Leonard Arthur Richards v The Queen

[2008] NSWDC 321

CITATION:	Leonard Arthur RICHARDS v R [2008] NSWDC 321
HEARING DATE(S):	30 April 2008
EX TEMPORE JUDGMENT DATE:	30 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The appeal is allowed and the convictions quashed.
CATCHWORDS:	Criminal law - Conviction appeal - Hindering police officer in the execution of his duty - Assault - Resist
PARTIES:	Leonard Arthur Richards The Crown
FILE NUMBER(S):	DC 2007/22/3452
COUNSEL:	A Goldsworthy (Appellant)
SOLICITORS:	NSW DPP

JUDGMENT

1 HIS HONOUR: The appellant, Leonard Arthur Richards, was convicted by a magistrate of three offences. The first was an offence of hindering a police officer, Constable Lucas, in the execution of his duty. The second was assaulting Sergeant Novak, and the third was resisting Sergeant Novak.

2 These allegations all arose from a brawl which took place outside a hotel. It seems to be common ground that two of the appellant’s sons were involved in a fight either inside or outside the hotel. Indeed, they later pleaded guilty to affray. When police officers arrived they attempted to deal with a highly volatile situation. There was a person significantly injured inside the hotel, there were a number of offenders and people suspected of being offenders in the vicinity, there were a number of people clearly willing to act violently towards others and in particular police. It was a very difficult situation and one in which police are unfortunately thrust in to all too often. The attitude of one of the people involved can be conveniently summarised by the fact that he was wearing a t-shirt saying “Bring back the Biff” on it. Violent people fuelled with alcohol are highly dangerous and it is a very difficult job which police have to do in circumstances such as these.

3 One of the police to attend was Sergeant Novak. He observed other police officers trying to deal with people or actually trying to arrest people. He also saw the appellant. The appellant was the father of the people other police were trying to arrest. The appellant himself had had a bit to drink even though he was on painkillers for an injury which he had earlier suffered. The appellant was concerned about his sons' welfare. Sergeant Novak was concerned about the welfare of the more junior police officers and also concerned to ensure that nothing hindered them in the execution of their duty. Both the appellant and Sergeant Novak were motivated by honourable causes but they came into conflict in circumstances I will describe.

4 The appellant moved towards his sons and, according to Sergeant Novak, began to speak to the arresting officers. Sergeant Novak considered that the appellant was hindering the work of those officers, he moved towards the appellant and told him to leave. There is not much dispute that the appellant said to Sergeant Novak at one stage “They’re my sons.” He said at some stage also that they had done nothing wrong. Whether the appellant actually believed that or not was never made clear.

5 Cleary the sons had done something wrong and something significantly so, but in any case the appellant turned his attention to Sergeant Novak and Sergeant Novak turned his attention towards the appellant. What happened thereafter is the subject of dispute. The Crown case is based only on the evidence of Sergeant Novak. He said that he took hold of the appellant and pushed him away which caused the appellant to come back at him, pushing him, and in turn the appellant was arrested by Sergeant Novak. When told that he would be arrested he said “No way, you won’t be arresting me”, pulled out of his grasp and pushed him away again. After that Sergeant Novak said the appellant stood up, shaped up as if to fight, so he drew his baton and OC spray and used both of them against Mr Richards.

6 The appellant denied much of what I have just said. In particular he denied pushing Sergeant Novak and the case for the appellant can be summarised as saying that having used OC spray and a baton on the appellant, Sergeant Novak needed to justify what he had done and so he falsely made up a story about the appellant having pushed him on two occasions. Of course, it is not necessary for me to decide whether or not Sergeant Novak has made up a story, what I have to decide is whether the prosecution has proved the guilt of the appellant beyond reasonable doubt. The appellant’s case was supported by two witnesses, a Ms Davis and a Mr Feary.

7 It is not entirely right to say that Mr Feary has no motivation for telling a false story, that is, it is not entirely true to say that Mr Feary has no motivation to lie, because he himself was charged by Sergeant Novak for a number of offences arising out of his conduct that evening. At the time of the Local Court hearing, those matters had not been dealt with. Ms Davis, was not charged with anything, but the suggestion was made that she had a motive to lie because she is the wife of someone who works for Mr Feary. I will bear those circumstances in mind when I consider the weight to be given to their evidence.

8 The first matter is easily dealt with. The Crown concedes that there is no evidence that Constable Lucas was hindered in the execution of his duty. Indeed, there is no evidence that he was even aware of the presence of the appellant whilst he was attempting to arrest one of his sons. Of course, it is entirely possible for a person to be hindered without being aware that they are being hindered, but the Crown concedes that in this case there is no evidence that Constable Lucas was hindered.

9 The second and third matters are not as easily dealt with. There is evidence in the prosecution case to establish both matters, but that evidence only comes from Sergeant Novak. I must therefore examine his evidence with care, bearing in mind the burden of proof upon the Crown. In view of the evidence from Mr Feary and Ms Davis, I cannot be satisfied to the requisite extent.

10 The magistrate was quite critical of Mr Feary’s evidence and I have to have due regard to those findings. The magistrate referred to the way Mr Feary gave his evidence, causing some reaction at the bar table. I will assume that the magistrate is right. The magistrate also referred to the circumstance that Mr Feary gave evidence about an attack by Sergeant Novak on the appellant which no one else mentioned, intending to suggest that Mr Feary had exaggerated things considerably. But it cannot be overlooked that Mr Feary’s evidence was also supported by Ms Davis, there were no such criticisms of her by the magistrate. As I have mentioned, there may be a possible motive for her to lie from her connection with Mr Feary and the fact Mr Feary himself was facing charges, and so I have had to look carefully at her evidence, in particular her cross-examination, to see whether she was shaken at all. I could see no evidence to suggest that she was not doing her best to tell the truth.

11 The Crown concedes that if I were to consider it reasonably possible that Mr Feary and Ms Davis were telling the truth, then it could not make out its case in relation to the remaining two matters.

12 For reasons which I have given, I do not consider that the Crown has satisfied me beyond reasonable doubt that the appellant pushed Sergeant Novak or resisted being arrested by him. The evidence of Ms Davis and Mr Feary is quite to the contrary and I consider it reasonably possible that they have given an honest and accurate version of the events which occurred. The result is that, for all three matters, the appeal is allowed and the convictions - they were not actually convictions in some cases but I will say the convictions are quashed.

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