R v Taurima (No 2)
[2004] VSCA 201
•27 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 102 of 2004
| THE QUEEN |
| v. |
| HIRINI TAURIMA (NO. 2) |
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JUDGES: | BATT and EAMES, JJ.A. and GILLARD, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 October 2004 | |
DATE OF JUDGMENT: | 27 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 201 | |
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Criminal law - Assaulting police officer - Wild incident in court room upon delivery of guilty verdicts against accused on another trial - Incident substantially captured on court video tape - Conviction not unsafe and unsatisfactory.
Criminal law - Sentence - Sentence of 3 months' imprisonment to be served concurrently with other sentences not manifestly excessive - Crimes Act 1958, s.31(1)(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| The Applicant in person. |
BATT, J.A.:
In this matter I will ask Eames, J.A. to give the first judgment.
EAMES, J.A.:
The applicant pleaded not guilty in the County Court to a count alleging that on 17 August 2001 he assaulted Malcolm John McKern, a member of the police force in the due execution of his duty, knowing he was a member of the police force, and contrary to s.31(1)(b) of the Crimes Act 1958. The maximum penalty for the offence was five years' imprisonment. He was convicted upon the verdict of a jury after they retired for approximately three-and-a-half hours, and on 5 May 2004 he was sentenced to three months' imprisonment, which sentence was ordered to be served concurrently with a sentence he was then serving. The whole sentence has now been served but the application for leave to appeal against sentence has not been abandoned, and has been considered by the Court, although no submissions were advanced by the applicant with respect to that application.
The charge arose out of events that occurred in a court room in the County Court at Melbourne at the conclusion of a three week trial in which the applicant had defended charges consisting of one count of affray, one count of escaping from legal custody, one count of assaulting a police officer in due execution of his duty, one count of causing injury intentionally, one count of causing injury recklessly and also a count of damaging property. The applicant represented himself during the trial, with the assistance of a McKenzie friend. He had dismissed counsel who had earlier appeared for him at a committal mention in the Magistrates' Court.
In order to understand the present appeal it is necessary to provide some detail about the trial from which arose the assault conviction now in question.
The charges on which he had stood trial arose out of a wild melee that occurred on a train and also on a railway station platform involving the applicant and two transit police officers. During the fracas other people became involved, including his then pregnant partner and other friends of the applicant. At the conclusion of the trial the jury delivered its verdict, whereupon they found the applicant guilty on one count of intentionally causing injury and on a number of other counts, but also acquitted him on some counts. It was immediately after those verdicts were announced that the events giving rise to the present conviction for assault arose in the courtroom.
I note that the verdicts of the jury in the trial arising out of the railway affray, as I will call it, and the sentence imposed upon the applicant for those offences were themselves the subject of applications to the Court of Appeal for leave to appeal against conviction and sentence. That appeal was heard by a court comprising the President, Vincent, J.A. and myself. The applicant succeeded in having one conviction quashed but the convictions and sentence were not otherwise disturbed.[1] In my judgment in that appeal, at which the applicant was also unrepresented, I noted that the applicant expressed an acute sense of injustice about the fact that he had been convicted of the offences. That sense of injustice had motivated the conduct of the applicant that led to the conviction with which we are presently concerned.
[1]R. v. Taurima [2003] VSCA 146, Winneke, P., Vincent and Eames, JJ.A.
I return, then, to the events which occurred in the court room. Those events were all captured on videotape and the tape, without audio, was tendered at the applicant's later trial on the present assault count. In his submissions to us today, the applicant complained that the videotape which had been used in the trial was not the only videotape which was available of the scene, and complained that a videotape had been held back from the jury, one which would have shown a wider scene than appeared on the videotape which was tendered. Evidence was led in the trial by the person responsible for the videotape system in the court, and having considered that evidence I am satisfied that no injustice was done by virtue of any tape being kept from the jury in the way suggested by the applicant.
The members of this Court have viewed the videotape which was tendered in the trial. When the jury delivered its verdict on the railway affray offences, the applicant was in the dock at the rear of the court. Custodial officers stood on both sides of the dock. Upon hearing the verdicts the applicant became very agitated and began yelling aggressively and loudly (as appears, soundlessly, on the video, but as is confirmed by the oral evidence that was given in the trial). The jury members were still in court and the trial judge, Judge O'Shea, then discharged the jury, but in order to leave the court room the jury members had to walk past the applicant in the dock. During and after the departure of the jury, the applicant continued his remonstrations. He ripped the microphone from its mountings on the dock and broke the microphone stand. The judge endeavoured to calm the applicant and permitted the applicant's long suffering mother to approach him at the dock. She hugged him and then joined him inside the dock, trying to quieten him, but the applicant, still highly agitated, continued to yell. The judge ordered that he be remanded in custody, adjourned the court and left the bench, but after he had done so the applicant refused to co-operate with the custodial staff who attempted to remove him to the cells. He would not depart and, instead, he jumped over the railing of the dock and rushed towards the police informant, Senior Detective McKern. The applicant is a young, fit and powerfully built man. Custodial and security officers attempted to restrain him but were unable to halt his progress, and as he moved towards the position where McKern was in the court room, he lashed out with his right foot in a karate-style side-on kick.
The videotape captures the kicking movement and most of his leg is visible, but the lower portion of his leg and foot moved out of camera range, as was Detective McKern, just at the moment, according to McKern, of contact of the foot with his body. It is not possible to see on the video whether contact was made with a person just off the screen. Numerous police officers and officials took hold of the applicant at that moment and dragged him back towards the centre of the court and into full vision on the videotape. The applicant's mother also became involved, holding and attempting to quieten him.
As a result of those events the applicant was charged on the present count. He was also charged, initially, with a number of other counts, but only one count continued to trial. He was presented for trial on that count, but prior to the commencement of his trial he sacked his counsel. The trial judge, Judge Nixon, became concerned about the applicant's fitness to stand trial and directed that he undergo a psychiatric examination. He adjourned the trial to another date. An appointment was made for the applicant to be examined through Forensicare, but he failed to attend the appointment. On 16 February 2004 he appeared at the County Court, again before Judge Nixon, unrepresented, and again sought the assistance of a McKenzie friend. The judge tried unsuccessfully to persuade the applicant to seek legal advice, but the trial commenced, a McKenzie friend having been approved by the judge.
The applicant first objected to the playing of the videotape before the jury on the ground that it did not show the actual assault, but he later consented to it being played providing there was no sound and providing that it was fast-forwarded to the point where the assault took place. The applicant pleaded not guilty to the charge and, after a trial in which the Crown called fifteen witnesses, the jury returned a guilty verdict on 18 February 2004, the second day of the trial. As was the case in the previous trial, the applicant gave no evidence in his defence nor called any witnesses.
Conviction
I deal first with the application for leave to appeal against conviction.
There is only one ground of appeal, that the conviction was unsafe and unsatisfactory. The relevant question for the court when that ground is raised is whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[2] The court may set aside a verdict as unsafe and unsatisfactory even if there be some evidence which might have sustained a conviction if the court concludes that the jury ought to have entertained a reasonable doubt,[3] but before so concluding the court has to consider whether its own doubt would be capable of being resolved by the jury by virtue of the advantage it had of seeing and hearing the witnesses and assessing their credibility.[4]
[2]M. v. R. (1994) 181 C.L.R. 487, at 493.
[3]Chidiac v. R. (1991) 171 C.L.R. 432.
[4]Knight v. R. (1992) 175 C.L.R. 495, at 503.
Before us, the applicant made a number of complaints in support of the ground of appeal. He complained that he had not been granted legal aid. That was a matter which was apparently the subject of dispute between himself and Legal Aid which had, it seems, required that some funds be put up by him if legal aid was to be granted. In the end result, legal aid was not granted, but I am satisfied that the ground which is before us could not be maintained on the basis of the failure of the grant of legal aid. A reading of the transcript suggests that the applicant, in the end, decided to represent himself and did so with the assistance of the McKenzie friend. No injustice, in my view, arose by virtue of that course.
The applicant complained about delay which occurred from the time of the offence to the time of him being charged, and from then until the time of the trial and his being sentenced. There was a substantial time which arose over that period, but in my view there is nothing with respect to delay which would provide justification for upholding this ground of appeal.
The applicant complained about there being an absence of transcript. He said that he had been denied transcript in the trial, but a reading of the transcript demonstrates that the transcript was in fact provided to him and, having heard that passage from the transcript, the applicant conceded that that is apparently what had transpired. Obviously, his memory was simply deficient as to that event occurring.
The applicant complained that the judge in his directions to the jury had been unfair and, in effect, had told the jury to convict him. I have read the transcript of the judge's charge, and in my view it was a scrupulously fair charge which in no way suggested to the jury that a conviction should be recorded by them. No doubt, from the applicant's point of view it appeared to be one-sided in that it recorded and recounted all of the evidence in the trial, the fact of the matter being that the only evidence in the trial was that of prosecution witnesses and that evidence was adverse to the interests of the applicant. That is not a matter of unfairness on the part of the judge; it is simply the reality of the way this trial was conducted, the applicant having declined to give evidence himself or to call any witnesses. The charge itself, as I have said, was a very fair one and no criticism could properly be levelled against it.
The applicant complained too that the trial judge in the first trial, Judge O'Shea, was not a witness in the later trial before Judge Nixon relating to the assault which occurred in the court room. As is plain from viewing the videotape, Judge O'Shea was not in fact in the court room at all when the applicant jumped out of the dock and the assault incident occurred. So much was accepted by the applicant, who indeed said the reason why he wanted Judge O'Shea called was that Judge O'Shea had himself on some occasion viewed the videotape, as have we. It was proposed that he should be called because, the applicant said, his evidence would have been that, having watched the videotape, he did not believe that the applicant had struck the victim with his foot. Whether or not that was in fact the opinion of Judge O'Shea - and I make no finding as to that, because there is simply no evidence one way or the other - then even if it had been the case that his Honour formed that opinion, it would not have been admissible evidence in the trial. As again emerges from the transcript of the second trial, it seems obvious that the applicant, having considered that course, resolved not to proceed with his attempts to subpoena Judge O'Shea, no doubt someone having pointed out to him that his evidence would not have been admissible.
Six witnesses gave evidence that they saw the foot of the applicant connect with McKern. McKern himself said he had been seated in a position which had him just out of camera range. He said that the applicant rushed towards him and his kick was a side kick which struck him on the right hip. It was forceful and he staggered but did not fall. He felt a sharp pain through his lower back. He attended his doctor the next day, and the doctor gave evidence at the trial that McKern was tender to the lower back and below the pelvic brim. There was no visible bruising.
McKern's evidence was supported by a solicitor from the Office of Public Prosecutions, Mr Fowler; by a protective services officer, Mr Niolakis; by another protective services officer, Mr Tragardh (who believed the kick struck the mid section of the victim); by a protective services officer, Mr Korsak (who said the kick landed to the victim's left hip); and by the judge's tipstaff, Mr Jarvis (who said the blow struck the informant as he was seated and landed on his upper left thigh). A number of other witnesses saw the events but did not see or were not in a position to see whether contact was made, although they saw a kick in the process of delivery. The witness Tragardh said that the applicant was completely out of control, an assessment that is amply supported upon viewing the videotape.
As against that evidence and the evidence of the videotape itself, which was not conclusive but which was certainly not inconsistent with the evidence of McKern, the applicant called no contrary evidence.
The jury had the advantage of seeing and hearing the witnesses, unlike the Court of Appeal, but in this case the Court has the unusual advantage of being able to view a videotape of the events, which provides us with an additional opportunity to assess the evidence of the witnesses. Nothing on the videotape causes me to have any concern that the verdict might have been unsafe and unsatisfactory. It is the jury which carries the burden of deciding whether an accused is guilty of the offence charged against him, and I am not persuaded that the verdict in this case represents a miscarriage of justice or is attended with any doubt at all. There was ample evidence upon which the jury, acting reasonably, could have been satisfied beyond reasonable doubt of the applicant's guilt of the offence.
In my opinion, the application for leave to appeal against conviction is without merit and the application should be dismissed.
Sentence
I turn to the application with respect to sentence. The applicant admitted ten previous court appearances which had resulted in 18 prior convictions and admitted a further 20 charges which had been found proven without conviction. Among the convictions which he admitted were convictions in the Children's Court in July 1998 which included assaulting a police officer in the due execution of duty (two counts) and resisting a police officer in the due execution of his duty; and in the Magistrates' Court at Bendigo in July 1999, one count of unlawful assault. In the County Court at Melbourne on 7 December 2001, relating to the railway affray, he was convicted on counts of threatening injury to prevent a police officer's lawful investigation, affray, and one count of causing injury recklessly.
After hearing submissions on sentence for the present offence of assault, the judge indicated that he was considering making a community-based order and he proposed to have the applicant assessed for appropriateness of that order. Unfortunately, events overtook that course, because the applicant made two appearances in the Magistrates' Court relating to offences which had been committed subsequent to the present matters. In the Magistrates' Court at Heidelberg on 19 April 2004 the applicant pleaded guilty to one count of driving while disqualified and was sentenced to six months' imprisonment with two months of the sentence suspended for a period of twelve months. On the following day at another Magistrates' Court he was convicted, upon pleas of guilty, to one count of criminal damage and one count of breaching an intensive correction order which had been imposed on 2 October 2002, which order was then cancelled and he was ordered to serve the unexpired portion, namely 42 days. The sentencing judge for the present offence was also informed that the applicant was due to contest a count of assaulting a police officer in the Magistrates' Court on 7 June 2004. We have not been told what was the outcome of that appearance.
On 5 May 2004 the learned sentencing judge in this case sentenced the applicant to imprisonment for three months and ordered that sentence to run concurrently with the sentence or sentences he was then undergoing. The judge had regard to a psychological report of Mr Patrick Newton which disclosed that the applicant was a Maori person and came from a very volatile family situation in New Zealand and left that country in 1989. The applicant had significant psychological problems which, combined with alcohol and cannabis misuse, had very deleterious effects. The applicant had mental confusion and required treatment to deal with his psychological and substance abuse problems. The applicant had, however, been making real efforts in Fulham Prison to rehabilitate himself. The judge took those matters into account, and also, in particular, the youth of the applicant, who was only 20 at the time of this offence. His Honour imposed a sentence which was very merciful, given the prior convictions of the applicant and having regard to the very serious nature of this offending. I have no doubt that the applicant's conduct must have alarmed the jury and the members of the public in the court room. As the applicant acknowledged to the judge during sentencing, he appreciated that what he did was unacceptable. A sentence of imprisonment was inevitable, in my opinion. That sentence has now been served, but in my view it was not manifestly excessive in any event, which was the sole ground of appeal against it.
It follows that the application for leave to appeal against sentence ought also be dismissed.
I hope that the applicant can get on with his life and put these events behind him. As the videotape demonstrates, and as I saw on the last occasion when the applicant appeared before me, he has a wonderfully loyal and loving mother. I hope that the applicant seeks and obtains support in his efforts to deal with the problems which confront him. If he can tackle those problems, in particular abstain from alcohol and substance abuse, I am sure that he can have a productive and enjoyable life, free of the turmoil that has consumed him in recent years.
BATT, J.A.:
I agree.
GILLARD, A.J.A.:
I agree with the reasons given by Eames, J.A. and the orders he proposes.
BATT, J.A.:
The order of the Court accordingly is:
The application for leave to appeal against conviction and the application for leave to appeal against sentence are both dismissed.
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