Anthony Pulitano v The Queen; Alessandro Pulitano v The Queen

[2016] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:	Anthony Pulitano v R; Alessandro Pulitano v R [2016] NSWDC 207
Hearing dates:	30 August 2016
Decision date:	09 September 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Appeals Upheld
Catchwords:	Assault police officer in execution of his duty
Legislation Cited:	Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Law Enforcement (Power and Responsibilities) Act 2002
Cases Cited:	AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 Coleman v Power (2004) 220 CLR 1 DPP v Carr (2002) 127 ACrimR 151 Michaels v R (1995) 184 CLR 117 Proudman v Dayman (1941) 67 CLR 536 R v Donohue (1988) 34 A Crim R 397 R v Katarzynski [2002] NSWSC 613 R v Murray (1987) 11 NSWLR 12 R v Reynhoudt (1962) 107 CLR 381 Semaan v Poidevin [2013] NSWSC 226
Category:	Principal judgment
Parties:	Anthony Pulitano (Appellant) Alessandro Pulitano (Appellant) Director of Public Prosecutions (Crown)
Representation:	Counsel: P Godkin (Appellants)   Solicitors: M Harper (Crown Solicitor)
File Number(s):	15/15414; 15/14314
Publication restriction:	Nil

Judgment on APPEAL

Introduction

1. These two All Grounds Appeals were heard together. They arise out of the same incident. Each appellant appeals from their conviction on 13 November 2015, following a hearing in the Local Court at Sydney on a charge pursuant to s 60(1) of the Crimes Act 1900 of assault police officer in the execution of his duty.

2. The maximum penalty in respect of the Local Court’s jurisdiction for the offence was a term of imprisonment of 2 years and/or a fine of $5,500.00. In the District Court, the maximum penalty is a term of imprisonment of 5 years.

3. The appellant, Anthony Pulitano, is the father of the appellant, Alessandro Pulitano. For ease of reference, and with due respect to each appellant, they are referred to below as Mr Pulitano snr and Mr Pulitano jnr.

Section 60(1) of the Crimes Act 1900

4. Section 60 is headed “Assault and other actions against police officers”. It provides:

“60(1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.”

5. The offence is a Table 2 offence under the Criminal Procedure Act 1986 and therefore is to be dealt with in a Local Court unless an election is made for trial on indictment.

The appeal

6. The appeal was heard on 30 August 2016. The appeal was by way of a rehearing based on the transcript of evidence before the learned Magistrate. In determining the appeal I am to apply the principles governing appeals from a Judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court – see Charara v R [2006] NSWCCA 244 per Mason P at [18]. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of the learned Magistrate in his judgment dated 13 November 2015.

7. I am mindful of the limitations that therefore exist in proceeding wholly on the record of the proceedings in the Local Court and the advantages held by the learned Magistrate in considering the evidence, particularly in respect of the issue of credibility in respect of any witness.

8. I am also bound by the Court of Appeal’s judgment in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218. In that decision, Basten JA held that an appellant under s 18 of the Crimes (Appeal and Review) Act 2001 (“C(AR)A”) was required to demonstrate some legal, factual or discretionary error on the part of the learned Magistrate for an appeal to succeed. Basten JA said at [34]:

“However, the term ‘error’ has no precise meaning. It refers to the satisfaction of the appellant judge that the trial judge was ‘wrong and should be corrected’. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend upon a range of factors. Indeed, a miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term.”

9. Simpson JA held that s 18 of the Act does not require any finding of error by the Magistrate. Rather, the District Court Judge should make his own finding on the evidence of the facts, and Sackville AJA preferred not to express an opinion on the question of whether it was necessary to identify error.

10. The elements of the offence pursuant to s 60(1) are as follows:

1. The appellant assaulted the victim.

2. The victim was a police officer;

3. The victim was acting in the execution of his duty; and

4. The conduct of the accused did not amount to self-defence.

11. The offences arose out of an incident that took place on 15 January 2015. The victim, Anastasios Zervas was a plain clothes policeman who was on his lunchbreak. He was standing near the corner of Kent and Bathurst Streets, Sydney, behind a concrete pylon, located on the northern kerb of Bathurst Street. He was leaning against a wall and looking at his mobile phone, smoking a cigarette, when he was approached by Mr Pulitano snr, who asked him, “Do you want to buy a watch?” What happened thereafter is disputed, and the evidence concerning the events that followed is referred to in detail below. However, the appellants’ appeals are brought on the basis that the evidence establishes:

1. They had no knowledge that Mr Zervas was a police officer; and

2. That he was not acting at the time within the execution of his duty.

12. Counsel for the appellants submitted that the learned Magistrate erred in accepting the evidence of Mr Zervas over that of the two appellants, and that of other independent witnesses who gave evidence. It was submitted that much of their evidence was inconsistent with the evidence of Mr Zervas. In those circumstances, it was submitted that the Crown had not satisfied the onus of proof upon it and the evidence did not establish beyond reasonable doubt each of the elements of the offence.

The evidence

13. The Crown case included the following exhibits:

Exhibit 1 – Statement of Detective Rawling

Exhibit 2 – Photographs of the victim

Exhibit 3 – Google map of the area

Exhibit 4 – Statement of Senior Constable Pope extracting details of various 000 calls

Exhibit 5 – ERISP interview of Alessandro Pulitano

Exhibit 6 - ERISP interview of Anthony Pulitano

Exhibit 7 – Statement of Constable Cheney

Exhibit 8 – Receipt and photographs of the watch

Exhibit 9 – Statement of Constable McDaid

Exhibit 10 – Statement of Constable Adams

Exhibit 11 – Statement of Sergeant Zervas

Exhibit 12 – Sketch plans drawn by Sergeant Zervas

Exhibit 13 – Amended statement of Sergeant Zervas

14. Constables Rawling, Cheney, McDaid and Adams gave evidence in the Crown case, as did the victim, Sergeant Zervas.

15. Also called in the Crown case were Ms Michelle Tate, Mr Sam Willis, Ms Liza Beatty, Ms Marika Konstandopoulos and Mr Nicholas Clemence. Both appellants gave evidence in the defence case. Both declined, on their lawyers advice, to answer questions in their ERISP interviews and therefore no admissions were made by them.

16. The critical evidence for the disposal of the appeal is therefore that of Sergeant Zervas, and the evidence of the appellants.

Evidence of Sergeant Zervas

17. Exhibit 11 was the statement of Sergeant Zervas. As set out above, a man who he identified as Mr Pulitano snr, approached him, in the circumstances described above, and asked him whether he wanted to buy a watch. In [6], he described the watch as being a Tag Heuer brand watch with the word “Carrera” written under the glass. It had a blue coloured film on the metal link strap, and a white coloured piece of string attached to the clasp, containing details. Sergeant Zervas stated that he had previously seen identical tags on wristwatches in display cases at retail outlets, and based on what he observed, he formed the opinion that the wristwatch was stolen.

18. Mr Pulitano snr then showed him his i-phone with the watch photographed on it. He said to Sergeant Zervas, “The wristwatch is worth $3,000, I need cash mate, I wanna buy drugs”. He then tapped the inside of his left arm at the elbow joint. However, Sergeant Zervas observed no needle marks on his arm. Sergeant Zervas asked:

“Where did it come from?”

Mr Pulitano snr said words to the effect:

“It’s alright. I just need cash”.

19. The photograph on his i-phone showed a price of $2,700. Mr Pulitano snr then asked: “So do you want to buy it?”

Sergeant Zervas replied:“Unfortunately, I am a police officer”.

Mr Pulitano snr said: “What?”

Sergeant Zervas said: “I’m a police officer” and placed his hand on his right shoulder saying: “You are under arrest.”

Mr Pulitano snr said: “Get your fucking hand off my shoulder.”

20. Mr Pullitano snr then yelled words to the effect of, “Adam, he’s ripping us off”, whereupon his son, Mr Pulitano jnr, approached and punched Sergeant Zervas to the right and left side of his face, saying, “Give us the fucking watch back or I’ll break your jaw”. Sergeant Zervas replied, “I think you already have, I am a cop”.

21. Mr Pulitano jnr then replied, “I don’t give a fuck who you are, give me the fucking watch”.

22. The statement of Sergeant Zervas goes on to describe both men punching him as he continued to move away in order to defend himself. During this assault, the younger man said to him, “Give me the watch or I’ll fucking stab ya’”. Sergeant Zervas formed the belief that the younger man was going to produce a knife. At that point he was struck again on the left side of his face and lost his footing, falling backwards onto the roadway on Bathurst Street. Mr Pulitano snr said to him, words to the effect, “Give me the watch or he’ll stab you”, whereupon Sergeant Zervas agreed to hand back the watch.

23. Sergeant Zervas observed the men to walk along Kent Street towards the cinema centre car park and he followed them to the entrance of the car park. He rang the 000 operator and observed Mr Pulitano jnr standing with his back facing the ticket vending machine. He knew the police were about to enter the car park, and therefore called out to Mr Pulitano jnr to challenge him to come towards him. Shortly thereafter two uniformed police officers entered the car park and Sergeant Zervas said to Mr Pulitano jnr, “That’s right, I’m a police officer, and you are under arrest”.

24. Sergeant Zervas then approached Mr Pulitano snr, who he observed to be getting into a car near the boom gate entry into the car park. He yelled out, “Police get out of the car”, at which Mr Pulitano snr smiled at him and accelerated the car forward and left the car park via the Kent Street exit.

25. Sergeant Zervas gave evidence that the conversation he had with Mr Pulitano snr about the watch lasted for 30 seconds. The incident involving both appellants, lasted less than a minute. He confirmed that he suffered injuries. In his second statement (Ex 13), Sergeant Zervas confirmed that on that day he was dressed in plain clothes, and when he left his place of work at lunchtime, he was not carrying his police identification or any of his police issue appointments. He disputed that four photographs of the silver Tag Carrera watch tendered showed the same watch as that shown to him by Mr Pulitano snr.

26. In cross-examination, Sergeant Zervas agreed that the incident lasted less than a minute. When shown the watch he asked, “Where did it come from?”, to which Mr Pulitano snr replied, “It’s alright. I just need cash”. He gave the following evidence:

“Q: What did you think about the watch?

A: I thought it was stolen.

Q: Why did you think it was stolen?

A: Because it contained the blue coloured protective film on the metal strap and it also contained a small label with a white piece of string which was attached to the bottom of the metallic clasp, which contained details of the watch. The type you see in a display cabinet at a jewellery store.

Q: I’ll ask the question again. So why did you think it was stolen?

A: Because of those reasons. And further, he was trying to sell me a watch with a potential retail value of $3,000 for some quick cash. I formed the opinion that the watch was either stolen or unlawfully obtained …

Q: Did you turn your mind to the possibility that the watch was a Triple A replica?

A: No.

Q: Did you turn your mind to any other possibilities apart from the conclusion that it was stolen?

A: No.”

27. Sergeant Zervas gave evidence that he did not have the opportunity to ask whether the defendant had a receipt for the watch, but that he did not ask that question. Nor did he show Mr Pulitano snr his badge or tell him his name.

28. He placed the watch in his rear pocket to secure it and then placed Mr Pulitano snr under arrest. He gave the following evidence:

“Q: Did you tell him why?

A: Again, no opportunity. So to answer your question, no.

Q: You didn’t explain the reason?

A: It’s a bit difficult when you’re being punched about the head.

Q: Are you saying that it was never reasonably practicable?

A: Under the circumstances, yes, it wasn’t.”

29. Sergeant Zervas adhered to his statement that Mr Pulitano jnr said to him, “Give me the watch or I’ll fucking stab ya’”. He denied that Mr Pulitano snr said to him words to the effect, “Give me my fucking watch”. It was put to him that he did not tell Mr Pulitano snr that he was a police officer, nor did he say the words, “You are under arrest”. He said that he did say those words and it did happen.

30. Sergeant Zervas gave evidence that Mr Pulitano snr called for his son and said that he was being ripped off. When Sergeant Zervas was on the ground on Bathurst Street, he took the watch out of his pocket and held it up, but did not know who took the watch out of his hand. He then observed both men to run in an easterly direction across Bathurst Street, and then diagonally onto Kent Street, towards the Cinema Centre car park.

31. Sergeant Zervas denied that Mr Pulitano jnr said words to him to the effect, “What’s wrong with you? Why are you trying to rip people off in the middle of the street?” He also denied that he said to Mr Pulitano jnr the words, “Well, you’re fucked because I’m a police officer”. After Mr Pulitano jnr punched him in the face, he told him that he was a cop, to which Mr Pulitano jnr said to him, “I don’t give a fuck who you are, give me the fucking watch back”.

32. It was put to Sergeant Zervas that he made his second statement (Ex 13) six days after his first statement, because he realised that he had not complied with the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) and he wanted to cover his tracks. Sergeant Zervas denied that, saying he was called in to make an additional statement.

33. It was put to Sergeant Zervas that he did not have reasonable grounds to believe that the watch was stolen, which he denied.

Evidence of Mr Anthony Pulitano

34. Mr Pulitano snr gave evidence that he and his son, Alex, were walking down Bathurst Street when he approached Sergeant Zervas to sell him a replica watch, which he described as “a Grand Carrera Tag Heuer Triple A”. He gave this evidence:

“Q: How much did you pay for the watch?

A: I really don’t remember, I bought a few so, you know, there’s all different prices and that.

Q: Do you remember approximately how much?

A: Couple of hundred, over a couple of hundred yeah.

Q: That’s a business of yours, to buy replica watches and then sell them to people?

A: I was doing that business, yeah, I was selling them to enter the market people who retailers and selling them myself. (sic)

35. When he approached Sergeant Zervas he said, “Do you want to buy a watch?” He described Sergeant Zervas as grabbing the watch and having a look at it, and so he pulled out his mobile phone which had a photo of that watch. He told Sergeant Zervas that it was a Triple A copy, and that the real ones were $5,100. The photo he showed him was of an original watch. Mr Pulitano snr gave evidence that Sergeant Zervas looked at the watch for a couple of minutes. He then turned around and said:

“You won’t see this again”.

Mr Pulitano snr said: “What?”

Sergeant Zervas said: “You won’t see this again. It’s stolen.”

Sergeant Zervas then turned around and put the watch in his pocket. He then gave this evidence:

“Q: Can you just explain to the court how you attempted to get the watch back? What you did?

A: Well, as soon as he said it was stolen I wasn’t going to start to, you know, explain myself to him. I said, ‘Just give me the watch mate’, and he’s pulled it away, he’s lifted up his hands so I couldn’t grab it, then I’ve gone in more to get it, and he kept turning around, and as he kept turning around, that happened for a few seconds and then he just stuck it in his pocket. I said ‘Okay’, I said, ‘Do you want to go that way, do you mate?’, and I’ve leaned back and called my son up.”

36. Mr Pulitano snr gave evidence that he asked for the watch back three or four times. His son, Mr Pulitano jnr, was running towards them and Mr Pulitano snr said to him, “He’s trying to rip us off”.

37. Mr Pulitano snr gave evidence that if he had been asked for proof of purchase, what he would have done. He answered:

“A: I’ve been pulled over many times with all sorts of stock over the years, I’ve had cameras, video cameras, watches and it’s all documented. I’ve been pulled over many times and sometimes I didn’t have the receipts with me at the time, and we had to go back to the station. Then they – we faxed through the receipts and they’ve given me the goods, I’ve never had a problem but to avoid that happening I kept, I kept receipt books in the car now and receipts and I’ve got a file in the glove box for the – lots of stuff that I can prove that it’s not stolen.

Q: If the question had have been raised, you could have proven quite quickly and easily that the watch was not stolen?

A: If I knew he was a copper, yeah, of course I would have done that, yes.

Q: Did he say at any time that he was a police officer?

A: No.

Q: Did he do anything with his actions to indicate that he was a police officer?

A: No, he indicated that the watch was stolen and I wasn’t going to see it anymore, that’s the action he gave, and then he turned around and stuck it in his pocket. There was no way I could ever think he was a police officer acting like that because they don’t.

Q: What happened when your son got there?

A: Well, my son hit him. He’s brought his attention towards my son and my son just belted him. I was a little surprised that he did because I didn’t expect that, I was telling him that he was trying to rip us off thinking he would just stand there with me and let me control the matter. He didn’t, he just – he hit him thinking that – well, I didn’t realise at the time, but after he was charged and come home that night is when I realised why he acted that way.”

38. Mr Pulitano snr gave evidence that he was hit in the throat by Sergeant Zervas. After his son struck him, Sergeant Zervas tripped and stumbled onto the roadway and said, “Alright I’ll give it to you”, and he then pulled out the watch and held it up. Mr Pulitano snr snatched it out of his hand and left. When asked what Mr Pulitano jnr did when he left, he answered:

“A: Well, he obviously was telling him off or something and then he’s ran back up behind me.”

39. Mr Pulitano snr gave evidence that at no time did Sergeant Zervas identify himself as a police officer, or show him any identification. He gave the following evidence:

“A … he didn’t act like a policeman. He had plenty of time to tell me he was a policeman because he said the watch was stolen and then moving away and, and, and, like, looking at me, like I was going to run, you know what I mean? I saying ‘Just give it here, mate’ and I kept asking him for the watch. He had plenty of time to say who he was, you know what I mean, if he was going to say it. I could never believe that he was a police officer.”

40. In cross-examination, Mr Pulitano snr said that he was not selling the watch for profit, it was just to get some money. When asked why he approached Sergeant Zervas, he said, “Well, he was a person that wasn’t busy, walking around”. He agreed that Sergeant Zervas said, “Where did it come from?”. He denied that he was using drugs and said that he did need cash, but not for drugs. He wanted an urgent sale.

41. Mr Pulitano snr agreed that Sergeant Zervas told him that he thought the watch was stolen, but said, “Well, why is it his business if it’s stolen or not?” He denied that Sergeant Zervas said, “Unfortunately I’m a police officer”. He also denied that Sergeant Zervas put his hand on his shoulder to arrest him, and that he said the words, “Get your fucking hand off my shoulder”. He gave the following evidence:

“A: The only time he put a hand on my shoulder was when he was trying to push me back to get away with the watch, to turn around. You know, he wouldn’t let me in, in, in close to him. That’s the only time he’s touched me at that time.”

42. He denied that Sergeant Zervas said, “You’re under arrest”.

43. It was put to Mr Pulitano snr that he knew that the man was a police officer. He answered:

“A: If I knew he was a police officer I wouldn’t have hit him and I wouldn’t have called my son over to hit a police officer, I wouldn’t be that stupid.”

44. Mr Pulitano snr denied saying the words, “Adam he’s ripping us off”, as his son’s name was Alex, not Adam. He agreed that he did say, “He’s ripping us off – trying to rip us off. He’s got the watch”.

45. He denied that his son said, “Give us the fucking watch back or I’ll break your jaw”, but said that his son did say to Sergeant Zervas that he’d “break his face”. He did not hear Sergeant Zervas say to his son, “I think you already have. I’m a cop”.

46. Mr Pulitano snr denied seeing any police officers at the car park. He agreed that he drove away from the car park and denied that he knew Sergeant Zervas was a police officer, and that he was in trouble when he saw the uniformed police there. He gave this evidence:

“A: I done nothing wrong as far I’m concerned. All I did was get my property back off someone and left. The property was not stolen and I had nothing to hide, we were just getting away from an idiot, that’s what I thought.”

47. Mr Pulitano snr agreed that, but for one strike he received from Sergeant Zervas, at no time was Sergeant Zervas fighting back. He would just not give the watch back.

48. It was put to Mr Pulitano snr that the watch he gave to police was not the same watch that he showed to Sergeant Zervas. His evidence was:

“A: That is identical, it was the only watch at the time that we had and I’ve had that thing photographed if you want – it’s been on the phone the whole time that, you know, from the first time I bought them. The only watch that I got in Tag Heuer, it’s the Calibre 8.”

49. In re-examination, Mr Pulitano snr denied that his son had a knife with him that day and gave evidence that his brother died in 1989 after being stabbed and therefore he did not carry a knife.

Evidence of Mr Alessandro Pulitano

50. Mr Pulitano jnr gave evidence that he was observing his father’s attempt to sell the watch to Sergeant Zervas from approximately 20 metres away. He observed his father and Sergeant Zervas to be pushing each other and started walking towards them. As he did so, Sergeant Zervas stepped towards him and he thought there was going to be a fight, so he started swinging punches at him. He was asked whether he heard anything, and he said that he heard his father say, “He’s trying to rip us off, he’s taken the watch”. Mr Pulitano jnr gave evidence that he said, “Give us the fucking watch back because I’ll break your face”.

51. He denied carrying a knife with him. He described the following circumstances in which Sergeant Zervas gave the knife back:

“A: Zervas was like, laying halfway on the street and on the curb and we were demanding the watch and he goes, ‘Okay, okay, I’ll give you the watch’, leans over to his back pocket, pulls out the watch, dad grabs the watch and then Mr Zervas continues to get up. My dad starts walking away and Mr Zervas – I go, ‘Who the hell do you think you are robbing people in the middle of the city?’”

52. Mr Pulitano jnr then gave evidence that Mr Zervas said, “I’m a cop”, to which he replied, “Where’s your badge?”.

53. Sergeant Zervas said nothing more and was holding his jaw. Mr Pulitano Jnr gave evidence that he started jogging up towards his father to catch up with him, and once they had entered the car park, he again saw Sergeant Zervas. Sergeant Zervas pointed at him and said, “You’re fucked now”, and Mr Pulitano jnr then saw two police officers behind him. One of those police officers, Constable McDaid, grabbed Mr Zervas and pulled him away. Mr Pulitani jnr was approached by Constable Adam and asked her, “Is he a police officer, or is he just, you know, lying?” He gave evidence that Constable Adam responded, “I’m not too sure, I think he’s just a wannabe”. He was searched by police but had no knife.

54. In cross-examination, Mr Pulitano jnr gave evidence that he hit Sergeant Zervas because he thought he was fighting his father. He heard his father say, “He’s trying to rip us off”, after he started hitting him. He agreed he punched Sergeant Zervas two or three times, but could not remember where the punches landed. He assumed when Sergeant Zervas took a step towards him that he was going to fight. He gave evidence that Sergeant Zervas tripped over and fell onto the road. He gave this evidence:

“Q: How did he trip?

A: I have no idea, I just seen him fall on the ground.

Q: He fell on the ground because you pushed him?

A: We didn’t push him.”

55. Mr Pulitano jnr denied falling on top of Sergeant Zervas. He denied that he father said, “Give me the watch or he’ll stab you”, referring to his son. He denied knowing that Mr Zervas was a police officer, even in the car park, because he asked other police officers whether Mr Zervas was a police officer and they weren’t even sure.

56. Mr Pulitano jnr agreed that he told police that he and his father came to the city to get some lunch. He said, “Then we were walking back to the car, this guy approached my dad and started talking to him.” He then gave the following evidence:

“A: Then he started throwing punches so that’s when I came to protect my dad and I punched him.

Q: That’s not true, is it?

A: It’s exactly what happened.”

57. In re-examination, Mr Pulitano jnr agreed that after his father got the watch back, Mr Zervas told him he was a police officer, but he did not believe him.

The lay evidence

58. The evidence of the witnesses referred to above, comprised in each case, their observations of the altercation between Sergeant Zervas and the two appellants, and evidence of what they did as a result of their observations. There is no need to record that evidence in detail for the purpose of determining this appeal. Where relevant, it is referred to below. The appellants rely on the evidence as establishing inconsistencies in the evidence of Sergeant Zervas, as a basis for demonstrating error in the reasoning of the learned Magistrate.

The appellants’ submissions

59. In a written outline of submissions, Counsel for the appellants relied on two grounds of appeal, namely, that the defence of honest and reasonable mistake was not adequately considered, and secondly, that the learned Magistrate erred in finding that Sergeant Zervas was a credible witness.

60. The appellants relied on the evidence of the independent witnesses, Ms Tait, Mr Willis, Ms Konstandopoulos and Ms Beatty, who gave evidence that they did not hear Sergeant Zervas identify himself as a police officer. Further, Constable Adam gave evidence that when she arrived on the scene, she did not know whether to believe that Sergeant Zervas was a police officer or not. She gave evidence that she therefore restrained him.

61. The appellants also rely on the evidence to submit that Sergeant Zervas did not act like a police officer, for example, he did not ask Mr Pulitano snr if the watch was stolen. In his evidence, Sergeant Zervas conceded that he did not consider rightful ownership, or the possibility that the watch was a replica. Nor did he ask for a receipt.

62. The appellants submitted that the evidence of these witnesses was entirely inconsistent with that of Sergeant Zervas, and they therefore undermine the Magistrate’s finding that Sergeant Zervas was an impressive witness.

63. The appellants further submitted that the learned Magistrate erred by not finding that the appellants’ version was a possibility, giving rise to reasonable doubt.

64. One inconsistency relied on by the appellants was the time that the incident lasted. Sergeant Zervas indicated that the whole incident took place in less than a minute, whereas other witnesses gave estimates of up to five or six minutes.

65. Another factual issue relied on as giving rise to inconsistencies, was whether the appellants walked or ran from the scene. Of the eight witnesses that gave evidence, only two, namely, Sergeant Zervas and Ms Konstandopoulos stated that they ran from the scene.

66. The appellants submitted that they were entitled to rely on a defence of honest and reasonable mistake of fact. That mistake was that they held an honest and reasonable belief that the watch was being stolen by Sergeant Zervas. That belief was based on the evidence that Sergeant Zervas was in plain clothes, their evidence that he did not identify himself as a police officer, and his evidence that he did not give his name nor show his badge. The defence is based on the High Court decision in Proudman v Dayman (1941) 67 CLR 536. It was therefore submitted:

1. “Tony’s action of attempting to get his watch back was innocent due to his mistaken belief.

2. Alex’s action in assisting and protecting his father was innocent due to his mistaken belief.”

67. In oral submissions, Counsel for the appellants responded to the written outline of submissions made on behalf of the Crown. The Crown submitted (at [12]), that the circumstances when considered overall were highly suspicious, involving the selling of a very valuable watch on the street for some quick cash. It was submitted on behalf of the appellants that in fact, Sergeant Zervas jumped to a conclusion that was not at all reasonable. It would have been reasonable for him to ask whether Mr Pulitano snr had a receipt, as it had happened to him in the past.

68. The Crown had further submitted that the receipt tendered (Ex 8) did not assist the court, as whether the watch was lawfully or unlawfully obtained by Mr Pulitano snr, was not a relevant consideration in determining whether Sergeant Zervas had reasonable grounds at the time he formed his suspicion. Counsel for the appellants submitted that in fact, there could be no dispute that the watch was lawfully obtained, and further, that Sergeant Zervas had ample time, and it was reasonably practical for him, to provide his name, rank and identification. He could have raised his voice and called “Police”. However, the evidence demonstrated that nobody knew he was a police officer because he was not acting like a police officer, and therefore was not acting in the execution of his duty.

69. It was further submitted that there was no objective evidence that Sergeant Zervas said the words, “I’m a police officer”.

70. At the car park, it was submitted that it was reasonably practicable for Sergeant Zervas to identify himself as a police officer, and that he had not done so. Therefore, there was no compliance with LEPRA.

71. It was submitted that the witness, Mr Clemence, had heard one of the appellants say, “Are you trying to rip us off?”. It was submitted that this was significant evidence because it supported the evidence given by Mr Pulitano snr.

72. It was submitted that Sergeant Zervas was acting outside the ambit of his duty. Once he held a suspicion about the watch, he should have made follow up enquiries. Rather, he kept the watch, and is alleged to have said the words, “You won’t see this again”.

The Crown submissions

73. The Crown conceded that the prosecution must prove that the complainant, Sergeant Zervas, was acting in the execution of his duty. In other words, the prosecution must assert and prove the “lawfulness of his conduct”, relying on Semaan v Poidevin [2013] NSWSC 226 at [109].

74. The prosecution relied on the power of arrest without warrant contained in s 99(1) of LEPRA.

75. As set out above, the Crown submitted that there were reasonable grounds for Sergeant Zervas suspecting the watch to have been unlawfully obtained, given the circumstances of the transaction.

76. The Crown submitted that the arrest was reasonably necessary in the circumstances, relying on s 99(1)(b) of LEPRA which included:

“(ii) To stop the person fleeing from the police officer or from the location;

(iii) To enable enquiries to be made to establish a person’s identity if it cannot be reasonably established; ….

(v) To obtain property in the possession of the person that is connected with the offence; and

(vi) To preserve the evidence of the offence.”

77. The Crown submitted that as Sergeant Zervas was in plain clothes and without his police issue appointments, there was a real prospect that the appellant would simply leave the location if he was not placed under arrest. Further, the seizure of the watch was intrinsically linked with the arrest.

78. The Crown conceded that Sergeant Zervas failed to comply with s 202(1) of LEPRA, by failing to provide his name and place of duty to Mr Pulitano snr. However, it was submitted that pursuant to s 204A, this failure did not render the exercise of the power unlawful. Pursuant to s 202(1), Sergeant Zervas was required to provide, as soon as it was reasonably practicable to do so:

(a)   Evidence that he was a police officer; and

(c)   The reason for the exercise of the power, i.e. his arrest of Mr Pulitano snr.

79. The Crown submitted that the learned Magistrate, who had the benefit of seeing and hearing witnesses called in the lower court, had made firm findings of credit in favour of Sergeant Zervas, and held that he did state, “I’m a police officer”.

80. The Crown acknowledged that Sergeant Zervas conceded that he did not provide a reason for the exercise of the power to arrest because it was not reasonably practicable for him to do so, because “it all happened very quickly”. As soon as Sergeant Zervas told Mr Pulitano snr he was under arrest, the appellant lunged towards him and called his son for assistance. It was submitted that police officers should not be expected to rigidly comply with LEPRA when their personal safety is at risk.

81. It was submitted by the Crown that it never became practicable for Sergeant Zervas to inform Mr Pulitano snr of why he was being placed under arrest. This was because immediately after the arrest, Sergeant Zervas had to deal with physical threats to his safety from the two appellants. In all the circumstances, it was submitted that he was acting lawfully in the execution of his duty.

82. The Crown submitted that pursuant to R v Reynhoudt (1962) 107 CLR 381, it was not an element of this offence that the accused knew that the person was a police officer, or that he knew the officer was acting in the lawful execution of his duty. Accordingly, the mistake of fact as to whether the person was a police officer, or whether the police officer was acting in the execution of his duty, did not give rise to a defence pursuant to Proudman v Dayman, supra, relying on Semaan v Poidevin, supra, at [76].

83. The Crown submitted that an honest and reasonable mistake of fact as to the watch being stolen, was intrinsically linked with an honest and reasonable mistake of fact that the complainant was not a police officer. It was submitted Mr Pulitano snr must have been mistaken about Sergeant Zervas being a police officer if he believed his watch was being stolen.

84. It was acknowledged by the Crown that Mr Pulitano snr would not be criminally responsible for his actions if:

1. There is a reasonable possibility that he believed his conduct was necessary in order to protect property from unlawful taking; and

2. There is a reasonable possibility that what he did was a reasonable response in the circumstances as he perceived them.

(See R v Katarzynski [2002] NSWSC 613).

85. It was submitted that there could be no mistaken belief on behalf of Mr Pulitano snr, that Sergeant Zervas was a police officer, as this was accepted by the learned Magistrate. It was submitted that the court would not accept as a reasonable possibility that the appellant believed his conduct of assaulting the complainant in an attempt to retrieve the watch, was necessary in the circumstances. Alternatively, if the first leg of the defence of self‑defence was made out, it was submitted that the appellant’s response was not a reasonable one in the circumstances as he perceived them.

86. In respect of the appellant Mr Pulitano jnr, it was submitted that the evidence overwhelmingly disproved self-defence on his part. Mr Pulitano Jnr intervened at a time when Sergeant Zervas was trying to get away. Then when his father was not in any immediate danger, all that Sergeant Zervas did was take one step towards him.

87. The Crown submitted that Mr Pulitano jnr’s appeal rises and falls on the question of whether Sergeant Zervas was acting in the execution of his duty (i.e. lawfully). Further, any reasonable and honest mistake of fact that the watch was being stolen did not otherwise render the conduct of Mr Pulitano jnr innocent.

88. In response to the written submission of the appellants, the Crown submitted that each of the civilian witnesses, Tait, Willis, Konstandopoulos, Clemence and Beatty, arrived after the altercation had started, and were not present when Sergeant Zervas initially identified himself as a police officer. That evidence of Sergeant Zervas was not entirely inconsistent with the evidence of all other witnesses. Only Sergeant Zervas and Mr Pulitano snr were present at the time. As the prosecution relied solely on Sergeant Zervas in that regard, his evidence must be scrutinised with great care in accordance with R v Murray (1987) 11 NSWLR 12, however, the Magistrate did scrutinise his evidence and concluded that he was a credible witness and the appellants were not. The learned Magistrate also found that there were reasonable grounds for Sergeant Zervas to suspect the watch may have been unlawfully obtained.

89. The Crown submitted that the independent witnesses corroborated that the appellants were the aggressors during the altercation. The court would be slow to overturn the finding of the learned Magistrate that Sergeant Zervas was an impressive witness. The learned Magistrate held, “It was not merely his confidence that impressed me, it was his clarity of mind and accuracy of recall, and an attention to detail”.

90. In oral submissions the Crown relied on its written outline. The Crown submitted that there were no inconsistencies as alleged by the appellants between the evidence of Sergeant Zervas and that of the independent witnesses that would require the court to interfere with the learned Magistrate’s findings. No opportunity arose for Sergeant Zervas to comply with LEPRA and Sergeant Zervas clearly had power to arrest in the circumstances. It was the course of events after that arrest took place, namely, the immediate altercation, that meant there was no reasonably practicable opportunity for him to comply. Once they retrieved the watch, the appellants immediately left the area. Further, at the car park, Mr Pulitano snr got into his vehicle and drove quickly from the scene. There was no direct interaction between him and Sergeant Zervas other than him failing to respond to the command from Sergeant Zervas, “Stop. Stop Police”.

91. The Crown finally submitted that the submission made on behalf of the appellants that Sergeant Zervas gave no indication to either Mr Pulitano jnr or any third party, that he was a police officer, was entirely irrelevant to the determination of the appeals.

Determination

92. Section 99 of LEPRA provides as follows:

“99 Power of police officers to arrest without warrant

(1) A police officer may, without a warrant, arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

(c) the person has committed a serious indictable offence for which the person has not been tried.

(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or Statutory instrument.

(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:

(a) to ensure the appearance of the person before a court in respect of the offence,

(b) to prevent a repetition or continuation of the offence or the commission of another offence,

(c) to prevent the concealment, loss or destruction of evidence relating to the offence,

(d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence,

(e) to prevent the fabrication of evidence in respect of the offence,

(f) to preserve the safety and welfare of the person.

4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.”

93. Section 201 of LEPRA provides relevantly as follows:

“201 Supplying police officers’ details and giving warnings

(1)   A police officer must provide the person subject to the exercise of a power referred to in ss (3) with the following:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),

(b) the name of the police officer and his or her place of duty,

(c) the reason for the exercise of the power.

(2) The police officer must comply with ss(1) in relation to a power in ss (3) …;

(a) if it is practicable to do so, before or at the time of exercising the power, or

(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power …

(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):

(a) a power to search or arrest a person, …”

94. In R v Donohue (1988) 34 A Crim R 397, Hunt J said at p 401:

“An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient; Alderson v Booth [1969] 2QB 216 at 220-221; but they are not always necessary – what must be done is what is reasonable in the circumstances – Timms v John Lewis & Co Limited [1951] 2KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36.”

95. The test for whether a police officer has reasonable grounds to arrest a citizen and thereby deprive him of his personal liberty, is an objective one. At common law, a person being arrested must be informed of the reason for the arrest and failure to do so will render the arrest unlawful – Michaels v R (1995) 184 CLR 117. Similarly, pursuant to s 201(1)(c) of LEPRA, a police officer exercising a power to arrest a person must provide that person with the reason for his arrest, and if it is not practicable to do so at the time of the arrest, as soon as is reasonably practicable thereafter (s 201(2)).

96. The evidence established that Sergeant Zervas was in plain clothes, and on his lunchbreak. He had nothing to identify himself as a police officer. Having been asked by Mr Pulitano snr whether he wanted to buy the watch, Sergeant Zervas formed the opinion that the wristwatch was stolen. The learned Magistrate was correct to identify as a threshold issue, whether the prosecution had proven beyond reasonable doubt that Sergeant Zervas was acting in the lawful execution of his duty.

97. The learned Magistrate went on to find that Sergeant Zervas had ample grounds upon which to reasonably suspect the commission of an offence. He further found that his arrest of Mr Pulitano snr was made in accordance with s 99, and that his failure to provide a reason for the arrest, pursuant to s 201(1) of LEPRA (incorrectly described as s 202(1)), on the basis that it was not reasonably practicable for him to do so in the circumstances.

98. With respect to the learned Magistrate, I disagree with those findings.

99. Although the circumstances may have given rise to a suspicion on the part of Sergeant Zervas as to the origin of the watch, it did not provide him with reasonable grounds to arrest Mr Pulitano snr. To have reasonable grounds for that arrest, he would have needed to have made enquiries about the providence of the watch to establish whether it was either lawfully or unlawfully obtained. The mere fact that it had a blue wrapping on its band and a tag attached to it, did not mean that it had been stolen. Sergeant Zervas did not have reasonable grounds for suspecting an offence had occurred despite his suspicion.

100. For that reason, he was not acting lawfully in arresting Mr Pulitano snr. Further, he did not comply with s 201(2) of LEPRA, and the Crown has not established that it was not practicable for him to do so – see Semaan v Poidevin, supra, at [105] to [109].

101. In any event, it may have been a minor offence for which a Court Attendance Notice could have ultimately been issued once proper enquiries had been made, including finding out the person’s name and address, and whether he had lawful ownership of the watch. In DPP v Carr (2002) 127 ACrimR 151 at [35], Smart AJ said in relation to an offence under the Summary Offences Act:

“This court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant’s name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this court were heeded.”

102. These words are entirely apposite to what occurred here. Sergeant Zervas could have used his mobile phone to call for police assistance. He could have identified himself by name and rank, and enquired of Mr Pulitano snr his name and address, and made enquiries in relation to the watch.

103. Notwithstanding the findings of credibility made in favour of Sergeant Zervas and against the appellants by the learned Magistrate, I find that Sergeant Zervas was not acting in the execution of his duty as a police officer at the time, and that his arrest of Mr Pulitano snr was unlawful. On that basis the appeal must be upheld.

104. Whilst it is unnecessary for me to decide, I would not have upheld the appellants’ appeals on the basis that they made an honest and reasonable mistake of fact. This is because I accept the learned Magistrate’s findings that Sergeant Zervas told Mr Pulitano snr, “Unfortunately I’m a cop”, and then placed him under arrest. Mr Pulitano jnr clearly knew he was a police officer (see [52]) above). It follows that the prosecution negatived the reliance by the appellants on s 418 of the Crimes Act that they were acting in self‑defence.

105. Nor would I have upheld the appeals on the basis of the inconsistencies in the lay evidence and that of Sergeant Zervas. Such eye witness testimony is notoriously unreliable, and particularly reflect the idiosyncratic perspective that each witness had to the events as they unfolded.

106. I wish to make it clear that I am upholding the appeal in respect of the conviction of the appellants on the charge pursuant to s 60(1) of assaulting a police officer in the execution of his duty. In Coleman v Power (2004) 220 CLR 1, McHugh J said at [121]:

“Although a charge of assaulting a police officer in the execution of his or her duty will fail when the officer has engaged in unlawful conduct such as an unlawful arrest, the accused may be convicted of common assault if his or her response is excessive. The author of a comment on Nguyen refers to the availability of this course being open to the prosecution. The author referred to Kerr v Director of Public Prosecution where the Queen’s Bench Division refused to uphold a conviction for assaulting a constable in the execution of his duty where the constable, believing his partner had already arrested a woman, took hold of her arm to detain her. The woman retaliated by punching the constable. Because no arrest had taken place, the officer’s conduct was outside his duty. However, the court referred to the possibility of an alternative charge of common assault …”

107. The appeals are upheld on the basis that the arrest of Mr Pulitano snr was unlawful and therefore Sergeant Zervas was not acting in execution of his duty as a police officer. Consistent with what McHugh J stated above, I wish to make it clear that I am not finding that no other offence or offences occurred.

Conclusion and orders

108. For the above reasons, the appeal is upheld. I make the following orders:

1. The appeal is upheld in each matter.

2. Set aside the conviction recorded against each appellant by the learned Magistrate on 13 November 2015.

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Decision last updated: 09 September 2016