Daniel Henry Prochazka v SA Police No. SCGRG 93/605 Judgment No. 3946 Number of Pages 7 Criminal Law and Procedure

[1993] SASC 3946

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT HOLDEN HILL PRIOR J

CWDS
Criminal law and procedure - Offences against the person.- Appeal against conviction - indecent language - assault police, resist police - magistrate considered defendant's state of mind and inebriation when assessing evidence - demeanour of witnesses - judicial notice - appeal dismissed - appeal against penalty - gravity of offences against police.
Faehrman v Edwards (1986) 44 SASR 94; Jones v Hyde (1989) 63 ALJR 349; Warren v Coombes (1979) 142 CLR 531; Uranerz v Hale (1980) 54 ALJR 378; Abalas v Australian Postal Commission (1988) 171 CLR 167 and Freeman v Binnekamp
(1987) 44 SASR 114, applied. O'Connor v Daire (1984) 114 LSJS 386 and Todd v O'Sullivan (1985) 122 LSJS 403, considered.

HRNG ADELAIDE, 4 May 1993 #DATE 4:5:1993
Counsel for appellant:     Mr Jakacic
Solicitors for appellant:    Crown Solicitor
Counsel for respondent:     Mr B C Harradine
Solicitors for respondent: Harradine and Associates

ORDER
Appeals dismissed.

JUDGE1 PRIOR J Appeal against conviction. On 2 March 1993 a magistrate found the appellant guilty of using indecent language, assaulting a member of the police force in the execution of his duty and resisting members of the police force in the execution of their duty. 2. The offences occurred on 4 September 1992 at Prospect. Two police officers were called to 44 Livingstone Avenue Prospect. Just before they arrived there they spoke with the appellant's brother. As the officers alighted from a police car outside the premises, they heard yelling coming from inside the house. A male person was using offensive language. The officers approached the front door. They looked inside and saw the appellant and his mother in the hallway of the house. A small glass panel near the front door had been smashed. There was blood on the front porch and blood smeared on the walls and the door inside the house. The appellant's mother had a hand bandaged. The hand was still bleeding. The police officers had been told by the appellant's brother a little of what had been going on inside the house. Having heard indecent language before they entered the premises, the officers were then the subject of similar direct language from the appellant who then swore at them and told them to get out of his house. The police evidence was that the appellant suddenly came towards Constable Tuck, swinging his arms at him as if to strike him. His fists were closed. Constable Tuck moved backwards to avoid being struck and then grabbed the appellant to restrain him, telling him that he was under arrest for indecent language and assaulting a police officer. 3. The second police officer had to give Constable Tuck assistance. It was Tuck's evidence that the appellant was "still very aggressive, yelling ... a fight, struggle developed in the hallway." Tuck said in evidence that they fell to the ground, the appellant lashing out with his feet on the ground with Tuck trying to handcuff the appellant whilst on the ground. Constable Richards, the other officer, was also on the ground trying to assist Tuck to handcuff the appellant's wrists. 4. Once the appellant was handcuffed the two officers led him to the police vehicle outside of the appellant's house. They deposed to a struggle on the front lawn. The officers held him on the ground until another police patrol arrived to assist. They also said that whilst the officers awaited the arrival of a cage car the appellant used indecent and abuse language towards Tuck whilst he was advising the appellant of his rights. 5. The magistrate found the charges proved. After summarising the evidence from the two police officers which he ultimately accepted, the magistrate said:-
    "In regard to the central issues, the defendant states that the
    police officers entered the hallway quickly, he told them to
    leave because it was private property, thereupon Senior
    Constable Tuck jumped up at him and without uttering a word
    grabbed the defendant in a headlock and with the assistance of
    Constable Richards was forced to the ground and handcuffed. He
    was struggling with the police. He did not know who had called
    them or what they were doing there. He had not been told he was
    under arrest. He resisted them because he believed they had no
    right to be there and that they had no right to grab him the way
    they did. He continued to struggle on the ground outside. He
    was demanding of the police officers as to what had he done,
    what was he charged with. He received no response to his
    request." 6. The magistrate's reasons for judgment proceeded with the magistrate first indicating that in reaching his determination he had regard to the whole of the evidence. He then said:-
    "Senior Constable Tuck and Constable Richards gave evidence of
    the prosecution's case ... Their respective evidence was
    vigorously attacked by defence counsel as being untrue, a
    fabrication and lies, and that the officers had connived and
    colluded to present that false evidence to the court. Defence
    counsel referred to the sinister motivation, attitude, behaviour
    and conduct of the police officers, but directed his scathing
    attack mainly at Senior Constable Tuck. He talked about the
    police officer's desire to 'punish the defendant for something'
    and in furtherance of that desire concocted the story as was
    unfolded by their evidence. He referred to 'glossed up'
    evidence of Senior Constable Tuck and the desire and need for
    Constable Richards to corroborate, backup, support that evidence
    and to avoid being ostracised by the other members of the police
    force. Defence counsel was relentless in both his
    cross-examination of the police officers and during his address
    in an endeavour to establish that the police officers acted with
    impropriety, dishonesty and impunity. He spoke about their
    evidence as being with one voice, and that therefore they must
    be telling lies.
    I am constrained to say, and I find, that the contention of
    defence counsel is totally unfounded. I saw and heard the
    officers giving their respective evidence. Senior Constable
    Tuck is an officer of some seventeen years experience.
    Constable Richards, on the other hand, had not completed
    eighteen months in the force. From the evidence before me they
    were confronted with a very aggressive, violent and hostile
    defendant. They had heard the indecent language, saw the overt
    signs of violence and were confronted with abuse, hostility and
    aggression. They apprehended further violence and feared for
    their safety. Once the defendant moved to punch Senior
    Constable Tuck the officer acted quickly. He informed the
    defendant he was under arrest and with assistance from Constable
    Richards proceeded to subdue him. The incident happened very
    quickly. Within half an hour of arresting the defendant he made
    notes of the events and the conversation. Both matters were
    still fresh in his mind at the time of making the written
    record. Constable Richards read and signed that record. I am
    bound to say that at the end of the day I could not escape the
    conclusion that the matters for determination essentially turned
    on the questions of credibility." 7. The magistrate then summarised the evidence given by the appellant and his mother. In the course of these observations, the magistrate said he was firmly bearing in mind "the defendant's emotional state of mind and inebriation at the relevant time in assessing his evidence". After referring to the appellant's state of intoxication, emotional state and poor recollection, the magistrate made a finding that "the whole of the defendant's evidence (was) unreliable and unconvincing." 8. The magistrate described the appellant's evidence as unacceptable to him. The magistrate said:-
    "I cannot bring myself to accept any of his Court tendentious
    explanations which were extremely selective. In assessing his
    evidence I am unable to dispel the considerable disquiet I have
    about the possibility that it is a fabrication which he formed
    in his mind whilst he was in a state of gross intoxication and
    emotionally agitated." 9. The magistrate then referred to the evidence of the appellant's mother. He said:-
    "There was nothing in Mrs Prochazka's manner or attitude, or in
    her answers which suggested hostility towards the police
    officers. Again in making an assessment of her evidence I have
    regard to the accuracy of her observations and memory. I bear
    in mind that Mrs Prochazka has endured a horrendous period prior
    to the arrival of the police officers. She had confronted and
    lectured the intoxicated defendant and an argument erupted. The
    defendant became violent, hostile and threatening. He engaged
    in an unpleasant conflict with his younger brother. He had
    smashed a plate in the kitchen, violently smashed a frying pan,
    had smashed a glass panel in the side of the front door, had cut
    his hand and had smeared blood on the door of his brother's
    bedroom, had used a kitchen knife threatening to kill his
    father, he used the knife to hack a tree in the front yard, had
    broken the blade of the knife when he stabbed at a brick column
    on the front porch. During the whole of this episode the mother
    was present, and had received a cut on her hand from the knife
    used by the defendant. She bled from the cut and thought she
    required stitches. She witnessed her younger son barricading
    himself in his bedroom to escape the defendant's abuse and
    hostility. He had heard the defendant wanting to kill his
    father, her estranged husband. She had offered the defendant an
    opportunity to kill her first. She was crying throughout the
    whole incident, she was upset and distraught. She felt guilty
    and upset with herself, because she felt responsible for having
    berated the defendant which had initiated the hostilities and
    turmoil. She experienced a very nasty and unpleasant episode of
    a family in conflict. For about half an hour she heard the
    defendant using indecent, offensive and abusive language.
    Both the defendant and his mother were very emotional and very
    upset when the police officers came upon the scene. In
    assessing their respective ability to accurately recall the
    events I must have regard to that situation, and bear in mind
    the obvious effects of confabulation upon their evidence. In
    doing so I am constrained to reject the defence evidence. Both
    may have been genuine in believing that the evidence they gave
    was an accurate recall of the events as they perceived them, but
    I find that their evidence was either not accurate, was
    untruthful or at any rate unreliable. I accept unhesitatingly
    the evidence of the police officers. They gave their evidence
    convincingly and were not shaken in cross examination. I
    discern no reason to doubt the credibility of either officer. I
    entertain no reason to reject the evidence of either of them
    both of whom impressed me as honest and reliable witnesses.
    Having rejected the defence evidence and having accepted the
    prosecution evidence I entertain no doubts that the elements of
    each of the charges have been proved beyond reasonable doubt." 10. The magistrate found the appellant guilty as charged on each count. 11. In the appeal to this court it is complained that the magistrate did not make a proper finding of credibility between the parties as he:-
    "(a) Unhesitatingly accepted the evidence of the two police
    officers notwithstanding that such evidence:
    (i) Disclosed signs of concoction, and was improbable.
    (ii) Was contrary to apparently truthful evidence of the
    defendant and his mother.
    (iii) Might have been motivated by knowledge (of the witnesses)
    that their behaviour was the subject of a complaint to The
    Police Complaints Authority.
    (b) Took judicial notice of the Psychological evidence that
    emotional upset of the defendant's mother both:
    (i) detracted from her ability to recall events and
    (ii) caused her evidence, whilst honestly given, to be
fundamentally inaccurate." 12. I have read the evidence and paid attention to the submissions put to me by counsel for the appellants. I cannot glean from the magistrate's reasons any improper reasoning. He plainly considered all that was put to him by counsel about the evidence of the police officers. He found their evidence to be truthful. That was open to him. I think this is a case where this court cannot act upon an assumption that the magistrate's observations of the demeanour of the witnesses and their manner of giving evidence played no part in his findings. A reading of his reasons as whole shows that demeanour was an important aid for the magistrate in making his findings. 13. When findings of fact are based in whole or in part on demeanour those findings are not often open to review in an appellate court. No circumstances had been made out to interfere with the adverse credibility findings made by the magistrate: see, for example, Jones v Hyde (1989) 63 ALJR 349 at 351-2. There is nothing on the face of the proceedings to indicate that the magistrate erred in his approach to the issues before him: Warren v Coombes
(1979) 142 CLR 531 at 551, Uranerz v Hale (1980) 54 ALJR 378 at 381 and Abalas v Australian Postal Commission (1988) 171 CLR 167 at 179. The police officers were believed. The appellant and his mother were not insofar as their evidence was at variance with that of the police officers. The magistrate was entitled to take that view. 14. I can see no improper judicial notice being taken by the magistrate when he dealt with the mother's evidence. She admitted for herself in evidenced that she was emotionally upset. Things said by the magistrate reflected a fact finders reflection upon the evidence as it was before him, not an improper use of expert evidence. 15. There is no justification for interfering with the convictions. The appeal against conviction is dismissed. 16. There is also an appeal against penalty. The magistrate sentenced the appellant more than three months after his conviction. He then had reports. He was also aware of a number of previous offences included in the pre-sentence report with reference to convictions for drive under the influence, disorderly behaviour, speeding, failing to comply presumably with directions, property damage, offensive language and consuming liquor in a prohibited area. The magistrate was informed that the penalties imposed for these offences included a fine, licence disqualification, and a community service order. 17. He imposed one penalty for all three offences pursuant to the power vested in him by s18A of the Criminal Law Sentencing Act. That penalty was imprisonment for a period for three months; the sentence being suspended upon the appellant entering into a bond in the sum of $10 for a period of 24 months upon conditions that he be of good behaviour, be under the supervision of a probation officer and attend an alcohol education programme. The appellant was also to undertake psychological counselling as may be advised and directed from time to time besides performing 120 hours of community work within nine months. 18. It is said that the penalty, in terms of the bond imposed, is excessive. It is put that there was no physical contact between the appellant and any person apart from that whilst the 8 police forcefully arrested and removed the defendant during which he was injured. I am not sure that I can let that submission pass unnoticed against the totality of the events that were clearly before the magistrate, certainly at the imposition of penalty. One must not overlook the fact that there was an unfortunate, perhaps accidental, injury to the mother, and that a number of possibilities coloured the circumstances as they were presented to the police when they came to the appellant's home. 19. It is said that because the incident occurred in the appellant's home it is less serious. It is also put that the police were not in danger from any source other than from the defendant, that the threatened harm was of a minor nature. 20. Offences involving the assault of police are very varied in their nature and effect. This court has, on many occasions, emphasised that police officers are entitled to protection and that custodial sentences, even for first offenders, are often appropriate. 21. There were circumstances about this particular offence, as found by the magistrate, that appear to me to render a custodial sentence not inappropriate, and, upon that basis alone, it is difficult for me to find that the sentencing discretion can be properly interfered with by this court. 22. Mr Harradine relied in particular before me, with respect to the appeal against penalty, upon O'Connor v Daire (1984) 114 LSJS 386 and Todd v O'Sullivan (1985) 122 LSJS 403. I have paid particular attention to those things noted by Legoe J in Todd v O'Sullivan. I add that the decision of Johnston J in O'Connor v Daire has been the subject of continuing attention by judges of this court, since he delivered that most helpful 9 observation about the enormity of circumstances that arise with respect to charges involving assaulting police or resisting police. 23. I add to the authorities cited two decisions: Faehrmann v Edwards (1986) 44 SASR 94 and Freeman v Binnekamp (1987) 44 SASR 114. In the second of those cases von Doussa J quotes from the judgement of Johnston J in O'Connor v Daire at p117. His Honour also there quoted some observations made by the magistrate in the appeal he was then considering. He said that he fully agreed with the observations of the magistrate on that occasion. These remarks were:-
    "Offences against police officers are serious matters. It has
    been said time and again that persons who place themselves in an
    intoxicated condition and then commit offences have no one but
    themselves to blame and persons who commit offences of violence
    against police officers will generally be dealt with sternly to
    bring home to them and to others who might be like minded that
    this type of behaviour will not be tolerated. Police officers
    acting in the execution of their duty are at times called upon
    to enter into dangerous situations and they are entitled to the
protection that the courts can give them." 24. I know that counsel's submission here is that there was really no great danger involved in the events as they happened. I think that the reality was that the police officers, against what they had been told and heard and saw, had to embark upon a situation where anything could have happened. When the magistrate had the assessments of the appellant and his antecedents before him, the demands of s11 of the Criminal Law Sentencing Act were well met, and the imposition of a sentence of imprisonment was called for upon general sentencing grounds, including personal and general deterrence. The assessment made by the South Australian Mental Health Service disclosed that the appellant still had some false confidence about himself, and some apparent lack of appreciation of what the community generally could expect of him. His mother was concerned about his bingeing, in particular. 25. Those factors seem to me to result in my having to dismiss the appeal against penalty, as the penalty imposed is not only well within the scope fo the magistrate's discretion, as counsel for the respondent would put it, but that there were many circumstances left for the magistrate that meant that, in many respects, a custodial sentence had to be imposed against the circumstances of this particular offending and the previous history of the appellant himself. Add to that what the pre-sentence report disclosed, and one can well understand a sentence of imprisonment being decided upon. 26. The magistrate is to be commended for concluding good reason to suspend. The good reason included the fact that the appellant did act in a manner that was less public than many other offences of this kind. There were other things the magistrate properly took into account. I have not repeated what he said. Suffice it to say today that I cannot say that the sentencing discretion has miscarried. 27. Mr Harradine, towards the end of his submissions, said, in effect, that one month would have been enough. One month might have been enough. One might have been too much if we had had but one count of assaulting one police officer. We had three counts found proved. An obligation was upon the magistrate to find an appropriate penalty for the totality of the offending on the occasion the subject of those three charges. 28. In my view the magistrate's sentencing discretion was well exercised, and not exercised in a manner that properly calls for any interference by this court. 29. The appeal is therefore dismissed.