Abou-Sleiman v Commissioner of Police [2025] QDC 128

District Court of Queensland|2025-09-11

Office of the Director of Public Prosecutions for the respondent

[1] On 24 October 2024, after a trial that had taken place on 9 September 2024, the appellant was convicted by a magistrate of one charge of serious assault, contrary to s 340 of the Criminal Code. The assault comprised spitting on the boot of a police officer while the officer was in the execution of her duty.
[2] The appellant appeals from that conviction on the grounds (stated in her notice of appeal) that the magistrate's decision was against the evidence and the weight of the evidence.
[3] For the following reasons, I find that, although the magistrate made one error of law, the conviction of the appellant should stand and consequently the appeal should be dismissed.

[5] The alleged offence was charged under s 340(1)(b) and paragraph (a)(i) of the penalty under s 340. The relevant parts of that section provide:

Serious assaults

340 (1) Any person who -

(b) assaults ... a police officer while acting in the execution of the officer's duty ...

is guilty of a crime.

Maximum penalty -

(a) for subsection (1)(b), if the offender assaults a police officer in any of the following circumstances -

(i) the offender ... spits on the police officer ... or in any way applies to, the police officer a bodily fluid ... - 14 years imprisonment.

Definition of assault

245 (1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another either directly or indirectly, without the other person's consent ... or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person's consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person's purpose, is said to assault that other person, and the act is called an assault.

(2) In this section -

applies force includes the case of applying ... any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

[7] The particulars of the charge did not allege that the appellant attempted or threatened to apply force to the complainant's person, but only that she spat a bodily fluid, namely saliva, on the complainant.

[8] The grounds of appeal stated in the notice of appeal were more expansively described in written submissions drawn by senior counsel who represented her both at the trial and on the appeal. Mr McCarthy KC submitted that the magistrate had erred in finding the offence proved because:

(a) the verdict was against the weight of the evidence;

(b) the evidence did not support a finding that the appellant spat on the officer's boot;

(c) even if saliva landed on the officer's boot, that did not constitute an application of force to the person of the officer, as distinct from the boot, there being no evidence that the force of the contact transferred through the officer's grounded boot and was applied to the person of the officer; and/or

(d) if saliva landed on the officer's boot, that did not amount to the appellant having spat on the officer, there being no evidence that any of the saliva made contact with the officer as distinct from her boot.

[9] Mr McCarthy went on to submit that the magistrate made errors in finding that:

(a) saliva was present on the complainant's boot;

(b) the impact of any saliva landing on the complainant's boot constituted an application of force to the complainant; and

(c) the impact of any saliva on the complainant's boot constituted spitting on a police officer.

[10] The respondent called evidence from the complainant and two other police officers who were near her at the time, as well as the arresting officer. The body worn camera footage from each officer was also tendered in evidence.

[11] The complainant gave evidence that she and other police officers were conducting special duties relating to crowd management at the RNA showgrounds, where a Labour Day function was being held. During speeches, the police formed a static line in front of the stage, where the then Premier of Queensland, Steven Miles, was a speaker.
[12] The complainant said that there were protesters at the event apparently in support of Palestine. The appellant came to the complainant's attention because she saw and heard her using a loud hailer held by her to chant, "Free, free Palestine" and to call out, "Traitor, traitor" at the Premier.
[13] The appellant was standing a few metres away and slightly to the right of the complainant and then moved closer to and directly in front of the complainant. The complainant saw the appellant looking directly at her for a short while and then the appellant spat at her. The complainant immediately grabbed the appellant's wrist, but the appellant pulled her wrist free and ran away through the crowd. Some of the protesters stepped in front of the complainant in an apparent attempt to stop her from chasing the appellant. The complainant said she looked down and saw some spit on her shoe.[1] She identified her body worn camera footage, which was tendered in evidence and part of which was played.
[14] In cross-examination, Mr McCarthy tested the complainant's evidence that the appellant had spat on her boot, principally by reference to things said by the complainant and recorded on her body worn camera footage. Mr McCarthy put to her that she was not sure, either in the moment or later, whether any of the appellant's spittle had actually hit her boot.
[15] In answer to the question, at what point she looked down and saw some spit on her shoe, the complainant said, "It would have been just after the incident. Directly after." When Mr McCarthy suggested that she did not see any spit on her shoe, she replied, "Well, I did." He suggested that she looked down and found nothing, to which she responded,

That's not correct. And what was important at the time was to hold the line for the stage, so I - at the time I looked down to see where it went, it was on my shoe, I continued on with my job.

[16] After viewing part of the camera footage again, the complainant agreed that another officer asked her, "Where did it go? On your chest or your face?" Mr McCarthy put to her that she had then looked down and said, "They spat on my f...;" that is, not completing the last word. He suggested that that was because, when she looked down, she was uncertain whether there was any spittle on her boot. She disagreed, saying that the last word she had said was "foot." She said what she saw was wet on her boot. She was not certain at that time whether or not any spittle had got her.
[17] It was put to her that, when another officer asked, "Did it get you?" she responded, "I don't know, probably on my foot." She accepted that, at that point, she suspected that some spittle was on her foot, but she had no actual knowledge then. But, she said, when she looked down, she saw something on her boot. At the time, she did not go and inspect her shoes as what was important then was maintaining the police line and she was not worried if it was on her shoe at that stage. She had another task to do.
[18] In re-examination, she said that she looked at her boot when she left the stage area and went to speak with the senior sergeant.

[19] Snr Sgt Schmidt said she was present in the line of police in front of the stage, standing next to the complainant and to her left, when she saw the complainant lunging toward the defendant. She identified her body worn camera footage, which was tendered in evidence and part of which was played.

[20] Sgt Smedley said he was present in the line in front of the stage and the complainant was to his left. He was looking away, but then saw the complainant reach forward and attempt to grab the defendant. He identified his body worn camera footage, which was tendered in evidence and part of which was played.

[21] The respondent also called another police officer, who gave evidence of the defendant's arrest. Nothing he said was relevant to the issues in this appeal.

[22] Excerpts from the body worn cameras of each of the three officers present on 6 May were played, both during evidence in chief and in cross-examination. The magistrate not only saw those excerpts during the trial, but it is obvious from his reasons that he viewed the footage carefully in the process of considering his verdict and writing his reasons. His Honour summarised the relevant parts of the three videos, starting with that of the complainant:

At 12.11.52 to 54, the defendant looks to her left and nods her head. She turns back to her right and looks at the complainant. She continues to look to her right, and then at .11.59 turns back to look again at the complainant, licks her lips and steps forward and is slightly behind and to the left of the man in the white shirt.

At 12.06, while Sally McManus is speaking, she is audibly heard to spit, and the footage shows her to lean forward when doing so. Gordon [the complainant] lunges forward to grab her, but is not successful, and the defendant disappears into the crowd. At 12.12.43 Gordon says "She spat on me. Don't worry about me, I'll have it on camera". She's questioned by another officer, "Did it go on your chest or face?". The video depicts her looking down as she says "They spat on" and then she's quickly looking down again and says "my foot". And I am satisfied that the defendant said "foot" rather than stopping mid syllable.

In exhibit 2, Officer Schmidt is standing to the left of Gordon. Her body-worn camera footage, particularly at 12.12.06, shows the defendant to lean forward, and just as the defendant goes out of shot, a spit is heard. The defendant comes back into shot, straightens up and takes a step backwards. In the video you hear Gordon say "She spat on me" three times. Sorry, "She spat on me" three times.

Exhibit 3 is the evidence from Officer Smedley's body-worn camera footage. Smedley is to the right of Gordon. At 12.12.06 the defendant is seen to look at the ground in front of her, purse her lips, lean forward, and the spit sound is heard and her mouth is open. She closes her mouth as she straightens up and moves backwards. She looked directly at Gordon, and Gordon has attempted to grab her. She has dropped the megaphone. At 12.13.08, when asked by another officer, "Did she get you?",[2] the complainant answers "I don't know. It's probably on my foot".

In submissions I was urged by defence counsel to carefully consider exhibit 1 regarding the uncertainty of the complainant's statements. Firstly, at 12.12.43 where she answers "I don't know. It's probably on my foot". At 12.13.05 she's seen looking down. At 12.14.10, again looking down. And at .15.27, looking down - actually, that's 12.15.27, looking down. The footage doesn't show the shoes. The footage shows inside the peak of the officer's cap coming into shot, which I accept her as looking down. She is also seen to look down at 12.22.20.

In summary, Officer Gordon's evidence was that the defendant spat at her, that she saw some spit on her shoe. She says to another officer "She spat on me. Don't worry about it, I have it on camera", and when asked whether it was chest or face, she says "They spat on my foot". At 12.18.08, when asked "Did she get you?", and says I don't know. It's probably on my foot"...

[23] I have watched carefully all the body worn camera footage of the incident. I am satisfied that his Honour substantially summarised it correctly. The three recordings demonstrate chronologically that the following events occurred.

(a) The appellant approached the line of police and came to a stop in front of the complainant. She appeared to look directly at the complainant. She leaned forward, looked down toward the ground in front of her and spat.

(b) The complainant immediately reached out and took hold of the appellant's wrist, but the appellant managed to release her wrist from the complainant's grip, turned and disappeared into the crowd.

(c) The complainant, speaking to colleagues, said, "She spat on me" four times and then told another officer who came over to speak to her, "The one with the megaphone, she spat on me and [inaudible]."

(d) She was asked "Did it go on your chest or your face?" to which she responded, looking down, "They spat on my foot."

(e) An officer to her left (apparently Acting Snr Sgt Schmidt) asked her, "Where did it get you?" to which the complainant responded, "I don't know, probably on my foot."

[24] The defendant gave evidence. She said that she went to stand next to her partner, shortly after which:[3]

I lowered my head and I spat at the ground, specifically at the ground immediately before my own feet. I don't remember seeing any boots; I only saw the ground. I didn't see where the spit landed though. I then raised my head and I saw who I now understand to be [the complainant] looking at me, only for about a second. She then reached forward and grabbed my right arm. And then, instinctively, I pulled away and left the crowd ...

[25] In cross-examination, the appellant agreed that, immediately before she spat, she was looking straight ahead at the complainant. She did not agree that she spat at the complainant's feet, saying she spat on the ground. She accepted that, if someone spat at the ground near where someone else was standing, it was possible that the spit would get on that person's feet. She agreed that when she raised her head she saw the complainant looking at her and that she backed away, but she denied that she backed away because she knew she had hit the complainant's feet.

[26] The magistrate, having heard the evidence and having later re-watched the footage, was satisfied that, despite a moment of uncertainty about where any spittle had landed on her, that was outweighed by the complainant's subsequent certainty. He was satisfied that the appellant deliberately spat toward the complainant. He was satisfied, beyond reasonable doubt, that the appellant had spat on the complainant's boot.[4]
[27] Mr McCarthy submitted that the evidence did not support the latter finding. He submitted that the complainant's evidence was irreconcilably inconsistent, particularly given her answer to the question where the spit had got her, and the magistrate could not be satisfied that her later assertions of certainty (including in her evidence) that the spit had landed on her boot outweighed her initial expression of uncertainty.
[28] I disagree. The magistrate was entitled to - and did - take into account all the evidence in determining whether it was beyond reasonable doubt that the spit (or some of it) landed on the complainant's boot. The complainant's first statements after the appellant spat was to say several times and to different officers that the appellant had spat on her. There was no ambivalence in those statements. The complainant's evidence was definite: that the appellant had spat on her boot. She also said that, when she did inspect her boot, there was liquid on it.
[29] It was clear that, when the appellant spat on the ground, she was close to the complainant. Although at least one nearby member of the crowd was carrying an open can of drink and there was some rubbish on the ground around where the complainant walked, there was no apparent spillage or other source of liquid shown in the body worn camera footage (nor put to the complainant in cross-examination) that might have landed on the top of the complainant's boot. The evidence was sufficient to exclude any other source of the liquid that the complainant saw on her boot. His Honour's conclusion that some of the appellant's spittle had landed on the complainant's boot is not contrary to the weight of the evidence and there was sufficient evidence that he could be so satisfied. He did not err in coming to that conclusion.
[30] Having reviewed the evidence myself, both the footage and the transcript, I am also satisfied beyond reasonable doubt that some of the appellant's spittle landed on the complainant's boot. To the extent that the evidence was circumstantial (in that nobody actually saw the spittle land on the boot), there was no other reasonable explanation for the liquid observed on the complainant's boot than that it was the appellant's spittle.

[31] Mr McCarthy submitted, both before the magistrate and on the hearing of the appeal, that, even if spittle had landed on the complainant's boot, that did not constitute the application of force to the complainant's person. Any application of force was to her boot and was not capable of being applied to her, especially with her boot then being on the ground. The mere application of force of the spittle to the complainant's boot did not transmit any force to her foot or elsewhere on her body and therefore there was no application of force, directly or indirectly, to her person.
[32] Mr McCarthy contrasted this situation with an indirect application of force to a person's body (whether or not felt by the person) by, for example, tugging a person's clothing or potentially even spitting on the person's clothing (again, even if it is not felt by the person), or stomping on the person's boot. But there was no evidence that the arrival of spittle on the complainant's boot was or could have been felt by her or constitute even a miniscule application of force to her foot, through the boot.
[33] Mr McCarthy submitted, before me, that the magistrate did not consider this part of his submissions in expressing his Honour's reasons for his decision. With respect, that is not correct. His Honour specifically addressed whether there was an application of force to the complainant's person by the application of force to her boot, which was part of her clothing. He rejected the proposition that that was not an application of force to her person, saying:[5]

... I have found that I am satisfied that some spittle landed on [the complainant's] boot. That is an application of force.

[The complainant] is wearing shoes to protect her feet for various reasons, including safety. On this occasion it protected her from spit hitting her skin. That she did not feel it is not surprising. To allow that argument would mean that the officers could be spat on, but as long as their skin is not touched by the spit, no offence under section 340 would be committed. I am satisfied the defendant assaulted [the complainant].

[34] Mr McCarthy submitted before me that his Honour's statement in the penultimate sentence of that passage was wrong, as the definition of "assault" is broad and covers a wide range of scenarios. His Honour was wrong to conclude that a finding on the facts of this case would operate as an obstacle to a finding on other facts in other scenarios.
[35] With respect, I agree that the manner in which his Honour expressed that sentence in his reasons was too broad. Mr McCarthy did not go as far as to make a submission that to spit on a person's clothing without touching the person's skin could not in any circumstances constitute an assault on the person. The submission before his Honour was not to the effect stated, but was limited to whether the landing of spittle on the complainant's boot effected any force on the person of the complainant. I agree that his Honour erred in that manner of reasoning. It is necessary that I consider the submission.
[36] Mr McCarthy expanded on this submission before me by submitting that, even if a person does not feel the arrival of spittle on the person's clothing, there might be a miniscule application of force to the person's body by the additional (again miniscule) force of gravity on the person's clothing, if that part of the clothing was supported by the person's body. Therefore the additional weight of the clothing would apply force indirectly to the person's body. But in this case, the complainant's foot was not supporting the weight of her boot, which was on the ground at the time that any spittle landed on it, so any additional gravitational force on the boot was simply transmitted through the boot to the ground. No force was, directly or indirectly, applied to the complainant's person.
[37] The parties referred me to an article on spitting and several cases, referred to in that article, in which courts have considered what constitutes an assault or a battery at common law and, in some cases, whether attacking or spitting on a person's clothing constitutes an assault on the person.
[38] Of the cases to which I was referred,[6] in three the court held that spitting on a person was battery.[7] Three led to - and the court applied - the proposition that to touch or to spit on the clothing of a person while the person is wearing them is to touch or spit on the person, as the person's clothing, when worn by the person, is intimately connected with the person,[8] although none of them considered force being applied to a person's shoe. Mr McCarthy submitted that, while those cases may be correct in considering clothing that is supported by the person's body, the cases do not assist here, where the relevant item of clothing was the person's boot. The question remains whether the spitting involved the application of some force to the person, either directly or indirectly, by the force of gravity on the person's clothing. Here, he submitted, the respondent called no evidence to prove that any spittle landing on the complainant's boot resulted in any force being applied to her body. In the absence of such evidence, the respondent did not prove that the appellant had assaulted the complainant.
[39] Several of the cases were referred to in the article provided to me,[9] in which the author's principal purpose was to discuss the decision in DPP v JWH. The article contains a useful reference to cases of assault or battery at common law, including by spitting. However, it does not greatly assist the enquiry in this case.
[40] Mr McCarthy also stressed that it is necessary to consider this case, not only on the evidence, but also having regard to the particulars of the charge. They were limited to an allegation that the appellant spat on the complainant. The charge did not allege the possible alternative under s 245, namely that the complainant, by a bodily act or gesture, attempted or threatened to apply force to the complainant. The only question, under the charge as particularised, if the court found (as his Honour did) that any spittle landed on the complainant's boot, was whether that fact involved the application of force to the person of the complainant.
[41] With respect, Mr McCarthy's novel and somewhat ingenious submission - that the respondent's failure to call evidence that, applying the laws of physics (particularly gravity), to spit on the complainant's boot resulted in the application of force to her person and therefore the respondent did not prove the charge - does not persuade me. Mr McCarthy accepted (correctly) that it was not necessary for the respondent to demonstrate that the application of force was actually felt by the complainant. All that is relevantly required, in order to constitute an assault as defined in s 245, is that any kind of force be applied to the person of another without that person's consent. The application of force includes (but is not limited to) the application of any substance whatever if applied in such a degree as to cause personal discomfort. The complainant's foot was in her boot when the appellant's spittle landed on it. The sensible meaning of the section is that any force, when applied to the body of, or the clothing being worn by, a person constitutes the application of force to the person of the victim. It would not have been in the contemplation of the legislature that, to demonstrate that force has been applied to a person when it was applied only to the person's clothing, in the absence of a concession by the defendant it would be necessary for the prosecutor to prove and the court to apply the relevant laws of physics. To do so would be to ignore the ordinary meaning of the words used in the section; that is, how they would ordinarily be understood.
[42] A plurality in the High Court has said:[10]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

[43] I consider that the natural and ordinary meaning of the words, in the context in which the definition of "assault" occurs and having regard to the obvious purposes of that section and of s 340, are intended to apply in the construction of the sections. The ordinary meaning of applying force to the person of another is any form of force applied to any part of the person's body or clothing worn by that person. To construe the sections in the manner for which Mr McCarthy contended would, in my view, be to produce "patently unintended or absurd results."[11]
[44] But even if gravity were relevant (as Mr McCarthy conceded it is), the application of force, however miniscule, to a person's boot would, however minimally, apply some proportion of that force to at least a part of the person's foot that was in the boot - as obviously much of the person's foot touched the boot, directly or through a sock. The extra gravitational force on the boot would, in the process of being transmitted through the boot to the ground, also be transmitted to the foot where it is touched by the boot. Frankly, the need to consider this minute issue demonstrates the absurd consequences that would be effected if the section were construed in the manner for which Mr McCarthy contended.[12]
[45] The appellant did not submit that the force applied by the landing of spittle on the complainant's boot would not be such as to cause the complainant discomfort, so it is unnecessary to consider such a question, although clearly it would.

[46] Therefore, although the magistrate erred in one respect, the resulting conviction of the defendant was correct.

[2] In fact, as I heard the question, it was, "Where did it get you?"

[4] Reasons, T1-7:5-8; 1-9:24-31; 1-10:26-41.

[6] Dating back to the reign of Queen Anne and the early and middle years of the reign of Queen Victoria.

[7] The Queen v Cotesworth (1704) 6 Mod 172, 87 ER 928; R v Smith [1866] EngR 37; (1866) 4 F & F 1066, 176 ER 901; Director of Public Prosecutions v JWH (unreported, New South Wales Supreme Court (CL Div), 17 October 1997, BC9705937).

[8] R v Day (1845) 1 Cox 207; R v Thomas (1985) 81 Cr App R 331; DPP v JWH.

[9] P Blazey-Ayoub, "The Law of Spitting" [1998] 22 Crim LJ 151. The author was, at the time, a lecturer at the University of Wollongong law school.

[10] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (citations omitted).

[11] Footscray City College v Ruzicka [2007] VSCA 136; (2007) 16 VR 498, [16].

[12] I say this without meaning any disrespect for Mr McCarthy, whose submission was, as I have said, novel and somewhat ingenious.

At a glance

Court

Decision date

Source

Judgment (44 paragraphs)

Parties

Cases Cited (2)