Daye v Pryce - [2000] NTSC 82

Daye v Pryce [2000] NTSC 82
PARTIES:ROY FRANCIS DAYE

v
LEONARD DAVID PRYCE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:JA 43 of 2000 (9906822)
DELIVERED:  3 October 2000
HEARING DATES:  29 September 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Appellant:Mr G Georgiou
Respondent:  Mr R Noble
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecution
Judgment category classification:    B
Judgment ID Number:  ril00023
Number of pages:  8

ril00023
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Daye v Pryce [2000] NTSC82
No. JA43 of 2000

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF an appeal
against conviction and sentence handed
down in the Court of Summary Jurisdiction at Alice Springs

BETWEEN:
ROY FRANCIS DAYE

Appellant
AND:
LEONARD DAVID PRYCE

Respondent

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 3 October 2000)

On 6 June 2000 Roy Francis Daye was found guilty in the Court of Summary Jurisdiction at Alice Springs of having unlawfully assaulted Robert Thornton on 25 March 1999 and of having resisted a member of the police force in the execution of his duty on the same day. He appeals against those convictions.

The matter was heard in the Court of Summary Jurisdiction over a lengthy period of time. It occupied some twelve hearing days. The convictions arose out of incidents at the Simpson’s Gap Bar at an Alice Springs Hotel in the early hours of the morning of 25 March 1999. The appellant had been drinking at the bar as had two brothers Warwick Thornton and Robert Thornton. The appellant was at the bar independently of the brothers. At about 2.30am on 25 March 1999 there was an altercation between the appellant and Warwick Thornton. At the conclusion of that altercation Warwick Thornton was left unconscious on the floor. Mr Robert Thornton then became involved and there was a fight between him and the appellant inside the bar area. Robert Thornton was subsequently moved by security personnel to a position outside of the bar area and in the foyer of the hotel. He was then spoken to by police. Whilst he was talking to police the appellant emerged from the bar area and was seen by Mr Thornton. Mr Thornton pointed to the appellant and identified him to the police as being the person involved in the altercation with his brother. The evidence is a little unclear but it seems the appellant saw Mr Thornton in the foyer and rushed towards where he was standing. Mr Thornton acted in a way which suggested that he was wishing to or willing to continue the altercation that had commenced inside the bar. Police officers came between the two and restrained them. The appellant endeavoured to strike Mr Thornton and, although his Worship failed to make such a finding, there is some suggestion in the evidence that he was successful.
As a result of the evening’s events the appellant faced six charges and pleaded not guilty to each of the six.
On 6 June 2000 the learned Deputy Chief Magistrate dismissed four of the charges but found the appellant guilty of unlawfully assaulting Robert Thornton in the incident which occurred in the foyer of the hotel and also guilty of resisting a police officer in the execution of his duties.
In his reasons for decision the learned Deputy Chief Magistrate made the following observations:
“I do accept, however, that the defendant resisted police in the execution of the duties. The police were attempting to control a volatile situation. They were attempting to prevent the defendant and Mr Robert Thornton from continuing their altercation. The defendant clearly resisted such attempts, such that all fell to the floor on at least one and possibly two occasions.
As to the second alleged assault on Mr Robert Thornton, I note that self-defence was raised by the defendant. Mr Thornton was clearly yelling and gesturing towards the defendant as the defendant left the SGB (Simpson’s Gap Bar). Police were attempting to restrain Mr Robert Thornton, as both the defendant and Mr Thornton attempted to continue their dispute.
I note the evidence of the security controller Mr Mark Brosnan, he stated that “they were coming towards each other. Obviously Roy was trying to get to the other guy, and the other guy was trying to get to Roy”. I do not accept, however, that the defendant’s actions were in self-defence. There was no need for a pre-emptive strike. Mr Thornton was in the company of police and defendant did not have to continue out of the SGB when he saw Mr Thornton.
I do not accept that he could not have turned away in safety. The defendant’s actions were borne out of anger and the heat of the moment. On the evidence of Mr Robert Thornton, I find that the defendant threw punches at him but I am unable to conclude that any of those punches connected.”
His Worship then went on to find the appellant guilty of the two counts that I have identified and not guilty of the remaining four counts.
Having considered the evidence to which I was referred it is clear that the reference by his Worship to a “pre-emptive strike” was in the context of the appellant suggesting that he struck Mr Thornton first fearing for his own safety. The finding was in response to a submission that the appellant acted in self-defence. It did not suggest that the appellant struck or attempted to strike Mr Thornton other than in circumstances where they were each trying to strike the other.
The First Ground of Appeal
The appellant submits that the learned Magistrate erred in failing to consider or failing to properly consider whether the assault upon Robert Thornton was without the consent of Robert Thornton.
In the Criminal Code the expression “assault” is defined in s 187 to mean:
“(a)the direct or indirect application of force to a person without his consent or with his consent if the consent is obtained by force or by means of menaces of any kind or by fear of bodily harm or by means of false and fraudulent representations as to the nature of the Act or by personation; or
(b)the attempted or threatened application of such force where the person attempting or threatening it has an actual or apparent present ability to effect his purpose and the purpose is evidenced by bodily movement or threatening words”.
It is clear that the absence of consent is an element of assault for the purposes of the Code. Although the word “consent” is not found in paragraph (b) of the definition, the use of the expression “such force” in that paragraph, and reading of the definition as a whole, make it clear that absence of consent is an element where the assault is said to fall within the ambit of paragraph (b). Mr Noble for the respondent conceded this to be so.
The submission of the appellant is that he and Mr Robert Thornton each consented to the application of force to themselves. This is to be inferred from the manner in which they both sought to become involved in a physical altercation outside of the bar and in the foyer. It is a necessary implication from the finding of his Worship that police were attempting to restrain Mr Thornton “as both the defendant and Mr Thornton attempted to continue their dispute”.
His Worship did not give consideration to the issue of consent in reaching his conclusions. He addressed the events of the night and the submission that the appellant was acting in self-defence but he did not address the issue of consent. On the basis of the evidence before him that was clearly an issue in dispute and, given his findings, it would seem to be inevitable that he would have found relevant consent on the part of Mr Thornton had he turned his mind to this issue.
In the circumstances I find that His Worship erred and I set aside the conviction for assault of Robert Thornton.
The Second Ground of Appeal
The second ground of appeal is directed to the charge of resisting arrest. It is said by the appellant that the finding of guilt in relation to that charge was bad as the charge was duplicitous and/or possessed a latent ambiguity. It was said that the acts alleged against the appellant on the evidence of the prosecution witnesses disclosed two or more separate offences.
The charge laid against the appellant was that on 25 March 1999 he did resist a member of the police force in the execution of his duty. The offence is to be found in section 158 of the Police Administration Act which provides:
“A person shall not resist a member in the execution of his duty or aid or incite any other person to resist a member in the course of his duty.”
The appellant says that it was not clear whether the police officer that he is said to have resisted was Constable Astridge or Constable Brooke-Anderson. The finding of guilt did not distinguish between the two and they were both involved in the efforts to restrain the appellant. As his Worship found, the appellant resisted those attempts. The officers and the appellant fell to the floor on at least one and possibly two occasions.
The appellant concedes that this issue was not raised before his Worship. He also concedes that he did not seek particulars of the allegations and that he knew the course of conduct which was relied upon by the prosecution to provide the basis for the matter alleged against him. At all times he knew that it was the course of conduct referred to in the findings of his Worship that constituted the alleged resistance.
No unfairness was caused to the appellant in proceeding in this way. He was fully aware of the case he had to meet and did not seek any particulars. The same facts as found by his Worship would constitute the offence whether the resistance was in relation to Constable Astridge or Constable Brooke-Anderson.
In my opinion section 158 of the Police Administration Act provides for what has been termed a “conduct offence”. In that regard I adopt, with respect, the observations of Walters J in Hull v Nuske (1974) 8 SASR 587 at 593:
“It seems to me that the offence of resisting a police officer in the execution of his duty is a “conduct offence” and that the actus reus can properly be made up of behaviour consisting of the one set of circumstances which form the central feature of the offence. The fact that the behaviour alleged to constitute a resistance of a police officer is aimed or directed at two police officers, lawfully engaged in the joint performance of the one and the same duty, does not in my opinion lead to the consequence that there are two independent actus rei which may be separately charged. In my view, it would be going too far to say that in relation to each officer, the external facts arising out of the one set of circumstances and involving a resistance of that police officer, in the execution of a duty being lawfully performed by him jointly with another police officer, can lead to the commission of two distinct offences. I think an unjust result would follow if an offender were to be convicted of two or more separate offences arising out of a continuous act or proceeding which gave rise to a resistance, at the same time, of more than one police officer in the execution of duty. It seems to me therefore, that in the circumstances of this case, the conviction for breach of section 6(2) of the Act is not bad for duplicity, simply because it is recorded in the language of the complaint. It follows that I do not think the complaint was defective; it disclosed only one offence.”
The South Australian section is slightly different from its Northern Territory equivalent in that it provides:
“a person who assaults any member of the police force in the execution of the member’s duty is guilt of an offence.”

I do not see the description “any member of the police force” as providing a basis for distinguishing the South Australian position from that in the Northern Territory. The offence is equally a “conduct offence” under the Northern Territory provision.

In my opinion the complaint alleging duplicity is not made out. For the same reasons there is no latent ambiguity in the conviction. That ground of the appeal is dismissed.
Conclusions
For the reasons set out above I dismiss the appeal against the conviction for the offence of resisting a member of the police force in the execution of his duty contrary to section 158 of the Police Administration Act. I allow the appeal against the conviction of unlawfully assaulting Robert Thornton.