Lovell v Wedd
[2002] TASSC 79
•9 October 2002
[2002] TASSC 79
CITATION: Lovell v Wedd [2002] TASSC 79
PARTIES: LOVELL, Danial Jacob
v
WEDD, Nicola Lee
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 2/2002
DELIVERED ON: 9 October 2002
DELIVERED AT: Hobart
HEARING DATES: 9 September 2002
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law - Appeal and new trial and enquiry after conviction - Appeal and new trial - Particular grounds - Unreasonable or insupportable verdict - Where appeal dismissed - Whether upon a review of the whole of the evidence the magistrate ought to have entertained a reasonable doubt.
Kelly v O'Sullivan (1995) 4 Tas R 446, applied.
Aust Dig Criminal Law [969]
REPRESENTATION:
Counsel:
Applicant: C D Mackey
Respondent: L Lodge
Solicitors:
Applicant: Director of Legal Aid
Respondent: Director of Public Prosecutions
Judgment Number: [2002] TASSC 79
Number of Paragraphs: 38
Serial No 79/2002
File No LCA 2/2002
DANIAL JACOB LOVELL v NICOLA LEE WEDD
REASONS FOR JUDGMENT UNDERWOOD J
9 October 2002
The charges and the motion to review
The applicant was charged with the following offences:
(1)trespass, contrary to the Police Offences Act 1935 ("the Act"), s14B(1);
(2)using abusive language to a police officer contrary to the Act, s34B(1)(b);
(3)using abusive language to a police officer contrary to the Act, s34B(1)(b);
(4)assault a police officer contrary to the Act, s34B(1)(a)(i);
(5)assault a police officer contrary to the Act, s34B(1)(a)(i);
(6)assault a police officer contrary to the Act, s34B(1)(a)(i);
(7)incite assault on a police officer contrary to the Act, s34B(1)(c);
(8)resist a police officer contrary to the Act, s34B(1)(a)(i).
The applicant pleaded not guilty to all charges. There was a hearing before the learned Chief Magistrate sitting in a court of petty sessions. Counts 2 and 3 were dismissed upon a submission of no case to answer and count 1 was dismissed at the conclusion of the hearing. The applicant was convicted on counts 3, 4, 5, 6 and 8. Upon his convictions, the applicant was sentenced to imprisonment for four months. An order was made suspending the execution of the whole of that sentence upon condition the applicant be of good behaviour for a period of two years.
All the offences were alleged to have occurred at Huonville during the early hours of the morning of 20 May 2000. Also charged with the applicant were three of his brothers. It appears they were all at a party to which the police were called. The applicant seeks a review of his convictions and, if that is unsuccessful, a review of his sentence. The ground for the review of convictions is that they are unsafe or unsatisfactory, correctly expressed in the motion to review as "the learned magistrate should have entertained a reasonable doubt about the guilt of the applicant". See Kelly v O'Sullivan (1995) 4 Tas R 446. A review of the sentence is sought upon the ground that it was manifestly excessive.
The evidence
For the prosecution, evidence was given by police officers Budd and Harley and Ms Tracey Stanway, who was an occupant of the house to which the police were called. For the defence, evidence was given by the applicant and Ms Stanway's brother, Mr Scott Stanway. In addition, evidence was given by the applicant's brother, Mr Luke Lovell, who was one of the other co-defendants. It was agreed that the cases against all defendants should be heard together. Presumably that agreement meant that the evidence given by the co-defendant Luke Lovell was evidence in the case against the applicant. There were two conflicting accounts of the relevant events. The issues had to be resolved according to the credit of the witnesses and the application of the onus and standard of proof.
On the evening of 19 May 2000, a group of young people gathered at the Huonville RSL Club to celebrate an 18th birthday. The four non-police witnesses were part of that group. When the RSL Club closed, it was decided to continue the party at a house in which Ms Stanway lived.
Shortly after midnight, Constables Budd and Harley, who were on patrol in a police car, saw what the latter described as "a large group of people making their way along Main Road in Huonville". About 1am, the police officers received a complaint about a noisy party in progress at 107 Main Road, Huonville. They went to that address. They were met outside by Ms Stanway. It appeared that Ms Stanway lived at 107 Main Road with three other young women and the boyfriends of two of them. Ms Stanway said in her evidence that she asked the police officers "if they could help [her] get a few people away". She said that the applicant and his brothers were invited to the house. There was a dispute over whether she told the police that the applicant and his brothers were welcome to stay at the house, but the learned magistrate found that regardless of what she may have said to police, Ms Stanway was content for them to stay there. Accordingly, he dismissed the trespass charge against the applicant.
In his evidence-in-chief, Constable Harley said:
"We went to the premises with the complainant, and in the complainant's presence we asked that the people leave her house, and asked that the complainant [to] direct the people to leave whilst we were there. She asked the people to leave. There were approximately thirty or forty people at the house, both in and outside the premises. The majority of them were affected by alcohol. The general group refused to leave. It was at that stage that I observed Constable Budd surrounded by approximately eight males, who were pushing and crowding around Constable Budd. I observed one male come from behind the group and jump over and strike Constable Budd to the side of his face. That person was the defendant, Danial Lovell, present in Court.
That is the evidence-in-chief from this witness with respect to count 4.
"He ran back inside the house. I went to assist Constable Budd. It was at that stage that I saw the defendant, Luke Lovell and Darren Lovell, grabbing hold of Constable Budd, along with a number of other males. He was forced into a fence. It was at that stage that the group overpowered Constable Budd. He collapsed with the fence. At that stage, that's when he deployed his OC spray. I was so affected by the spray, because I was in the general area. I went to assist Constable Budd. He in turn - well, at that stage, he ran after one of the other defendants who went to the rear of the garden. That defendant was Luke Lovell. I followed after Constable Budd, and assisted him with trying to restrain the defendant, Luke Lovell.
Whilst I was assisting Constable Budd, I observed the defendant, Danial Lovell, yelling out and running towards me and Constable Budd. I took up a defensive position with my baton. The defendant, Danial Lovell, rushed towards me with his fists raised. I defended myself, striking the defendant with a blow to his lower leg. It was at that stage that the defendant took hold of my baton, and I received a blow to the top of my head. The blow somewhat stunned me.
…I still had the baton in my hand, but the defendant had also grabbed hold of the baton. He then ran back into the house."
This is the evidence-in-chief from Constable Harley with respect to count 5:
"Constable Budd followed the defendant into the house, and I followed Constable Budd. Once inside the house Constable Budd had taken hold of the defendant, Danial Lovell, and was struggling with him on the floor inside the house.
I assisted Constable Budd in trying to restrain the defendant. At that stage he was kicking and punching and striking out. Constable Budd managed to get one handcuff on the defendant - a handcuff on one hand. I was unable to get the other handcuff on. At that stage I was also protecting myself from other people - other persons who were trying to assist the defendant. Constable Budd deployed the last of his OC spray on the defendant to subdue him, and then he was handcuffed."
This is the evidence-in-chief from Constable Harley on count 8:
"It was at this stage that I took the defendant Danial Lovell to the bathroom of the house to assist him with after spray care. It was at that stage that the defendant's girlfriend assisted the defendant being sprayed with the water, whilst in the bathroom."
Constable Harley gave no evidence to support count 3, using abusive language to a police officer, nor count 6, assaulting a police officer by spitting and attempting to hit the officer's face.
Constable Budd gave evidence-in-chief to substantially the same effect as that given by Constable Harley. During the course of his cross-examination about the circumstances which gave rise to the charge of resisting arrest, Constable Budd said that whilst trying to get the handcuffs onto the applicant, "he turned his head around and spat at me". Constable Budd added that at that stage the applicant said "I'll have your badge for this you filthy pig". Thus, there was evidence of using abusive language to a police officer (count 3) and assaulting a police officer by spitting and attempting to hit the officer's face (count 6).
With respect to the evidence given by the two police officers, the learned magistrate said:
"Before turning my attention to the offences that involve violence as well as to the remaining abusive language charge, it is convenient to make some general observations as to the matter of credibility, particularly at this stage, of each of the two police officers, Constable Harley and Constable Budd. I was impressed by their evidence. The demeanour of each impressed me. Each gave accounts of these events that were internally and externally consistent. There was a high level of co-operation between them. And although it is true that one can find examples of variances between them, such should properly be attributed to their involvement in the doubtless, confusing and violent events that they described. Rather than fuelling doubts as to their reliability, that matter in fact tends to support a view that the thrust of their evidence should be viewed as reliable.
Further, I observe, that although each was cross examined at considerable length by learned defence counsel, neither was shaken in his evidence at any stage.
Considering these factors, and of course, viewing their evidence in the context of the totality of the evidence as a whole, I, as a broad proposition, regard both constables as reliable historians of these events."
On behalf of the applicant, Mr Mackie submitted that having regard to the evidence given by the other witnesses at the hearing, including Ms Tracey Stanway who was called by the prosecution, that view of the credit of the evidence given by the police officers was not one that was reasonably open to the learned magistrate. However, I did not understand Mr Mackie to submit that the accounts given by the two police officers were shaken by cross-examination on behalf of either the applicant or his co-defendants.
In her evidence-in-chief, Ms Stanway said that she was drunk but "knew what was going on". In his reasons for judgment, the learned magistrate referred to this, obviously because it adversely affected his view of the reliability of the account she gave.
Ms Stanway said that she told the police which people she wanted to leave the house. She said that there was a large crowd of people who confronted the two police officers and they were all "yelling" and "arguing". Ms Stanway said that at that stage she was "positive" that the applicant was in a bedroom with Chantelle, another resident at the house. To Mr Mackie, who appeared for the applicant in the court of petty sessions as well as on this motion to review, Ms Stanway said that she did not see the applicant strike any police officer that night. She was then asked if she witnessed an altercation between the police and the applicant. She said:
"Well, by the time I'd got back into the lounge room, they had - they put him up against the wall, then next minute he was thrown on the ground, one with his knee in his back and he held his head up and opened his eyes and the other one sprayed capsicum spray.
When you say, they put him up against the wall, what do you mean by that? … Very hardly shoved him."
She said that two police officers were involved. One flung the applicant against the loungeroom or hallway wall and one kneed him in the back when the applicant fell or was thrown to the floor. Ms Stanway said that the one who kneed him in the back pulled up his head and prised his eyes open and the other one then sprayed his eyes with the capsicum spray.
The applicant gave evidence that he drank between eight and twelve cans of Jim Beam Coke and Bourbon at the RSL Club. He said that on arrival at 107 Main Road, Huonville, he went inside to see his girlfriend, Chantelle, and shortly after that went outside to talk to his friends. He said that the police were asking everybody, including him, to leave. He said that he told them he had permission to stay "but they just didn't quite listen".
The applicant said that he then went inside the house again and after a short while returned outside because there was a lot of noise and he wanted to see what was going on. He said that he saw the police pushing people and telling them to leave. He said that one of the officers told him "you just fuck off". He said that this officer, whom he was "pretty sure" was Constable Budd, was pushing him back and telling him to leave when he (the applicant) "reacted badly and struck him in the cheek". He claimed that he did this because he felt "threatened".
The applicant said that after he hit Constable Budd, he turned and went back inside the house. He said about five or ten minutes later, someone came in and told him that the police were "bashing [his] younger brother Luke under the tree". The applicant said he went outside and saw that the police had his brother on the ground and one of them was hitting him with a baton. He continued:
"And then, he was yelling and screaming, and I ran down towards him, and I ran into a cloud of, it must have been capsicum spray, and it sort of took me breath, and I shoved one of them off Luke, and then I just turned around and ran because I couldn't breath properly."
However, a few questions later in his evidence-in-chief, the applicant was asked, in leading form, if he had pushed one of the officers who was attacking his brother. He agreed that he had done that and said he was pretty sure that he pushed Constable Budd. He said he did this because "it looked to me as if he was using unreasonable force". With respect to what happened next, the applicant said:
"… yeah, I got back to the house, I went to get in the front door - I' m pretty sure I got in and they were trying to push the door open, but I sort of put me foot there because I was worried - I was a bit frightened of them at this stage, so I tried to sort of shut them out and talk to them, but then they shoved it open, and grabbed hold of - one each side - and started hitting me up the leg and in the lower back, and right at the front door.
…
As soon as they got the door open, grabbed hold of me, one each side, by the shoulder, I think.
…
After doing that [crawl out of harm's way] I tried to crawl back inside and as I was doing that he went to spray me with the capsicum spray, so put me - because I’ve seen what it does to people - I put me hand over me eyes, and said, 'You don't need to get me with that shit - you don’t need to get me with that shit,' and after that me arms got prised behind my back and both my arms just fully restrained and I was plonked on me stomach -
…And then I felt my - something drive into the back of my neck - lower neck - and my head was pulled up and back, and me eyes prised open and he said, 'I've got you now, you little bastard,' and sprayed capsicum spray in me eyes."
The applicant denied spitting at any police officer but said that after he was sprayed in the eyes, his mouth was burning and the saliva was building up in his mouth and he "was just spitting it out everywhere".
The applicant said he was "put in the shower" to wash off the spray and "after about half an hour in the shower Constable Harley came into the bathroom".
In his cross-examination, the applicant said that he hit Constable Budd with his fist because he was "scared of getting split up from [his] girlfriend and all [his] mates". He was unable to explain why he did not simply return to his girlfriend who was inside the house.
When cross-examined about the incident that followed someone coming into the house to tell him that the police were bashing his brother under the tree, the applicant said:
"As I rushed in I shoved Mr Budd off the top of him, and it was with - with a fair bit of force, and then I just - as soon as I run into it, I got a big cloud of capsicum spray, and like it took me breath away instantly. And then as soon as I shoved him, like I turned around to run off." [Emphasis added.]
When cross-examined about the events inside the house which led to the applicant being handcuffed, he said that after the capsicum had been sprayed into his eyes:
"And after that I was just like struggling around and burning, burning up in the face. Like I was spitting saliva out because it was melt - just exploded in your mouth and taste buds. And after doing that I said - like I said to them, that I've - 'this is a filthy act and I'll have your badge for this' or something; 'you filthy pigs' or something like that. I like abused them after that."
The applicant denied that one of the police officers took him into the bathroom to wash the spray out of his eyes.
The applicant said he was taken by a friend to the house next door to use the shower there. It appears that meantime, other police officers had arrived on the scene because an officer, not either Constable Budd or Constable Harley, took the handcuffs off the applicant. As events turned out, he was not taken into custody that night, but received a summons in due course.
With respect to the credit of the applicant, the learned magistrate said:
"It is convenient at this stage to make some observations as to the credibility of that defendant. He testified that he had immediately prior to the disorder at number 107 Main Road, Huonville, been celebrating one Kelly Paul's nineteenth birthday at the RSL Club at Huonville, over an approximate three hour period, during which period he had consumed, on his own statement, a certain amount of liquor, being between eight and twelve cans of Jim Beam and Coke. Upon the basis of his testimony as to that, I do not accept his evidence given under cross examination, that he was, 'intoxicated lightly.' I find that he was significantly affected by that liquor, and upon being told that his brother, Luke, was being bashed by the police, he proceeded outside and confronted Constable Harley and assaulted him. At that stage, Luke Lovell was on the ground, and in the course of being subdued by the police officers in a proper way. I reject the proposition that whilst that defendant was being subdued, that he was being struck with a police baton, gratuitously, or at all. That event did not occur. Doubtless, angered by the arrest of his brother, as I found by proper means, however, and no doubt, significantly affected by the liquor, and no doubt, his emotions were significantly heightened by the general major disorder that was taking place and the tensions associated with it, he ran at Constable Harley, grabbed the Constable's baton, which the Constable, as I said, was still holding, and struck him with it."
No fault can be found with the above reasoning.
The evidence given by the co-defendant Mr Luke Lovell neither implicated nor exculpated the applicant. However, that evidence did confirm that there was a group of people "swarming" around a police officer who ended up on the ground. He said that capsicum spray was then used. Mr Luke Lovell denied that he assaulted Constable Budd. He said that he ran off as soon as the capsicum spray was used, but fell over. He said that he was then seized upon by the police officers and hit with a baton. He said that this incident ended "when [his] brother came out and pushed one of them off and they just left [him]".
Were the convictions unsafe or unsatisfactory?
For the applicant, Mr Mackie submitted that because there was a direct conflict between the account given by the police officers and that given by the applicant, Ms Stanway and her brother, the learned magistrate ought to have entertained a reasonable doubt about the applicant's guilt. He contended that this submission was strengthened by the fact that:
· Ms Stanway was called to give evidence by the prosecution; and
· the learned magistrate accepted her evidence concerning whether she wanted the applicant to leave the house.
Of course, it is not the number of witnesses that count, it is the quality of the evidence given by the witnesses. Whether the witnesses were called by the prosecution or by the defence was, quite correctly, immaterial to the view that the learned magistrate took of the credit of the witnesses. According to his reasons for judgment, the learned magistrate's view of the credit of Ms Stanway, her brother and the applicant, was influenced by the fact that upon their own admissions, they were all drunk. He also had an opportunity to observe their demeanour in the witness box. In his detailed and careful reasons for judgment, the learned magistrate gave the following additional reasons for rejecting the account given by the applicant, Ms Stanway and her brother:
"The incident in the house involving the arrest of Danial Lovell is the subject of a number of charges. Much attention has been directed to the use of the OC spray upon the defendant in the house. I accept the evidence of the Constables, and I am satisfied of that defendant's guilt in respect of those charges. He did conduct himself, as the police allege. However, it is appropriate that I deal with the matter in some detail.
I find that the OC spray was used to assist the Constable to subdue a violently resisting offender, in order that he could be completely handcuffed. I reject the evidence that the Constables, in effect, tortured the defendant, Danial Lovell, by deliberately omitting OC spray in close proximity to his eyes after he had been handcuffed to both wrists, and after prying his eyes open in order to increase it's effectiveness. Both Constables vehemently denied that that occurred.
Further, in the violent circumstances and very serious disorder of the entire situation, it would be easy for any observer to misperceive the sequence of events. In addition, in view of the relationship of the non police witnesses, there is considerable risk that their evidence being tainted by bias and by collaboration.
Further, I would find it curious that the police officers should have been so solicitous in attending the OC spray after care procedure, as I find they did, if but moments before, they had gratuitously used it against a handcuffed and helpless man."
Mr Mackie submitted that there was no basis to find a risk of bias and collaboration. I reject that submission. Ms Stanway and Mr Stanway were siblings and friends of the applicant. The applicant's girlfriend shared a house with Ms Stanway. Those facts plainly give rise to a risk of the witnesses' evidence being tainted by bias and collaboration.
With respect to the submission that the learned magistrate accepted part of Ms Stanway's evidence and therefore it was unreasonable not to accept it all, two things can be said:
(1)acceptance of part of a witness' evidence does not necessarily entail acceptance of the whole of that witness' evidence;
(2)the learned magistrate did not necessarily accept any part of Ms Stanway's evidence other than the fact that she did not want the applicant to leave the premises that night, for he said:
"It is clear, however, from the evidence of Ms Stanway, that the defendants, Danial Lovell and Luke Lovell, had her permission to remain overnight at her residence. Whatever it was she told the police, the reality was, that at all material times, she was content for them to stay. And therefore, notwithstanding that they declined to leave the residence, the underlying reality was that they were not trespassing." [Emphasis added]
In the course of his submissions, Mr Mackie drew attention to the fact that the applicant was not taken into custody that night and submitted that by reason of this fact, and the other submissions that he made, the learned magistrate ought not to have been satisfied of guilt beyond reasonable doubt. This is a perfectly proper submission to have put to the learned magistrate in the closing address, but the bare fact that the applicant was not taken into custody on the night in question carries little weight on this appellate review.
The motion to review convictions can only stand if it is established that the verdicts are "unsafe or unsatisfactory in the sense that [they are] unreasonable or cannot be supported having regard to the evidence to the extent that, although there might have been evidence upon which the finding[s] of guilt could have been based, it would be dangerous in all the circumstances to allow the finding[s] to stand …" per Crawford J in Kelly v O'Sullivan (supra) at 460.
The motion to review convictions must fail. It was very plainly open to the learned magistrate, for the reasons he articulated so clearly, to be satisfied beyond reasonable doubt that the applicant was guilty of those charges in respect of which convictions were imposed.
Sentence
At the time of the commission of the offences the applicant was one month short of his 20th birthday. The events of 20 May 2000 were not the first time that he had engaged in unruly behaviour. He was convicted of injuring property in 1997, of indecent language, abusive language and resisting a police officer in 1998 and of engaging in disorderly conduct in 1999. In addition, he has a conviction for driving a motor vehicle with a blood alcohol concentration in excess of .05 per cent. With respect to all those offences, fines were imposed.
The two assaults on police officers were particularly serious. At the time of the assaults, the officers were acting in the execution of their duty. They found themselves in a frightening and vulnerable position. They were confronted by a noisy, drunken and abusive crowd of young people. One of the officers was forced backwards over a fence by the menacing crowd and compelled to use his capsicum spray to protect himself. The applicant was violent and aggressive. It is true, as Mr Mackie submitted, the attacks were spontaneous and not prolonged, but the circumstances surrounding the commission of the offences were such that the learned magistrate was obliged to impose a sentence that would, amongst other things, uphold the authority of the police when acting in the execution of their duty and hopefully, deter, not only the applicant from repetition, but also those who might be minded to act as he did. In all the circumstances, it cannot be said that a short suspended sentence of imprisonment reflected some undefined error in the exercise of the sentencing discretion.
The motion to review is dismissed.
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