Herold, W. v Saunders, W.C

[1992] FCA 226

Re: WESLEY HEROLD
And: WALTER CHRISTOPHER SAUNDERS
No. ACT G63 of 1991
FED No. 226
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Beaumont(1), Miles(1) and Von Doussa(1) JJ.

CATCHWORDS

Criminal Law - assaulting a member of police in the execution of his duty - conviction quashed on appeal to the Supreme Court on the ground that the prosecution case did not negative as a reasonable possibility that the defendant was acting in self-defence - whether self-defence arose on the defendant's case before the Magistrates Court - whether on the evidence the Supreme Court erred in quashing the conviction - appeal dismissed

Australian Federal Police Act 1979

Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645

HEARING

CANBERRA

#DATE 30:4:1992

Counsel for the appellant : Mr G C Lalor

Solicitor for the appellant : Director of Public Prosecutions

Counsel for the respondent : Mr G Walker

Solicitor for the respondent : Crossin Power and Haslem

ORDER

The appeal be dismissed.

The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory (Higgins J.) that allowed an appeal by the respondent against his conviction in the Canberra Magistrates Court on a charge that on 10 March 1989 he "did assault Wesley James Herold, then being a member of the Australian Federal Police, in the execution of his duty", contrary to sub-s.64(1) of the Australian Federal Police Act 1979.

1. Arising out of events which took place on the evening of 10 March 1989 the respondent had been charged on information with three offences: (1) that he behaved in an offensive manner in a public place, to wit, Childers Street, Canberra City; (2) that he assaulted the appellant, Constable Herold, in the execution of his duty; and (3) that he assaulted another police officer, Constable Gallagher, in the execution of his duty. The respondent pleaded not guilty to each charge. The learned Special Magistrate before whom the charges were heard convicted the respondent on the first two charges, but dismissed the third. On appeal by the respondent to the Supreme Court of the Australian Capital Territory Higgins J. set aside both convictions and ordered that the informations be dismissed. There is no appeal to this Court from the order of dismissal of the offensive behaviour charge.

2. On 10 March 1989, the respondent with two friends was at the Canberra Workers Club in Childers Street. A disagreement between them and other patrons of the Club over the use of a pool table led to the manager of the Club requesting the respondent and his friends to leave the premises. The respondent considered the request to be unjustified and sought to argue the merits of the request with the manager. The manager called the police who quickly arrived. It was then about 11.00 p.m.

3. After a short conversation between the respondent and a police officer in the foyer of the Club the respondent walked out into the street. As he walked past three police officers, two of whom were Constables Herold and Gallagher, he made a remark which he acknowledged in evidence before the Magistrate was "a bit smart". A verbal exchange between the police and the respondent followed.

4. The learned Special Magistrate accepted the police evidence about what happened at that stage. That evidence was to the effect that the respondent had twice said to the police officer, in an aggressive voice, "go and get fucked". The respondent had consumed a considerable amount of liquor and appeared to the police officers to be somewhat affected by it. He was, the Magistrate found, upset at being ejected from the Club for what was a trivial matter. Constable Herold told the respondent to "watch his language". The respondent continued to use similar language. Constable Herold said "You're under arrest for offensive behaviour. Get in the truck." A short scuffle followed. The respondent was seized by the arms and marched to a police "truck", and placed in the cage. He was conveyed to the City Police Station where he was placed in a holding cell, a windowless room about 10 feet by 6 feet, with an L-shaped bench along one side and across the back wall furthest from the door. The solid door was locked. The respondent was alone. He was placed there as it was necessary for Constable Herold to complete a "fact sheet" before the respondent was taken before the Watch House Sergeant and formally charged.

5. The alleged assaults occurred after the respondent had been in the holding cell for a time, which the evidence suggests was probably in the order of 10 to 15 minutes. His evidence in the Magistrates Court was that:
   

"I was up the back sitting down, and I heard some footsteps up the corridor and then three male police officers and one female police officer opened the door...They opened the door and I got up off the seat and I met them down near the front of the cell...I was a bit frightened at the time because I saw three male police officers and one policewoman come into the cell without their hats, without their guns, and they - and that is why I met them at the door of the cell, or close to the door, I was only 5 or 6 foot inside the room..."

The respondent says he was asked for his name, address and occupation. He did not give his occupation and asked "What do you need that for?" Whilst these questions were being asked one constable got behind the respondent. Constable Herold asked for the respondent's glasses and grabbed at them. A lens fell to the ground as the glasses' frame was already broken. Constable Herold stood on the lens causing it to break. The respondent's evidence in chief continued.

"I - when he did break those glasses, break my glass, I rushed forward at him and I was very close to him, and the other constables grabbed me..."

1. A further scuffle occurred as the respondent resisted the attempts of Constables Herold and Gallagher to handcuff him. During the scuffle the respondent was waving his hands about. To a direct question from the Magistrate the respondent said that when the police officers came in the cell door he thought he was "going to be done over".

2. In his cross-examination the respondent said that the reason for him rushing forward was to avoid being pinned against the wall: "I met them rather than them come at me". The manner in which he was being asked questions in the cell led him to think the police might pin him to the wall. The cross-examiner asked "I suggest to you that you intended to assault the police when they came in?" The respondent gave the following answer, and explanation of his state of mind:
   

"And I say, that is a lie and to clarify matters up, if I may? At that time, studying communications it was part of my job where I worked, I was staying at the Institute of Aboriginal Studies and using that office, I was analysing every bit of footage about deaths in custody, that was my relationship with Harold Wootton, my brother is an investigator on that and I was gathering as much media documentation as I can on what happened to all those deaths in custody and that is what I was doing at the time, it was very high in my mind deaths in custody."

The respondent is himself an Aboriginal.

1. The respondent was asked by the Magistrate "Do you think it is possible in your rush forward that you struck the first constable?" and he replied "No."

2. The evidence of the police officers was different. It was to the effect that Constables Herold and Gallagher entered the holding cell and asked questions to obtain the respondent's personal details to complete the fact sheet. They did not realise at the time, but ascertained later that by chance a female police officer, Constable Carters, had followed them along the corridor to the cell and she was standing in the doorway whilst questions were asked. During the questioning, the respondent became upset and aggressive. He suddenly grabbed Constable Herold and punched him in the chest with a closed fist. He then hit Constable Gallagher several times before he was restrained and handcuffed.

3. The learned Special Magistrate in his oral reasons for decision said: "I am satisfied that he (the respondent) certainly did rush at Constable Herold, but as well as rushing at him he has punched him in the chest and I find that charge proven beyond reasonable doubt."

4. The learned Special Magistrate dismissed the other charge of assault as Constable Gallagher was not certain where he was hit. The implication from his Worship's decision is that he was not satisfied that whatever physical contact occurred between the respondent and Constable Gallagher was deliberate.

5. On appeal the conviction recorded against the respondent for offensive behaviour was set aside on the ground that the language used by the respondent would not offend any bystander likely to be in the vicinity of the Canberra Workers Club late at night, and none of the police officers claimed to be offended.

6. The conviction for assaulting Constable Herold was set aside by Higgins J. on the ground that the prosecution case did not negative, as a reasonable possibility, that the respondent was acting in self-defence. His Honour referred to Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 and correctly observed that self-defence, if open on the facts, must be negatived by the prosecution beyond reasonable doubt. Zecevic holds that the question to be asked where self-defence is raised is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there are reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, he is entitled to be acquitted (at pp 654, 661, 666).

7. In their joint judgment Wilson, Dawson and Toohey JJ., at pp 662-663 considered the course which should be followed in a jury trial where the question of self-defence arises. They observed:
   

"No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection."

1. Higgins J, agreed with the Magistrate that the evidence showed that the respondent's fear that he was about to be assaulted was unfounded. However, he was of the opinion that the prosecution had not excluded the hypothesis that in rushing at Constable Herold the respondent believed that the police entering the room were about to assault him; that he acted in panic; that in the circumstances in which he was placed, including his intoxication, there were reasonable grounds for him to entertain his fear; and that his response was not disproportionate to the perceived threat of physical violence. Accordingly a reasonable doubt as to the respondent's guilt remained.

2. Before this Court the appellant contended that no question of self-defence arose on the respondent's case before the Magistrates Court and it was not open to Higgins J. to decide the appeal on that ground. It was argued that in the Magistrates Court the respondent's defence was a denial that he struck Constable Herold, and this issue had been decided against him by the learned Special Magistrate rejecting his evidence.

3. The denial made by the respondent in his evidence was that when he moved forward towards the police officers in the cell, he did so not out of fear, but with the intention of assaulting them. His answer to the question from the Magistrate to the effect that it was not possible that in his rush forward he struck Constable Herold is to be understood as meaning that it was not possible that he struck the Constable in the chest with his fist (that being the substance of the prosecution case). It was inevitable that his rush forward towards the police officers, in the confines of the cell, would bring him into bodily contact with one or more of them. It was implicit from the respondent's evidence that any blows from his fists which either Constable Herold or Constable Gallagher received were not deliberately aimed or intended by him but happened in the course of efforts to avoid being handcuffed during the scuffle that followed his rush forward.

4. Whilst the learned Special Magistrate treated the respondent's evidence that he rushed at Constable Herold as supportive of the prosecution case, and said that he was satisfied that as well as rushing at him he punched him in the chest, it is not clear whether his Worship rejected the respondent's evidence that he was in fear when the police officers entered the holding cell, nor is it clear whether the issue of self-defence was considered by him.

5. When considering the offensive behaviour charge the learned Special Magistrate said "On the question of the offensive behaviour, I have no hesitation in accepting the police version". This statement leaves open the possibility that on the other charges his Worship took a different view about the reliability of the police version. His Worship, in dealing with the assault charges, described two of the police witnesses as frank and impressive, and said of the respondent:
   

"And the defendant, of course, I have got to - I am seeing him today as a sober person, but of course on the night he was not a sober person".

That observation may reasonably be understood as meaning that the behaviour of the respondent at the time of the alleged assaults might have been less rational than when he was sober, but it cannot be understood as a reflection on his credit. Nowhere in the reasons for decision is there an express rejection of the credit-worthiness of the respondent's evidence about the events which occurred whilst he was in custody, nor any express rejection of his evidence that he was in fear.

1. The learned Special Magistrate was critical of one aspect of the respondent's evidence. He said:
   

"And he says that he even admits, he said, 'I rushed forward at him', referring to Constable Herold. But this same person, the defendant is asking me to believe that with this on his mind - and he says, I was a bit frightened due to the deaths in custody question. Yet he still said, I was not prepared to - I was prepared to tell them my name and address but not where I worked, because that was my rights. I know my rights. And the only reason I rushed at them was to - I thought they were going to pin me against the wall. But in my opinion, common sense would prevail, if you thought you were going to suffer violence, as he is asking me to believe, common sense would say, you would answer any question, you would volunteer it surely."

It is not clear what conclusion the learned Special Magistrate drew from this criticism. His Worship had already pointed out that on the night in question the respondent was not sober, and it hardly seems appropriate to test his description of his behaviour against the "commonsense" of a reasonable sober person. The criticism does not lead to the conclusion that the respondent's evidence was not honestly given.

1. The prosecution case was that the respondent rushed at Constable Herold and punched him as part of a planned attack on the police officers who had arrested him. The dismissal of the charge of assaulting Constable Gallagher suggests that the learned Special Magistrate was not satisfied that this was the intention of the respondent. If this was not his intention, a likely explanation is that his actions were motivated by fear and panic. This possibility is not excluded by the findings of the learned Special Magistrate.

2. It is unclear from the material before this Court how far the question of self-defence was canvassed before the learned Special Magistrate. There is no mention of the question in the reasons for decision, and perhaps it was not squarely put at the trial that the respondent was relying on self-defence. However the evidence of the respondent raised that issue, and unless the Court was satisfied beyond reasonable doubt that it was negatived by the case of the prosecutor, the respondent was entitled to an acquittal.

3. After considering the evidence and the reasons for decision of the learned Special Magistrate, Higgins J. expressed his conclusions as follows:
   

"The appellant was frightened by the number of officers who arrived at the holding room. One would have been enough. Yet on the admission of the police witnesses, three arrived. It is true that Constable Carters says this was fortuitous so far as she was concerned yet it is the picture facing the appellant that is relevant not that which was intended by the police witnesses. It is relevant that the appellant was Aboriginal, he was left alone for a long time before the officers returned. He was not placed under any observation nor were any other steps taken to reassure him that no harm was intended to him. He was simply left alone to imagine the worst. It is also unclear whether he intended to punch the respondent or whether it was, given his intoxication, an unintended and clumsy contact, intended to be a push or shove that occurred.

As I must make the decision on this, it seems to me that in rushing at the respondent, the appellant

intended avoiding an attack. I am not satisfied that he intended to punch the respondent. In the

circumstances, including his intoxication, it was reasonable for him to fear such an attack. The lack of any evidence of an intention on his part to hurt the

respondent or any apparent reason to do so supports this conclusion also. It follows that I have a reasonable doubt about his guilt."

1. Upon an appeal to the Supreme Court from a decision of the Magistrates Court, the Supreme Court is by sub-s.214(2) of the Magistrates Court Act 1930 directed to have regard to the evidence given in the proceedings out of which the appeal arises, and the Supreme Court "has power to draw inferences of fact". There is room to argue whether the period of 10-15 minutes during which the respondent was alone in the cell before the police officers returned was "a long time", but in all other respects the conclusions reached by Higgins J. were inferences fairly open on the evidence given in the Magistrates Court. To the factors mentioned by Higgins J. can be added the fact that the events which occurred at the Police Station were preceded by those which occurred near the Canberra Workers Club. The respondent's arrest for merely using bad language, and the scuffle which happened before he was placed in the police "truck", were part of the background circumstances against which reasonableness of the respondent's allegation of fear was to be assessed.

2. In our opinion self-defence did arise as an issue on the evidence given by the respondent in the Magistrates Court. The reasons for decision of the learned Special Magistrate do not reject the respondent's evidence that he acted out of fear in the police cell. The conclusions reached by Higgins J. were clearly open on the evidence. In our opinion the appeal should be dismissed.