
ii.	The complainant did not expressly or impliedly give consent to those acts.
iii.	The complainant did not have a pre-existing injury.

[29]	The learned Magistrate was also correct to find on the undisputed evidence that the complainant was a registered nurse, working at the Hospital, and attending to a patient. That does not, of itself, satisfy the second element of the offence.
[30]	The learned Magistrate did not either consider or make necessary findings in relation to the second, third and fourth elements of the offence.
[31]	The failure to make findings in relation to those elements of the offence is, as the respondent concedes, a fundamental error in the process of the trial and the conviction should be set aside. The matter would ordinarily be remitted to the Magistrates Court for a new trial.
[32]	It is unnecessary, in the circumstances of this case, to determine whether the other alleged errors in the process of the trial in paragraph [10] ii to vii are made out, as they would lead to the same result.
Unreasonable verdict
[33]	However, as there remains a ground of appeal in paragraph [10] i that the verdict was “against the weight of the evidence”, that is, that the verdict is unreasonable, I must determine whether, on the whole of the evidence, it was open to the Magistrate to convict.  In R v Rose [2021] QCA 262, The Court recently said of similar circumstances at p.14 [59]:
“Even though the appeal must be allowed, because of grounds (b) and (c), it was still necessary to consider ground (a), because if the appellant had been able to succeed on that ground, an acquittal should have been entered rather than the ordering of a retrial”.
[34]	The prosecution primarily contends that the verdict is not unreasonable because “the prosecution proved its case beyond reasonable doubt and no error is made when accepting the evidence of the complainant over that of the appellant”.
[35]	The test of whether a verdict is unreasonable is, as reiterated by Morrison JA, with whom Mullins JA and Bowskill SJA agreed, in R v Maguire [2021] QCA 203 at p.3 [16] and [20]:
“[16] In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen (2011) 243 CLR 400 at [20]-[22] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
[20] In a case where the trial was by a judge without a jury the principles are the same. In R v Kelly this Court recently restated them:
“[3] In R v Harris, this Court recently considered the principles that govern an appeal against conviction in a judge alone trial on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence. Having considered the High Court’s decisions in Fleming v The Queen and Filippou v The Queen, Fraser JA (with whom Sofronoff P and North J agreed) concluded that each of the three grounds of appeal in s 668E(1) of the Criminal Code is capable of application to the verdict of a judge alone. His Honour stated:
‘Accordingly, in an appeal against conviction in a judge alone trial upon the ground that the verdict of the judge is unreasonable or cannot be supported having regard to the evidence, the Court must undertake an independent examination of the whole of the evidence at the trial and decide whether it was open to the judge to be satisfied beyond reasonable doubt of the appellant’s guilt.’”
[36]	First, the prosecution had to prove the appellant assaulted the complainant. The prosecution contends that it was open to accept the evidence of the complainant over the appellant on this element. The complainant gave evidence that she was hit through the curtain on her left lower back with moderate force four times, causing her to experience pain and red marks on her back. Two of the other people present in the cubicle with the complainant gave evidence of the acts relied on to constitute the offence. The first, Bonnick, gave evidence that the complainant said, “She just hit me” and “I’ve been hit”. She saw red marks on the complainant’s back. The second, Shelliah, said he saw the curtain separating the cubicles move, heard a slap or a punch and the complainant say something like “ouch” or “hurt me”. Another nurse, Carley Spargo, later took photographs of the red marks that were admitted as exhibit 2 at the trial. Dr Chu, who saw the complainant soon after the alleged assault, did not observe any red marks but said the complainant had a soft tissue injury to her lower back which was tender to touch. He explained that it was possible for the red marks to come and go in the circumstances. Finally, the appellant herself admitted, both in her out of court statement to police and when she gave evidence at her trial, that she had softly touched the complainant. She conceded she may have touched the complainant up to four times on the back.
[37]	The evidence was capable of sustaining a finding that the appellant did assault the complainant, and that the complainant did not expressly or impliedly consent to that act given the circumstances in which the acts occurred, the number of acts, the force used in the acts and the injury sustained.
[38]	Secondly, the prosecution was required to prove a duty imposed on the complainant by law. The prosecution must identify the law, prove that it imposes a duty on the complainant, and prove the act relied on as having been performed is within the scope of the duty. At the trial, the prosecution did not identify either the law or the duty. On appeal, the respondent simply submits that the complainant was a registered nurse and “the complainant had performed a duty imposed on her as a registered nurse under the Nursing Act 1992 (Qld) (the NAQ).”
[39]	The respondent does not identify the duty. I cannot find any provision in the NAQ that imposes a duty on a registered nurse other than the negative duty that a person must not engage in nursing without being qualified, registered, and licensed: see s 77 of the NAQ. However, a more fundamental problem for the prosecution is that the NAQ was repealed on 1 July 2010.
[40]	The complainant’s uncontentious evidence is that, at the time of the acts relied on to constitute the offence, she was a registered nurse, working at the Hospital, attending a patient who was experiencing chest pain, and that, as she bent over to plug the automatic blood pressure machine into the wall, she was hit on the lower back. While it might be accepted that by doing one or both of those acts the complainant was likely acting within the scope of her practice as a nurse, that is a very different thing from doing a duty imposed by a law. The prosecution could not, on the whole of the evidence in this case, prove this element.
[41]	Thirdly, the prosecution had to prove the complainant had performed the duty. This element requires the prosecution to prove that, at the time of the act relied on to constitute the offence, the complainant had performed a duty imposed by law, as distinct from was performing a duty imposed by law (cf. s 340(1)(c) & (2AA) of the Code). The complainant was in the process of performing the act or acts relied on and had not finished them. A finding that the complainant had performed the duty is not open on the evidence.
[42]	Fourthly, the prosecution had to prove that the assault was because the complainant had performed the duty.
[43]	The prosecution had to prove the appellant did the acts constituting the offence for the reason that, or due to the fact that, the complainant did the act comprising the duty and not for some other reason.
[44]	There was a curtain separating the appellant from the other patient, the complainant, Bonnick and Shelliah. The appellant could not see through the curtain.  The appellant did not know the complainant. The appellant assumed the persons present on the other side of the curtain included the patient’s son and nurses. There was no evidence the appellant knew what any particular person was doing in that cubicle. The complainant said that as she bent over to plug the automatic blood pressure machine into the wall, she brushed against the curtain separating the beds with the machine and, given the limited room between the bed and the curtain, “the patient (the appellant) was obviously concerned that I was going to be knocking into things”. The appellant said words to the effect that “you’re going to knock my stuff off the bedside table”. Bonnick gave evidence that she heard a similar statement from the appellant. The complainant conceded that “I knew I wasn’t going to knock into it but I was, like, leaning over so the curtain behind me was moving, so it probably looked like I was going to”. And immediately after the complainant told the appellant “Nah, I can see underneath the curtain, I’m not going to” she was hit on the back. The prosecution also led in its case the appellant’s out of court statement to police where the appellant admitted that she did touch or tap the back of the person and said “Stop. You are about to back into my things”.
[45]	The appellant elected to give evidence in her defence and on this issue, she relevantly said that she saw the curtain “moving toward her”, so she said “something like, you are going to knock my things” and the person denied that and kept on coming backwards so the appellant extended her hand and “tapped the person on the back” up to three, possibly four times. She said, “I touched them to stop them”. It was “something you do automatically” and “it’s just a reflex action”.
[46]	The defendant may have assumed the complainant was a nurse, but there is no evidence that the appellant knew what the complainant was specifically doing on the other side of the curtain let alone that she had performed a duty imposed on her by law. Further, the evidence does not support a finding that the appellant acted for the reason that the complainant had performed an act as a nurse. The appellant had no interest in who was behind the curtain or what they were doing or had done until a person suddenly came through the curtain. The issue of causation involves reasoning from the circumstantial evidence and, on the whole of the evidence, the prosecution cannot exclude the rational inference consistent with innocence that the appellant acted because she felt she had to alert the person, whether they be a nurse or not, in order to prevent them from causing damage to her property.
Substituting a different charge on appeal
[47]	The respondent contends that if I find the verdict is unreasonable, they should be allowed on appeal to amend the complaint to substitute a different offence.
[48]	The respondent submits that the appellant should be convicted of the offence under s 340(1)(c) of the Code. Section 340(1)(c) of the Code provides: 
“Any person who unlawfully assaults any person while the person is performing a duty imposed on the person by law is guilty of a crime.”
[49]	The respondent submits the power to substitute a new offence on appeal is found in s 225(3) of the Act which picks up s 48 of the Act. Section 225(3) of the Act provides:
“the judge may exercise any power that could have been exercised by whoever made the order appealed against.”
[50]	Section 48(1) of the Act provides:
“(1) If at the hearing of a complaint, it appears to the justices that—
(a) there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
(b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
then—
(d) if an objection is taken for any such defect or variance—the justices shall; or
(e) if no such objection is taken—the justices may;
make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.”

[51]	I doubt that a finding on appeal that the verdict is unreasonable is a defect (see R v Fahey, Solomon and A [2001] QCA 82) or variance between the complaint and evidence (see Felix v Smerdon (1944) 18 ALJ 30 p.30; Maher v The Queen (1987) 163 CLR 221) that would engage s 48 of the Act. In any event, it is unnecessary to decide whether the power is engaged on appeal because, assuming that it is, I would not exercise the discretion given by the power as I am not satisfied that the amendment of the complaint is “necessary or desirable in the interests of justice” for the following reasons.
[52]	First, the prosecution elected to charge and prosecute an offence that was misconceived from the outset. The proposed new offence is not one which is wholly within the ultimate facts of the offence on which the appellant has been convicted because it does not appear that the Magistrate must have been satisfied of facts which proved the appellant guilty of that other offence. Further, it was not pleaded as or available as an alternative at the hearing and it is not less serious than the charged offence: See Spies v The Queen (2000) 201 CLR 603.
[53]	Secondly, the proposed new offence includes an additional element that did not form part of the original offence considered by the tribunal of fact.  The proposed new offence requires the prosecution to prove that the act relied on was unlawful. Further, the evidence is capable of engaging defences under s 23 (intention), s 31(1)(d) (compulsion) and s 275 (defence of moveable property) of the Code for the prosecution to negate, which have not been litigated.
[54]	Thirdly, the new offence includes an element of a duty imposed by law, and the respondent has not identified either the duty or the law imposing it.
[55]	Fourthly, the appellant has made forensic decisions on the basis of the offence she had to meet, such as giving certain evidence of which the prosecution now has the benefit, and may thus be prejudiced by the change in the offence.
[56]	Fifthly, the appellant has already served a substantial portion of the sentence which the prosecution concedes was excessive.
[57]	Sixthly, as the appellant has incurred the cost of her trial and successful appeal and, s 232(4) of the Act provides that no costs order may be made, it would be unfair for her to incur the costs of a further trial.
Orders
[58]	The appeal is allowed.
[59]	The orders of the Magistrate are set aside.
[60]	A judgement of acquittal is entered.