Hrycyszyn v Bonde
[2003] TASSC 126
•27 November 2003
[2003] TASSC 126
CITATION: Hrycyszyn v Bonde [2003] TASSC 126
PARTIES: HRYCYSZYN, Sam Harry
v
BONDE, Acting Sergeant Michael Andrew
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 28/2003
DELIVERED ON: 27 November 2003
DELIVERED AT: Launceston
HEARING DATE/S: 18 November 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: L Goodsell
Solicitors:
Appellant: Zeeman Kable & Page
Respondent: Director of Public Prosecutions
Judgment ID Number: [2003] TASSC 126
Number of paragraphs: 35
Serial No 126/2003
File No LCA 28/2003
SAM HARRY HRYCYSZYN v ACTING SERGEANT MICHAEL ANDREW BONDE
REASONS FOR JUDGMENT CRAWFORD J
27 November 2003
In a magistrates court the applicant was found guilty of the following offences, allegedly committed in Charles Street, Launceston in the early hours of the morning of Sunday, 16 February 2003:
1Disorderly conduct contrary to the Police Offences Act 1935, s13(1)(c), by shouting out the words "fuck the police", waving his arms about, shouting and swearing;
2Assaulting a police officer in the execution of his duty contrary to the Police Offences Act, s34B(1)(a)(i), by punching Constable Brett Steele in the chest and shoulder areas;
3Resisting a police officer in the execution of her duty contrary to the Police Offences Act, s34B(1)(a)(i), by struggling violently with Constable Emma Crosswell.
He has moved the Court to review the findings of guilt on three grounds, namely:
"1The learned Magistrate erred in law in that he declined to allow Counsel for the Applicant to address prior to making his finding that the Complaint was proved.
2The learned Magistrate failed to take into account and/or to provide any reasons as to what, if anything, he made of the fact that the Prosecution failed to call a relevant witness.
3The learned Magistrate failed to take into account the divergence in evidence between the two witnesses called by the Prosecution or alternatively, failed to give his reasons as to how he dealt with that divergence in evidence."
Evidence was given by Constable Steele that at about 1.20am he was in uniform and being driven in a marked police vehicle by Constable Crosswell. They drove west in York Street and turned left into Charles Street. As they did so he saw the applicant and another male strolling across Charles Street, as if they had all the time in the world. They were crossing against a red pedestrian traffic signal and at an angle, that is they were not directly crossing the street. There were other people on the road as well, proceeding in front of the applicant. The applicant shouted "fuck the police" when the vehicle was more than halfway round the corner. Constable Steele told Constable Crosswell to stop the car, which she did on the left side of Charles Street. He got out of the vehicle and she proceeded to park it. He told the applicant to move away, who became agitated instead. The applicant yelled and swore and waved his arms about. His language included "fuck the police", "tell me to fuckin' move" and "I'm not fuckin' movin'". At about that time, Constable Crosswell joined Constable Steele.
According to Constable Steele, the applicant was then arrested by Constable Crosswell for disorderly conduct, whereupon he became violent, striking out with his hands and arms. He was told on many occasions that he was under arrest and that he should put his hands behind his back to be handcuffed, but he refused to do so and continued to struggle violently. The struggle moved up Charles Street. The applicant punched Constable Steele in the right shoulder and chest.
As they were unable to subdue him, Constable Steele withdrew a can of capsicum spray and after first warning the applicant that he would do so, sprayed him with it. Constable Steele then dropped the can, accidentally as I understand his evidence. The officers were able to subdue the applicant and place him in the police vehicle about 20 metres away, having walked him to it. A bystander, who Constable Steele believed to be an off duty security guard, handed the can of capsicum spray to him and he put it back in his holster. The applicant was taken to the police station.
Constable Crosswell essentially corroborated Constable Steele's version of the events. Evidence was given for the defence by the applicant, his friend Simon Robarts and Glenn Allan, a friend of Mr Robarts who was also known to the applicant.
In summary, the applicant's evidence was as follows. He had consumed a lot of alcohol over a period of about five hours. When the traffic lights changed to green, he started to cross the street with Simon Robarts and Glenn Allan. He saw the police car and he heard someone shout very loudly "fuck the police". No-one in his group was responsible. The police car pulled up. Constable Steele jumped out and said "stop", but he and his friends kept walking. Constable Steele pushed the applicant in the chest up against a wall. The applicant and Simon Robarts said "it wasn't us". Constable Steele told the applicant that he was under arrest. Constable Crosswell joined the group. The officers tried to handcuff the applicant, but he prevented it by struggling with them. He described the violence of his struggle as "fairly violent I suppose". He denied punching Constable Steele. He kept struggling until he was sprayed with the capsicum spray. The next thing he knew was that he was in the police car.
It is unnecessary to relate the evidence of the other witnesses in detail, except as required by a ground of the motion to review.
The learned magistrate's reasons for finding the complaint proved were as follows:
"The defendant has pleaded not guilty to three related charges, one of disorderly conduct, one of assaulting police and one of resisting police, police officers in the execution of their duty. All of these charges are proved and I will indicate briefly my reasons for being satisfied that each of those charges should be proved. Of course, it's for the prosecution to establish the elements and particulars of each of these charges to the court's satisfaction beyond reasonable doubt. By way of broad summary, the police case is clear and consistent, both internally and externally and it is a rational case. The defence case, on the other hand, is confused and contradictory. Witnesses were unimpressive and the defence presented a veritable buffet of facts from which the court could choose in making findings a fact. Specifically: (a) the defendant and his friend were pushed in the chest by Const Steele against a wall or, alternatively, they were scruffed by the back of the neck and forced face first into the wall. (b) Const Steele did speak when he confronted the defendant, alternatively, he did not. (c) The defendant swore while the police were speaking to him, alternatively, he did not. (d) The police car parked next to or adjacent to the defendant and his friend, alternatively, it parked to the south of him and (e) someone used the complaint of words when these men were crossing the street or, alternatively, when they were standing in a group.
The prosecution facts are clear, and I make these findings a fact. Having consumed bourbon to the extent of, perhaps, 75 to 150 millilitres of that drink, the defendant, on his own admission, was affected by the alcohol which he had consumed but he was, as he put it, not really, really drunk. As he crossed the street, he was, "mucking about", on his own statement, which included waving his arms. He was crossing, I find, against a red light. He looked to Const Steele, as Const Steele put it, "like any other drunk on a Saturday night". The police officer wished to talk to him and to his companion and the basis of this was their understanding that the defendant, or maybe his companion, had used the words which are particularised in part 1 of the complaint.
There is no doubt that the police believed that the defendant had used the words, or his companion had used the words, and they wanted to speak to him with regard to those matters. It had not been their intention to arrest him at that stage. Const Steele stood in front of the two men and holding up his hands to stop them, he directed them back towards the wall so as to clear the main section of the footpath so that others could pass by. Unfortunately the defendant was fired up, as he put it, and he believed that he had done nothing wrong and, clearly, he perceived that the police had no right to be speaking to him with regard to this matter. Unfortunately, his emotions took control. What should have been a routine matter that would have seen him quickly on his way, degraded substantially with the result, as I find, that he struck Const Steele twice, in the manner that Const Steele alleged, and attempts to handcuff him after he had been arrested by the female police officer, those events degraded to the point where they attempted to handcuff him and when that failed OC spray had to be deployed in order to subdue him and to place him in the police car.
Those are my findings of fact but they do not specifically address a key issue which arose as to whether in fact that it had been the defendant who had used the words complained of in count 1. To my mind, it is not to the point whether he used them or not. Reference is necessary to section 55 of the Police Offences Act and I am satisfied that in all the circumstances the police officers found him offending, that is to say, had reasonable cause to believe that he had committed an offence. But in any event, even if I be in error as to that, his conduct, as described by the constables, and particularly Const Crosswell, clearly amounted to disorderly conduct before the situation started to unravel. Therein, arose the police officers entitlement to arrest him. They exercised that right but unfortunately, the defendant, being self-righteous in the matter, saw fit to resist them further and that is when he assaulted Const Steele who was seeking to carry out his duty and that is when he resisted both Const Emma Crosswell and Const Steele, police officers, in the execution of their duty. I am satisfied of those findings are fact, the elements of the charges of the particulars of all three beyond reasonable doubt and, accordingly, all three matters are proved.
Ground 2
Insofar as the ground complains that the learned magistrate failed to take the matter into account, it has not been made out. The learned magistrate did not refer to the matter in his reasons, but that does not establish that he did not consider the point.
The ground also complains that the learned magistrate failed to provide any reasons concerning what, if anything, he made of the fact that the prosecution failed to call a relevant witness. As argued, the ground was said to refer not to the failure to call a witness, but to the failure to make inquiries to identify a possible witness and to ascertain what the witness might have said in evidence. The applicant was referring to the person who Constable Steele said had returned the can of capsicum spray to him, some time after he had dropped it. The evidence about that person was slight.
In his evidence-in-chief, Constable Steele was asked how he came to regain possession of the can. He responded that "I believe an off-duty security guard handed it to me". He was asked more about that person in cross-examination. He did not think the person was a security officer from the nearby Saloon Bar. He added that he had hoped that the person would come to the inquiry office to give a statement, because he had said at the time that he might be willing to be a witness and Constable Steele had asked him to in fact come to the inquiry office. However, at that time, he and Constable Crosswell had their hands full dealing with the applicant, who was bigger than both of them. He did not know who the person was. He agreed that did not make any inquiries of security firms in an attempt to locate the person, nor of the Saloon Bar. (I note that the transcript records that Constable Steele said that he did telephone around security guards, but having listened to the tape recording of his evidence I am satisfied that what he in fact said was that he "didn't".) He added that he was sick and absent from work for the next couple of shifts and by the time he got back to work the incident was no longer in the forefront of his mind. If the person had presented himself at the inquiry office he would have expected to have been informed. It was Constable Crosswell's file, not his. He had not told her about the person.
It was Constable Crosswell's evidence that she knew nothing about the dropping of the can, nor of it being handed to Constable Steele. However, she said that when they were about to leave the scene in the police car, a male "came up and spoke but due to the defendant's behaviour we had to leave fairly quickly so I didn't get a chance to get back to him."
I note that a crowd had gathered at the scene of the applicant's arrest, and that the person who picked up the can must have been one of many who were present. The police officers were in a difficult situation, having had their hands full trying to arrest the applicant, who was bigger than them and struggling violently. Once they had managed to get him into the police vehicle they proceeded to the police station with little, if any, delay.
This is not a case of the prosecution failing to call a witness who it was known could give material evidence. Not only is the identity of the person unknown, but also the substance of what he saw of the incident. That he expressed to Constable Steele a willingness to be a witness, suggests that his evidence was likely to favour the prosecution and not the defence, but it is inappropriate to speculate about what he might have said in evidence if he had been located and called as a witness.
Counsel for the applicant conceded that no duty rested on the prosecutor to call the unknown person, referring in that regard to Richardson v R (1974) 131 CLR 116 at 119 – 121, Whitehorn v R (1983) 152 CLR 657 at 663 – 665 and Taylor v Hayes (1989) 46 A Crim R 457 at 461 – 463. No authority was cited in support of the ground of review. No attack was made on the fairness of the hearing because of the failure of the police to locate and call the unknown witness. The attack was made solely on the omission of the learned magistrate to deal in his reasons with that failure. I can find no basis for concluding that his Worship ought to have done so. The issue would only have been material if it had been open to the learned magistrate to draw an inference adverse to the prosecution by reason of Constable Steele's failure to ascertain who the witness was and what he might have said in evidence. On such skimpy material, no adverse inference could be drawn that might have assisted the applicant's case. There is no merit in the ground.
Ground 3
There is no reason to think that the learned magistrate failed to take into account the differences between the evidence of the two police officers. However, I will consider in some detail the applicant's claim that his Worship erred by failing to explain in his reasons how he dealt with those differences.
The first such difference to which the applicant's counsel referred, concerned the descriptions given by the police officers of the manner in which they saw the applicant cross Charles Street. Constable Steele described the applicant and his companion as strolling across the road, as if they had all the time in the world, and as sauntering across in a drunken fashion, notwithstanding a red pedestrian signal that was facing them, while the police were waiting for them to get out of the way. When the applicant shouted "fuck the police", he decided that they should stop and speak to him, because of what he had shouted and because of "his behaviour on the road", adding that the applicant looked like any other drunk on a Saturday night. He accepted that if the words had not been shouted by the applicant, the officers may not have stopped at all.
Constable Crosswell described the two men as "staggering along, contrary to the lights, which is why we first noticed them, and they were shouting and swearing and waving their arms around and just generally behaving in a disorderly way". In cross-examination she agreed that she saw and heard the applicant shout "fuck the police" as she completed rounding the corner and it was the reason for her pulling up.
The differences between the two police officers on that aspect of the incident, were not significantly different. Constable Steele described the two men as sauntering and Constable Crosswell described them as staggering, but both were obviously describing people who were drunk. Both agreed that the two men were walking against a red light and that it was the shouting out by the applicant that caused them to stop. Constable Steele did not describe them as waving their arms about, but he was not asked whether that happened, nor did he say that it did not happen. I note, as pointed out by the learned magistrate, that the behaviour of the applicant at that point in time was not the reason for his arrest. It was his subsequent conduct that caused that to occur.
The second difference between the officers that was raised by the applicant's counsel, concerned where the police car was parked by Constable Crosswell. I have been unable to find any real difference between them. Constable Steele said that the car stopped about two or three parking meters up, but not in a parking space, and he then got out. He did not see what Constable Crosswell then did with the police car. Her evidence was that she pulled up on a parking meter. She indicated that she was still parking the vehicle when Constable Steele was out of it and commencing to speak to the applicant. Both officers said that the car was first stopped outside Peart's Discount Store.
The third difference raised by the applicant's counsel concerned the number of people crossing Charles Street with the applicant. Constable Steele said that it appeared to him that the applicant had one male companion with him, but there were others on the road ahead of them. Constable Crosswell gave evidence of seeing the two men crossing the road. She said that she could not recall any other people nearby. Both agreed that by the time the heated incident between the officers and the applicant was underway, there were a number of other people in the vicinity. I regard the difference between their evidence as minor, and obviously explained by the fact that one recalled seeing other people and the other did not. There was no dispute that the applicant was crossing the street with at least one companion and it was of no material consequence where other people may have been at the time.
The fourth difference raised by the applicant's counsel concerned whether in fact the officers managed to handcuff the applicant, notwithstanding his desperate struggles to prevent them from doing so, which he admitted. The net effect of Constable Steele's evidence was that he believed that the applicant was eventually handcuffed, but he could not recall when it was. He said it would have been some time after the applicant was sprayed with capsicum, which is obvious if it happened at all. In cross-examination it was suggested to him that the applicant was not handcuffed when he was put into the police car and Constable Steele said that he was not 100 per cent sure. Constable Crosswell's evidence was that she believed that after failing to handcuff the applicant because he was struggling, and after he was sprayed with capsicum, the handcuffs were left off. The differences in their individual recollections was immaterial. It related to whether something happened after the three offences have allegedly been committed.
Counsel for the applicant referred to perceived differences concerning how Constable Steele first came up to the applicant and his companion. Constable Steele said that he asked the applicant and his companion to stop, but they ignored him and kept walking. He put his hands up and guided them over to the wall at the side of the footpath, where he spoke to them. Constable Crosswell did not claim to have seen that passage of events, but on the evidence it is beyond dispute that after Constable Steele left the police car, she proceeded to park the vehicle, following which she got out and joined the others on the footpath. It is clear that she did not see what was going on during that time. The fact that she did not claim to have witnessed what Constable Steele described is unremarkable.
The sixth claimed difference concerned whether persons came up to the police vehicle after the two officers were in it with the applicant. There was no difference between the evidence of the officers in that regard. Neither recalled that it happened. Neither disputed that it may have happened.
The final difference between the evidence of the officers, as maintained by the applicant's counsel, concerned the accidental dropping of the can of capsicum spray by Constable Steele, after it had been sprayed at the applicant. Every witness agreed that it was so sprayed. Constable Steele said that he dropped the can and that it was later returned to him by the person he believed to an off-duty security officer. Constable Crosswell was unable to recall one way or the other, whether the can was dropped. It was not an important detail. The incident was a heated one. The officers were engaged in a struggle with the applicant. No doubt the deployment of the spray by Constable Steele would have been distracting.
Counsel for the applicant said that the differences to which I have referred, were the only ones he was able to find from a perusal of the transcript. I regard them as having no great significance and I do not consider that the learned magistrate was obliged to deal with all or any of them in his reasons. No authority was relied on by counsel in support of his argument that his Worship should have done so. The learned magistrate was justified when he concluded that the police case was clear and consistent, both internally and externally, and that it was a rational case. It is clear from the reasons, that the differences between the defence witnesses were considerable and strikingly significant in comparison.
Ground 1
The circumstances in which the learned magistrate declined to allow counsel for the applicant to address were as follows. At the close of the prosecution case on 4 August, counsel for the applicant said that he expected that the hearing would finish at very close to 12 noon. After making a brief opening address, counsel for the applicant called the first of three defence witnesses, the applicant, Mr Robarts and Mr Allan. At the conclusion of the cross-examination of the last of those witnesses, the defence case came to an end. I was informed by counsel for the applicant that by that time it was 1.30pm, but I regard that as an immaterial matter. No application was then made by either party to make a closing address. The learned magistrate said that he would "reserve the matter until" the next afternoon, if it was convenient, but upon the prosecutor and the applicant's counsel indicating that it would be inconvenient for them, the hearing was adjourned until 6 August at 2.15pm. It was obvious that the learned magistrate intended to come to his decision in the meantime and to publish his reasons at the appointed hour and dispose of the complaint.
When the hearing resumed for that purpose, counsel for the applicant said that no addresses were made and he asked "is your Worship inclined to permit that addresses be given?" The learned magistrate declined, commenting that "the facts are all of a very narrow compass and I don't believe that I should exercise my discretion to allow addresses". He then stated his reasons for finding the complaint proved.
The Justices Rules 1976, r36(1)(c), provide that "neither party is entitled to address the justices at the conclusion of the evidence without the leave of the justices". The prima facie rule is that there is no entitlement to address. If a party wishes to assert that a closing address should be allowed, some positive reason should be advanced for that course.
In this case, no attempt was made by the applicant's counsel to make a closing address until after the learned magistrate announced that he would reserve his decision and the court reconvened for the decision to be published. At the time when counsel sought to raise the question of an address, the learned magistrate had considered the evidence, reached his decision and drafted his reasons for publication to the parties. The appropriate time for an application to address is at the close of the defence case, not at a time when on a later day the magistrate is about to publish his concluded reasons for disposition of the complaint.
No positive reasons were advanced by counsel when he raised the matter with the learned magistrate. Counsel expressed it only as an inquiry. It will be a rare case when a magistrate can be shown to have incorrectly exercised the discretion by declining to allow an address, when no reasons were advanced in support of an argument that an address should be allowed.
It has not been shown that the learned magistrate acted upon a wrong principle, nor that the decision was unreasonable or unjust. See House v R (1936) 55 CLR 499 at 505. In my view there was no good reason why an address should have been allowed at such a late stage of the proceedings. In any event, I am not persuaded that if the application had been made immediately upon the close of the defence case, the learned magistrate would have been in error if he had refused it.
I should deal with a matter of interpretation that was raised by the applicant's counsel. He pointed to r36(1)(a) which permits parties to make addresses for the purpose of opening their respective cases. Counsel submitted that if no opening address was made by a party, there remained an absolute entitlement to make a closing address. Rule 36 says no such thing. In any event, my perusal of the transcript reveals that counsel for the applicant made an opening address before calling the applicant and his witnesses to give evidence. In the transcript it occupies eight lines. Although short, it was nevertheless an opening address.
Conclusion
For the reasons I have given the motion will be dismissed.
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