Kok v Lomax
[2017] VSC 82
•21 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 02641
| AUGUSTINUS KOK | Plaintiff |
| v | |
| DARREN JOHN LOMAX - and - COUNTY COURT OF VICTORIA | First Defendant Second Defendant |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2017 |
DATE OF JUDGMENT: | 21 March 2017 |
CASE MAY BE CITED AS: | Kok v Lomax & anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 82 |
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JUDICIAL REVIEW AND APPEALS – Application for review of a decision of a Judge of the County Court of Victoria – Plaintiff found guilty of resisting a member of the police force pursuant to s 52(1) of the Summary Offences Act1966 (Vic) – Whether judge erred by failing to consider self-defence – Application for review dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Nash QC with Mr J Laverty | Chester Metcalfe & Co |
| For the First Defendant For the Second Defendant | Ms F L Dalziel No Appearance | Office of the Director of Public Prosecutions |
HER HONOUR:
Introduction
The plaintiff, Mr Kok, was due to appear in the Korumburra Magistrates’ Court on 28 February 2013 on charges of contravening an intervention order and stalking. He failed to appear in court on that day, as he suffered a major medical emergency and was unable to contact the relevant persons to advise them of the reason for his non-attendance at court.
The events which are the subject of this proceeding took place approximately one month later, on 22 March 2013, when the defendant, Officer Lomax, went to the caravan park operated by Mr Kok in Port Welshpool with a warrant for his arrest for failing to appear before the magistrate in Korumburra. As a result of those events, Mr Kok was charged with resisting a member of the police force in the execution of his duty (‘resisting arrest’) pursuant to s 52(1) of the Summary Offences Act1966. That charge was heard in the Magistrates’ Court of Victoria on 6 March 2015, along with the charges relating to the breach of the intervention order and stalking. Mr Kok was acquitted of all charges other than the charge of resisting arrest.
Mr Kok appealed to the County Court against the finding of guilt on the charge of resisting arrest. The appeal was heard in the County Court at Morwell on 19 May 2016. Having heard the evidence and the submissions of the parties, the judge found Mr Kok guilty of the charge of resisting arrest and ‘without conviction’ released Mr Kok on an adjourned undertaking to 18 November 2016 with conditions that he be of good behaviour and attend before the court if given notice to do so during the period of the adjournment.
Mr Kok now seeks an order in the nature of certiorari quashing the order of the County Court and an order that a verdict of ‘not guilty’ to the charge of resisting arrest be entered in his favour. Alternatively, he seeks an order remitting the proceeding to the County Court to be heard and determined according to law.
Reasons for decision
The County Court judge gave ex tempore reasons for his decision which appear in the transcript of the hearing.[1]
Transcript of Proceeding, Kok v Lomax (County Court of Victoria, AP-15-0515, Murphy J, 19 May 2016). The Judge’s Reasons for Decision appear at T101.26 – 106.3 (‘Reasons’).
His Honour recorded that it was not disputed that Officer Lomax had a validly issued warrant to arrest Mr Kok. He found that on the day in question, Officer Lomax attended at the caravan park at Port Welshpool where Mr Kok lived in the office/residence and knocked on at least two doors. Mr Kok opened the office door and called out to Officer Lomax, who went to that door. Mr Kok stood on the doorstep and Officer Lomax proceeded to tell him that he was there to execute the warrant and to take Mr Kok to Foster to arrange a new court date. Mr Kok knew that there was a warrant outstanding for his arrest and agreed that Officer Lomax said, ‘I’ve got a warrant, you’re coming with me’. Mr Kok responded, ‘I’m not going anywhere with you’. At that point Officer Lomax grabbed the front of Mr Kok’s shirt. Mr Kok pulled back, pulling Officer Lomax a couple of steps into the office. Mr Kok said that he ‘blocked himself’ from being pulled out of the office by Officer Lomax.
The Reasons identify the key point of dispute between Mr Kok and Officer Lomax as whether Officer Lomax gave Mr Kok the impression that he was to accompany Officer Lomax to Foster in the back of the divisional van (referred to as the ‘pod’). Mr Kok gave evidence that he refused to accompany Officer Lomax because he believed he would be put in the pod, which would have been unsafe for him because of his medical conditions, and he feared for his safety. His Honour was satisfied that Officer Lomax said to Mr Kok, ‘You are coming to Foster in the van’. However, that would not necessarily have been in the pod; it might have been in the passenger seat. On Officer Lomax’s version, which his Honour accepted, the parties never got to the point of discussing where in the divisional van Mr Kok would sit.
The County Court judge rejected Mr Kok’s evidence that he told Officer Lomax that the pod was an inappropriate form of transport. However, his Honour accepted that Mr Kok believed that he was going to be put in the pod and that he refused to accompany Officer Lomax for that reason.
The Reasons refer to the legal argument made by Mr Kok’s lawyer in support of his submission that Mr Kok was justified in refusing to accompany Officer Lomax. The Reasons record that Mr Kok’s lawyer relied on the decision of the Victorian Court of Appeal in Mastwyk v DPP,[2] which concerned the requirement to accompany a police officer to a police station for breath testing in s 55 of the Road Safety Act 1986. In Mastwyk, the Court of Appeal held that a refusal by Ms Mastwyk to accompany a police officer by means of transportation that was objectively unreasonable was not a contravention of s 55.
[2](2010) 27 VR 92.
His Honour stated that he did not consider Mastwyk to be of assistance. The warrant required Officer Lomax to arrest Mr Kok and take him to a bail justice. The arrest was effected by Officer Lomax grabbing Mr Kok’s shirt when Mr Kok told him that he would not go anywhere with him. His Honour continued:
The fact that the Appellant [Mr Kok] believes subjectively that his health condition was such that he should not be placed in a police van, or alternatively that the matter should be dealt with by arrangements with the Werribee station, does not, in my opinion, provide any basis to find that the actions of the Appellant [Mr Kok] in blocking himself, to use his own words, or in the words of Mr Lomax, ‘pulling back’, are justification for the conduct. If the charge was refusing to accompany a police officer to the Foster Police Station and the requirement was placed on the Appellant [Mr Kok] to be in the pod then given his medical circumstances he may have had a basis to refuse. That is not the charge he is facing. In the circumstances where the requirement was that he be arrested, I am satisfied that his actions in pulling back into the office did amount to resisting the arrest by Officer Lomax.
In substance, the County Court judge accepted that Mr Kok held a genuine belief that his health conditions meant that he should not be conveyed to the police station in the pod. However, his Honour found that this was not communicated to Officer Lomax before Mr Kok ‘pulled back’ or ‘blocked himself’, thereby resisting arrest. There was no discussion as to how Mr Kok would be conveyed to Foster. His Honour held that there was no justification for Mr Kok’s conduct.
Grounds for Review
In the Originating Motion, Mr Kok raised six grounds for review, a number of which were overlapping. Those grounds were, in substance, as follows:
(1)The judge erred in failing to direct himself as to whether:
(a)Mr Kok acted without lawful excuse;
(b)Mr Kok acted in self-defence;
(c)Mr Kok intended to resist arrest.
(2)It was not open to the judge on the findings of fact made by him to find each of the elements of the offence charged proven where:
(a)Mr Kok had raised a defence of lawful excuse and/or self-defence and no evidence or argument had been advanced to rebut those defences;
(b)the judge found that Mr Kok had pulled back from Officer Lomax’s grasp out of fear for his physical safety; and
(c)the judge made no finding that Mr Kok intended to resist arrest or even avoid arrest.
(3)The judge erred in failing to make any determination in relation to the question of lawful excuse or self-defence.
(4)The judge failed to give adequate reasons for finding that Mr Kok had acted without lawful excuse or otherwise than in self-defence.
In the event, at the hearing before me, Senior Counsel for Mr Kok reduced these grounds to the single complaint that Mr Kok had raised an issue of ‘self-defence or necessity’ and, although Mr Kok’s reason for acting as he did was accepted by the County Court judge, his Honour made no finding as to whether self-defence or necessity had been established.
This, as I understand it, amounts to an allegation of error of law on the face of the record.
By reason of s 10 of the Administrative Law Act 1978, statements made by the court, whether orally or in writing, are taken to form part of the decision and incorporated in the record. As discussed, his Honour’s reasons for decision are recorded in the transcript.
Analysis
The Crown case in the County Court was that Officer Lomax was performing a simple task as part of his job, executing a warrant to arrest. He intended to organise another date for the hearing of the charges against Mr Kok by taking him to the police station, processing the warrant and bailing him to another date. This was completely misunderstood by Mr Kok.
Mr Kok’s defence in the County Court was that his conduct in ‘blocking himself’ or ‘pulling back’ (thereby, in substance, resisting arrest by Officer Lomax) was justified by his fear of riding in the pod, given his serious health problems. He said that he acted as he did because of his genuine fear of being conveyed to the police station in the pod. Before me, Senior Counsel submitted that Mr Kok was acting in self-defence in that he was ‘self-defending himself’ from the injury that he would inevitably suffer in the pod.[3]
[3]It was not submitted that Mr Kok was trying to defend himself from the ‘shirt-fronting’ from Officer Lomax. Indeed, this was expressly denied by Senior Counsel.
Mr Kok submitted that as the County Court judge had accepted that Mr Kok feared of his safety, this then left the question as to whether his apprehension was reasonable for the purposes of self-defence. However, the County Court judge made no finding as to whether Mr Kok’s fear was reasonable or otherwise; all that his Honour said was that Mr Kok’s fear did not justify what he did. His Honour made no finding that Mr Kok’s fear was not reasonable, in circumstances where such a finding was necessary in order for his conviction to stand.
In response, Officer Lomax submitted that Mr Kok defended the charge of resisting arrest in a particular way, which was not by reliance on self-defence. Mr Kok’s evidence might have been cast in terms of self-defence and his defence could have been conducted on that basis, but it was not. Self-defence was not raised and, as a result, no arguments about self-defence were advanced by either party, particularly as to whether there were reasonable grounds for Mr Kok’s subjective belief. Had self-defence been raised as a defence, arguments could have been made about its availability in the circumstances. The same went for the common law defence of necessity or response to emergency. The only defence that was raised was by reference to Mastwyk, which concerned the process by which persons were to accompany police officers to a designated location for the purpose of breath testing. The County Court judge considered and rejected that defence. His Honour was not obliged to go ‘fossicking around’ amongst the evidence for other arguments that could be made in defence of Mr Kok’s conduct.
Senior Counsel for Mr Kok agreed that self-defence was not raised in terms, but submitted that the argument in the County Court was quite clearly based on the fact that Mr Kok feared going into the pod. This, so he submitted, raised self-defence and/or necessity as justifications for Mr Kok’s conduct.
The Reasons disclose that in the County Court, Mr Kok argued that his conduct in resisting arrest was justified on the basis of the holding in Mastwyk that a person is entitled to refuse to accompany a police officer for breath testing where the requirement is not reasonable, including as to the means of transportation proposed. I do not accept that Mr Kok’s evidence of his fear of being transported in the pod amounted to raising a defence of self-defence (or ‘necessity’) such that the County Court judge was required to expressly consider such a defence and give reasons for rejecting it. In Perkins v County Court of Victoria,[4] Buchanan JA said:
The extent of the duty to give reasons will depend upon the way in which the case has been conducted. A judge may properly limit himself to determining facts which are in issue and dealing with the points which have been taken and the submissions made in relation to them.
[4](2000) 2 VR 246 [65]. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270; citing Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386.
The County Court judge was required to deal with the defence that was raised by Mr Kok and he did.
In any event, in the Reasons, the County Court judge addressed the reasonableness of Mr Kok’s fear that he would be injured as a result of being placed in the pod, albeit not in the context of self-defence or necessity. His Honour made findings of fact leading inexorably to the conclusion that Mr Kok’s belief in the threat to his safety was not based upon reasonable grounds. His Honour found that while Officer Lomax said, at the outset, that Mr Kok had to go with him in the van, there was no discussion about where in the van Mr Kok would sit. His Honour rejected Mr Kok’s evidence that he told Officer Lomax that the van was an inappropriate form of transport.
It is plain from the Reasons that his Honour considered Mr Kok’s response to Officer Lomax to be premature. His Honour found, in effect, that Mr Kok jumped to a conclusion about how he would be transported to the police station and did not inform Officer Lomax of his medical circumstances. His Honour said:
I am satisfied that [Mr Kok] reached the conclusion that he was going in the pod of the van and on that basis he refused to accompany Officer Lomax.
Based on his findings of fact, it was open to the County Court judge to find that the physical acts of Mr Kok in ‘blocking’ or pulling back were not a justified response to the situation that presented itself. In the absence of any discussion about where he would or should be seated in the police van, Mr Kok’s fear of injury was not reasonable and his actions in resisting arrest were not justified.
As a final matter, I have considered whether the Reasons are adequate. In Ta v Thompson,[5] the Court of Appeal considered the adequacy of reasons given in a de novo hearing of a summary prosecution such as the present case. Justice Osborn (with whom Beach JA agreed), having observed that there was no further right of appeal and that there remained some uncertainty as to the extent of the judicial obligation to give reasons in the absence of a right of appeal,[6] accepted that the County Court judge’s obligation extended to identifying the grounds or basis for her decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law.[7]
[5][2013] VSCA 344.
[6]Ibid [31].
[7]Ibid [36].
In my view, the Reasons are sufficient to show whether or not his Honour made an error of law. Indeed, they show his Honour’s path of reasoning and explain why he made the factual findings that he did.
Conclusion
The error of law identified by the plaintiff has not been made out.
Furthermore, the Reasons are adequate.
The plaintiff’s application for review must be dismissed.
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