Jolly, Sean Graham v The Queen

[2009] NSWDC 212

Reported Decision: 9 DCLR (NSW) 225

District Court

CITATION:	Jolly, Sean Graham v R [2009] NSWDC 212
JUDGMENT DATE:	3 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Set aside the convictions for affray, hindering police and assaulting police. Dismiss the appeals insofar as they relate to using offensive language, resisting an officer in the execution of duty and assaulting an officer in the execution of duty. In respect of the matters where the appeals have been dismissed confirm the orders and penalties made by the magistrate.
CATCHWORDS:	CRIMINAL LAW - conviction appeals - affray - offensive language - hindering officer in course of duty - resisting officer in course of duty - assaulting officer in course of duty - identification evidence - offender bitten by police dog - intoxication - purpose of offensive language offence - review of authorities on offensive language - meaning of in "execution of duty"
LEGISLATION CITED:	Summary Offences Act 1988 s 4A(2) Crimes Act 1900 s 546C s 58 s 93C(1) Crimes (Appeal and Review) Act 2001 s 20
CASES CITED:	Director of Public Prosecutions v Gribble (2004) 151 A Crim R 256 Police v Butler [2003] NSWLC 2 R v Connolly and Willis [1984] 1 NSWLR 373 Re K (1993) 46 FCR 336 R v Smith [1974] 2 NSWLR 568 R v Stutsel and Reid (1990) 20 NSWLR 661 R v Worcester and Smith [1951] VLR 317 The Queen v Reynhoudt (1962) 107 CLR 381
PARTIES:	Sean Graham Jolly R
FILE NUMBER(S):	2008/12/1937
COUNSEL:	Mr Martin (appellant)
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. Sean Jolly was convicted of a number of offences by Magistrate Hannam in the Local Court on 5 September 2008. He appeals to this Court from those convictions.

2. It is convenient to adopt the summary of her Honour about certain matters which are not in dispute which gave rise to the charges. Schiller Place, Emerton, is where Mr Jolly lived with his family. There was a large brawl occurring in that street in the early hours of the morning of 9 December 2007. There was a large number of people in the street. The police got there at about twenty-five past one in the morning. There were generally two groups opposed to each other situated on each side of the street. Before the police arrived there had been fighting between those two groups. During the fighting Mr Jolly’s fiancée had been injured. Her name is Rebecca Smith. She was lying on the roadway when the police first arrived. When the police arrived they made attempts to control the situation that they were confronted with and to attend to Ms Smith.

3. Arising from the events which occurred after the police arrived Mr Jolly was arrested by the police and charged with a number of offences. Those are the offences of which he was convicted by Magistrate Hannam and which are the subject of this appeal. The offences were these: (1) affray; (2) offensive language; (3) hindering an officer in the course of the officer’s duty, being Constable Giles; (4) resisting officers in the course of their duty, being Officers Giles and Hauver; (5) assaulting an officer in the course of duty, namely Constable Giles and (6) assaulting an officer in the course of their duty, namely Constable Hauver.

4. Mr Martin, who appears for Mr Jolly, argues that his client should be acquitted of all of the offences. Ms Graham, who appears for the respondent Director of Public Prosecutions, argues that Mr Jolly should be convicted of all of the offences and accordingly the appeals should be dismissed. I propose to examine the evidence supporting each of the offences.

5. The charge of affray depends very much upon the evidence of one of the police officers, Leading Senior Constable Papandrea. Her evidence, which is contained in a statement which she adopted before the magistrate, included the following passage:

“I looked up towards Emert Parade and saw the accused Jolly, who had dark shorts on and no shirt, walking up towards - holding a broken chair above his head in an aggressive manner towards Islander males in that vicinity and he was screaming abuse, swearing saying ‘You fucking cunts come on’. I have run up to Jolly and when I was about three metres away from him he dropped the chair directly in front of him.”

6. Constable Papandrea is the only source of evidence of that event. Mr Martin therefore focused his attention upon her evidence. Ms Graham, who also adopted the comprehensive submissions of the police prosecutor in the Local Court as well as making her own submissions, pointed to evidence that Mr Jolly had lost his temper and that Constable Papandrea was adamant about her identification of the person holding the chair as being Mr Jolly. She argued that her sighting of that event was not corroborated by other police because they were obviously pre-occupied with dealing with the events that were occurring in the street. She also points to evidence from Mr Jolly himself, who gave evidence before the magistrate, admitting that he was angry and that after he was assaulted by one of the other civilians in the fight he “got” the person who had, according to Mr Jolly, assaulted his fiancée. He also admitted in evidence that he “went after” that person.

7. Drawing attention to Constable Papandrea’s evidence Mr Martin reminds me of the care which needs to be given in considering evidence of identification. He draws my attention to evidence surrounding the circumstances of the identification made by Constable Papandrea in this particular case. First, of course, it was night time and therefore dark. Secondly, Constable Papandrea indicated at one stage that Mr Jolly was some four metres from her car although she acknowledged that that might have been six to ten metres away from her car. It is also the case that, at the time that she made the identification, she had herself been contaminated by some capsicum spray which she had administered in the course of trying to control the crowd. The contamination she got was secondary contamination.

8. Mr Martin also draws attention to the fact that there were two persons sighted by Constable Papandrea who were wearing no shirts at all and who were bare over the top part of their bodies. There is some confusion in the evidence of the identity of a man without a shirt who was approaching two constables who were attending to Ms Smith. There is some confusion over whether that person was wearing a shirt or not and about whether that person was the same person as the one identified by Constable Papandrea.

9. To my mind the circumstances of the identification of Mr Jolly, despite Constable Papandrea’s certainty that the person she saw with the chair was Mr Jolly, raise a doubt in my mind about whether that person was in fact Mr Jolly. The circumstances I have in mind are: the distances involved; the fact that it was night time; there was a large crowd; the circumstances that there were many people fighting and the job of the police was to control those people; the apparent confusion over the person with the shirt as well as the fact that Constable Papandrea was experiencing some effects from capsicum spray.

10. I am not satisfied beyond reasonable doubt that he is guilty of the offence of affray. I am not satisfied, also, I might add, that his own evidence amounting to getting another man or going after another man amounted to an admission of affray because there is insufficient detail to constitute evidence of unlawful violence such as to cause a reasonable person in the vicinity to be fearful.

11. I turn next to the charge of offensive language. I need to add at this point that there was evidence - which is not in dispute - that Mr Jolly was the subject of a dog bite. That occurred in circumstances where a police officer in charge of a dog formed the view that the dog needed to intervene in order to control Mr Jolly and the dog, in response to a command, bit Mr Jolly causing a significant injury to his neck requiring medical attention. The relevance of that - to the charge of offensive language - is that before the dog bite it is alleged that Mr Jolly used offensive language. He denies that. It is also alleged that he used offensive language after being bitten by the dog. He acknowledges that he did swear after being bitten by the dog, but denies the detail of the words alleged against him.

12. Constable Giles says that Mr Jolly said to him, “Take your gun off, you low fuck, before I belt the fuck out of you.” At that stage Constable Giles performed what he describes as a check drill on Mr Jolly. Constable Hauver saw the confrontation between Mr Jolly and Constable Giles and saw the yelling but did not hear anything. He saw Mr Jolly with a raised fist. He was only two or three metres away. Senior Constable Harvey says that he saw Sean Jolly yelling and calling the police cunts and dogs.

13. It is acknowledged by Mr Jolly that he was drunk at the time. It is also acknowledged that he was obviously concerned about the wellbeing of his fiancée. He was also - at one stage - he acknowledged, angry. He was affected by capsicum spray which may indeed have affected his recollection of the events. I accept the police evidence that he used the language which they say he used before the events which resulted in the dog bite.

14. After he was bitten by the dog and while waiting for the ambulance Constable Hauver said that Mr Jolly “continued to abuse police in the immediate area, saying ‘You are fucking dog cunts. You fucked his mum and he fucked your mum and he fucked his mum and his sister and your brother and son.’” Constable Hauver said that he admonished Mr Jolly who replied: “Get fucked. You, I’m going to sue you, you cunt. You let the fucking dog bite me and didn’t pull it off. You can get fucked.” Constable Hauver further remonstrated and was told, according to him, “Fuck off cunt”. He was told that he would be arrested for swearing and Constable Hauver said he replied, “Fuck off you dog cunts. You fucked his mum and he fucked yours.”

15. As I said, Mr Jolly acknowledges that he swore after the dog bit him but denies the detail of the accounts which I have just given according to Constable Hauver. I accept the evidence of Constable Hauver for the same reasons that I accept the evidence of the police given earlier. The circumstances were clearly such that Mr Jolly was very upset and at that stage injured as well as still being concerned no doubt for his fianceé and still suffering from the effects of alcohol. I do not accept his evidence that he limited his swearing to references to and about the dog.

16. I have been referred to a number of authorities about offensive language. In particular Mr Martin draws my attention to a decision of Magistrate Heilpern in Police V Butler [2003] NSWLC 2. I find that case to be very helpful, but it focuses mainly on the use of the word “fuck” alone (see [8] of the judgment). Also in that case the words were used in a context set out in [2] of the judgment where the person charged was generally expressing her anger and general annoyance in that case. As I said, the judgment focused on the offensiveness of the word “fuck” taken alone.

17. A Victorian decision in R v Worcester and Smith [1951] VLR 317 was a judgment by O’Bryan J concerning a demonstration where the defendant carried a banner which said the words “Stop Yank intervention In Korea”. He was charged with having behaved in an offensive manner in a public place. His Honour decided that the evidence did not support the charge of offensive behaviour. His Honour said at 318:

“ Behaviour, to be ‘offensive’ within the meaning of that section, must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person ”.

18. In this State in R v Connolly and Willis, a decision of Wood J as his Honour then was, reported in [1984] 1 NSWLR 373, his Honour adopted the formulation of O’Bryan J with respect to the Offences In Public Places Act 1979 (NSW). As his Honour said at 384, conduct is capable of being offensive if “in the case of a reasonable person, feelings could be wounded and anger, resentment, disgust or outrage aroused”.

His Honour said in a prosecution for offensive behaviour:

”It has not been necessary to establish that some person has actually been offended by the behaviour of the person accused ”.

19. R v Smith [1974] 2 NSWLR 586 is a judgment of the New South Wales Court of Criminal Appeal. It concerned a charge of behaving in an offensive manner under the Summary Offences Act 1970 (NSW). Street CJ with whom Nagle J, as his Honour then was, specifically agreed, focused at 588 on the word “offensive” and by reference to the Oxford English Dictionary described it in the sense of “giving, or of a nature to give, offence; displeasing; annoying; insulting”.

20. R v Stutsel and Reid (1990) 20 NSWLR 661 was a judgment by Loveday J in the Supreme Court of New South Wales. His Honour was dealing with an offence under the same legislation as Mr Jolly was charged under, namely the Summary Offences Act 1988. His Honour was dealing with a predecessor to the section under which Mr Jolly was charged. The section which Loveday J was looking at was s 4(1)(b) of using offensive language within the hearing of a public place. The language in that case involved the respondent walking towards police officers calling out in a loud voice “Why don't you fuck off you dog arse cunts”. There happened to be no members of the public present at the time which was a factor which influenced the Magistrate in that case, from whom the appeal had been brought, to dismiss the charge. Loveday J concluded that the learned Magistrate was wrong to hold that it was necessary for a person to be present at the time that the words were spoken. However more importantly his Honour went on to make some observations about the purpose of the section. It is to be borne in mind, as his Honour remarked, that the focus is not on the words being said to the police but being said publicly. His Honour said at 663-664:

“ This is not to say that I regard the insult to the police officer as being one which should be brushed aside or regarded lightly. However, it is not to the point that the police officer was insulted. The section, the subject of the charge, is not concerned with an insult to a police officer who is not in a public place; it is concerned with offensive language that might affect someone in the public place or who might contemplate using the public place.

Members of the public who use or may use public places should know that they are protected from offensive language used in the public place or within hearing distance of the public place. In the absence of such protection they might well avoid the public place” .

That to my mind with respect encapsulates very well the purpose of the legislation and I adopt the same approach as Loveday J.

21. Mr Martin argues that his client has a defence under s 4A(2) of the legislation because he was in pain from the substantial wound from the dog which would bring about the swearing. Focusing first on the language used by the offender after the wound by the dog, I am of the view that some of the language used may well be justified and form the basis of a defence as Mr Martin argues. An example might be for the offender to say, as I think the evidence discloses, “Get the fucking dog off me”.

22. However to my mind the language when it went on to make references to members of the police officers’ families having sexual relations with each other was no longer such that it allowed Mr Jolly a defence under the section. I have the same view about the reference to animals in the expression “Dog cunts”. The images conjured up by such language are obviously - in my opinion - very offensive to anyone who might overhear them. Indeed if that sort of language is not offensive language then it is difficult to imagine what is offensive language. I do not regard it as not amounting to offensive language because members of the public might choose to hear it if they go to the cinema or read it in a book. The purpose of the section, as Loveday J said, is to protect members of the public who are in a public place from being assaulted by the sound of such offensive language. Parliament has elected to keep this particular offence on the statute book and I regard the words used by Mr Jolly as amounting to offensive language both before and after he was bitten by the dog. I therefore in due course propose to dismiss his appeal in respect of that charge.

23. The third matter is a charge of hindering a police officer. That is an offence under s 546C of the Crimes Act 1900. The police officer in question was Constable Giles. Constable Giles gave an account of attending to Ms Smith who was lying on the ground. He was kneeling down assisting her and he went on to say:

“ Jolly leant down to where I was and pushed me with both hands to left shoulder. As Jolly pushed me, I lost balance and fell back on my knees. I immediately got back to my feet. The male was still yelling in my face and coming closer and closer ”.

24. Constable Hauver said it was he - Constable Hauver - who was kneeling down to examine Ms Smith and that he saw Mr Jolly walking towards Ms Smith and Constable Hauver put his arms out to stop Mr Jolly from interfering with the police assisting Ms Smith. Constable Papandrea said that she saw a man that she was certain was not Mr Jolly trying to jump in as Constable Giles was assisting Ms Smith. She restrained that man. Constable Hauver gave an account which did not include the man pushing Constable Giles over.

25. There is to my mind a deal of inconsistency in the accounts given by the police about this incident. I am not surprised that their evidence is inconsistent and it is not a criticism of them that it is. They were dealing with a very volatile situation at the time. Nevertheless for their evidence to be a sufficient basis for Mr Jolly to be convicted of an offence, I need to be left without any reasonable doubt about the fact that he committed that offence. The evidence containing the inconsistencies which I have described leaves me in such a reasonable doubt and I propose to allow his appeal so far as that charge is concerned.

26. Before leaving that charge, I make one observation about a submission made by Mr Martin to the effect that the police officer - whoever it was - who was attending to Ms Smith may not have been in the course of their duty at the time because they may have completed whatever action was required to assist her recovery. I do not accept that submission for the following reasons.

27. In Re K (1993) 46 FCR 336 the Full Court of the Federal Court had occasion to consider the use of the expression “in the execution of his duty” in the Australian Federal Police Act 1979. At 340-341 Gallop J, Spender J and Burchett J said the following:

“ 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 ”.

In Director of Public Prosecutions v Gribble (2004) 151 A Crim R 256, Barr J was construing s 58 of the Crimes Act 1900 and considering the expression “execution of duty”. His Honour accepted the submission that the duty of a police officer went “beyond the prevention and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act”.

28. I turn now to the charge that Mr Jolly resisted an officer in the execution of their duty, an offence against s 58 of the Crimes Act. The officers whom he is said to have resisted were Constables Giles and Hauver. Constable Hauver gives an account of Mr Jolly being on the footpath and removing his shirt. Once he got his shirt off, the constable said that he ran towards where the constable was standing. The constable goes on:

“I stepped in front of the male and grabbed him around the torso with both arms, using my body weight to stop his full momentum. The male has broken free of my grip and taken a step backwards. The male has raised his fist in a fighting stance and with his right hand thrown a punch towards my head. I deflected the punch with my right arm and the punch was connected with my right shoulder causing me to stumble backwards.”

That will be evidence which in due course I will consider concerning the charge of assaulting Constable Hauver. The Constable goes on that he grabbed the man’s arm whilst he was falling backwards. He said he was assisted by Constable Giles and Senior Constable Papandrea. He goes on;

“ While attempting to control the male and bring him to the ground, he was struggling, attempting to thrash his arms about and break free of Constable Giles and my grip.”

He managed to bring the man to the ground but he was still struggling and at that stage the police dog intervened.

29. The duty, he said that he was performing, when cross-examined by Mr Martin, was that he was trying to protect the woman who was lying on the ground as well as Constable Giles who was attending to her. Constable Giles describes the event as Constable Hauver attempting to restrain Mr Jolly by the arms, but Mr Jolly resisting “thrashing his arms and legs about”. Mr Jolly continued to resist Constable Hauver, “kicking and punching out”. Eventually other police including himself and Constable Papandrea helped take Mr Jolly to the ground.

30. Mr Jolly himself admits trying to get towards his fiancée, Ms Smith, and acknowledges that he was pushed away. He said he tried to get to her numerous times. He said that he realised it was the police who must have been pushing him away when he was eventually bitten by the dog. He said at one stage in his evidence:

“ Well, I was running towards, I was walking towards her and I was getting pushed away and when I was getting pushed away I was telling that person that it was - well, my missus”.

He acknowledged in evidence-in-chief that he tried to get to his fiancée numerous times and he was pushed away and that he told the police that he was trying to get to his fiancée because she was lying on the ground, and pregnant. He acknowledged that it was only when he was bitten by the dog that he realised that it was the police who were trying to stop him. He said he had capsicum spray in his eyes, having been sprayed about three times. He had earlier made reference to “running” towards his fiancée - although in the same sentence he referred to “walking” towards her - but he later said that he walked towards her. In cross-examination he acknowledged that he was “a pretty fast walker”.

31. I should have added earlier that Constable Papandrea also gave an account of the incident consistent with the other police officers’ accounts.

32 Later on in cross-examination when asked about when he realised they were police, he was asked, “Would it be fair to say that you knew that police were there at that time?” (the time being when he was walking towards his fiancée). His answer was, “I just said, I didn’t know that they were there until I was pushed away.” He acknowledged that he was pushed away every time he tried to get to his fiancée. Later in cross-examination he was asked, “And at that particular point a police officer was there?” He answered, “I guess so, if I was pushed away by a police officer.” He was then asked, “So you were pushed away by a police officer?” He answered, “If I was pushed away by a - well then who else pushed me away.” He was then asked, “You knew it was a police officer?” He said, “I already said that”.

33. Mr Martin argues that the only duty which the police must have been undertaking at that stage was preventing Mr Jolly from assaulting themselves. He was later charged with assaults, and so the argument is circular and the charge duplicitous. I do not accept that argument. Clearly in light of the authorities I have referred to, it was part of the duties of the police to protect the person lying on the ground from being interfered with, either helpfully or unhelpfully, and also to protect other members of the police who might have been assisting the person who was lying on the ground.

34. I also in this case accept the evidence of the police officers that Mr Jolly clearly struggled and resisted their attempts to bring him to the ground. That is to my mind consistent with the activity which I saw on the in-car video, which was an exhibit before the magistrate and before me. It clearly depicts Mr Jolly approaching the police and then becoming aggressive. He himself acknowledges that he approached them a number of times. He was clearly persistent in his efforts to get past them. I regard it as entirely consistent that he would have persevered with his persistence and resisted attempts by the police to control him. I reject any evidence which he gave to the effect that he did not resist their efforts.

35. I do not accept that he did not know that they were police. His evidence is that he only came to realise after he was bitten by the dog. However he himself acknowledges that he knew that the police were there because of the sirens and the lights. It is obvious from the in-car video that the police were present visually and aurally at the scene. The person approached by Mr Jolly was clearly wearing a uniform. I reject his evidence that he did not know it was the police. He himself said that he made several attempts to get by and get to his fiancée.

36. In any event there seems to me to be authority to the effect that it is not necessary for the offence to be made out to prove that he knew that the person he was dealing with was a police officer in the course of their duty at the time: The Queen v Reynhoudt (1962) 107 CLR 381.

37. I am satisfied beyond reasonable doubt that he resisted Constables Giles and Hauver in the execution of their duty, and in due course I will dismiss his appeal in respect of that charge.

38. He is charged with assaulting Constable Hauver. Constable Hauver himself gives evidence, which I have already referred to, about an attempt by Mr Jolly to throw a punch at him. Constable Harvey gives similar evidence of Mr Jolly throwing a punch at Constable Hauver. Constable Panandrea gives evidence that Mr Jolly lunged at Constable Hauver in an attempt to assault him.

39. Tina Jolly, a witness called on behalf of Mr Jolly, who was his step-mother and present at the time, gives evidence that she saw him throw a punch.

40. Samantha Jolly, Mr Jolly’s sister, also gave evidence that she saw Mr Jolly throwing a punch before he was tackled to the ground. He was then attacked - as she said, using her words - by the dog.

41. The police video, which I have already referred to, clearly shows, in my opinion, Mr Jolly attempting to assault a police officer who, it appears to be common ground, is Constable Hauver.

42. Mr Martin argues that the video is consistent with a man who is intoxicated and affected by spray lurching towards the police and trying to get past them to his fiancée. He says that the video is consistent “with a person who is completely befuddled by the circumstances and thinks he is acting against people who intend him and his fiancée harm”.

43. To my mind the video demonstrates clearly that Mr Jolly was attempting to get by the police and clearly attempted to assault Constable Hauver. I do not accept the argument that it is consistent with him being confused and overwhelmed. I have already said that I am satisfied that he knew they were the police. Even if he did not know they were the police, it seems to me that the offence is made out. I am satisfied beyond reasonable doubt that he assaulted Constable Hauver and in due course I will dismiss that appeal.

44. Finally there is a charge of assaulting Constable Giles. There is some confusion over that charge. Ms Graham acknowledges there could be some duplicity in that charge because it appears to be connected with the charge of resisting Constables Giles and Hauver. She very fairly says that it could be that I “now form a view that rather than us pursue the assault in relation to Giles, your Honour may well form a view to dismiss the assault in relation to Giles and consider the course of conduct referrable to the resist.” I do take that view and I propose to allow the appeal in respect of the assault on Constable Giles.

45. Accordingly the orders that I make in disposing of this appeal are as follows. Under s 20 of the Crimes (Appeal and Review) Act 2001, I determine these appeals against convictions as follows. I set aside the convictions for affray, hindering police (namely Constable Giles) and assaulting police (namely Constable Giles). I dismiss the appeals insofar as they relate to using offensive language, resisting an officer in the execution of duty (namely Constables Giles and Hauver) and assaulting an officer in the execution of their duty (namely Constable Hauver).

COUNSEL ADDRESSED

SHORT ADJOURNMENT

HIS HONOUR: Mr Martin, what is your submission about how I should dispose of the penalty?

MARTIN: My instructions are to not resist the continuation of the orders proposed by the magistrate in relation to those matters where the appeals have not been dismissed.

46. In respect of the matters where the appeals have been dismissed I confirm the orders and penalties made by the magistrate.

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