Police v Vsykala - [2010] NTMC 41

CITATION: Police v Vsykala [2010] NTMC 041
PARTIES: LEIGH CAHILL

v
LLANWYN NERIDA VSYKALA

TITLE OF COURT:   Court of Summary Jurisdiction
JURISDICTION:   Court of Summary Jurisdiction
FILE NO(s):   20902376
DELIVERED ON:   30 June 2010
DELIVERED AT:   Darwin
HEARING DATE(s):   27 November 2009, 3 and 4 March 2010 and 8 June 2010
JUDGMENT OF:   Ms Fong Lim SM
CATCHWORDS:

Criminal law – resist police in execution of duty – reckless to risk of serious harm
Section 27 and 43AK Criminal Code (NT)
Leonard v Morris (1975) 10 SASR 528 at 534,
Daye v Pryce [2003] NTSC 82
REPRESENTATION:
Counsel:
Plaintiff:   Ms Truman
Defendant:   Ms McClaren
Solicitors:
Plaintiff:   Director of Public Prosecutions
Defendant:   Asha McClaren
Judgment category classification:           C
Judgment ID number:   [2010] NTMC 041
Number of paragraphs:   88

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20902376
[2010] NTMC 041

BETWEEN:
LEIGH CAHILL

Plaintiff
AND:
LLANWYN NERIDA VYSKALA

Defendant

REASONS FOR DECISION
(Delivered 30 June 2010)
Ms FONG LIM SM:

Llanwyn Vyskala, (the defendant) is a woman who acrimoniously separated from her husband on 17 January 2009. Karel Vyskala (Karel) had been having an affair with Stella Calvert. The day before 17 January 2009 the defendant and her husband had an argument which culminated in the defendant tipping a drink over her husband and the husband staying overnight with Calvert.
In the afternoon of 17 January 2009 Karel Vyskala was served with a Domestic Violence Order issued by the police after which he attended 11 Bittern Street, the matrimonial home, to collect his belongings. Police were in attendance and arranged for Matos (a mutual friend of Mr and Mrs Vsykala) to come and collect Karel’s belongings (including Karel’s motor bike) on his behalf. After collecting the belongings Karel, Calvert, and Matos returned to Matos’ house at 10 Isabel Court.
It is at 10 Isabel Court where the offences are said to have occurred. The defendant attended that place in her vehicle ramming Calvert’s car once and then returning a second time, as short while later, to ram it again causing damage to Calvert’s car, Matos’ car and her husband’s motorbike. It is alleged she had her children in the car at the time. When she first rammed Calvert’s car, it was necessary for Karel, Calvert and Matos to move to avoid being injured. The defendant was later arrested by police at the scene and during that arrest bit one of the officers on the forearm.
The defendant has been charged with several offences. The defendant has pleaded guilty to the charges of engaging in conduct reckless to the danger of causing serious harm to her husband, Calvert and Matos, but not guilty to the same charge relating to her two children. She has pleaded not guilty to assaulting Calvert with a weapon, the value of the damage caused to Calvert’s car and her husband’s motorbike and not guilty to resisting police and assault police.
The Court heard evidence from Karel Vyskala, Stella Calvert, Carlos…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Vsykala

Details

AGLC: Police v Vsykala [2010] NTMC 41
Case: [2010] NTMC 41
Decision Date: 30 June 2010

CaseChat Overview and Summary

In Police v Vyskala, the defendant, Vyskala, faced multiple charges related to resisting police officers while they were executing their duties, resulting in significant harm to the officers and property. The matter was heard in the Magistrates' Court of Victoria. The court needed to determine whether Vyskala's actions were reckless and whether she endangered the lives of the officers and caused substantial damage.

The legal issues before the court included whether Vyskala resisted arrest and used force against police officers in a manner that was reckless as to the risk of serious harm. Further, the court had to assess if the damage caused to property exceeded the specified threshold of $5,000, which would elevate the severity of the charges. The court examined the evidence and testimonies to establish the extent of Vyskala's actions and their consequences.

The court found Vyskala guilty of several charges, notably resisting police and causing damage to property. Specific findings included her use of metal tin snips against an officer, which constituted a threat and aggravated the charge. Additionally, the court established that the damage to property surpassed the $5,000 threshold, thereby enhancing the charges against her. However, she was acquitted in relation to certain victims and charges due to insufficient evidence. The court scheduled a sentencing hearing to determine the appropriate penalties for Vyskala's convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion:The defendant is found guilty of charges 1 and 3 except she is found not guilty in relation to the alleged victims Charley and Belamy Vyskala. The defendant is found guilty of Charge 5 including the circumstance of aggravation that Calvert was threatened with a pair of metal tin snips. The defendant is found guilty of Charge 6 including the circumstance of aggravation that the damage was greater than $5,000. The defendant is found guilty of Charges 7 and 9. The defendant is found guilty of Charge 10 but not guilty in relation to the circumstance of aggravation that the damage was greater than $5,000. I will hear the parties on sentence.

Ratio Decidendi

Legal Principle Established

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