A judge has quashed the serious assault conviction of a man who admitted spitting on a police officer while being detained in a Brisbane entertainment precinct for swearing and making a rude hand gesture.
Jamal Mohammed was found guilty of a charge serious assault after a summary trial in the Brisbane Magistrates Court on 19 July 2021 over an incident during which he was arrested by a number of police officers in Fortitude Valley two years earlier.
The court had been told Mr Mohammed admitted spitting on a police officer, but only after it became obvious to a number of police who had “the force of numbers” that he had a broken arm – which was in a cast – and endured pain during the course of being detained for the purposes of a search.
Mr Mohammed appealed the conviction in the Brisbane District Court appeal under Section 222 of the Justices Act 1886 on the grounds the magistrate’s finding of guilty and subsequent conviction for an offence of serious assault was unreasonable and not supported by the evidence adduced at trial.
Brisbane District Court Judge Geraldine Dann, in a 22-page decision published Friday, granted Mr Mohammed’s appeal, quashed his conviction and entered a verdict of not guilty.
Judge Dann, in her reasons delivered on 30 November, gives a detailed insight into key aspects of the case.
“Mr Mohammed appeals against the Magistrate’s decision to convict him, after a trial, of one count of serious assault of a police officer,” Judge Dann said.
“Mr Mohammed and some others were out in Fortitude Valley late one Saturday night in July 2019 … (and he) veered towards the oncoming police who were walking on the footpath, raising his middle finger and saying (or singing) ‘f*** the police’.
“One of the police officers turned and arrested Mr Mohammed and the other two officers assisted.
“They walked him back to the police beat, with one officer holding each of Mr Mohammed’s arms because he was wearing a cast on his right arm.
“The police officers knew about this at or very shortly after the arrest. When they got inside the police beat, they put Mr Mohammed up against a padded wall.
“In the course of constraining him to conduct a search of his person, when Mr Mohammed did not put his arm in the cast out on the wall, the complainant police officer lifted Mr Mohammed’s elbow up and Mr Mohammed cried out.
“Thereafter, he spat in the officer’s face, giving rise to the serious assault charge.”
Judge Dann said Mr Mohammed admitted spitting on the police officer during his summary trial, but that he contested his challenge to the serious assault conviction which arose from the circumstances in which he came to do so.
“His primary ground of appeal is that the conviction is not supported by the evidence led at the trial and he asks the Court to come to its own conclusion on the evidence before the Magistrate,” Judge Dann said.
“The approach the officers took here was not one which was informed by the particular circumstances they found themselves in, with a citizen of unknown levels of inebriation, who had made no threats to them and who had a cast on his arm and was telling them repeatedly that his arm was broken.
“Mr Mohammed had been brought back to the police beat for very low level transgressing behaviour.
“Whilst Mr Mohammed was resisting being taken into the police beat, through dragging his feet and not walking properly, he was, at the same time, pleading with the police about his arm.
“None of the officers asked him, at any time, if he was in pain or if he could move his arm.
“Whilst he was on the wall he was pleading with the officers about his arm being broken, and whilst they told him he had to put his arm out none of them asked him if he could do that or needed assistance before (the police officer) pushed his elbow up and held it up in the air.
“The officers had force of numbers. They gave Mr Mohammed no real opportunity to comply with the requirement to put his injured arm out on the wall before it was pushed up, despite knowing he had a cast on his arm and he had been saying, repeatedly, his arm was broken.
“It all happened in a matter of a few seconds.
“Consequently I am not satisfied that (police officer’s) action in pushing Mr Mohammed’s elbow up at the time that he did, and in holding it up, was, objectively, reasonably necessary force.
“As such, I find he was not acting in the exercise of his duty as a police officer at this time, when Mr Mohammed then spat at him.
“The prosecution having failed to prove this element of the offence which Mr Mohammed was charged with beyond a reasonable doubt, Mr Mohammed should be acquitted of the offence.”
Read the decision.