Akehurst v Police
[2004] QDC 41
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Akehurst v Police[2004] QDC 41
Akehurst v Police[2004] QDC 41
DISTRICT COURT | No 7 of 2003 |
APPELLATE JURISDICTION
JUDGE BOULTON
OLGA ERANA AKEHURST | Appellant |
and
POLICE | Respondent |
MAROOCHYDORE
..DATE 23/01/2004
JUDGMENT
HIS HONOOR: This is an appeal matter of Olga Erana Akehurst and the Police, which I heard on Monday of this week. I have now had an opportunity to consider the matter and I propose to read some reasons for my decision.
The appellant was charged in the Magistrates Court at Maroochydore that on the 1st of August 2002 she had:
- (1)failed to supply a specimen of breath for analysis;
- (2)driven a motor vehicle whilst unlicensed:
- (3)driven a motor vehicle whilst under the influence of liquor;
- (4)obstructed police officers in the performance of their duties;
- (5)assaulted the police officer (Reilly) whilst acting in the execution of her duty; and,
- (6)assaulted the police office (Moate) whilst acting in the performance of his duty.
On the 25th of February 2003 the charges were heard by Mr Killeen, Magistrate. The appellant had pleaded guilty to the unlicensed driving charge. The Magistrate acquitted the appellant on the driving whilst under the influence of liquor charge but convicted her of the remaining four charges, along with the count, of course, to which she had already pleaded guilty. The Magistrate imposed the one penalty of a fine of $2,500; in default, 50 days' imprisonment. The appellant was disqualified from holding or obtaining a driver's licence for a period of 12 months. Convictions were recorded.
The appellant appeals to the Court on both conviction and sentence. Her amended notice of appeal filed the 22nd of July 2003 lists four grounds for the appeal against conviction. They, if I just refer to the amended notice of appeal, relate to:
- The fact that the obstruct charge and the two serious assault charges arise out of the same incident.
- That the presiding Magistrate interfered with the cross-examination of counsel during the trial and that amounted to bias or apprehended bias on the part of the Magistrate.
- That the evidence given by Constable Reilly in relation to the roadside breath test was not in compliance with section 80(6),(a) of the Transport Operations (Road Use Management) Act and that that affected then the refusal to supply. And, lastly;
- That the appellant gave evidence of having been assaulted herself at the scene and at the Maroochydore Police Station, and that such assaults then tainted the lawful requisition of breath for analysis pursuant to the abovementioned Act.
In argument, Mr Read for the appellant made reference to some related issues relating to the police power to require the appellant to accompany them to the police station for breath analysis. He referred to a decision of Wylie DCJ in Linklater v. Harms (1991) 14 QL 86. That case referred principally to the need for the police testing officer to present the person to be tested with the choice between compliance and non-compliance with the request to supply. A tape recording of the procedure, which was in front of the Magistrate at the trial, plainly indicates that this was done.
Mr Read also seemed to think that there was no power on the part of police to take the appellant to the breathalyser, but in a letter to my Associate dated the 20th of January 2004 enclosing a copy of the decision in Linklater, he concedes that “the issue is not of any relevance now”.
The police had power to do so under section 80(6) of the abovementioned Act.
Furthermore, reference was made to the fact that Reilly gave evidence of having told the appellant that her blood alcohol level on the roadside test had exceeded the legal limit and that she was required to accompany them to the police station. It was said that she should have made specific mention of the number of milligrams of alcohol and millilitres of blood, but there is nothing in that submission. The direction given by police officer Reilly accurately stated the position.
The fact that the police officer could not be sure of the exact reading of the roadside test, said to be .079, when the matter came on for trial some six months or so after the event, is also of no consequence.
Mr Read refers to certain photographs of bruising to the appellant, which were before the Magistrate. In particular, he refers to a bruise to the appellant's left buttock, as being indicative of excessive force having been used by police. The Magistrate dealt with the issue in his reasons and made the following finding, and this is at page 6 of the decision:
“I find the defendant was at all times uncooperative and abusive and aggressive to the police officers and was in an angry agitated state. I find that at all material times, both police officers acted in a proper and lawful manner.”
And further:
“I find that any injuries suffered by the defendant at any material time was a consequence of her violent and resistant and objectionable and obstructive behaviour towards the police officers.”
Those findings, I might mention, are amply supported by the evidence in trial.
I turn to the principal thrust of the appeal which relates to a section of the cross-examination of police officer Reilly at pages 38 and 39 of the trial transcript, and refer to the passage commencing on page 38 of the transcript, at about line 9:
“Well, what are you saying she did to obstruct you?-- She obstructed us. She wouldn't allow us to take her back to Maroochydore for a further test.
Oh, so that's the ingredients of the obstruct? That's all right. I'm just asking?-- That's what I said, yes.
That's obstruct, yeah - on what you say?-- Yes.
So that's the obstruct. Well, then on your evidence that's where the serious assaults come into it, aren't they?-- That's correct.
So you agree you have serious assaults albeit on you and the other chap together with the obstruct, don't you?-- That's correct.
All in one, all in the one pot? Is that right?-- That's correct.
Okay. And that's what the obstruct was, the fight, the donnybrook and this mixed in with serious assaults? That's what you're saying?-- That's correct.
BENCH: I don't think that's correct, Mr Read. You've already heard the particulars that have been read out. You sought the particulars. The constable's read out the particulars so the obstruct isn't what you've just described. It's as given by the prosecutor so I'm sure you've made notes of that.
MR READ: Well, your Worship, that is correct but I-----
BENCH: Right. And you've just clarified it a couple of questions back as to what the obstruction was by reducing it to walking away?
MR READ: That's right, your Worship.
BENCH: Okay. Well, the last question wasn't that at all. So-----
MR READ: Well, if I may explain, your Worship, with respect.
BENCH: The obstruct is not the assault on the-----
MR READ: But that's what she said in evidence.
BENCH: No, no, no. That's not the case at all.
MR READ: Well, I just heard her, your Worship.
BENCH: No, it's not the case because - perhaps you want to clear it - but it's already been clearly stated by this witness and by the particulars that the obstruction was the walking away and you've put words into her mouth, with due respect, to add on the extra assaults which quite clearly are separate from the obstruct and any lawyer would know that from the evidence as being fact. If there's an obstruction any - the assaults are following the obstruction. That's quite clear from the particulars and from the evidence of this witness, with due respect.
MR READ: Particulars, with due respect your Worship-----
BENCH: All right. Well, keep going anyway but I'll just point to you that-----
MR READ: Well, I wish to clarify that, your Worship, because-----
BENCH: Yes. All right.
MR READ: -----she has said to me under cross-examination-----
BENCH: No.
MR READ: -----and I'm not putting words into her mouth.
What she's now said, she's changed her evidence.
BENCH: No, I don't accept that. I reject your submission.
MR READ: Well, it's on the record, your Worship.
BENCH: Well, I have to make the decision. I reject that part of your submission that you're making on her evidence. It's quite clear. You can clarify it if you like but it's quite clear to me from my notes from the evidence that's been stated - and the only reason I've made that comment because I'm sure you've made that question to confuse this witness, that last question - that's the only reason I intervened because this witness has clearly stated that the obstruction was not going to the police station; it was walking past the police vehicle.
MR READ: She did say that in evidence, your Worship.
BENCH: Okay. Well, if you want to clarify it you can.
MR READ: But-----
BENCH: Okay. I'm not going to go into any more debate with you-----
MR READ: Yes, all right. Thank you, your Worship.
BENCH: -----but I've formed a view on that matter.”
It is on the basis of this passage that Mr Read suggests or submits the two grounds of appeal - one and two that I have mentioned above - relating firstly to the alleged obstruction of counsel and two, the apprehension of bias on the part of the Magistrate.
At the commencement of the proceedings, Mr Read had asked for particulars of the offences. Those had been provided in respect of the obstruct police charge and the assaults, and I again refer to the transcript, the passage commencing at page 4 of the transcript at about line 49:
“...Your Worship, in respect to the charge under section 444, subsection 1 of obstruct police, under the provisions of the Police Powers and Responsibilities Act - your Worship, as a result of the random breath test and subsequent roadside breath test, it will be alleged that the defendant was required and instructed by Constable Reilly that she was to accompany police to the Maroochydore Police Station for the purpose of breath analysis.
Upon being so instructed and required, the defendant has taken it upon herself to leave or attempt to leave the scene by walking away from police, continually ignoring their requests and their requirements and their instructions...”
In respect of the two charges of serious assault, the particulars provided were as follows:
“It will be alleged, your Worship, that whilst police were using such force as is reasonably necessary to effect that purpose, the defendant has lashed out on several occasions whilst being armed with a set of car keys. And has struck both Constable Reilly and Sergeant Moate, with her hands and the said car keys resulting in pain and discomfort to the officers and some injuries to the officers.”
The function of particulars in criminal proceedings is significant. It has frequently been referred to in decisions of Appellate Courts and quite recently in a case in the Queensland Court of Appeal, which was handed down on the 24th of December last year. The Court of Appeal returned to that topic, referring to an earlier decision of the Court of Appeal in The Queen v. Trifyllis, CA No 358 of 1998, in which reference had been made to the New South Wales decision of The Queen v. Saffron (1989) 17 NSWLR 395 and further reference had been made to what was said by the High Court of Australia in the case of Dare v. Pulham (1982) 148 CLR 658 at 664 in that decision to which I am referring, Chesterman J. merely commented that part of that function is to give the opposing party a sufficiently clear statement of the case, to allow him to meet it and to identify the issue for decision and thereby enable the relevance and admissibility of evidence to be determined.
Once this is understood, the attempt made by defence counsel in the abovementioned passage in cross-examination of the police officer seems to have been designed to suggest a different particularisation from that which had been earlier provided by the prosecutor in the trial. Such an attempt, of course, does not lie in the hands of the defence. The onus of proof in proceedings is for the prosecution and the framing of the case to be submitted to the Court is also for the prosecution.
Attacks may be made by the defence, of course, on the evidence in the case, but this seems to have been rather an attempt on the part of the defence to cloud the issue as to what was being tried before the Magistrate. It was objectionable and it was rightly interfered with by the Magistrate. As I say, it conflicted with what had been said earlier by the witness, but more importantly, it was done with a view to obtaining from the witness a legal opinion by the police officer which she was neither qualified nor authorised to give.
The Magistrate did not prevent cross-examination on the evidence; he prevented cross-examination on the framing of the particulars which had already been addressed. The Magistrate's intervention was both timely and correct. There was no reasonable apprehension of bias whatsoever.
Mr Read referred to a number of authorities relating to judicial bias, or the apprehension of judicial bias, which are in themselves, of course, beyond challenge. I take no issue, of course, with those authorities. However, it is not an indication of judicial bias for a judicial officer to make a ruling relating to the conduct of the trial, as in this instance concerning particulars. Judicial officers routinely give such rulings in the course of a trial and in some instances, do so in forthright fashion, as apparently the Magistrate did here.
That is sufficient to dispose of the appeal against conviction.
Mr Read submits that the sentence was manifestly excessive. He submits that a fine $1,600 would have been more appropriate, with no conviction recorded. He also contends that the disqualification of 12 months is excessive. He refers to the appellant's absence of prior criminal history and, to her financial circumstances. However, he presents no decided cases to support his contention about either the fine or the recording of a conviction, or indeed, the period of disqualification were excessive.
The failure to supply charge is dealt with under the Legislation as being equivalent to the major charge of driving under the influence of liquor.
The unlicensed driving charge was, of course, of lesser significance, but Mr Moraitis for the Crown submitted that the two serious assault charges, where she struck at the faces of police officers with keys, deserved significant penalty. He says that the appellant behaved with utter disregard for the police and showed no remorse whatsoever for her actions. She was a mature woman who should have known better. The fine of $2,500, he submits, is not shown to be manifestly excessive.
There is the issue of the recording of a conviction, but the factors relevant to such an exercise of discretion have been referred to in a large number of cases in the Queensland Court of Appeal. One of the leading cases on the issue is The Queen v. Briese, ex parte Attorney-General (1998) 1 QdR 487. In the joint judgment of Thomas and White JJ, at page 490, reference is made to factors expressly set out in section 12(2) of the Penalties and Sentences Act. It was further held that the discretion whether or not to record a conviction was to be exercised in conjunction with the remainder of the sentencing process. At page 493 they agreed with certain observations of Dowsett J:
“Section (2) expressly contemplates a consideration of the offender's background and the effect of recording the conviction on him or her. The section does not mention the effects on the community of not doing so, but these considerations are inherent in the “nature of the offence” (s.12(2)(a)). They must not be overlooked. Specific considerations might include:
- (i)whether violence was used and if so, to what extent;
- (ii)whether there was exploitation or abuse of trust;
- (iii)the extent of economic loss to victims;
- (iv)The extent to which the circumstances of the offence suggest a propensity to offend or a risk that if given an opportunity, the offender may re-offend.”
In the present case, the only grounds advanced by defence counsel related to the appellant's financial circumstances and, specifically in respect of the recording of a conviction, to her absence of prior criminal history. No adverse impact on her employment prospects or her future was suggested. The Magistrate made reference to the abovementioned matter, but then observed:
“I note the relevant provisions of the Penalty and Sentences Act in respect to sentencing and I also note the comments in the case of Robinson referred to by Constable Raison, the comments of Judge Howell and I totally support the comments of Judge Howell.
It is the case that assaults upon police officers, unfortunately, a prevalent offence in this time, and the Court should serious desist any sort of future conduct of people or like-minded persons like yourself.
In this case I am quite satisfied that your assault, from my comments in my decision was unprovoked and that you did use a weapon, a key, to inflict injury to the face of both police officers and that you did make a smart comment after when you drew blood. In respect to your application under section 12, I note the relevant provisions of section 12(2)(a)(b) and (c).”
Judge Howell had been quoted as saying, at page 8 of the submissions of the police prosecutor:
“‘I am aware from my experience in Courts that the offence of unlawfully assaulting police and insulting police are becoming far too prevalent. It an offence in which the deterrent element is more than ordinarily important. Police are not punching bags for the dregs of society. As was stated on another occasion, they are not to be the subject of puerile insults from objectionable half smart people whose invariable lame excuse is being partially or substantially adversely affected by liquor.’”
It was suggested by the appellant's counsel that the Magistrate, in accepting the comments of Judge Howell, may have been labelling the appellant as part of “the dregs of society.” I do not believe that that interpretation can be fairly supported. Reading the transcript, Exhibit 2, before the Magistrate, the latter part of the quotation might not have been too far from the mark.
The issues relating to the use of violence involving the keys; the injuries to the faces of the police officers, which are depicted in Exhibits 3 and 5; the lack of remorse on the part of the appellant, reflected in her observation to the police officers, “I'm glad I made you bleed”; the general deterrence required to counteract the prevalence of such attacks on police, were all such as to bring the sentence, including the recording of a conviction, within range.
Mr Moraitis referred to the Court of Appeal decision in Ah Chee v. Gremper, COA No.423 of 1994. That case involved one count of serious assault and obstructing a police officer. The Court refused to disturb the sentence and that sentence included the recording of the conviction on a person who had no prior criminal history.
The disqualification period of 12 months is not excessive for a conviction on the major charge of driving under the influence of liquor. It follows that the appeal against sentence should also be dismissed.
...
HIS HONOUR: I make no order as to costs.
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