Harkild v Police No. Scciv-03-862

HARKILD v POLICE
[2003] SASC 289
Magistrates Appeal: Criminal

PERRY J. The appellant appeals against his conviction and the sentence imposed upon him following a trial in the Magistrates Court sitting at Christies Beach on charges that on 25 November 2002 at Christies Beach he assaulted Constable Vaninetti, a member of the police force, in the execution of his duty contrary to s 6(1) of the Summary Offences Act 1953, and that on the same date and at the same place he resisted the same police constable in the execution of his duty contrary to s 6(2) of the same Act.
The trial proceeded before a magistrate on 6 May and 30 June 2003, following which on 1 July 2003 the magistrate gave judgment, supported by published reasons in which he found both charges proved. He entered convictions on both counts, but ordered that the appellant be released on his entry into a two-year good behaviour bond subject to conditions as to supervision, and in the event of breach, to come up for sentence.
Although the appellant was represented by counsel in the court below, he frequently interrupted the proceedings, with the result that on more than one occasion he was ordered out of court.
He appeared on his own behalf to prosecute the appeal to this Court.
In his notice of appeal the appellant pleads the following grounds:
“Perjury by police officers. Lack of video evidence that was not available.”
I will deal with the evidence which was adduced at the trial.
The alleged victim, Constable Vaninetti gave evidence that he entered premises occupied by the appellant at Christie Downs in the company of Constable Heil at about 1.30 pm on the day in question. The officers were in possession of drug warrants, searching for cannabis.
They were let into the premises through the front door by the appellant. On the prosecution case, he very quickly became hostile towards them, but notwithstanding that, both officers commenced to search the premises, being followed as they did so by the appellant.
They did not find any cannabis or other drugs.
On completion of the search, Constable Vaninetti asked the appellant to remove all the items from his pockets. He refused. When the request was repeated on a number of occasions, he eventually produced two cannabis pipes from a pocket, but refused to reveal the contents of his other pockets.
At this stage Constable Vaninetti and Constable Heil were standing in the kitchen adjoining the dining room, three to four metres from the appellant. When Constable Vaninetti then moved towards the appellant, and after he had reached a position of about a metre away, the appellant still displaying extreme hostility, began to flail his arms around.
According to the evidence of the police officers, the appellant turned and picked up a computer keyboard which he swung towards Constable Vaninetti’s head. The constable put his arms above his head to protect himself, and his evidence was that had he not done so, the keyboard would have hit him on his head.
After fending off the keyboard, both officers then approached the appellant to place him under arrest. What the trial magistrate described as a “quite violent” struggle ensued, commencing in the kitchen and continuing into the adjoining lounge room.
During the course of the struggle, the appellant and both officers fell to the ground. During this time the appellant was shouting abuse towards the officers. The officers eventually subdued the appellant and handcuffed him, following which he was placed in the police vehicle. The appellant continued to be extremely hostile.
A conversation between the appellant and the police officers was recorded on tape. The recording was tendered in evidence. I have replayed it. It demonstrates that at that stage the appellant was hostile, angry and abusive.
The account of the circumstances which I have so far given is in accordance with the evidence of Constable Vaninetti and Constable Heil, whose evidence did not vary in any material respect.
Upon the completion of the prosecution case, which comprised the evidence of the two police officers, together with the tender of the search warrants and the tape recording, counsel for the appellant raised a question as to the legality of the search of the appellant’s person as opposed to the appellant’s premises. Correctly, the magistrate ruled in favour of the prosecution on that issue.
It is unnecessary for me to deal further with that aspect of the matter.
The magistrate then ruled that there was a case to answer. Following that. the appellant gave evidence, and Ms Hewitt, who was a friend of his and who was present in the house at the time also gave evidence in support of the appellant.
During the course of his evidence, the appellant continued to abuse the police officers, with particular reference to what he perceived to be their conduct while in the house.
He admitted that he had refused to “turn his pockets out”. His evidence was that after he told the police that he would not do that and started to move backwards from them, one of the police officers began assaulting him, hitting the top of his legs. He says he picked up the computer keyboard as he did so, but put it down after eyeing the officer off. He denied approaching the police officer with it. He denied touching either police officer, and accused them of assaulting him.
His evidence was in part:
“They were holding my hands, your Honour, and my wrists. They were holding them. I was walking, going ‘Don’t hurt me, guys, I’m still sore from last time’. Fair enough I’m a foul pig but, yeah, I didn’t hurt them, I didn’t resist. They walked me. They tried to trip me as I walked inside the dining room. They tried to trip me getting me to the floor. They got me to the floor. It doesn’t take much when there is two police officers holding you, your Honour, and he sat on me, put his knee into my back and jabbed me in the ribs. That was the dark haired police officer, Vinnie, Vanetti, whatever you want to call him, but the blond guy didn’t do it. He stood there in amazement, the kitchen dining room and I was laying down there by the television set.”
Later he said:
“... have got a big conflict with the South Australian Police Department. I’ve got letters here from where the hospital killed my kid with incompetence and [named police officers] charged me with arresting police when I go ‘Here, take me away’. I complained to the Police Complaints Authority. I complained to the Magistrates Court and I get told ‘Sorry we can’t do anything until the Courts are finished with it’. I say, ‘Look, there is a video of it. There is a video of me not being violent but these police Prosecutors decide, oh stuff it we don’t want to lose these two good lying officers but they were senior sergeants.”
There was much more evidence in similar vein.
Ms Hewitt described the police officers as “backing” the appellant “up into the corner” near the keyboard, which he picked up. She admitted that he made a swing with it, but said he was not aiming it at anyone. She described the police officers as “banging his pockets” and that the appellant tried to get away from them, but they took him into the lounge.
She denies seeing what happened in the lounge, but said that she heard the appellant say, “Don’t hurt me again. I’ve already been hurt there”. She then went in, and deposed to the appellant lying on the floor with the “dark haired police officer” with his knee in the appellant’s back and the other police officer holding his legs down.
In his reasons for judgment the trial magistrate preferred the evidence of the two police officers to that of the appellant and Ms Hewitt.
As for the latter’s evidence, he observed:
“The conclusion I reached in relation to the defendant’s witness Ms A.W. Hewitt, was that she placed a higher priority on loyalty to the defendant than objectivity. Her evidence conveyed the distinct impression of having been rehearsed in advance and a number of passages in it bore a remarkable parallel with those of the evidence of the defendant which I could not accept as being objective.”
During the course of his reasons the magistrate said:
“43In these circumstances, and on the prosecution evidence alone, I am satisfied beyond reasonable doubt that on 25 November 2002 at Christie Downs, the defendant assaulted Constable Vaninetti who was then a member of the Police Force in the execution of his duty, and similarly resisted that officer. I find the facts proved in relation to Counts 1 and 2.
44Upon a consideration of the evidence of the defendant, including the behaviour and demeanour exhibited by him in the course of two days of this trial, including his theatrical but distasteful decision to rip up his naturalization certificate during the course of him giving evidence, the conclusions above reached are not in any sense displaced. I reject without hesitation the defendant’s version of the events of 25 November 2002. I did not regard the defendant as being objective, nor of providing the Court with evidence which I could accept as being truthful. Where his evidence was at variance with that of either prosecution witness, I rejected it, to the extent of the variation.”
I must say that the sequence of reasoning identified in those two paragraphs has caused me some concern. I say that because I do not think it right to approach a matter of this kind on the basis of considering the prosecution evidence alone, reaching a conclusion of guilt beyond reasonable doubt on the basis of that evidence, and then to have regard to the evidence of the defendant and his witness to determine whether that raises any reasonable doubt.
The appropriate approach is to consider whether on the whole of the evidence, including that led by the defendant, the court finds the charge proved beyond reasonable doubt.
On the other hand, it is perfectly proper to make findings of fact and in the course of doing so to indicate sequentially as to whether or not the magistrate accepts the evidence of one witness or another and rejects the evidence of another witness.
However, standing back from the matter, I think that it is clear from the magistrate’s reasons that he attached no credit to the evidence of the defendant and of Ms Hewitt, and preferred the evidence of the police officers as to the essential circumstances.
On the hearing of the appeal, the appellant appeared on his own behalf. He was clearly disturbed and highly emotional. He brought with him the computer keyboard which it was alleged he brandished at the police officers. He admitted that on the occasion in question he lifted it up, but denied using it in a threatening manner. He repeated his accusation that the police officers, more particularly Constable Vaninetti, had assaulted him, and that he had not assaulted either officer.
I explained to him the relatively limited role of this Court on an appeal of this kind, but he seemed quite unable to appreciate the points made.
I undertook to assess the evidence again for my own purposes.
After carefully considering the evidence, I would come to the same conclusion as that reached by the magistrate. There was no patent error in the reasoning of the magistrate, and his preference for the evidence of the police officers is largely a matter of the impression which he formed with the benefit of the inestimable advantage of seeing and hearing the witnesses give their evidence.
The strong feelings of the appellant, translated into an aggressive and emotional presentation at the hearing of the appeal, did not serve to identify any appealable error.
In those circumstances, no ground has been made out to disturb the conviction, which must be upheld.
The appeal against sentence may be disposed of shortly. It seems to me that the appellant was fortunate indeed, given the seriousness of the assault and the circumstances of the resistance to arrest, to have been given the opportunity of a bond.
I would dismiss the appeal against conviction and sentence. I so order.

[2003] SASC 289

27 August 2003