Appeal of Andrew Phillip Schofield

[2006] NSWDC 74

CITATION:	Appeal of Andrew Phillip Schofield [2006] NSWDC 74
HEARING DATE(S):	12 July 2006 13 July 2006
JUDGMENT DATE:	17 July 2006
EX TEMPORE JUDGMENT DATE:	11/19/2006
JURISDICTION:	District Court Appeal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	The prosecution has proaved beyond reasonable doubt the appellant assaulted Sebastian Whitbread (para [49]); The acts of the appellant in respect of Christian Whitbread were done in self defence (para [51]); Appellant entitled to s10 Crimes (Sentencing Procedure) Act discharge (para [58]); Formal Orders - see para [62].
CATCHWORDS:	Criminal Law - Conviction Appeal from Local Court - State Rail Transit Officers - Sources of power to arrest - common law power of arrest - s352 Crimes Act power of arrest - summary conviction under any Act - summary conviction under any regulation - assault - self defence - powers to remove from rail property.
LEGISLATION CITED:	Crimes Act 1900 - s352(1)(A), S418, Crimes (Sentencing Procedure) Act 1987 s.10 Criminal Procedure Act 1986 s. 6 Interpretation Act 1987 - s20, s65, s67 Law Enforcement (Powers and Responsibilities) Act 2002 - s100 Rail Safety Act 2002 s.95 Railway Safety (General) Regulations cl 18-39. Rail Safety Act 2002 Criminal Procedure Act Crimes (Sentencing Procedure) Act
PARTIES:	Regina (Respondent) Andrew Phillip Schofield (Appellant)
FILE NUMBER(S):	06/32/0111
COUNSEL:	Appellant:: W. Terracini SC with P. F. Doyle
SOLICITORS:	Respondent: Mr P.R. Wagstaff for Director of Public Prosecutions.

JUDGMENT

HIS HONOUR:
1 Andrew Schofield was working at Gosford Railway Station in the early hours of the morning of 12 March 2004 as a senior transit officer. Sometime after 3.30am two brothers, Sebastian and Christian Whitbread arrived at the station intending to travel by train to Wyong. Both had consumed copious quantities of alcohol. As each arrived at the station he was still husbanding a last bottle of Bacardi mix.

2 As events turned out their consumption of alcohol, coupled with their drunken behaviour would have consequences impacting on their lives and the lives of others for several years following.

3 Their time at this station ended shortly after 4pm when Andrew Schofield and other Transit officers manhandled each, removing each brother from the station in circumstances I shall come to. Each complained to the police who took them into their custody at the behest of the Transit officers believing each had been arrested by the Transit officers.

4 The police charged Andrew Schofield and five other Transit officers with assault of each youth. The hearing of these matters before His Honour Magistrate Miszalski appears to have been a cause celebre in the Gosford Local Court, taking eleven days to finalise.

5 His Honour dismissed the charges of assault against the other co-accused. His Honour convicted Andrew Schofield of both counts of common assault. For reasons not made clear to me the appeal has been moved out of the Gosford district. It comes before me sitting at the Downing Centre District Court. This Court in determining this appeal has before it the relevant depositions and exhibits that were before his Honour.

6 The Court’s task is to review the evidence before the Local Court hearing the matter de nova that means, I am required to make my own findings of fact upon the evidence before the Local Court. I am required to form my own view as to whether the Crown has proved the guilt of the accused beyond reasonable doubt in respect of each count.

What the Crown Must Prove:

7 The Crown will do this if it is satisfies me beyond reasonable doubt of the essential elements of the charge, or put in layman’s terms the fundamental propositions contained in the charge sheets. It does not have to prove every adverse fact beyond reasonable doubt, what it must prove beyond reasonable doubt are a limited number of propositions: the date 12 March 2004; the alleged perpetrator Andrew Schofield, the appellant; the criminal act, the assault; and the victim in respect of count one Sebastian Whitbread, and in respect of count two Christian Whitbread.

8 An assault occurs when the perpetrator intentionally or recklessly commits an act, which causes another person to apprehend immediate and unlawful violence. In this case, the prosecution says the act was a physical aggressive battery committed upon each without the consent of the either. In the case of each of the Whitbread youths there is undisputed evidence that the appellant intentionally committed an act, to use neutral term, aggressively manhandling of each, which caused each to apprehend immediate violence.

The Defence Thesis

:

9 The defence has sought to argue, however, that the violence was not unlawful. The defence case is that the acts were either lawful for one of two reasons of believed necessity by the appellant. The acts were believed necessary by the appellant for self defence, a proposition which the Crown must negative, or alternatively, or as well, the acts constituted a lawful removal of each from railway property in accordance with the provisions of regulation 58of the Railway Safety (General) Regulation 2003. The final possibility was that the acts constituted a lawful citizen’s arrest pursuant to s352(1)(a) of the Crimes Act 1900. The burden of proving each of these lawful justifications rests with the defence on the balance of probabilities.

The Legal Issues Defined:

10 Section 418 of the Crimes Act 1900 provides that a person is not criminally responsible for an offence, if the person carries out the conduct constituting the offence in self defence. A person carries out conduct in self defence if and only if the person believes the conduct is necessary to defend himself, or to prevent criminal trespass to any land, or to remove a person from committing any such criminal trespass; and the conduct is a reasonable response in the circumstances as he perceives them.

Was there a lawful arrest?

11 An arrest is the lawful seizing or apprehension of a subject, placing restraint upon his liberty for a purpose related to the administration of criminal justice. Such purpose may include presenting the subject before a lawful authority so that the person may be charged with an offence it is said he has committed. The parties agree the only power of arrest the appellant was able to exercise is the power provided at the relevant time by s352(1)(a) of the Crimes Act.

12 The parties agree Transit Officers are not constables or special constables. However, s352(1)(a) provided that a person may without warrant apprehend any person in the act of committing, or immediately after having committed an offence punishable on summary conviction under any Act. The Act required the person who carried out the arrest to take the person arrested and property found on him before an authorised justice to be dealt with according to law. An authorised justice is a Magistrate or justice employed in the Department of Courts Administration.

13 It is clear from the Interpretation Act 1987 that the term “Act” does not embrace “statutory instruments” see s20, s65 and s67 of also s100 Law Enforcement (Powers and Responsibilities) Act 2002. I note s352 was repealed on 1 December 2005.

14 I have not been referred to any other power of arrest available to Transit Officers prior to 1 December 2005. As presently advised it does not appear to me the appellant had any power to arrest a person committing or immediately after having committed an offence on summary conviction under any other statutory instrument and in particular the Rail Safety (General) Regulation 2003.

15 Counsel for the appellant in written submissions argued that s95 of the Rail Safety Act 2002 allows for the making of regulations to create offences, that the offences so created provided they fall into subject constraints revealed by s 95(a) to s95(o) are offences created under the Rail Safety Act and therefore captured as relevant offences under s352(1)(a) of the Crimes Act. The argument goes that being so captured the powers of arrest created by s352(1)(a) apply.

16 However, the crucial issue is the mechanism by which the manner of punishment is determined that is, whether the offence is to be punishable on indictment or summarily. In this case, the mechanism by which that punishment is determined is by the penalty imposed see; s6(c) of the Criminal Procedure Act. By virtue of the maximum penalty being five penalty units, an offender would fall within the definition of a summary offender.

17 The Common Law powers of arrest on the other hand appear to be limited to cases where treason or felony have actually been committed or attempted, or there is a danger of such offences being committed, or a breach of peace had actually been committed, or is reasonably apprehended. A breach of the peace is sufficient to justify arrest when there is an actual assault, public alarm and incitement are created by the offender’s wrongful act, or when a person obstructs a public officer in the execution of his duty. Mere annoyance, disturbance, insult or abuse of language, even of great heat and fury, without personal violence are not sufficient generally to establish breach of the peace. Nobody has sought to argue that the Transit Officers are relevantly a public officer.

18 While it is true a servant may have authority to arrest on behalf of his master it is generally limited to cases where the arrest is reasonably necessary for the protection of the master’s property. Neither of the parties has been relying on the Common Law power of arrest.

19 The Rail Safety (General) Regulations 2003 created offences appear to be from regulation 13 through to 38 and include in regulation 13, for instance, conduct generally; regulation 15 smoking; regulation 17 drinking and alcohol generally prohibited; regulation 18 passengers who are intoxicated.

20 Regulation 39 gives to an authorised officer a power to direct a person to leave a train, railway land or part of monorail works in the event that the authorised officer comes to a view someone is committing an offence under this Part, meaning between regulation 13 and regulation 21. Regulation 58 gives to an authorised officer a power to remove from a train or land a person who refuses or fails to comply with a direction given under the Rail Safety (General) Regulation. Part 3 of the regulation relates to conduct on trains and railways.

21 Each of the clauses 13 to 38 creates at least one offence, some clauses create two offences. Offences range from drinking alcohol, use of offensive language, smoking, intoxication, hindering another’s use of a facility and so on. That is to say there is a limited range of circumstances in which an authorised person or authority can direct a person to leave railway property.

22 Clauses 18 and clause 39 empower authorised officers to direct persons to leave railway property. If circumstances permit the authorised personnel should indicate the offence or offences, which in his or her opinion a person is committing, whereby the authorised person is authorised to direct the offender to leave.

23 Where such circumstances do exist it seems to me a direction formulated simply as, “You are not allowed to be here”, (the witness, Singh, 22 August 2005 p46, line 55), or “I’m giving you a direct order to leave the station,” (the appellant Schofield, 19 July 2005, p13, line 39) is inadequate.

The Evidence:

24 The evidence establishes that Christian and Sebastian Whitbread arrived at Gosford Railway Station together. They had been drinking since at least 8pm perhaps earlier. They were still drinking their last drink at 3.30am the following morning. They were asked to and did, in fact, leave the station to finish this drink. At some point shortly thereafter they returned. They were asked by a Transit Officer for a ticket. When it was discovered neither had a ticket they were told to purchase one from a nearby ticket vending machine.

25 At least one of the youths protested loudly and in language that was unseemly and on occasions offensive. This conversation was not on the station platform proper but rather on a concrete ramp leading from the station platform to Showground Road.

26 There is no doubt the youths were on railway property and quite possibly that property is adequately described as “the station”.

27 At the outset of the incident the Court is concerned with the group comprised Christian and Sebastian Whitbread and six Transit officers. At this point in time Transit Officer Sanderson was directing the two youths to leave the station. Whether the direction was given pursuant to clause 18 or clause 39 or both is unclear, because I am satisfied Sanderson did not give a reason. I am satisfied Sebastian Whitbread was using offensive language, behaving offensively and under the influence of intoxicating liquor. I am also satisfied Christian Whitbread was under the influence of intoxicating liquor and generally supportive of his brother. But at this point in time I am not satisfied he was using offensive language or behaving offensively.

28 The appellant, who had dealt with the two brothers some minutes earlier, returned after having a cigarette. The evidence is that he heard Sebastian Whitbread refusing a direct order to leave the station. The appellant’s evidence is that Sebastian Whitbread said, “I’m not fucking leaving; you’ll have to make me leave; I'm catching the Wyong train.” The appellant’s evidence is Sebastian said, “I’ve just been released from Lithgow Prison and I know my rights.”

29 The evidence establishes Sebastian had been to prison, but never to Lithgow, and he had not been “Just released,” but had been out for some months. Further, an analysis of the sentence demonstrates it to be a non sequitur. I have serious reservations about whether Sebastian Whitbread ever owned up to being at Lithgow Prison. I accept he may well have said, “I know my rights.”

30 When the appellant joined this group, on his evidence he said, “I thought you blokes had given me assurances that you would behave yourselves. I am giving you a direct order to leave the station.” That order was apparently on the basis that Sebastian Whitbread was continuing to abuse Sanderson, that is, behaving in an offensive manner.

31 The appellant’s evidence is Sebastian Whitbread said, “I will kill you cunts if you try.” The appellant’s evidence is, it is the uttering of these words that caused him to approach Sebastian Whitbread and take hold of him. The appellant says Sebastian resisted, his shirt gave way and ripped, and he wrestled him to the ground. It was during this struggle that Christian Whitbread ran towards him in a threatening manner. The appellant says, he took hold of him and got him to the ground. During that struggle Christian Whitbread abused him, spat in his direction at his face and dug his fingernails into the appellant’s right calf muscle so that the appellant felt pain.

32 Elsewhere in his evidence the appellant says Sebastian Whitbread was extremely abusive, threatening, intoxicated and he did not know whether Sebastian was carrying weapons or on drugs. Elsewhere the appellant says:

“I wanted to restrain his [Sebastian’s] movement. I came in with a right hand grabbed his collar area and intended to come around with my left hand behind his back to completely restrain his movements; therefore he could not use his knees or anything else...he resisted immediately and that’s how his, I mean, if I had got an open hand, how did I rip his shirt. I mean, his shirt has been ripped from the collar.”

33 It is noteworthy the appellant said in respect of Sebastian:

“I was trying to bring my right hand onto his collar and the bottom part of my right hand was on his collar bone, I had hold of him there, I was bringing his left arm in. This was just a removal. There was no intention to go any further. However, by coming in close and tight like this I was prepared for this bloke to react violently, because he was ready to go and from what he’d said there was the grey area.”

34. As to Christian, the appellant said:

“I would not take any risk with that fellow, because he was in total support of his brother. He would have run through a brick wall for him...They were both fairly juiced up. I can’t recall what was being said, but I found them to be intimidating, aggressive and there was a possibility of being assaulted.”

35 At this point it is worth pausing to note all of the actions of the parties have been recorded on CCTV. While it is possible to observe that conversation is taking place there is no audio sound.

36 So there is the oral evidence of the conversation and the body language of the participants that give some insight into the conversation. The CCTV, of course, clearly exposes the actions of all of the parties involved.

37 The CCTV and the oral evidence appear to establish that in the moments leading up to the manhandling incident, Christian Whitbread was passive, taking little or no part in the conversation, but standing with his brother as Sebastian did most of the talking. I am of the view the reason for requiring Christian to leave the station has to be a different reason to the reason requiring Sebastian to leave. Yet that difference does not appear to have articulated by anyone when they were required to leave.

38 Secondly, the body language of Sebastian in the moments prior to him being manhandled does not appear to be consistent with the threatening conversation alleged against him. Nor does the body language of those surrounding Sebastian appear to be consistent with a threat being uttered in the moments prior to the appellant handling him. It is clear from the appellant’s body language that he is gesticulating in a direction behind Christopher towards the CCTV camera 32. Yet when in the process of removing the men, the removal heads in a direction away from the camera.

39 I have now looked at that portion of the video a second time, and in fairness, there is seconds before the gesture in the direction of the camera, a gesture with the left hand in a direction opposite to the camera.

40 When Sebastian responds, he also gestures towards the camera. Then he drops both his hands down in a relaxed motion as though his hands were at rest one each side of his body. At this point there appears to be no conversation. The appellant’s hands are also hanging by his side. That in a sense was unusual, because for most of the time he was visible on the CCTV the appellant’s arms had been folded. Sebastian takes a half step backwards away from the appellant towards Transit Officer John Borcher who is standing with both arms folded across his chest behind Sebastian. Melchor Jaminez is resting his back against the glass wall. Christopher Sanderson stands about one and a half metres in front of Sebastian. He too has his arms folded across his chest resting on his stomach. Geoffrey Blight stands to the left of John Borcher, his hands appear to be hanging loosely by his sides. Reilly, the security guard, and Transit Officer Sinha are a metre and a half or so away from Christian Whitbread, they appear to be relaxed.

41 There are two Transit officers off camera behind Christian Whitbread who from time to time appear to be chatting to each other when they are captured by the camera. Christian Whitbread has his left arm hanging loosely and his right arm bent at right angles, but his elbow in against his side.

42 In the instant before the appellant lunges, the only person captured in the CCTV number 32 frame at seven minutes fifty five seconds, who appears to be stressed, is the appellant. In my view, such a scenario is entirely inconsistent with the sense of confrontation painted by the appellant on his evidence.

43 When Sebastian Whitbread moved the half step back the appellant almost immediately moved suddenly towards him, raising both arms towards Sebastian’s shoulders, one each side of the neck. In the CCTV footage from camera 32 it’s impossible to observe the appellant’s left hand. I should indicate that I have relied on camera 29 to come to a view that both hands were raised by the appellant when he approached Sebastian. The appellant’s right hand travels along the top of Sebastian’s left shoulder towards his left ear. Whether it grabs the left ear lobe, or applies pressure to a pressure point in the neck region immediately below the earlobe, is impossible to tell from the picture frames.

44 Sebastian is turned to his left through 30 to 40 degrees. The appellant moves in so that his chest is abutting Sebastian’s right shoulder. Sebastian’s head is now tilted backwards from the perpendicular some 15 or 20 degrees by the force of the appellant’s hand against Sebastian’s jaw line or pressure point. Sebastian’s left arm is grabbing the appellant’s right wrist area as though trying to release such grip or pressure as the appellant has on him.

45 I am satisfied the appellant’s right arm is making contact with Sebastian somewhere around the earlobe, upper neck region, although the nature of that contact I cannot determine specifically. Jaminez, Sanderson, Reilly, Christian and Blight have not reacted. Borcher is moving towards Sebastian. As best I can tell the appellant thrusts or pushes Sebastian with both hands downwards and against the glass wall. By this time the left side of Sebastian’s shirt is torn, revealing part of his left torso. My view is that any tearing occurred as a consequence of whatever the Appellant's left hand was doing. Borcher and another person, probably Jaminez, scoop up or try to scoop up Sebastian. The appellant is now a metre and a half from Sebastian. The appellant is on his feet standing erect. Sebastian is doubled over and is in or almost in the custody of the two other Transit Officers.

46 I am satisfied the pushing of Sebastian away has significance. If the appellant was truly fearful of Sebastian’s threat to kill or his possible possession of weapons, it is unlikely he would have pushed Sebastian free, even if only for a second, but crowded him as he earlier had, giving Sebastian no chance to reach for the weapon or otherwise advance his threat to kill. Nor is anything said to any of the other Transit Officers so far as I can tell about the threat to kill or the possible presence of a weapon. Whatever the appellant was doing, it was not about smothering a threat to kill or being alarmed about the potential for the presentation of a weapon.

47 Regulation 58 of the Rail Safety (General) Regulation 2003 permits an authorised officer to remove any person who refuses or fails to comply with a direction given under the regulation. I am prepared to accept that the appellant genuinely believed he had given an authorised direction. However, only reasonable force can be used for such a purpose. Further, the use of force would need to be a reasonable option in all of the circumstances. The circumstances that were occurring at about 4am were these:

Minimal public traffic in the region;
This is not a case where any member of the public was endangered by the behaviour of Sebastian or his brother;
So far as I can tell the only people to interact with the brothers were the Transit Officers who at all times outnumbered the brothers;
Neither brother was presenting any danger by the way in which he was behaving;
Sebastian certainly was rowdy and offensive at least towards the Transit Officers;
The police had not been called;
Nor was any threat made by the Transit officers to call police if the men failed to comply with the directions;
No infringement notice had been issued; and
No attempt to escort either brother from the station had been made.

48 I am satisfied the use of force at the time the appellant grabbed Sebastian was not a reasonable option in all the circumstances. It is to be remembered the onus is on the defence to prove it was a reasonable option. Even if I be wrong in that assessment I am satisfied the use of force was far in excess of the force required to effect a removal. Again, the onus is on the defence to prove that the force was reasonable in all the circumstances. Further, I am satisfied there was no warrant for the appellant to approach Sebastian by way of self defence. At that stage Sebastian was outnumbered by eight or nine to two - assuming his brother was willing to assist him. It should be clear I do not regard the appellant as seeking to effect an arrest. Nor in my view was there any power to arrest him in the circumstances.

49 It follows that the appellant intentionally committed an act, which caused Sebastian Whitbread to apprehend immediate and unlawful violence. I find the prosecution has proved beyond a reasonable doubt that the appellant assaulted Sebastian Whitbread.

50 The position in respect of Christian Whitbread is different. At the point where the appellant had pushed Sebastian towards the glass wall he stepped back. His assault upon Sebastian was at this point over. Sebastian was then in, or almost in the custody of two other officers who were in the process of securing him with a view to removing him from the railway station. For a brief moment Sebastian did break free and sought to approach the appellant in an aggressive way. But that situation plays little part in Christian Whitbread’s conduct.

51 To the point where his brother was assaulted by the appellant Christian Whitbread had been relatively passive. However, once the appellant disengaged from his actions with Sebastian, Christian Whitbread approached him. I have no doubt he was complaining about the way in which his elder brother had been treated by the appellant.

52 While he did not run but rather stepped forward one, or perhaps two steps, he was gesticulating with his right arm at about shoulder height. True, his hand was not in a fist, but that would not have taken long to accomplish. All this was being done while he was in what the appellant described as his “personal space.”

53 The appellant, no doubt, well knew that Christian Whitbread was upset by what had happened, and was happening to his brother and blamed the appellant for it. The appellant had every reason to fear an assault upon him by Christian Whitbread. The appellant responded by placing each of his hands on Christian’s arms gripping the left arm at Christian’s elbow and moving towards the right elbow. The appellant swung Christian around and slid his hand under Christian’s left armpit and would, it seems to me, have escorted him from the railway station had not other matters intervened. In my view, there was nothing untoward or inappropriate about the appellant’s response at that point in time.

54 Sanderson began to move towards Christian. The other officers were crowding in seeking to secure Christian. At this point Sebastian’s left hand is reaching towards the appellant. The Transit Officers thereafter removed both men from the railway station.

55 It is to be remembered the appellant cannot be expected to weigh with jeweller’s scales all the issues one might think of with hindsight. The force he first tried to use was appropriate. The escalation occurred because of the acts of Christian Whitbread. I regard the acts of the appellant, in respect of Christian Whitbread’s acts and movements, done in self defence.

56 Thereafter the acts of the other Transit officers were done pursuant to a removal presumably in accordance with cl58. I am not concerned with whether the force used in that removal was excessive. The parties agree that the incident I am focusing on is the incident occurring on the ramp way to the Showground Road captured by camera 32.

57 My formal findings are these:

I find the appellant guilty of common assault of Sebastian Whitbread.
I find the prosecution has failed to prove the appellant was guilty of assaulting Christian Whitbread. What do you seek to do now, Mr Doyle?

Submissions made:

58 HIS HONOUR: My own view of it, is that the appellant is entitled to the benefit of a s10 discharge. The finding of guilt will have significant consequences upon him. He has for thirty years been associated with those in society, primarily here, but also for a while in New Zealand, who are least likely to comply with the requirements of observing peace and behaving lawfully. It would seem that he has done his job well.

59 At four in the morning on 12 March 2004 for whatever reason, he appears to have had a brain explosion. It appears to me entirely out of character. It will have significant consequences for him. He has fought tooth and nail to establish that he behaved lawfully. He has been unsuccessful at least in respect of one charge although he has succeeded in respect of the other.

60 It may well have been a different situation had the Magistrate convicted him only of the one, rather than the two offences. My own view is that the Magistrate would not have been out of order to fine him, but the justice that I would seek to administer would also seek to pay some regard to the tremendous contribution that he has made to the society by taking on work that is difficult, stressful and sometimes dangerous.

61 I am satisfied he made a very bad error of judgment on this night but I intend to discharge him without conviction.

62 The formal orders I make are these:

The conviction recorded by the learned Magistrate in respect of Christian Whitbread is quashed. The
Finding of guilt recorded by the learned Magistrate in the matter of Sebastian Whitbread is confirmed, however, the conviction is quashed.
Pursuant to s10 of the Crimes (Sentencing Procedure) Act I discharge the appellant from conviction.

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