Brennan v Arthur
[2000] QDC 353
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- Brennan v Arthur[2000] QDC 353
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Brennan v Arthur[2000] QDC 353
Brennan v Arthur[2000] QDC 353
DISTRICT COURT | Appeal No 489 of 2000 |
APPELLATE JURISDICTION
JUDGE O'BRIEN
MARK BRENNAN | Appellant |
and
CONST SELENA ARTHUR | Respondent |
SOUTHPORT
DATE 14/12/2000
JUDGMENT
HIS HONOUR: On 9 May 2000 in the Magistrates Court at Coolangatta the appellant was convicted of two offences of assaulting a police officer in the execution of his duty and one offence of obstructing a police officer in the performance of his duty. In respect of the charges of assaulting police officers, he was sentenced to a term of nine months' imprisonment, to be served by way of an intensive correctional order. He now seeks leave to appeal against both the convictions that were recorded against him and the penalties that were imposed.
It has been conceded by counsel for the respondent that the conviction in respect of the charge of obstructing a police officer cannot be sustained and that the Magistrate erred in law in finding the accused guilty of that offence. That concession is properly made, and the appeal in respect of that matter should be allowed.
That leaves for consideration the two charges of serious assault. The charges arose out of an incident which occurred on Christmas Eve 1999 when a number of police officers attended a disturbance at the Coolangatta Hotel. The prosecution case was that the appellant had assaulted three of those officers by spitting on them. One of the officers, Constable Edwards, gave evidence of relevant events as follows, and I quote:
“Just tell the Court what occurred as a result of that incident?-- We attended opposite the Balcony nightclub in Marine Parade in the park in relation to a separate matter. Whilst I was dealing with another person, I observed the defendant speaking to Constable Arthur. He was speaking in a - in a raised voice and he said words to the effect of, ‘You're on their side. This is a fucking joke’ or something, words to that effect. I could see that he was approaching Constable Arthur quite close facing her off, basically - and I approached him and placed my hands on his right shoulder - sorry - his left shoulder and started to escort him away and Constable Anderson, who had also attended the scene with Constable Singh, had obviously observed the same.
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What else? Did you see anything else at that point in time when you saw the defendant talking to Constable Arthur?-- It was apparent that he was spitting and spitting blood because Constable Arthur had said something in relation to that and she was stepping away from him and she had her hands in her defensive position as she was moving away from him. He was - he kept approaching her in - continued in this aggressive tone of voice.
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Okay. You said you then approached the defendant and attempted to escort him away; is that correct?-- That's correct.
And you said the - that then Constable Anderson came to assist you?-- Yes.
At that stage; is that right?-- On the other side of the defendant.
Can you tell what happened with the defendant then, what you saw?-- He turned to me and said words to the effect of, you know, ‘What the fuck are you doing?’ I told him that he was under arrest or words to those - that effect, and he made a gurgling noise in his throat and spat blood and saliva into the side of my face and on my mouth and on the side of my shirt.
Where did it contact - sorry - the blood?-- On my face, shoulder, chest and I tasted it in my mouth. I could taste blood in my mouth.
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Did anything occur to Constable (Anderson) at all?-- Yes. He turned to Constable Anderson as well and continued with the same verbal attack and spat - I actually saw the blood spraying from his mouth and making contact with Constable Anderson's face and shirt.
As a result of this blood coming out of his mouth, what did you do then?-- We continually told him to stop spitting the blood, and obviously he wouldn't. We were walking him towards the car, so we placed him face down on the ground and Constable Singh handed Constable Arthur a pair of handcuffs and we handcuffed him with his arms behind his back and I had to continue to shield the defendant's face from me because he was spraying up while he was on the ground trying to turn, continuing to spit - my whole hand was covered in spit and blood.
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And what occurred then?-- Well, I - because he wouldn't stop spitting and I basically at that stage - try and get through to him was screaming, stop spitting to him. He continued to spit and carry on, so I kept my hand there, probably for a period of 30 seconds or so. He stopped spitting. We lifted him up and I held his head - the back of my hand towards his chest and we walked him to the car, placed him in the rear of the sedan.
Okay. Now, did you observe anything while you were in the sedan?-- He spat - he continued to spit. As soon as he was turned around facing me again, he continued to spit and I again held my hand across his face. He sat down and I deflected his face away with my other hand and shut the door and he continued to spit all over the inside of the window.
And did you observe the defendant do anything else whilst he was in the vehicle?-- Head-butt the window a couple of times.”
Another police officer, Constable Anderson, gave the following evidence:
“Now, did you have cause to see Constable Arthur or hear anything said by Constable Arthur to the defendant?-- I did. I heard - like Constable Arthur had a conversation with him. I wasn't - you know, within earshot. I was actually walking towards them. I heard the defendant say words to the effect of, what was it, ‘Youse - you're on their side. Youse are all fucking useless' or something, words to that effect.
And what did you observe then?-- He was still in an aggressive mood. Constable Arthur stepped back away from him. It appeared that he was spitting blood at that stage - like then he was talking - and I moved up by then and was near Constable Arthur.
Okay. Did you see Constable Edwards do anything at that stage?-- Constable Edwards also - finished - I think he saw what was happening and he's moved towards where he was standing and we both - you know, approached the defendant and grabbed him on the arm.
Do you recall any conversation that the defendant had with you at that stage?-- He said, ‘What the fuck do you want?’
What occurred then?-- We attempted to lead the defendant back to the car and the defendant immediately put up a struggle, threw - tried to throw his arms around and he's turned his head and spat towards Constable Edwards, spat in his face.
Okay. Can you describe what sort of spitting motion that was at all?-- You could - you could hear the motion of the spit, the actual drawing of the spit and then the spit occurring.
Okay. Is there - so he spat on Constable Edwards; is that right?-- That's correct.
Do you know where the spit landed?-- Oh, on his face region.
Okay. Now, that occurred - now, what occurred then after he spat on Constable Edwards?-- Still struggling, still attempting to lead him towards the police vehicle. He's also turned his head and spat on - and spat in my face.
Okay. Can you describe what sort of spitting motion that was?-- Exactly the same. He actually - you know, form the spitting sound, I would imagine, and then spat.
And where did that spit land?-- In my - on my face and uniform.
Now - and what occurred after he spat on you?-- We've had to take the defendant - we were closer to the vehicle by that stage, take the defendant to the ground and he - you know, attempt to stop us getting spat on anymore, put him on the ground. Constable Edwards - sort of held his hand close to the defendant's face or over his mouth type of thing to stop - you know, stop any further spits”.
I have set out this evidence in some detail in order that the grounds of appeal might be properly understood. The first two grounds - namely, that the convictions were against the weight of the evidence and/or that the learned Stipendiary Magistrate erred in finding beyond reasonable doubt that the officers were acting in the performance of their duty at the relevant time - might conveniently be considered together.
The essence of the appellant's argument in relation to these grounds is that the learned Magistrate (leaving aside for one moment the requirements of proof) should have found that the appellant had not been arrested or at least not lawfully arrested and that the police officers, therefore, were acting unlawfully at the relevant time.
So far as the first aspect of this argument is concerned, it is to be noted that Constable Edwards said during his evidence in chief that he had, in fact, placed the appellant under arrest. In the course of her decision, the learned Magistrate expressed the following view of the evidence given by the police officer:
“I form the view that each of the police officers was giving their evidence in a forthright way. I observed how they answered the questions Mr Clifford put to them, and I was quite satisfied beyond any doubt that they were all being truthful and they were giving their evidence in a way that I could rely upon their evidence”.
Implicit in this finding is an acceptance of the evidence of Constable Edwards to which the Magistrate expressly referred of having placed the appellant under arrest. It was argued that the Magistrate should not have accepted that evidence since Edwards made no reference to such an arrest in his statement and Constable Anderson did not actually hear him effect the arrest.
The difficulty which confronts the appellant in presenting such an argument is that it can scarcely be claimed that the finding is one which was not open to the Magistrate on the evidence before her. This was a case which depended very largely upon the Magistrate's assessment of the credibility of the witnesses who gave evidence before her.
Because a Court on appeal does not have the advantage enjoyed by the trial Court of seeing and hearing the witnesses give their evidence, it is difficult to now disagree with the Magistrate's findings on matters of credibility or to substitute new findings in respect of such matters. See DeVires v The Australian National Railways Commission (1993) 177 CLR 472, as Justices Brennan, Gaudron and McHugh observed at page 479 of that judgment:
“More than once in recent years this Court has pointed out that a finding of fact by a trial Judge based on the credibility of a witness is not to be set aside because an Appellate Court thinks that the probabilities of the case are against, even strongly against, the findings of fact. If the trial Judge's findings depend to any substantial degree on the credibility of the witnesses, the findings must stand unless it can be shown that the trial Judge ‘has failed to use or has palpably misused his advantage’ or has acted on the evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”.
In my view, so far as issues of fact are concerned, when the decision appeal form is read as a whole, the appellant here has not identified any error of principle or demonstrated any mistake or misapprehension about relevant facts on the part of the learned Stipendiary Magistrate. The findings of fact which she made were findings which were open to her on the evidence and no basis has been shown for setting aside any of those findings.
To understand the second of the grounds of appeal, it is necessary to make some reference to the provisions of the Police Powers and Responsibilities Act of 1997. Section 35(1) provides that certain situations in which a police officer may lawfully arrest a person without warrant. They include, inter alia, a situation in which a police officer reasonably suspects a person has committed or is committing an offence if it is necessary to prevent the continuation or repetition of the offence.
Section 112(2) of the Act provides that a uniformed police officer performing an arrest must, as soon as reasonably practicable, inform the person, the subject of the arrest, of his name, rank and station.
The argument in this case is that the police officer did not give evidence of having informed the appellant of his name, rank and station. It was further argued that the officer had a common-law obligation to inform the appellant of the reason for his arrest. See Christie v Elachinsky (1947) 1 Appeal Cases 573 and Hortin v Rowbottom (1993) 61 South Australian State Reports 313.
It would seem to me that the provisions of the Act effectively provide a code in relation to arrest and that any obligation the officer arresting might have to inform the person arrested of the reason for that arrest is that provided for in section 113(1) of the Act. In any event, just as with the obligation to inform of name, rank and station, this need only be done “as soon as is reasonably practicable” or, as Lord Dupracq put it in Christie v Elachinsky, “at the first reasonable opportunity”.
I have set out above the evidence of the police officers. It is clear from that evidence that the officers were lawfully entitled to arrest the appellant without warrant pursuant to section 35(1). The fact that the officers gave no evidence of the matters referred to in sections 112 and 113 does not, of course, mean that there was no compliance with the requirements of that section. In any event, however, in the circumstances of the present case it was clearly not reasonably practicable, given the evidence accepted by the Magistrate, to comply with those sections at the actual time of arrest. What matters is that at the time of the assaults the police officers were acting lawfully in the exercise of a power conferred by section 35 of the Act.
In the circumstances of this case the lawfulness of their conduct at that particular time is not dependent, in my view, upon any subsequent failure to comply with the “safeguard” provisions of the Act. It follows from all of the above that this ground of appeal has not been established.
The remaining ground of appeal is that the learned Magistrate failed to address herself in terms of section 23 of the Criminal Code. At the hearing the appellant maintained that he did not deliberately spit at the police officers. He contended, in effect, that by reason of injuries previously sustained, notably a fractured jaw, any discharge of blood or spittle had occurred other than deliberately. The Magistrate, in accepting as she did the evidence of the police officers, necessarily accepted that the spitting was in each case a deliberate action.
Moreover, the appellant was acquitted of a third charge of assault involving another police officer Constable Arthur. In respect of that matter the learned Magistrate said:
“When I consider the totality of the evidence before me, I find that the prosecution has proved beyond reasonable doubt each and every element of the charges duly in the assault involving Marcus Robert Edwards. I find the prosecution has established beyond reasonable doubt each and every element of the charge of serious assault involving Tully Andrew Anderson.
However, I find in relation to the serious assault on Selena Judy Arthur that I am left in doubt as to whether Mr Brennan intentionally spat upon her. I accept Constable Arthur is left in no doubt that there was purposeful and intentional spitting, but I find that the informal nature of her conversation with Mr Brennan was not fairly and squarely a direction to him when she said, ‘Mate, you're spraying blood on me. You'll have to move away. I can't help you like that’.
Given that Mr Brennan was highly agitated and highly pumped full of adrenlin, I am left in doubt about whether his continuing to swear at her, aggressively yell at her in close proximity to her face with a mouthful of blood so that she was sprayed with blood, I'm left in doubt as to whether it was an intentional act that constitutes serious assault”.
When regard is had to the above, I am satisfied that the Magistrate here did direct her mind to the requirements of section 23 of the Criminal Code and that this ground of appeal is not made out.
Finally, there is the application for leave to appeal against sentence. The appellant was 21 years old and he had no prior convictions. He was in employment and was a person of general good character. The sentence imposed was one of nine months' imprisonment which was ordered to be served by way of an intensive correctional order.
A term of imprisonment, even one served in the community, may seem a somewhat harsh penalty for such a young first offender. However, the authorities make it plain that such a penalty is not outside the range for an offence which involves spitting on a police officer. In Queen v Laskus, Court of Appeal number 56 of 1996, delivered on 24 April 1996, for example, the Court of Appeal upheld a sentence of four months' imprisonment suspended after two months imposed on a 19-year-old first offender who pleaded guilty to spitting at a police officer at the Bundaberg Police Station.
The Courts have recognised the need to impose deterrent sentences and to uphold the authority of the police. As Dowsett J. put it in Billington v Filmore, C.A. number 402 of 1996, delivered on 14 November 1996:
“The Court has been concerned to ensure that the dignity of the officer was maintained and, more particularly, that the community mark its displeasure of such degrading conduct towards someone performing a difficult but vital duty”.
It may be that another sentencing tribunal may have imposed a lesser sentence on the applicant, but as I have said, the authorities plainly establish that the sentence imposed was one which was within the appropriate range. However, although a sentence of imprisonment by way of an intensive correctional order was within that range, I consider that the term of nine months was greater than was reasonably appropriate in the circumstances of this case.
Apart from the mitigating factors to which I have referred, the material clearly established that the applicant had suffered serious head injuries at some stage shortly before his involvement with the police officers. At the relevant time he was in considerable pain and undoubtedly felt a sense of grievance that the person who had, without provocation, assaulted him earlier, was apparently being treated with immunity by the police. Moreover, there was clear evidence that the appellant subsequently apologised to the police officers for his behaviour.
Consistent with these matters and consistent with the comparative sentences to which I have referred, I consider that a term of three months' imprisonment to be served by way of an intensive correctional order would be the appropriate penalty in the circumstances of the case.
In summary, then, I make these orders: In relation to the charge of obstructing the police officer, the appeal is allowed and the appellant is discharged. In relation to the two charges of serious assault, the appeal is dismissed. In relation to the appeal against sentence in respect of those matters, the appeal is allowed to the extent that a period of three months' detention to be served by way of an intensive correctional order is substituted for the sentence of nine months' imprisonment. Of course, under section 111 of the Penalties and Sentences Act such an order necessarily involves a recording of a conviction.
In relation to the charge of obstructing police, I order that the respondent should pay the appellant's costs of and incidental to that matter in such amount as may be agreed or, in the absence of agreement, to be assessed.