Jolly, Sean Graham v The Queen

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)…