Liley v Lowe

[1987] TASSC 76

Serial No B6/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Liley v Lowe [1987] TASSC 76; B6/1987

PARTIES:  LILEY
  v
  LOWE

FILE NO/S:  LCA 114/1986
DELIVERED ON:  20 March 1987
JUDGMENT OF:  Cox J

Judgment Number:  B5/1985
Number of paragraphs:  9

Serial No B6/1987
List "B"
File No LCA 114/1986

LILEY v LOWE

REASONS FOR JUDGMENT   COX J

20 March 1987

1. The applicant was convicted of one charge of using indecent language in a public place, contrary to s.12(1)(c) of the Police Offences Act 1935, and one charge of wilfully obstructing a police officer in the execution of his duty, contrary to s.34B(1)(a)(i) of that Act.

1. The words used in the complaint were “fuck off” and “leave him alone you fucking cunts”. There was evidence from two police officers who were called to assist two other police officers at a disturbance in a street in North Hobart that these words were repeatedly said by the applicant to those officers while they were attempting to arrest and remove a struggling third person who was lying on the ground, part of his body being within premises known as the House of the Carpenter and the remainder being on the footpath outside the door of that establishment. There was evidence that it was about 1.15 o’clock on a Saturday morning, that there was a large crowd or bystanders and that the language used would have been easily audible to them. The applicant denied using those precise words, but agreed that he had used the expression “fuck off out of it”.

1. The learned magistrate overruled a submission of no case to answer on the charge of using indecent language at which a number of the relevant authorities were cited (Bills v. Brown, Chambers J., 5474; Romeyko v. Samuels (1972) 2 S.A.S.R. 529; and Police v. Drumond [1973] 2 N.Z.L.R. 263), and made the following finding at the conclusion of the defence case during which the applicant had given evidence:–

“It’s of some interest to note that the basic word alleged by the police as having been used by the defendant has been conceded in its use by the defendant himself, albeit in a different manner. It certainly does appear to have become the word of the moment of this particular incident. It would appear, too, that the situation is that it was used a lot. Frankly, I don’t see a lot, a lot turns on whether it was used in the precise terms of Constable Cretu, although I believe it probably was, or in the terms claimed by the defendant himself, who says he swore at the police and told them to ‘fuck off out of it’. Well, there’s little different between telling a person to ‘fuck off out of it‘ or, as the police said, ‘fuck off’. The defendant apparently did not concede the use of the other words, but I think that’s neither here nor there. There are many authorities around, as has already been mentioned during earlier submissions, which show that the use of that word is not necessarily indecent in every given context. I think what we had here was an incident that was a little heated and an incident where the word was hardly being used, on either version, as a term of endearment or by way of an offer when used as a noun; it was being used more in its indecent form to the extent that I believe it became indecent language in a public place. I accept it was a public place. I accept that there were some people around, basically within earshot.”

Whichever version the learned magistrate had found to be used, the words themselves, in the context in which they came to be used, were clearly capable in law of amounting to indecentlanguage within the meaning of the section. The learned magistrate‘s attention had been drawn to relevant authorities and he appreciated that it was a question of fact for him to determine, in all the circumstances of the case as he found them, whether or not the words used were indecent. He made a finding that they were. He is not shown to have in any way misdirected himself and that finding should not be disturbed.

1. The applicant also complains of his conviction for obstructing the police. There was clear evidence that the police officer in question was endeavouring to assist in the arrest of the struggling man (Williams) on the ground and that the officer had been told by the officers first on the scene (Constable Robinson and Sergeant McMaster), in the presence of the applicant, that they were attempting to arrest Williams. There was evidence that the applicant repeatedly pulled Constable Robinson by the arm and the collar of his tunic away from Williams. The learned magistrate found that the applicant was told to desist by another constable (Cretu), but persisted in pulling Constable Robinson’s arm and that he thereby in fact became an obstruction to the police. The evidence clearly supported such a finding for, although the police were able to effect the arrest and place Williams in the police car, the applicant‘s conduct clearly enough would have made it “more difficult for the police to carry out their duty”. (See Hinchcliffe v. Sheldon [1955] 1 W.L.R. 1207 and Rice v. Connolly [1966] 2 Q.B. 414).

1. The applicant gave evidence that before the police arrived Williams was struggling on the ground giving the appearance of having a fit. When the police arrived he claimed that they began to hit and kick Williams, that he remonstrated telling them Williams was an invalid but:–

“.... they wouldn’t listen to me, so I got one of the police officers by the shoulder and just tried to pull him around to talk to him about, you know, that Roger takes fits and, you know, that he‘d been on the drink and he’d had his tablets or whatever he had to have earlier on that night, so the grog mixed with the tablets probably made it, you know, happen. And when I was trying to explain to him he just hit me a couple of times in the stomach and that, and then I was arrested by another officer.”

Later he said:–

“All I did was try and pull one of the officers back by just grabbing him on the shoulder and pulling him around to try and explain what was wrong with the person lying on the floor.”

1. The learned magistrate made his findings on this issue in these terms:–

   “... .. the issue then is as to whether the defendant was just trying to help the person or whether he in fact obstructed the police in the execution of their duty at the time. His version is that it was purely out of concern for his friend, who was the person Williams lying on the ground, that he attempted to acquaint the police officers with the situation in the hope that they would treat him gently. What the prosecution witnesses say is that he was pulling on one of the police officers who was in turn attempting to take into custody the person who was lying on the footpath, thereby obstructing it. It’s perhaps unfortunate that certain allegations have been made by the defendant which were not capable of being tested by the prosecution witnesses, but I think in the long run they perhaps add little to the overall situation. I think the one matter that stands out was the evidence of Constable Cretu who said that he asked the defendant to desist from his actions. Now, of course Constable Cretu at that stage was independent of what was going on with Mr. Williams who was lying on the footpath inasmuch as he’d come with First Class Warrington as part of a back–up team and he was not concerned with the actual arrest of Williams but merely in a position to observe what was happening, and it would appear that what he saw of the defendant was a pulling of Constable Robinson, who was the – attempting to be the arresting officer. On the evidence overall I am satisfied that the defendant had in fact been told to desist, but he decided not to, as a result of which a further attempt to pull at Constable Robinson and therefore detract from his ability to act in the execution of his duty in fact became an obstruction to the police.”

2. The applicant relies heavily on the case of Willmott v. Atack [1976] 3 W.L.R. 753. There the defendant had intervened in the arrest of a third person and had touched the police officers in circumstances which the justices did not regard as amounting to assaults. The intention of the defendant, as found by the justices, was that when he intervened he did so in the belief that he could resolve the situation better than the police and he accordingly deliberately and intentionally intruded himself on two occasions in the course of which he in fact obstructed the police. Croom–Johnson J., with whose judgment Lord Widgery C.J. and May J. concurred, stated the question thus at p. 758:–.

“. . . . .  is it necessary for there to have been an intention for the acts of the defendant to have been to make it more difficult for the police to carry out their duties rather than, as appears to have been found by the Crown Court here, an intention on his part to make it more easy for the police to carry out their duties? If there was no hostility so far as the intervention by the defendant was concerned (and indeed there appears to be a clear finding of fact as to what the intention of the defendant was on each of the occasions when he did interfere), what is the answer to the question should there be an intention not merely to do the act but also that the act should be one of hindering the police rather than helping them.”

He answered it in this way at p.759:–

“When one looks at the whole context of section 51, dealing as it does with assaults upon constables in subsection (1) and concluding in subsection (3) with resistance and wilful obstruction in the execution of the duty, I am of the view that the interpretation of this subsection for which the defendant contends is the right one. It fits the words ‘wilfully obstructs’ in the context of the subsection, and in my view there must be something in the nature of a criminal intent of the kind which means that it is done with the idea of some form of hostility to the police with the intention of seeing that what is done is to obstruct, and that it is not enough merely to show that he intended to do what he did and that it did in fact have the result of the police being obstructed.”

1. In the present case there was no question of the applicant endeavouring to help the police. What he did, on the magistrate‘s finding, was to disregard a direction or request from a police officer not to pull at his arm or shoulder and intentionally to interfere with that officer in the execution of his duty. He may have been motivated by concern for Williams, as the learned magistrate later acknowledged when passing sentence, but in my view, on the learned magistrate’s findings, the obstruction was clearly a wilful obstruction, being an “attempt to pull at Constable Robinson and therefore detract from his ability to act in execution of his duty”.

1. In my view the applicant was rightly convicted on both charges and the appeal should be dismissed.