Hitchcock v The Queen

[2020] NSWDC 4

District Court

New South Wales

Medium Neutral Citation:

Hitchcock v R [2020] NSWDC 4

Hearing dates:

29-31 May 2019, 1 June 2019

Date of orders:

04 February 2020

Decision date:

04 February 2020

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

I set aside the convictions recorded and sentences passed by Atkinson LCM sitting in the Downing Centre Local Court on 11 July 2018

Catchwords:

CRIME.
APPEAL FROM LOCAL COURT.

Magistrate failed to deal with submissions as to whether an alleged assault on JH was intentional, reckless or accidental. Court not satisfied beyond reasonable doubt that prosecution established either intention or recklessness. Conviction set aside.
Two charges contained as an essential element that police were in the execution of their duty at the time of the offences alleged. Review of conflicting evidence. This element not established to requisite degree. Conviction set aside.

Legislation Cited:

Australian Federal Police Act 1979
Crimes Act 1900
Law Enforcement (Powers and Responsibilities) Act 2002
Mental Health (Forensics Provisions) Act 1990

Cases Cited:

Adams v Kennedy (2000) 49 NSWLR 78
Charara v R [2006] NSWCCA 244
Christie v Leachinsky [1947] AC 573
New South Wales v Riley (2003) 57 NSWLR 496
R v Dungay [2001] NSWCCA 443
R v K (1993) 118 ALR 596
Thompson v Vincent [2005] NSWCA 219

Category:

Principal judgment

Parties:

Shari-Lea Hitchcock – Appellant

  Regina – Respondent

Representation:

Appellant

 

Counsel: D. McMahon
Solicitor: B. Wrench (Murphy’s Lawyers)

 

Crown

  Solicitor: T. Lumsden (ODPP)

File Number(s):

2016/00092476

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Citation:

R v HITCHCOCK

Date of Decision:

11 July 2018

Before:

Atkinson LCM

File Number(s):

2016/00092476

Judgement

1. In this judgment I shall refer to the transcript by these descriptors:

Date of Transcript	Descriptor
21 February 2017	1T
3 April 2017	2T
8 September 2017	3T
17 May 2018	4T
18 June 2018	5T
11 July 2018	6T

A reference to e.g. 3T63.29 is a reference to the transcript, page number and line on that page e.g. Transcript of 8 September 2017, page 63 line 29.

Curial history

2. This matter has an unfortunate curial history. The appellant was arrested, charged and released on police bail on 25 March 2016. The Court Attendance Notices (CANs) were first returnable before the Local Court at Waverley on 20 April 2016. Commencing at 2T3.36, Barko LCM noted:

These matters first came before the Court on 20 April 2016 and then some time later on 18 May 2016, at which time the defendant entered pleas of not guilty to each of the three charges. After some delay in the service of the police brief of evidence, the matter was re-mentioned on 10 August 2016 at which time the hearing date of 21 February 2017 was fixed, a delay of more than six months. The Court was advised that the hearing would take a full day and that it was anticipated that six prosecution witnesses were required and that there could be two witnesses called for the defendant. On each of the five occasions that the matter was mentioned before the Court prior to the hearing date, the defendant was represented by a senior criminal practitioner from the office of Murphy’s Lawyers.

The matter was mentioned at the hearings call over at Waverley Local Court on 21 February 2017. Sergeant Dayeian appears as police prosecutor and Mr James QC appeared together with Mr McMahon of counsel, instructed by Mr Wrench, solicitor, for and with the defendant. When the matter was first mentioned, the Court was advised that an application would be made to the Court pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 – I will refer here and after as “the Act” – and that the application would take some three hours. From my review of the court’s file, it is apparent that no prior notice or indication had been provided to the Court by the defendant that such an application would be made. Further, it would seem that the prosecutor was unaware of the application until the morning of the hearing. I digress to note that the report of the defendant’s expert, Professor Katherine Samaras, is dated 20 February 2017, a day before the hearing, and an examination of the defendant occurred as recently as 20 January 2017.

The first portion of s 32 of the Act reads, “If, at the commencement or at any time during the course of the hearing of proceedings before a magistrate”. I cannot imagine that parliament intended that an application under s 32 would be made some 11 months after proceedings were commenced, after five interlocutory appearances on the day the matter is listed for a hearing for a full day, with some six prosecution witnesses waiting in the wings and a defendant who has been represented at all times by such an experienced firm of criminal specialists. However, the way that the section reads, there is nothing prohibiting or restricting an application being made by either or both parties or by the Court on its own initiative, subject of course to ensuring that procedural fairness is afforded.

The hearing of the application under s 32 took up 21 February 2017, when the matter was adjourned to 3 April 2017. On that day, the prosecutor sought leave to call expert evidence on the application under section 32, having served “reports” on 28 February 2017 (obviously after the hearing on 21 February) from an expert practicing “in the Upper Hunter region”. This application was opposed by Mr James QC and it was rejected. Barko LCM then gave his decision, refusing the application. The matter was then stood over part heard before His Honour to 8 September 2017.

3. The Local Court coversheets tell me that on 8 September 2017 Barko LCM disqualified himself. Whether that was because an application was made by one or both of the parties, or of his own motion, or merely for convenience for the sake of the Court lists, I do not know. The matter was then placed before Atkinson LCM. The first witness was sworn at 10:01am. Six witnesses were called on this day. The matter was then adjourned to 13 December 2017, with an estimate of a further day being required. The further hearing was to continue before her Honour in the Downing Centre Local Court. However, the hearing date of 13 December 2017 was vacated as Mr James QC was having a surgical procedure. The further hearing was fixed for 17 May 2018.

4. On 17 May 2018 Sergeant Pullen appeared for the prosecutor and Mr McMahon appeared without his leader, who appears to have taken no further role in the matter. A crucial prosecution witness Constable Kristen Gravolin was not available to give evidence. Both the prosecution and the defence accepted that this witness was “critical”. She was “on long term sick report”, in receipt of workers compensation payments. The matter was adjourned to 28 June 2018. On that day, the witness’s personal circumstances had not changed. She was still certified as unfit, inter alia, to give evidence. Overruling the defence’s objection, her Honour admitted Constable Gravolin’s statement of 30 March 2016, her notebook entries and a set of photographs taken on at least two different occasions of Constable Gravolin’s left knee area. That completed the prosecution case. The defence called no evidence. The prosecutor and Mr McMahon then addressed her Honour. The matter was then adjourned to 11 July 2018 when her Honour gave judgment.

5. A Notice of Appeal against both conviction and penalty was filed on 12 July 2018. It was called over by the Acting Deputy Registrar on 18 October and 13 December 2018 and 17 January 2019, when it was set down for hearing on 29 May 2019 with an estimate of 3 hours. The estimate was ludicrous. The Crown Bundle is a lever arch binder containing 262 pages, which composes 213 pages of transcript, and copies of the CANs, some of the Local Court coversheets and copies of the exhibits. There is about seven hours of reading time required.

6. The matter came before me on 29 May 2019 in a list of five matters. I dealt with the other matters first as they were shorter. Mr McMahon handed up an Outline of Submissions which comprises eight and a quarter closely typed pages referring to a number of parts of the transcript. In the pious expectation that I might be able to complete the matter on the following day, I stood it over part heard to 30 May 2019. On that day I also had a matter for sentence, which I dealt with first. I then continued hearing the appellant’s address. The matter was not completed on this day and I adjourned it to the following day. On Friday 31 May 2019 I was also given two matters for sentence, one of which was not ready but the other was quite complex and involved 6 charges out of an original 11 charges, to which had been added a further charge. The matter was also sensitive and included a suppression order. It took a considerable period of the day. I adjourned it part heard to 11 June to give judgment, as I was on circuit in Albury in the following week. I completed hearing the addresses in this matter on this afternoon. It had become crystal clear that the appeal could not determined without closely reading the transcript of the hearing before Atkinson LCM. I reserved my decision, pointing out to the parties that because of existing commitments it would be some time before I had adequate time to prepare my decision. I do so in vacation. My reasons will be typed when my Associate returns from annual leave.

The charges

7. The charges made against the appellant were, in what appears to be chronological order:

Sequence	Charge	Provision
3	Between 5:45pm and 6:15pm on 25 March 2016 at Woolahra did assault Jan HASWELL	Crimes Act 1900 s. 61
1.	Between 6:10pm and 7:20pm on 25 March 2016 at Woolahra did resist Constable GRAVOLIN and Constable ELDRIDGE being a Constable of Police executing his/her duty	Crimes Act 1900 s. 58
2.	Between 6:10pm and 7:20pm on 25 March 2016 at Woolahra did assault Constable GRAVOLIN being a police officer in the execution of her duty.	Crimes Act 1900 s. 58

As recorded by Barko LCM (vide, supra) the appellant pleaded not guilty on 18 May 2016.

Background

8. On 25 March 2016, the appellant had lunch at the Chiswick Restaurant (formerly Prunier’s) at Chriswick Gardens, Ocean Street, Woolahra with five other ladies, one of whom was her daughter, Ms Paula Hitchcock. Ms Hitchcock was present from 1pm to 3pm (2T18.47 to 2T19.05). Ms Hitchcock’s statement was before Barko LCM but no one who attended this lunch was called to give evidence.

9. The description of the appellant broadcast by Police Radio at 18:16:20 on this day was this:

“Female described as 35 years old, Caucasian appearance, blonde hair, slim build, wearing a grey top and wearing knee high black boots.”

Constable Jason Eldridge’s notebook (exhibit 6) contains this description:

“170cm tall, Caucasian female, blonde shoulder length hair, wearing white under shirt with collar, grey jumper on top, black and white striped skirt, knee length, black high-heeled boots.”

Senior Constable Michael Matheson described her as “smartly dressed”.

10. There is no evidence as to the appellant’s activities between 3pm and about 5:45pm when the appellant’s interaction with Mrs Janet Caswell commenced.

Intoxication

11. There is no evidentiary dispute that the appellant was intoxicated at all material times i.e. from the time of her involvement with Mrs Caswell to the time she was placed in a caged police vehicle and taken to Waverley Police Station. The following descriptions have been given:

1. Senior Constable Michael Matheson in exhibit 1 [7]:

“I saw that the accused was well affected by alcohol, the accused, having difficulty in speaking fluently, as certain words were slurred and incomprehensible, her face flushed red, her eyes glazed, her clothing whilst smartly dressed, was in a slightly dishevelled state. There was a strong smell of intoxicating liquor in the vicinity of her person.”

2. Senior Constable Seckin Unlu in exhibit 3 [8]:

“I saw the accused to be heavily intoxicated as her eyes were glazed, her speech was slurred, she was unbalanced swaying on her feet and I could also smell a strong scent of intoxicating liquor coming from her breath.”

3. Senior Constable Michael Davis in exhibit 4 [8]:

“I observed the accused to be well affected by intoxicating liquor, her eyes were glazed and blood shot, her speech was slurred and confused, she smelt strongly of intoxicating liquor, she attempted to stand and was unsteady on her feet.”

4. Senior Constable Daniel Haigh in exhibit 5 [8]:

“I observed her to slur her words, have sluggish movements, slow blinking and was unsteady on her feet, swaying backwards and forwards. I observed HITCHCOCK to have difficulty obtaining items from her handbag due to sluggish movements. I could smell a strong smell of intoxicating liquor on Hitchcock and formed the opinion that she was well affected

5. Constable Jason Eldrige commencing at 3T93.43:

Q. Upon arriving, were the other police there already?

A. That’s correct.

Q. Upon arrival, what’s happened?

A. So when we parked the car, I saw a, the accused who was standing against a hand rail on the footpath speaking with Highway Patrol officers. I noticed that she appeared to be swaying and unsteady on her feet whilst leaning on the rail. And the moments when she wasn’t holding onto the rail, again she was swaying and unsteady and needed to hold onto her for support.

Q. Any other observations about this lady?

A. When Constable Gravolin and I approached, the police that were already on the scene who were speaking with her, I noticed that her speech was impaired in that it was slurred and slightly delayed once when she was asked questions and she was having a conversation with police on the scene. And I also smelt alcohol on her breath.

6. Constable Kirsten Gravolin in exhibit 7 [6]:

“The accused appeared to be highly intoxicated as her eyes were glazed, her speech was slurred, and she appeared to be unbalanced on her feet and swaying whilst standing. The accused smelt strongly of intoxicating liquor as I approached her The accused was rambling at this point in time …”

Overview

12. Mrs Haswell had been to church. She left church at 5pm. She was on her way home. Exhibit 2 records her residential address as being in Vaucluse. At 5:45pm “or even a little bit earlier” (3T60.18), she saw the appellant near the intersection of Oxford Street, upon which she was travelling, and Ocean Street at Woolahra. She perceived that the appellant was in danger of entering on the carriageway and being injured in the heavy traffic. She proceeded along Oxford Street, made an illegal U-turn, returned to a place near which the appellant was, parked her car and went to her assistance. Mrs Haswell stayed with the appellant seeking to protect her from dangers perceived by Mrs Haswell. After the appellant had entered a taxi, she called 000. That call was received at 18:15:36 (i.e. after about an half hour of interaction). Exhibit 2 says that police radio, VKG, broadcast a message at the same time.

13. The radio broadcast was received by a Highway Patrol vehicle Central Metropolitan 227 (“CLM227”) which, uncommonly, had four occupants: Senior Constable Haigh (driver), Senior Constable Unlu (observer), Senior Constable Matheson and Senior Constable Davis (passengers). They arrived on scene at 18:17:46, 2 minutes later. Exhibit 2 records those messages being sent to VKG by CLM227:

18:19:08   “Have located the taxi – female is on the footpath. No danger or issues with traffic.”

18:19:51   “Will sort out what is going on – will call for caged truck if required but otherwise all good here at the moment.”

18:26:05   “RB15 available to attend to convey intoxicated person home.”

14. RB15 is a vehicle from Rose Bay Police Station. Its crew on this afternoon/evening was Constable Gravolin (driver) and Constable Eldridge (observer). It was a caged police vehicle. At this time, these two Constables had been members of the police force for 19 months. When Constable Eldridge gave evidence on 8 September 2017 he was 25 years old. RB15 arrived at the scene at 18:30:16. Constable Gravolin parked the vehicle in Wallis Street, some 10 meters from the scene. The two Constables then joined the Highway Patrol officers, with the appellant.

15. CLM 22 left the scene at 18:35:15. None of the four Highway Patrol officers was a witness to any crime. RB15 left the scene, with the appellant as their prisoner, at 18:51:23 to go to Waverley Police Station. The sequence 1 and 2 offences could only have occurred between 6:35pm and 6:51pm.

16. The only evidence for the alleged assault of Mrs Haswell is that of Mrs Haswell. The only evidence for the charge of resisting police is that of Constable Eldridge and Constable Gravolin with a scintilla of corroboration from Senior Constable Davis. The evidence to support the charge of assaulting Constable Gravolin in the execution of her duty is that of Constable Eldridge, Constable Gravolin, Mrs Haswell and photos of Constable Gravolin’s right leg. The reliability of much of this evidence has been challenged.

The alleged assault of Mrs Haswell

17. I shall endeavour to provide a precis of Mrs Haswell’s evidence in chief. There is in the relevant section of Oxford Street a railing on the northern side of the road, separating the carriageway and the footpath. “I saw a woman, maybe in her late 40s … she was practically stepping off the railing, falling down.” She was on the carriageway side of the railing. “She kept on falling, kept on falling and I slowed down … only because I was praying that she would not get hit by another car … most of the cars didn’t stop or slow down they kept going on because … they knew she was obviously on something.” As she approached the appellant she slowed down to 40 kph even though another motorist sounded his horn. She drove past the appellant and “as I drove away, my most biggest fear was I identified someone else’s body, which was my ex-husband [who died] only six months ago, I feared so much I’m going to identify my body falling under that cars or whatever …” She drove further along Oxford Street and made an illegal U-turn and headed back towards the appellant. “When I came back, I saw her still like almost falling off.” At this time the appellant was still on the carriageway side of the railing. “But when I went into another street, came back and parked behind that church, somehow she was inside the railing then … there was another lady there … that lady said “Do you know her?” or whatever she said, I didn’t much notice. I did ask her, “Can I help you?””.

18. Mrs Haswell told the other lady that “I just want to know she’s okay.” The other lady enquired whether she could leave and Mrs Haswell gave an affirmative reply. Then she said to the appellant, “Can I help you?” The appellant said “Hi” or something similar. The appellant moved towards the witness. The witness thought that the appellant was going to headbutt her “because we’ve done this many times before.” However there was only a gentle touching of foreheads. At this time, “I said, ‘Darling, can I please help you to get home?’ and I think she said something like, ‘You won’t be able to help me because I … don’t know where I even live.”

19. The evidence then continued:

Q. What’s happened then?

A. Then, after she said “I don’t know where I live”, I thought to myself – I did ask a few more extra times but all the details, I didn’t put in there and then –

Q. I’ll stop you there, what do you mean you asked her a few extra times what?

A. Like, “Can you find your address?” or “Can you give me your bag so that I can look?” because I could see she was so drunk, she could not – she was that drunk. I know what drunk people look like and I said to her – even at one stage I said, “You don’t know where you live?” and she kept on staring at me. So I turned around and I looked at my car. By that time she was already ducked under, I could not work it out how she ducked under that thing and started running towards the road.

Q. So, under the railing?

A. Yeah.

Mrs Haswell’s late ex-husband had fallen under a truck, and she feared the same would happen to the appellant. By this time the appellant was “in the middle of the traffic. “I grabbed her and … I stood in the middle of the traffic with her. So one guy did stop. So then, I think, people started seeing that and I grabbed her all the way back … and pushed her … under the railing and I tried to get there myself. As soon as I get around she takes off again … there were four guys stopped their car to put her in and I screamed at them and said … “Get the fuck out of here and let her come with me”. I had to pretend she was with me. So they ended up taking off … then she turns around and flags a taxi … she hailed a taxi.”

20. Mrs Haswell was then asked whether before all that happened did anything else happen? “I forgot to tell you she also TRIED to kick me in the head, at the very beginning.” [My emphasis] The appellant had dropped on the ground [“floor”] her hairbrush and sunglasses, so Mrs Haswell bent down to pick them up for her and “she TRIED to kick me … she TRIED to kick me in the head … I was down, picking it up, as I was picking it up I could see her leg flying on my head, I grabbed her leg and twisted it.” Mrs Haswell could not identify which of the appellant’s legs was involved. Mrs Haswell was then asked to describe exactly, physically, what the appellant did with her leg: “Kicked me, TRIED to kick my head and my head was just there and I was fast enough to grab her leg and twist it and she … grabbed the railing and stood up. Mrs Haswell then described her posture which description suggests a crouch or squat with her buttocks close to the ground and her hands on the ground. “And I could see her leg coming so I grabbed it because I was that low, luckily enough to see her feet [sic] coming onto my head and she WOULD HAVE HIT me right there.” [My emphasis]. Mrs Haswell then indicated the right side of her head. The final questions on this topic were:

Q. After you grabbed the kick and twisted it away or whatever your words were, what’s the next thing that’s happened?

A. That’s when I kept on asking her if she could give me addresses or whatever and then –

Q. But you said something earlier about how she grabbed onto the railing?

A. She kept – she couldn’t stand so she had no other way of standing and she’s got these high shoes and she couldn’t balance herself on it.

Q. After you grabbed her kick or around that time was anything said by either of you?

A. Well maybe I said something in my inside.

Q. No, was anything actually said?

A. She didn’t say nothing. She didn’t say anything.

21. I shall continue my precis of Mrs Haswell’s evidence in chief later. It is convenient at this stage to consider other evidence relating to this alleged assault. In cross-examination, Mrs Haswell said this:

Q. She dropped some possessions on the ground?

A. Yes.

Q. You felt it was necessary for you to pick them up for her?

A. Anyone would have picked it up.

Q. So, for that purpose, you got down on the ground with your bottom right down on the ground and your head very close to the ground and she was moving about?

A. No because she was still hanging on to the railing.

Q. She was hanging onto the railing, falling –

A. Yes.

Q. –on high-heels, tottering about, but you formed the view that she was possibly going to kick you in the head?

A. I didn’t form any view.

Q. You picked the brush up and the sunglasses up and what did you do with it?

A. Gave it back to her.

Q. Sorry, you gave them back to her and she took them back from you?

A. Yes.

Later, this evidence was given

Q. And the brush and the sunglasses had dropped to the ground?

A. As soon as I walked in, I saw that.

Q. When was it that you and she were in physical contact?

A. When, at the very beginning when I bent down, she kicked me.

Q. Sorry? Do you say she kicked you?

A. Yes.

Q. I thought you told us you thought she’d attempted to kick you or did she actually kick you?

A. Really, there was no attempt. She tried to kick me. I grabbed her leg and I twirled her around.

Q. So she didn’t kick you?

A. Yeah.

Q. But you grabbed her leg?

A. No.

Q. And you twisted it?

A. No, she kicked me and I grabbed her leg and pushed her away.

Q. She didn’t kick you then, did she?

A. Really? You were there?

Q. You were on the ground, you grabbed her leg and twisted it?

A. Really?

Q. She didn’t make any contact with you by her foot, did she?

A. For God’s – you –

HER HONOUR

Q. No, please. Just listen to the question. Answer the question and we’ll move forward, thank you.

JAMES

Q. She made no contact with your body with her foot at any time, did she?

A. She did.

In that evidence the witness said that she was actually struck by the appellant’s leg, that she was kicked by the appellant, not that the appellant tried to kick her.

22. Nevertheless, Mrs Haswell later reverted to saying that the appellant tried to kick her. At 3T48.34 she said:

“From the time I went physically close to her and picked her things up, gave it to her while she TRIED to kick my head in and at the same …

Q. Sorry, kick your head in, you say?

A. Yeah, like kicking my head. You don’t twist the word for me, I will say it again. She TRIED to kick my head.”

At 3T51.28:

Q. And you used the word ‘Darling’?

A. Yes, always.

Q. And that’s when you were talking to her right at the very beginning?

A. From the beginning I used that word till even she TRIED to kick me, I still said politely all the way.

23. At 6T2.12, the Magistrate said:

“She [Mrs Haswell] said that the accused dropped things from her bag, and that as she tried to pick the things up for the accused, the accused tried to kick her in the head, and this is what the assault is alleged to be.”

Her Honour obviously did not accept that part of Mrs Haswell’s evidence about actually being struck by the appellant’s leg, although she did not say so. In fact, her Honour never adverted to that evidence at all

24. At 6T1.26 her Honour directed herself thus:

“an assault is “any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence” and it does not have to, but generally includes a battery”.

The standard direction (Criminal Trial Courts Bench Book, [5-020] for assault where no physical force is actually applied is this:

“An assault is any act by which a person intentionally, or recklessly, causes another person to apprehend immediate and unlawful violence. There are four elements which constitute an assault. They are:

1. An act by the accused which intentionally, or recklessly, causes another person (the complainant) to apprehend immediate and unlawful violence.

2. That such conduct of the accused was without the consent of the complainant.

3. That such conduct was intentional or reckless in the sense that the accused realised that the complainant might fear that the complainant would then and there be subject to immediate and unlawful violence and none the less went on and took that risk.

4. That such conduct be without lawful excuse.”

I observe that bearing in mind the third element, that the use of the adverbs in the first element is pleonastic. The Bench Book also provides this note:

“Should any issue of intention or voluntariness arise, it will have to be pointed out to the jury that the Crown must prove that the act was voluntary and intentional, not merely accidental.”

25. Her Honour’s findings about the alleged assault on Mrs Haswell are these:

In relation to the assault on Jan Haswell, I have already commented on the reliability of her evidence. I have given myself the Murray direction because the evidence in relation to the assault on Ms Haswell relies on the evidence of one person. She gave evidence that the accused kicked towards her, I have previously said that a battery does not have to form part of an assault. I have scrutinised the evidence; her evidence lines up with that of other witnesses in relation to events that occurred through the interaction. I have made findings about her reliability. She apprehended immediate and unlawful violence and did not consent to the assault.

ACCORDINGLY I FIND THE PROSECUTION HAS PROVEN BEYOND REASONABLE DOUBT THAT THE ACCUSED ASSAULTED MS HASWELL.

Her Honour has not adverted at all to the questions of intention, recklessness, voluntariness or the alternative of accident. This was raised at the hearing. In his written submissions, Mr McMahon said this:

“Furthermore, there was a real question as to whether or not any perceived kicking (if it happened) was an intentional act of assault rather than, for example, the appellant stumbling as Ms Haswell was at pains to point out in her evidence the appellant was doing, purportedly due to her intoxication and high heels. The Magistrate did not address the submissions directed at this issue at any stage in her reasons.

The issue not having been dealt with below, I must consider it.

26. The appellant was obviously unsteady on her feet. Senior Constable Unlu said “she was unbalanced swaying on her feet.” Senior Constable Davis said “she attempted to stand and was unsteady on her feet.” Senior Constable Haigh said she “was unsteady on her feet, swaying backwards and forwards.” I need not repeat Mrs Haswell’s observations of the appellant’s repeated “falling” about, having to support herself using the railing. Why would the appellant attempt to kick Mrs Haswell? This question was never addressed by her Honour. Despite this alleged assault occurring at the commencement of Mrs Haswell’s interaction with the appellant, Mrs Haswell remained with the appellant for about an half hour and there was no allegation of any further assault, made contemporaneously with the current allegation. One thing Mrs Haswell could not do is to tell the Court what was in the appellant’s mind at the relevant time. It is possible that the appellant perceived that Mrs Haswell was attempting to steal her hairbrush and sunglasses and therefore attempted to kick her away. One could readily infer that if she had said anything like, “Don’t touch my things”, “Leave my sunnies alone”, “Piss off”. However the appellant said nothing. Furthermore, Mrs Haswell gave no evidence of remonstrating with the appellant e.g. “Why did you do that”, or “Don’t do that”, which might have provoked a response as to why the appellant did so, or an apology e.g. “I’m sorry, I didn’t mean to kick at you”, which would have solved this question.

27. A kick is generally perceived to be a deliberate action. However, Mrs Haswell’s description of what she saw happening could not answer the question as to whether that action was deliberate or accidental. Mrs Haswell saw a leg “flying” towards the right side of her head. She was “fast enough” to grab this leg and to twist it away from her. Can one exclude as a reasonable possibility that the appellant lost her footing with one leg as it went forward (indicating her upper body was going backwards) in the direction of Mrs Haswell, who was able to deflect that leg’s path? This is not a rhetorical question. The prosecution, to establish its case beyond reasonable doubt, must exclude all reasonable possibilities. This cannot be excluded. Indeed, in my view, the probabilities favour the proposition that this was an accidental occurrence. I shall have more to say later about Mrs Haswell’s evidence, but it does not really establish any animus of the appellant towards Mrs Haswell, any motive to cause her to deliberately kick at the witness. Indeed, in cross-examination this evidence was given by Mrs Haswell:

“She told me she loved me and I said ‘I love you too’”

“When she said ‘I love you’ and I said ‘I love you too, sweetheart.’”

This conviction must be set aside.

Further evidence of Mrs Haswell

28. I shall now continue my precis of the evidence in chief of Mrs Haswell. That evidence contains the narrative that ends at the conclusion of [19] above, that was interrupted by her remembering the alleged assault. “I said to the taxi driver, ‘Don’t take her’, [because] she couldn’t tell me where she lives and how is she going to tell the taxi driver? At least I felt like woman to woman I could keep her safe … [when] the taxi stopped, she just practically fell into the doors, and opened it and jumped in the front seat and I looked at the taxi driver and I said …’Don’t’ and he looked at her and said ‘Where would you like to go?’ or something, … he worked out like that she is completely gone … I said, ‘Keep her in your taxi, I’ll call the police’”.

29. She then called 000. The message recorded in exhibit 2 (Police Radio Log) is:

“Taxi has dropped off intoxicated person, female who does not know where she lives and is running in the middle of the road … corner Ocean St and Oxford St, Woolahra.”

The exhibit goes on to record the description of the appellant I cited in [9] above and details of the Silver Service taxi including its registration number and that it had its hazard lights activated. I cited further relevant facts at [13] and [14] above. Mrs Haswell confirmed that the police arrived “Very quickly, within three minutes, four minutes, something like that”. When the police arrived (CML227) the appellant was still in the taxi.

30. The police “asked her that many times to get out of the taxi and the taxi driver became so angry asking her to get out, she wouldn’t get out … the police said, ‘Excuse me ma’am, get out of the taxi, please’, she wouldn’t. That took quite a few minutes for them to get her out of the taxi. In the meantime, I’m standing there watching and even me saying, ‘Please darling get out of the taxi’, she just, you know, like glazed looking at me … and I said to the police, ‘Now, you can do what you’re doing, I’ll go.’” However, she did not go far, merely to where her car was parked. She said that she gave her details to the police. However that was to Constable Eldridge, not to any of the Highway Patrol officers. Her car was a short distance away. She estimated that it was 3 metres away, although the Police prosecutor thought that she was indicating a distance of 4 to 5 metres away. Mrs Haswell gave no evidence about the interaction of the appellant with the Highway Patrol officers, but said she observed interaction between the appellant and Constable Gravolin and Constable Eldridge.

31. “All I could see here she is trying to slap them, do this kicking, doing all sorts of things … slapping with both hands … mainly to the female [Constable Gravolin] … Maybe at least six to eight slaps and kicks … even then some. I sat in the car for maybe 15 minutes watching how many times she tried to hit and she … keeps on falling onto the railing and worse … because she can’t walk, you know, with her high heels and when you’re that drunk you can’t walk … The police officers were defending themselves … because she’s hitting, kicking.” Her estimate was that this was going on for “A good ten minutes and maybe more. I wasn’t looking at [the] time. I was all hoping this [to] finish … Then … she went really berserk, like started hitting, going crazy like … she started getting worse than what she was doing … The kicks became higher … almost like to the stomach and higher up … and I could see how high that kick was going, so I thought to myself, ‘God, she’s got very sharp heels on that, she’d going to kick somebody badly.’ So I decided to jump out of the car. By the time, as I’m getting there, they already got her on the ground”, applying handcuffs. “She was still kicking … she was saying something like, ‘Get off me’ … I was just praying for them to put that cuff on … While she was on [the ground] she turned around … and bit the police officer … the young lady on the left … leg … she just screamed actually, the police officer.” Mrs Haswell said that initially she advised Constable Gravolin to go to a hospital immediately and a litter later to the doctor immediately.

32. After the appellant was handcuffed the police made her sit up. Then they picked her up so that she was standing. The appellant’s hand bag had been dropped when she was tackled to the ground. Mrs Haswell picked it up and she gave the handbag to the police after they had taken her to the police vehicle. She then left.

Some aspects of Mrs Haswell’s cross-examination

33. Extremely early in cross-examination Mrs Haswell volunteered that she had a good memory. She believed that she had met Mr Greg James QC at a restaurant. It was established that she thought Mr James was Mr Chris Murphy, because someone told her that. She had previously met Mr Murphy. Both those gentlemen have appeared before me, Mr James more frequently than Mr Murphy, but Mr Murphy has often been in my Court. They are hardly doppelgangers. They are not similar. If the witness had previously met Mr Murphy she could not remember what he looked like. Her memory was not that good.

34. Mrs Haswell had been a lay counsellor for 40 years, giving advice and assistance to “drug addicts, run-away kids, marriage counselling anyone [who] needs help, … homeless people, visiting old people and [those] in nursing homes.” She admitted that in her 000 call, she told the operator that she was a counsellor but denied saying that she was the appellant’s counsellor. She appears to have told the operator that she thought that the appellant was a prostitute:

Q. Did you tell the police you thought she was a prostitute from Kings Cross?

A. To be truthful, at first I thought she was.

Q. Did you tell the police that?

A. I don't remember.

Q. Can I suggest in your triple 0 call, you told the police you were a counsellor, you thought she was a prostitute from Kings Cross and they should come and arrest her?

A. Maybe after I ran through the traffic, I could have said anything. ………………..

Q. But why tell the police that she was a prostitute from Kings Cross?

A. I did not say she was a prostitute, I said she looks like one.

Q. You remember it now?

A. Yeah.

Q. And she looks like a prostitute, why did you tell the police that?

A. Simply because it was too close to the Cross, it could be one of the junkies. That's what I thought.

There is not a scintilla of evidence to support this outrageous presumption of Mrs Haswell.

35. Despite that pejorative presumption, the witness maintained that she was a good Samaritan, that she was seeking to assist the appellant because she needed help:

“Believe you me she needed somebody’s help because she was going to be picked [up] by any person that day or she could run on the road and got herself killed. That was my most important thing to not get her to die that day.”

There was a distinct innuendo that Mrs Haswell feared that the appellant might be sexually molested. Of the group of four men at whom she swore, as cited in [19] above, she said this: “They were yahoos … They were yelling and screaming and laughing at her.” There is, of course, nothing wrong with having such fears: it is an unfortunate fact that many women are taken advantage of when they are vulnerable. The witness believed that the appellant was 35 years old: see [9] above. In fact she was a decade older at the time. However, in her evidence in chief she said the appellant was “maybe in her late 40s or whatever”, another inconsistency.

36. Mrs Haswell said that she had been rescuing people, such as occurred on 25 March 2016 “very often … many times sometimes and sometimes maybe one in a month.” She admitted that previously some of those she assisted had head-butted her or kicked her, but “only the drunk ones”. In answer to a later question, Mrs Haswell said that the appellant punched her (3T48.46) and on the following page volunteered this: “She kicked me. She tried to hit me. She ran across the road. She did everything that a drunk person normally does.” I need not revisit the argument of attempt to kick/kick, but here we have punch/attempt to hit. What is clear, however, is that the witness was generalising: the appellant did what drunk people normally do. This casts a doubt on the reliability of her evidence.

37. There was questioning directed at the appellant’s handbag:

Q. You wanted to get her to give you her bag so you could find out where to take her?

A. Yes.

Q. Which meant that you would have to go through the things in her bag?

A. Only the license.

Q. And anything else that got in the way as you were trying to find the license?

A. Well, the bag she was holding, it was open. You could see there was nothing in it.

Q. There was nothing in it?

A. Only a brush was on the floor, there's something else on the floor and all I said, "Have you got a address?" That's what all I was after.

Mr James returned to this topic again, later:

Q. And you tried to get access to her identification particulars in her bag to find out her address?

A. Yeah, but how would I get her home without the address?

Q. So you tried to get into her bag?

A. No, I did not try to get in her bag. I asked her if she could give me any information where she lived so that I can take you home and she said she doesn’t know where she lives. That worried me the most.

Q. When you looked in her bag?

A. No, I did not.

Q. You've told us you looked in her bag.

A. Her bag was open.

Q. You looked in her bag. You saw a brush?

A. And a sunglass.

Q. Sunglasses and a mobile phone?

A. I don't remember that mobile phone somehow.

Q. You sure?

A. Yes.

The fact is that the appellant’s handbag did contain a mobile phone, which rang when the appellant was talking to Senior Constable Unlu, when she was seated in the taxi. His statement, exhibit 3, contains this:

8. … I said – “Ok Ma’am well we will assist you in trying to get you home but looks like you have had a little but too much to drink today. I don’t think you will be able to walk home. Do you have any identification on you so we can work out where you live?”

9. The accused began to look through her handbag but stopped and began to have a conversation with the police officers named above.

I said – “Ma’am can you please continue looking for some identification so we can get you home.”

10. While the accused continued to speak with the other officers, the accused’s mobile phone rang.

I said – “Ma’am your phone is ringing, is there any chance I can speak to that person to work out who you are and where you live?”

11. The accused handed me her mobile phone where I introduced myself and had a short conversation with a male.

Mrs Haswell’s evidence as to the contents of the appellant’s handbag (only a minor issue) is unreliable.

38. Mrs Haswell attended the Local Court at Waverley, prepared to give evidence on 21 February 2017, when the appellant made the application under the Mental Health (Forensics Provisions) Act 1990, s 32. She did not give evidence on that day but was interviewed by reporters. Mrs Haswell agreed in cross-examination that she said that the appellant “grabbed me around the neck, it was horrible”, and “I’m being punished. I saved her life”. She agreed she made no mention of this in her 000 call or in the statement that she made to the police, sometime after 25 March 2016. Nevertheless she maintained that this had occurred and denied it was a recent invention. In my view this question and answer are telling:

Q. Yes, but a little bit more particular. When on the same day? When she was with the four highway police? When she was with the two other police? When she was there with the other lady? When she was there with the taxi driver? When?

A. It was earlier when I kept on trying to say, "I want - please help me to get you home".

Leaving aside what Mrs Haswell said when she was driving her motorcar, the correct sequence of events was:

1. the appellant and the “other lady”

2. the appellant, the other lady and Mrs Haswell

3. the appellant and Mrs Haswell

4. the appellant, Mrs Haswell and the taxi driver

5. the appellant and the Highway Patrol officers

6. the appellant and the Highway Patrol officers and RB15

7. the appellant and RB15

There could have been no physical interaction between the appellant and Mrs Haswell prior to (a). The answer is not only incorrect but the answer also raises matter which was self-serving and could have been intended to lead the cross-examiner away from the issue – which it did, but only for a short time. The spectre of recent invention cannot be dispelled.

39. At [29] above, I pointed out that Mrs Haswell gave the 000 operator the details of the taxi that had been hailed by the appellant. This evidence was given in cross-examination:

Q. And you even took the taxi registration, didn't you?

A. I took the taxi registration?

Q. Yes.

A. No.

Q. You told the police that you have the registration and it was Silver Service taxi 5499--

A. No.

Q. --was it, with the - that's all the rego(as said)?

A. Maybe at that stage while I was so hyped up. Maybe I did tell them, I don’t recall, inch to inch, what happened 20 months ago.

This raises another question about the reliability of the witness’s memory.

40. Another example of the witnesses’s making sel-serving statements, on this occasion by way of confession and avoidance can be found at 3T45.39:

Q. … you made not the slightest reference … in the 000 call to any assault at all?

A. I didn’t want her to make this into a drama. I just wanted to save someone’s life at – 67 years old. I don’t stop for people to kill myself at my age thinking “I just stop to get myself killed today” because I see too many people die in front of me, in hospitals, on the road. I will jump for anyone in front of a car to help anybody even now.

41. Mrs Haswell said that when the police arrived she said, “I’m the one who called the police” and she then walked away. She did not observe the interaction of the appellant with the Highway Patrol officers. That is somewhat surprising given that CLM22 was at the scene for at least 17 minutes (18:17:46 to 18:35:15) and Mrs Haswell’s car was only a few metres away – see [30] above. She “only watched these two officers who dealt with her at the end.” This evidence was then given:

Q. And as far as that was concerned, what happened was that you saw some conversation taking place and you then claim that this woman went berserk?

A. She was berserk from word go.

Q. I'm sorry?

A. From, from the time I met her, she was always going crazy.

Q. Berserk?

A. Yeah.

Q. From the time you met her, that is, the time you first saw her in the street?

A. Yeah.

Q. You described her--

A. No, no. Not on the street. Sorry, let me say this. From the time I went physically close to her and picked her things up, gave it to her while she tried to kick my head in and at the same—

In chief, Mrs Haswell said that the appellant “went really berserk” at the point when it is likely that the appellant kicked at Constable Gravolin’s chest. Here she is saying that the appellant went berserk from the time up to the alleged assault on Mrs Haswell i.e. from shortly after 5:45pm until some time after 6:35pm when CLM227 left, probably closer to 6:51pm when RB15 left the scene to go to Waverley Police Station. One must have sincere doubt about Mrs Haswell staying with the appellant for about half an hour if she were truly “berserk”. This is hyperbole. Furthermore, it is completely inconsistent with the evidence of the Highway Patrol officers. On this topic Senior Constable Matheson gave this evidence:

Q. At the time that you left the matter, it was all peaceful and quiet, no aggression going on?

A. No.

Q. There'd been no report--

A. Not that I saw, no.

Q. And you were there from the time you arrived - with the taxi driver standing outside the taxi and with her sitting down in the taxi, her getting out of the taxi and so forth - there was no suggestion of any complaint to you or as far as you know, to any of the others--

A. From what I observed at the time, it was the time I was there till the time left then no.

Q. --by anybody of any aggression on her part?

A. From what I observed?

Q. Yes?

A. No.

Q. In terms of the messages from VKG, there was no mention of any assaults or anything of that order involved in that?

A. From the time that, from the time that I was there to the time that I was, till I left the location there was nothing of the sort.

Senior Constable Unlu said this:

Q. There was no complaint from the taxi driver of any aggression by her to him, there was no aggression that she manifested to anybody, including you?

A. No.

At 3T83.49 Senior Constable Davis said that the appellant was not aggressive towards the police. Although he did observe some interaction between the appellant and Constable Gravolin, he agreed at 3T84.49 that “it was all a quite peaceful situation. Senior Constable Haigh agreed that the appellant was “perfectly pleasant” at 3T89.33. He was completely unaware of any allegation that the appellant had assaulted anyone (3T91.25).

42. That evidence also needs to be considered when one reads the answer to the next question which I quote, a question concerning the alleged assault on Constable Gravolin:

Q. I suggest to you that at no time did she actually kick, punch, slap or assault the police officer? …

A. She constantly kicked, tried to punch and you could see her face how aggressive she was. She, she was an aggressive lady. She was so aggressive [a] person, I don’t know what she took. I swear, I’ve, I, all I wanted to [do was to] taker [her] in my arm to say “Please stop it, I’ll take you even to the doctors to get you in the hospital so that you can stay there and get sober so that we can take you home then.”

There is no suggestion in the evidence of the Highway Patrol officers that the appellant was aggressive. That the appellant was not aggressive prior to some interaction with Constable Gravolin is spoken of directly by Mrs Haswell herself who said that the appellant said to her “I love you” (see [27] above). The appellant affectionately caressed Senior Constable Unlu’s chest, which Senior Constable Matheson described in exhibit 1 [10] as “amorous” behaviour and caused no offence to Senior Constable Unlu, only embarrassment (3T77.21). This is another example of hyperbole, on this occasion together with an innuendo of illicit drug taking.

Further inconsistency of Mrs Haswell’s evidence and police evidence

43. It can not be doubted that the description of Mrs Haswell of the interaction of the appellant with Constable Eldridge and Constable Gravolin that is described in [31] above is hyperbolic. There was no allegation that the appellant assaulted Constable Eldridge, that she slapped him, punched him or kicked him. Nor did Constable Eldridge give any evidence to that effect. The only evidence given by Constable Eldridge is that the appellant kicked Constable Gravolin in the chest twice, the second kick immediately after the first kick, and that after the appellant had been handcuffed, that she bit Constable Gravolin. Constable Gravolin’s untested statement contains this evidence about her physical interaction with the appellant:

13. Whilst I was standing next to the accused, she raised her left hand and pushed me in my right shoulder and started walking toward me. The accused put her face in front of mine and stated, “What are you going to do?” I grabbed the accused’s left hand to stop her from striking me again. The accused resisted and tried to remove her left arm from me whilst shaking my arm. Due to the accused’s aggressive behaviour to me, Constable ELDRIDGE then grabbed the accused’s right arm and said, “You need to calm down.” The accused was still attempting to strike at Constable ELDRIDGE and myself, whilst continually swearing abuse at us.

14. Whilst Constable ELDRIDGE and I were both holding the accused’s arms to stop her from striking at us, the accused faced me whilst still standing on the footpath next to the police vehicle and lifter her right foot up and kicked me twice in the chest area. Constable ELDRIDGE and I still had hold of the accused’s arms. I then placed the accused’s left hand in a wristlock and the accused became highly aggressive, still resisting Constable ELDRIDGE and I. Constable ELDRIDGE placed an armbar take down on the accused where she fell on the footpath. The accused was trying to stand up and continued to yell and swear. Constable ELDRIDGE still had hold of the accused’s right arm whilst she was on the ground, and I placed my right knee on the accused’s left shoulder in an attempt to keep her on the ground and prevent her from running away and striking at us again.

15. The accused continued to move around and wrestle Constable ELDRIDGE and I, refusing to cooperate with us. I again introduced myself to the accused stating, “I’m Constable GRAVOLIN from Rose Bay Police, at this point in time you’re under arrest for assaulting police and resisting arrest. Stop resisting us.” A witness to the incident who had previously been assaulted by the accused, Jan HASWELL was watching the incident from her motor vehicle. The witness moved her vehicle and parked it behind our police vehicle and exited her vehicle to see what was happening.

16. The accused was still lying on the footpath and Constable ELDRIDGE grabbed his handcuffs and attempted to place the handcuffs on the accused wrist due to her aggressiveness. At this point in time the accused turned her head and bit my left leg around the knee area.

Such interaction would hardly take 10 to 15 minutes in which to occur.

44. The problem which hyperbole causes is that it can make fact finding very difficult. The fact finder must examine the evidence carefully to separate the underlying or key fact to which a witness may be deposing from the exaggeration(s). Where there is other evidence of the facts, that can be done e.g. in this case, the facts of the assault on Constable Gravolin can be ascertained from the evidence of Constable Eldridge, Constable Gravolin’s statement, notebook and the photographs of her left leg. Mrs Haswell’s evidence can be taken as some corroboration of the kicks and corroborations of the biting. Where there is no other evidence, the fact finder’s task may be very difficult and, when proof beyond reasonable doubt be required, well night impossible, as arises in this case in respect of the alleged assault of Mrs Haswell.

The Magistrate’s credibility finding

45. I have canvassed Mrs Haswell’s evidence at some length because of a finding made by her Honour about Mrs Haswell’s credibility. It is this:

I am not going to repeat the very extensive submissions that were made on the last occasion, but I have considered those with care. The defence highlighted problems with Ms Haswell's evidence and submitted that she was an unreliable witness. I have considered the whole of her evidence and I do not accept that she was an unreliable witness. In fact there are parts of her evidence that line up with evidence given by other witnesses and whilst her evidence may have been given in a different way to some witnesses, for example a reference to her husband's death, when the whole of her evidence is considered, for example the reference to her husband's death was clearly related to the concern for the wellbeing of the accused.

I formed the view that Ms Haswell was a well-meaning member of the public who was genuinely concerned about the accused's wellbeing. She had a 40 year history of lay counselling people in need. She was cross examined about answers she gave to the media outside Court earlier last year, and it was many months after the incident, and it is apparent that she was unused to dealing with media attention. Once in the courtroom she responded to questions appropriately. I accept that there were differences between her original version and the version she gave in court. However, this is not surprising given the time that had elapsed between the incident and when she gave evidence. Her evidence was generally consistent with that given by police, and relevantly, she gave evidence of having observed the accused bite Constable Gravolin on the leg. I found her to be a truthful and credible witness.

No one disputes that Mrs Haswell was a well-meaning member of the public who was genuinely concerned about the appellant’s welfare, a Good Samaritan who had a 40 year history of such benevolent behaviour. What was in dispute was the accuracy, the reliability of her evidence, given on 8 September 2017, given some 17 months after the events in question. It is not surprising, given the recent death of her ex-husband, when facing potentially life-threatening circumstances, that Mrs Haswell’s thoughts should return to that death, when she saw the possibility of death for the appellant and herself when dodging peak-hour traffic on a busy arterial road, but that does not assist one in determining the reliability of her evidence.

46. In Charara v R [2006] NSWCCA 244, Mason P (with whom Kirby and Hoeben JJ agreed) said this:

17. The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2).

18. The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).

19. The nature of an appeal “by way of rehearing” has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. “The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits” (Fox at 118[22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the “requirements, and limitations, of such an appeal”, their Honours continued (at [23], footnotes omitted):

… On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

20. In Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 208-9 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms:

The rule … provides that all appeals shall be ‘by way of rehearing’. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred….[A power to draw inferences of fact and to give any judgment that ought to have been given] does not … curtail the recognition or respect that an appeal should accord to the decision of a trial judge.

21. These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220).

22. The appellate role of the District Court in the present context is further reinforced by the references to “appeal” in ss18 and 19 and by the power, conferred by s20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any “fresh evidence” that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the “natural limitations” stemming from proceeding wholly or substantially on the transcript record.

I ought point out that in this case I have read all of the evidence that was led in the Local Court.

47. I am acutely aware of the “subtle influence” that demeanour may have upon the tribunal of fact. Nonetheless, whatever the Magistrate derived from her advantage of seeing and hearing Mrs Haswell had not in any way been made clear in her reasons. She has said that “[o]nce in the courtroom she responded to questions appropriately” but, as I have sought to show, she did not. She also stated, “there are parts of her evidence that line up with evidence given by other witnesses” and “[h]er evidence was generally consistent with that given by police”, but that only amounted to her hyperbolie corroboration of the appellant’s kicking Constable Gravolin and then biting her. Otherwise there are only the inconsistencies, hyperbole and errors which I have sought to identify. The “Murray Direction” her Honour gave to herself required her to examine the evidence of Mrs Haswell very carefully in order to satisfy herself that she could safely act upon that evidence to the high standard required in a criminal prosecution, proof beyond a reasonable doubt. However her Honour’s reasons do not disclose her doing so, other than saying that she did. When I performed that exercise I found it impossible to conclude that Mrs Haswell’s evidence persuaded me beyond reasonable doubt that the appellant was guilty of the charge of assaulting Mrs Haswell. Her Honour’s fact-finding was erroneous.

Were the police acting in the execution of their duty?

48. The appellant challenges her conviction on the first and second sequence offences on the basis that it was not established beyond reasonable doubt that the relevant times the police were acting in the execution of their duty. It is necessary to consider the power of the police to detain intoxicated persons.

49. Law Enforcement (Powers and Responsibilities) Act 2002 [“LEPRA”] defines “intoxicated person” in s 205 to mean “a person who appears to be seriously affected by alcohol or another drug or a combination of drugs”. The relevant provisions of that Act are:

206. Detention of intoxicated persons (cf Intoxicated Persons Act 1979, s 5)

(1) A police officer may detain an intoxicated person found in a public place who is—

(a) behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

(b) in need of physical protection because the person is intoxicated.

(2) A police officer is not to detain a person under this section because of behaviour that constitutes an offence under any law.

(2A) However, a police officer may detain an intoxicated person under this section even if behaviour constitutes an offence under section 9 of the Summary Offences Act 1988 if the detention is not for the purpose of taking proceedings for the offence.

Note. Section 9 of the Summary Offences Act 1988 makes it an offence for a person who is the subject of a move on direction to be intoxicated and disorderly in a public place. Part 8 of this Act would apply to a person who is arrested for such an offence and detained for the purpose of taking proceedings for the offence.

(3) An intoxicated person detained by a police officer under this Part is to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person.

(4) An intoxicated person detained by a police officer under this Part may be taken to and detained in an authorised place of detention if—

(a) it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person, or

(b) a responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or

(c) the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person.

(5) An intoxicated person detained under this Part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage.

(6) This section does not authorise a responsible person into whose care an intoxicated person is released to detain the intoxicated person.

210. Police officers and others not liable for certain acts or omissions (cf Intoxicated Persons Act 1979, s 8)

No action lies against any police officer, any detention officer or any other person in respect of anything done or omitted to be done by the police officer, detention officer or any such other person in good faith in the execution or purported execution of this Part.

230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

50. When RB15 arrived on the scene, the four Highway Patrol officers from CML227 were still on the scene and remained there for a further 5 minutes. Only one of these officers gave any evidence to support the evidence given by Constable Eldridge and Constable Gravolin. This was Senior Constable Davis. In his statement (exhibit 4) he said this:

14. I observed Constable GRAVOLIN and Constable ELDRIDGE arrive, where Constable GRAVOLIN attempted to speak with the accused, however the accused became verbally aggressive towards her and began to swear.

15. Constable GRAVOLIN, began writing in her notebook, the accused was standing next to Constable GRAVOLIN and began touching her shoulder and attempting to take Constable GRAVOLIN’s notebook to see what she was writing.

16. I saw the accused grab Constable GRAVOLIN’s notebook again and attempt to take it. I said, “Don’t touch her or her notebook again”.

17. Senior Constable UNLU then came over and informed Constable GRAVOLIN that a male person would be calling the accused’s mobile phone and assist in making attempts to get the accused home.

In cross-examination, he gave this evidence:

Q. She attempted to stroke Constable Unlu that was otherwise and apparently not at all aggressive?

A. No she wasn't aggressive towards us, no.

Q. There was a period of time at which - after Constable Gravolin appeared - Constable Gravolin began writing in her notebook?

A. Yes.

Q. What was that about?

A. Writing her details in her police notebook.

Q. Yes but why? You all had the details?

A. Yes, make--

Q. And it was, on the face of it, simply a matter of the woman being taken home?

A. Yes.

Q. At that point, did the woman attempt to reach over Constable Gravolin’s shoulder to see what she was writing?

A. Yes.

Q. Did you hear any conversation between Constable Gravolin and the accused, that is Shari Lea Hitchcock, as to what Constable Gravolin proposed to do with Mrs Hitchcock?

A. No, not when I, not while I was present, no.

Q. You wouldn't have heard it when you weren't present?

A. No.

Q. Was there a point of time after Constable Gravolin was saying something to the accused and writing things in her notebook when the accused became upset?

A. Yes.

Q. You have no idea what caused that?

A. No.

Q. Whatever it is, seemed to be somehow related to what Constable Gravolin was saying and what Constable Gravolin was doing with her notebook?

A. Yes.

Q. Constable Gravolin didn't arrest her, did she?

A. No.

Q. Didn't put a hand on her?

A. No, well I was there.

Q. And Constable Eldridge didn't either?

A. Not while I was there.

Q. It was all a quite peaceful situation?

A. At that point in time, yes.

Q. You said to her not to touch Constable Gravoline or her notebook?

A. Yes.

Q. Why?

A. Cause she reached out and tried to grab the notebook. Obviously I would assume to see what was being written.

Q. What would be wrong with her knowing what was in the notebook?

A. Well I wouldn't see anything wrong with it.

Q. Sorry?

A. I wouldn't see anything wrong with her knowing what was in there.

A little later he said he did not hear the questioning of the appellant by Constable Gravolin not her administering any caution of any comment made by the appellant. He also denied hearing anyone say to the appellant, “you are a danger to yourself and others” or “we need to locate a responsible person to take care of you”. He also said that if any such thing was said to the appellant he would have heard it.

51. It is convenient to tabulate the interaction of the Rose Bay police with the appellant from four sources:

1. Constable Eldridge’s notebook,

2. Constable Eldridge’s evidence,

3. Constable Gravolin’s notebook, and

4. Constable Gravolin’s statement.

(i) Constable Eldrige’s notebook (exhibit 6)

1. Rose Bay police introduce themselves.

2. Appellant constantly trying to walk onto Oxford Street.

3. Constable Gravolin places appellant in a wristlock.

4. Appellant then kicked at Constable Gravolin and Constable Eldridge.

5. Constable Eldridge armbarred the appellant to the ground.

6. Constable Gravolin used the weight of her body to hold the appellant down.

7. Heard Constable Gravolin say, “Do not bite me”.

8. Appellant handcuffed.

9. Constable Eldridge arrests the appellant. No explanation/reason given for arrest.

10. Constable Eldridge administers a caution.

(ii) Constable Eldridge’s evidence

1. Constable Gravolin speaks to the appellant who replies, “Who the fuck are you?”

2. Constable Gravolin introduces herself and Constable Eldridge to the appellant.

3. CLM227 police hand note to Constable Gravolin and appellant’s phone to Constable Eldridge.

4. Appellant’s phone rings and Constable Eldridge answers it – a male friend of appellant. Some arrangement made with him. Another incoming call from another friend of appellant. Some arrangement made with her. Another incoming call from appellant’s daughter. Some arrangement made with her. During this time appellant was trying to grab Constable Gravolin’s notebook.

5. Constable Gravolin tells appellant, “Don’t touch me”.

6. CLM227 leaves.

7. Constable Gravolin tells appellant that she is being detained as an intoxicated person. Appellant still trying to walk to Oxford Street.

8. Appellant continued to use offensive language, and refuses to accede to any arrangement.

9. Each Constable takes hold of the appellant by an arm and tried to take her to the police caged vehicle, 10 metres distant.

10. Appellant breaks free of Constable Eldridge’s hold. He applies a wristlock.

11. Appellant is led to police caged vehicle.

12. On arrival at vehicle, appellant pulls her back against vehicle and kicks Constable Gravolin in the chest [sternum level] twice.

13. Appellant runs away towards Oxford Street.

14. Constable Eldridge gives chase and uses an armbar to bring the appellant to the ground, face first on a garden bed.

15. Constable Gravolin comes to assist Constable Eldridge to apply handcuffs. Short struggle. Appellant is handcuffed.

16. Constable Eldridge hears Constable Gravolin say that the appellant was under arrest. [No reason given].

17. Constable Eldridge administers a caution.

18. Mrs Haswell arrives on scene to say she saw everything.

19. The constables put accused in RB15 cage.

20. RB15 is driven to Waverley Police Station.

52. Later in chief, Constable Eldridge said when the handcuffs were being applied, he heard Constable Gravolin say, “Do not bite me”. This appears to be antecedent to Constable Gravolin’s arresting the appellant. In cross-examination, Constable Eldridge explained that a wrist lock was a “pain compliance technique” of bending the wrist to gain control of the person to whom it was applied. The other “pain compliance technique” applied was the armbar which was “done effectively by straightening the person’s arm out and driving your forearm or hand into the back of the triceps forcefully hyper-extending their arm and forcing them facedown into the ground”. A significant point of the cross-examination concerned the Constable’s statement which was not put into evidence. The Constable admitted that in his statement, he said that the actions I have identified as (9), (10 and (11) occurred before the detention of the appellant was announced, action (7). He also said that CLM227 had not yet left, “the highway police were still there and would have seen, no doubt, exactly what went on and heard what went on concerning Constable Gravolin telling this woman that she was an intoxicated person and being detained”. He also agreed that there was no mention of the detention of the appellant in his notebook.

53. As to the arrest of the appellant by Constable Gravolin, Constable Eldridge gave this evidence in cross-examination:

Q. I just should clarify this, there's only one point of time, is there not, where - it's in your statement - where you say Constable Gravolin told Ms Hitchcock she was under arrest, if you go to paragraph 11, top of page 5?

A. Yes.

Q. At no point does Constable Gravolin ever tell her what she is under arrest for, does she?

A. No, I don't--

Q. There is no allegation even then of any assault; biting, striking or kicking?

A. No, she didn't tell her what she was under arrest for.

Q. She was manhandled into the vehicle after that?

A. Yes she was put in there, yep.

Q. Not only that but when you check by looking at your notes there's no reference to her ever being told for what she might be under arrest?

A. Yeah that's correct, there's nothing in there.

(iii) Constable Gravolin’s notebook (part of exhibit 7)

1. Appellant pushed police and grabbed police notebook. Uncooperative.

2. Appellant lashed out and kicked me in the chest with her heels.

3. Appellant started push me and Constable Eldridge.

4. Constable Eldridge and I handcuffed appellant to rear on ground.

5. I introduced myself along with Constable Eldridge and placed appellant under arrest for assault police around 18:45.

6. Appellant said, “Fuck off, you fucking cunt”.

7. Witness saw assault and said to appellant, “Calm down”.

8. Appellant bit/had bitten my leg area close to my left knee.

(iv) Constable Gravolin’s statement of 30 March 2016 – part of exhibit 7

1. Introduces self and Constable Eldridge whilst police from CLM227 still present.

2. I started to question the appellant and she refused to answer my questions. She was very uncooperative. She started to use offensive language to me and Constable Eldridge.

3. Constable Eldridge and I needed to detain appellant as an intoxicated person. I explained to the appellant that she was a danger to herself and that we were required to locate a responsible person to take care of her.

4. Highway Patrol officers were still on scene and gave me some of her details. I was writing notes in my notebook. Appellant wanted to know what I was writing and continually grabbed at my notebook.

5. During that time Constable Eldridge was answering the appellant’s phone to try to find someone to take her home. Arrangement made for appellant to be taken to Rose Bay Police Station to be picked up by a responsible person.

6. Appellant would not comply with this arrangement. The appellant continued to walk away from police.

7. Appellant walked towards RB15, but refused to get in vehicle.

8. Appellant pushed me in right shoulder and walked towards me and put her face in front of mine. I grabbed appellant’s left hand to stop her striking me. Appellant resisted. Constable Eldridge grabbed appellant’s right arm. Appellant was attempting to strike us, using offensive abuse.

9. Appellant kicked me twice in the chest. Constable Eldridge still had hold of her “arms” [sic]. I applied a wrist lock to her left wrist. Appellant became highly aggressive, resisting both police. Constable Eldridge applied armbar and she fell onto the footpath.

10. I knelt on her left shoulder to keep her on the ground and to prevent her escape.

11. I arrested her for assaulting police and resisting arrest.

12. Mrs Haswell was watching this incident from her motor car. She moved her vehicle and parked it behind RB15.

13. Constable Eldridge was attempting to handcuff the appellant. The appellant turned her head and bit my left leg around the knee area.

14. I felt immense pain and said to the appellant “Turn your face the other way and do not bite me again”.

15. Constable Eldridge was able to handcuff the appellant and pulled her up into the seated position.

16. Appellant was stood up and placed in back of RB15 and taken to Waverley Police Station.

54. Because of the way in which Constable Gravolin’s notebook and statement became evidence at the hearing in the Local Court, that evidence is not given under oath or affirmation and has not been tested. That can only attenuate its weight. Her Honour was aware of that: “what I’m proposing to do is to allow the evidence in and deal with it on a question of weight” (5T8.27). However her Honour appears to have given full weight to Constable Gravolin’s statement e.g.:

In my view, the evidence of Constables Eldridge and Gravolin is more reliable than that of the Highway Patrol officers, even allowing for the fact that Constable Gravolin was not cross-examined. They prepared notebook entries soon after the incident, and Constable Gravolin prepared a very detailed statement five days after the incident”.

What if there be an inconsistency between the evidence of the two Rose Bay Constables, who did the Magistrate believe, Constable Eldridge who was called, gave evidence on oath and was cross-examined by one of Her Majesty’s Counsel, or Constable Gravolin, whose evidence was unsworn and untested? I must make my own assessment.

Consideration

55. Her Honour quoted a small excerpt from R v K (1993) 118 ALR 596 at 601.08, believing that decision to be one of the High Court of Australia. It was in fact a decision of a Full Court of the Federal Court of Australia, sitting on a reference appeal from the Supreme Court of A.C.T. K had been charged under Australian Federal Police Act1979 section 64(i) of assaulting two members of the AFP in the execution of their duty. Commencing 600.12 Gallop, Spender and Burchett JJ said:

21. The common law of the Australian Capital Territory is the common law of Australia save where it has been abrogated by statute or other enactment. No Territory legislation has dealt with the common law as it applies to the powers and duties of a constable or a police officer.

22. The powers and duties of police officers have always been expressed in the most general terms. In Rice v. Connolly (1966) 2 QB 414, in the course of allowing an appeal against a conviction of wilfully obstructing a constable in the execution of his duty, Lord Parker CJ said:

"... that it is part of the obligation and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice."

23. In Thomson v. C (1989) 67 NTR 11 at 13, Angel J, addressing what are the duties of police officers, said that courts have sensibly been loath to clothe the ambit of a police officer's duties in specifics and said that his duties have always been expressed in the most general of terms. He cited Rice v. Connolly and the next case to which we refer, Innes v. Weate (1984) 12 A Crim R 45 at 51 where Lord Parker CJ's observations were endorsed by Cosgrove J, who also referred to the fact that the concept of duty cannot be stated in other than general terms:

"... the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty often depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong. These difficulties cannot be overcome. It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the State and by so doing affect the rights and duties of other citizens: cf. for example, s.28 of the Criminal Code."

24. The Commonwealth Director of Public Prosecutions referred to other authorities which demonstrate the need to examine what a police officer was actually doing to determine whether he was in the execution of his duty and decide whether such conduct falls within the general scope of any duty imposed by statute or recognised at common law, or outside that general scope of duty. Reference was made to R. v. Waterfield (1964) 1 QB 164; Donnelly v. Jackman (1971) 1 WLR 562; Collins v. Wilcock (1984) 1 WLR 1172; Coffin v. Smith (1980) Crim App R 221; and the Canadian case of R. v. Westlie (1971) 2 CCC (2d) 315. In the last case, McFarlane JA expressed the view that in order to support a conviction on a charge of obstructing a police officer in the execution of his duty, it is not necessary to show that the officer was at the time of the obstruction engaged in the performance of a specific duty. McFarlane JA cited a number of authorities approved by the Supreme Court of Canada to that effect.

25. The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.

26. It was submitted on behalf of the accused that the learned trial judge was correct in holding that the police officers had ceased executing their duty at the time the alleged assaults took place. The substance of the submission was that there has to be a start and a finish to a duty executed by a police officer, that the evidence at the trial established that the duty of crowd control and looking for incendiary devices or weapons had finished at the time the alleged assault took place and that, although the police officers at that time may be said to have been "on duty", they were not acting "in the execution of their duty".

27. In our judgment there was clearly evidence that at the time of the assaults the two police officers were still inspecting the carpark for incendiary devices and weapons and, at the very least, acting in the execution of a general duty as police officers to preserve the peace and detect crime, as well as a specific duty of returning from inspecting the carpark to report to their superior officer on what they had observed and receive further instructions. They were certainly not performing any unlawful activity that would have taken them out of the ambit of their general and specific duties.

28. Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: "in the execution of his duty". That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as a carrying out of his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police - assault, resistance, obstruction, or hindrance, or aid incitement or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case.\

The Rose Bay police were executing their broad duty of protecting the lives of citizens when they answered the call to attend the scene where the appellant was to be found. The real question is whether they removed themselves, took themselves outside the execution of their duty.

56. The first question to be answered is whether they validly detained the appellant before they applied force to her body. Applying force to her body without a valid detention or a lawful arrest would be an assault and such would not be in the execution of their duty and in fact take them outside of their duty.

57. Constable Gravolin, in her notebook, made no entry to suggest that she had detained the appellant as an intoxicated person. In her statement she said that the decision to detain the appellant was a joint decision made with Constable Eldridge but according to (7) of Constable Eldridge’s evidence the decision was that of Constable Gravolin. Constable Gravolin’s timing of the decision to detain the appellant (Statement (3)) is entirely inconsistent with the sworn evidence of Senior Constable Davis, recited in [50] above. It is also inconsistent with the evidence of three other Highway Patrol officers who observed nothing untoward in the behaviour of the appellant prior to CLM227 departing the scene. In short, the evidence of Constable Gravolin (unsworn and untested) is inconsistent with the sworn evidence of five other police officers. Their evidence is to be preferred.

58. Another matter which needs to be considered when assessing Constable Gravolin’s evidence is the issue of telling the appellant why she was being arrested. Both in her notebook at (5) and in her statement at (11) she said that she told the appellant that she was arresting the appellant for assaulting police buy only in her statement did she add that the arrest was also for resisting police. In contrast to that, Constable Eldridge, in his notebook at (9) said he arrested the appellant but in his evidence at (16) he said he heard Constable Gravolin arrest the appellant, but in each case no reason was given for the arrest. That was confirmed by Constable Eldridge in cross-examination which I quoted at [55] above. A police officer has a duty implicit under statute (LEPRA s 99(4)) and at common law (Christie v Leachinsky [1947] AC 573; Adams v Kennedy (2000) 49 NSWLR 78; R v Dungay [2001] NSWCCA 443; New South Wales v Riley (2003) 57 NSWLR 496; Thompson v Vincent [2005] NSWCA 219) to appraise the person arrested of the reason for his or her arrest. If that duty could be overlooked, the obligations implicit in detaining an intoxicated person could also be overlooked.

59. Constable Eldridge, in his notebook, makes no mention of any decision to detain the appellant as an intoxicated person. In his evidence in chief he said it was action (7) but in cross-examination he admitted that it was long after the actions I identified as (9),(10) and (11). This is not convincing evidence. It is an admission that the two officers started to apply force to the appellant’s body before any decision was made to detain her as an intoxicated person. It must be borne in mind that RB15 was called to the scene to take the appellant home, not to detain her or arrest her.

60. A related issue on this question is whether the appellant’s biting of Constable Gravolin occurred before or after the arrest of the appellant. According to Constable Eldridge’s notebook, at (7), he heard Constable Gravolin say “Do not bite me” but the arrest, at (9), only occurred after the handcuffing at (8). Similarly, he said, late in his evidence in chief, that he heard Constable Gravolin say, “Do not bite me” antecedent to the arrest – see [54] above. Constable Gravolin’s notebook is ambiguous, hence the alternative tenses I used in [56] (8). After describing the advent of Mrs Haswell and what she said, the notebook gives Mrs Haswell’s details and the final entry in the notebook is: “POI bit my leg area above my left knee”. It appears to record an injury, but not sequentially. Constable Gravolin’s statement clearly states that the arrest was before the bite. Who ought one believe, Constable Eldridge or Constable Gravolin? What is more likely? It is clear that after Constable Eldridge brought the appellant to the ground that the two officers wanted to handcuff the appellant. There was a struggle to do so. Is it likely that Constable Gravolin would attend to formalities during this struggle or only after it was completed as Constable Eldridge’s evidence says? It appears to me that Constable Eldridge gives a more plausible explanation of the sequence of events.

61. In the circumstances how could any reasonable tribunal of fact, weighing and contrasting the evidence, determine beyond reasonable doubt that Constable Gravolin and Constable Eldridge were at all material times executing their duty? On Constable Eldridge’s evidence force was clearly applied to the appellant’s body before any possible decision was made to detain her. The existence of such a decision is, quite frankly, dubious. The application of force to the appellant’s body continued up until she was handcuffed. It is more probable than not that the arresting of the appellant was only after she had been handcuffed. In these circumstances I cannot be satisfied beyond reasonable doubt that at the material times, the two Rose Bay Constables were executing their duty. They were applying force to the appellant’s body to enforce their will but I cannot be satisfied beyond reasonable doubt that a determination had been made to detain her as an intoxicated person.

An alternative charge or charges?

62. One complication in this prosecution is that there was only one charge involving an assault on Constable Gravolin, when there were in fact two assaults: firstly the double kick where the heel of one of the appellant’s boots struck Constable Gravolin in the sternum area (central area) of her chest and, secondly, the bite on her left lower anterior thigh. Each of these assaults was corroborated, the kicking by Constable Eldridge and Mrs Haswell, and the bite by a contemporaneous complaint recorded by Constable Eldridge, by Mrs Haswell and by the photographs of the bruise caused by the biting (exhibit 8). I would have no hesitation in finding each of those assaults. However, the two assaults were at different times, at different places and to two different parts of Constable Gravolin’s body. Yet the prosecution was run on the basis that the assault on Constable Gravolin was both these events, and her Honour allowed the prosecution to proceed on this basis: “The assault is said to be the kicks of Constable Gravolin’s chest and the bite” (6T5.42). This ought not to have been permitted when there was conflict in the evidence as to whether the bite occurred before or after the arrest of the appellant.

63. Because the prosecutor failed to prove beyond reasonable doubt an essential element in both the Sequence 1 and Sequence 2 charges, those convictions must be set aside. Ought I find the appellant guilty of a charge of common assault occasioning actual bodily harm to Constable Gravolin (the bite)? The prosecutor in the Local Court did not ask her Honour to do so, in the alternative, to the charges actually made. Furthermore, to do so now could expose the appellant to two assault charges, when she only faced one in the Local Court. Furthermore, the Crown before me did not assert that I ought find an alternative verdict and did not seek to separate the two assaults and identify the one on which it relied. Bearing in mind those considerations and the protracted length of these proceedings, I intend to apply the principle that interest reipublicae ut finis sit litium.

Orders

64. I set aside the convictions recorded and sentences passed by Atkinson LCM sitting in the Downing Centre Local Court on 11 July 2018.

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Due to issues regarding conversion of Word Documents to Caselaw, paragraph spacing within this judgment are inconsistent. This issue should be resolved in June and judgment will be amended.

Decision last updated: 04 February 2020