R v Farrawell

[1995] QCA 55

IN THE COURT OF APPEAL [1995] QCA 055

SUPREME COURT OF QUEENSLAND

C.A. No. 541 of 1994

Brisbane

[R. v. Farrawell]

THE QUEEN
v.
TIMOTHY DOUGLAS FARRAWELL

Appellant

Fitzgerald P.
Davies J.A.

White J.

Judgment delivered 08/03/1995

Reasons for judgment of Davies J.A. and White J. Concurring separate reasons of Fitzgerald P.

A	PPEAL DISMISSED.
CATCHWORDS:	CRIMINAL LAW - assault of police officers whilst acting in execution of their duty; whether trial judge erred in not allowing issue of provocation to go to jury; whether wrongful act or insult.
Counsel:	Mr. A. Rafter for the appellant Mr. M. Byrne Q.C. for the Crown
Solicitors:	Legal Aid Office for the appellant

Queensland Director of Public Prosecutions for the

Crown

Hearing Date: 27 February 1995
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 08/03/1995

The circumstances giving rise to this appeal are set out in the joint judgment of Davies J.A. and White J.

The argument that the lawfulness of the appellant's arrest should have been left to the jury is plainly without merit. There was no question but that, when he struck and spat on the police officers, the appellant was in lawful custody, and it is in that context that the issue of provocation which he seeks to raise must be considered.

The police had used force to remove him from the police car, move him into the police station, and move him within the station to a cell. It is common ground that the appellant was struggling and abusive. The appellant, on his evidence, ended up on a mattress on the floor of the cell.

His convictions stem from his behaviour after that time, commencing as Constable Hurst went to follow Sergeant Ridge from the cell. It was the police conduct up to that point now sought to be relied on as provocation. That issue could only arise if the police had used excessive force, but the jury was told that, unless satisfied beyond reasonable doubt that the police had not used excessive force, they should acquit the appellant. Obviously, as counsel at the trial accepted, if the jury was so satisfied, provocation could not arise.

I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - DAVIES J.A. AND WHITE J.
Judgment delivered the 8th day of March 1995

The appellant was convicted in the District Court at Bundaberg on 24 November 1994 on four counts, one of assaulting Phillip Hurst a police officer acting in the execution of his duty and three of assaulting Anthony Ridge a police officer acting in the execution of his duty. He was acquitted of a further count of assaulting Ridge. He appeals against each of those convictions.

The principal ground of appeal is that the learned trial Judge erred in failing to allow the issue of provocation to go to the jury. There was a further ground, that the learned trial Judge erred in failing to allow the issue of the lawfulness of the appellant's arrest to go to the jury, but this was not seriously argued before us and has no substance. Nevertheless we will say something further about it below.

At approximately 2.40 a.m. on 16 December 1993 Constables Hurst and Day saw the appellant lying in Alexandra Park, Bundaberg. He appeared to be asleep. They woke him and told him that he could not sleep there. He refused to get up and Hurst arrested him for drunkenness. They took him to the Bundaberg Police Station in the police car. When they arrived there the appellant refused to get out. Hurst then took him by his arms and removed him from the car. According to the police officers the appellant began to struggle and Sergeant Ridge then came to Hurst's assistance by taking hold of the appellant's left hand and placing it up behind his back. The appellant's version was, however different. He said that as Hurst was pulling him out of the car he:

"gave a shrug to let go type thing ... and then from out of nowhere Sergeant Ridge came screaming across and rips me arm up behind my back and just escorts me ... into the charge room".

He said he felt pain from this. This was relied on by the appellant as provocation for the assaults for which the appellant was convicted, which occurred some time later.

It is common ground that the appellant, whilst being questioned at the charge counter, was abusive and used obscene language. According to the police officers the appellant continued to be abusive, particularly towards Sergeant Ridge, and refused to go to his cell. A struggle ensued between him and the police officers who were trying to force him into his cell during the course of which, it was said, the appellant kicked Ridge in the side of the abdomen. This was the first count of assaulting Ridge, on which the appellant was acquitted.
The appellant described a somewhat similar incident, though
apparently occurring inside the cell. This involved his being
punched in the right side of the face causing him to fall down.
When he got up he said to Ridge: "Have a fucking go". Hurst
then grabbed him in a choker hold. He then grabbed Ridge's
shirt and Ridge punched him in the face. He said that he then
lashed out pretty violently but ended up on a mattress on the
floor. Then followed, also immediately, the assault on Hurst.
The circumstances of this do not appear to be disputed. As Hurst went to leave the cell the appellant, in his own words, "went for him". This involved throwing several punches one of which connected with the left side of Hurst's head in the area of the cheekbone. When asked why he did that the appellant said:
"... just anger, adrenalin, like that choker hold he had me

I nearly passed out ... and they were provoking me".

Thus the conduct of Sergeant Ridge and Constable Hurst, which was plainly in order to restrain the appellant, place him in his cell and then leave, was also submitted to be provocation for the assault which we have just described and those which followed.

Sergeant Ridge, who had re-entered the cell to assist Constable Hurst, then restrained the appellant. When Sergeant Ridge then attempted to leave the cell the appellant, in his own words, "took after him because he was the main offender". By that he meant that Ridge was the one "who half pulled my arm up behind my back", referring to the incident immediately after the appellant had been pulled from the police car.

The conduct which constituted each of the three assaults on Ridge of which the appellant was convicted immediately followed that which we have described and were recorded on a video camera. The first consisted of spitting in Ridge's face. This occurred as Ridge was attempting to close the cell door. The appellant pulled it open and spat at him. His saliva landed on Ridge's face in the area of his mouth. The second consisted of several punches to Ridge's face also whilst he was trying to close the cell door. One was to his mouth, the other to the upper part of his face. The third assault occurred after Ridge had managed to close the cell door. As he was pushing the barrel lock home the appellant spat at him through the open inspection port in the door. His saliva landed on the upper part of Ridge's body.

When asked why he behaved like that the appellant replied:

"Because I was, you know, intoxicated, you know, I had been through - I was just mainly at Sergeant Ridge, I had no hostility against Day or Hurst, it was just Ridge from the first incident from grabbing me out of the car that is when it all started ... ".

Initially the learned trial Judge ruled that provocation was open in relation to all charges but later reconsidered that question. He said that there must be a wrongful act or insult and if the police officers were, at the relevant time, not exceeding what they were entitled to do in the way of applying force to the appellant that would not be a wrongful act or insult. He referred to s.268(3) of the Criminal Code which provides:

"A lawful act is not provocation to any person for an

assault."

His Honour said that:
"If the police officers were acting lawfully, provocation

simply can't arise."

Defence counsel accepted that provocation was not logically open.

The learned trial Judge then directed the jury that:

"A person who has been lawfully arrested for an offence by a police officer may be detained following the arrest by the use of force which the police officer, and anybody assisting him, believes to be necessary to keep the arrested person in detention, provided that those detaining the person form that belief on reasonable grounds".

His Honour then said:

"If a police officer is applying lawful force to a person who has been detained, that police officer is acting in the execution of his or her duty. If the police officer uses more force than is justified by law, that police officer will not be acting in the exercise of his or her duty."

The directions which we have set out, are in our view, correct. However his Honour later gave a further re-direction that:

"Because of the proximity in time between the actions of the accused and the actions of the police officers, if you find that you are not satisfied beyond a reasonable doubt that the Crown has proved that the police officers did not use excessive force, that will be the end of the matter and you should find the accused not guilty".

That direction was, in our view, incorrect. It was not the end of the matter if the Crown failed to prove that the police officers did not use excessive force. In that event two relevant possibilities would have arisen. One is that the force used constituted provocation for one or more of the assaults in which case the appellant would have been entitled to a verdict of not guilty of that or those assaults. The other is that it did not in which case, subject to any possible defence of self- defence, the force used by the police was irrelevant to guilt. The direction was therefore too favourable to the accused in that it precluded consideration of either of these possibilities. It directed the jury to acquit unless they were satisfied beyond reasonable doubt that the Crown had proved that the police officers did not use excessive force. Their verdict indicated that they were so satisfied.

This ground of appeal therefore fails.
Counsel for the appellant found it difficult to explain the

second ground of appeal which, as we have said, was that the learned trial Judge erred in failing to allow the issue of the lawfulness of the arrest to go before the jury. His Honour directed the jury that there was no evidence that the arrest was carried out with excessive force and consequently that they should conclude that the arrest was lawful. That appears plainly correct and indeed no redirection was sought on that question. No other basis was suggested for the unlawfulness of the arrest.

The appeal should therefore be dismissed.