R v Timbrell
[2018] ACTSC 136
•4 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Timbrell |
Citation: | [2018] ACTSC 136 |
Hearing Date: | 11 – 20 April, 27 April, 4 May 2018 |
DecisionDate: | 4 May 2018 |
Before: | Mossop J |
Decision: | Not guilty on charge CC2017/4773 – obstruct territory public official. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – charged with resisting a public official in the exercise of their functions – charge transferred from the Magistrates Court – charge related to other charges – found not guilty in Supreme Court of other charges – Crown application to call additional evidence after advising content to deal with related charge on basis of evidence given during the trial and submissions by opposing counsel – application refused – not satisfied on evidence given at trial that resistance occurred when public official lawfully performing their functions – not guilty of offence charged |
Legislation Cited: | Crimes Act 1900 (ACT), s 212(1)(b) Criminal Code 2002 (ACT), s 361 Supreme Court Act 1933 (ACT), ss 68D, 68E, 68E(2), 68F |
Cases Cited: | Licciardello v The Queen [2012] ACTCA 16; 6 ACTLR 233 R v Hill [2012] ACTSC 17; 6 ACTLR 167 Shaw v The Queen (1952) 85 CLR 365 |
Parties: | The Queen (Crown) Josephine Timbrell (Accused) |
Representation: | Counsel M Fernandez (Crown) J Moffett (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Number: | SCC 238 of 2017 |
MOSSOP J:
Introduction
Josephine Timbrell is charged that on 28 April 2017 she did resist a public official, namely Stephen Phillips, in the exercise of his function as a public official of the Territory, knowing that he was a public official.
That charge was transferred to the Supreme Court as a related offence pursuant to s 90B of the Magistrates Court Act 1930 (ACT) when Ms Timbrell was committed to stand trial in the Supreme Court on other charges.
She was found not guilty of the other charges.
Section 68D of the Supreme Court Act 1933 (ACT) requires that the Court deal with any backup or related offences with which the accused has been charged if it is in the interests of justice. Section 68E of the Supreme Court Act requires that the related charge be dealt with by the trial judge on the basis of the evidence given at the trial on the indictable offences and any other evidence led pursuant to leave granted pursuant to s 68E(2).
Application to adduce further evidence
The complication in the present case was that neither party drew the Court’s attention to the existence of the related offence at the trial on the indictable offences. When the existence of the related offence was raised with the parties, the matter was listed in order to determine how to deal with it. The options that appear to exist under the Supreme Court Act would be to remit the related offence to the Magistrates Court under s 68F, deal with the related offence on the evidence given in the trial on the indictable charges, or deal with the related offence on the basis of that evidence and additional evidence led pursuant to leave granted under s 68E(2). When the matter was in Court, I enquired as to what the position of the Crown was in relation to how the related offence should be dealt with. Counsel for the Crown then made submissions directed to the substance of whether or not be offence was made out. At the conclusion of those submissions the transcript records:
His Honour: Okay. The Crown is content that I deal with that on the basis of the current evidence as recorded in the transcript?
[Counsel for the Crown]: Yes, your honour.
Counsel for Ms Timbrell then made his submissions. Those submissions included submissions about the effect of the evidence given by the police officers and also a submission that the evidence in the Crown case did not establish that the arrest was lawful, and hence, it could not be proved that the police officer who was alleged to be resisted was performing his duties as a public official at the time that the resistance occurred. Because this raised a legal point which had not been previously disclosed, the proceedings were adjourned until today.
At the adjourned hearing, counsel for the Crown made an application to lead additional evidence from police officers relevant to the question of whether or not the arresting officer had the state of mind required by s 212(1)(b) of the Crimes Act 1900 (ACT) necessary to justify an arrest of Ms Timbrell without a warrant. That was said to be on the basis that the legal point had not been previously raised and amounted to an “ambush”. He submitted that relevant evidence was not lead at trial on this issue because it was not relevant to the indictable offences, even though such evidence had been disclosed by the prosecution well in advance of the trial. He submitted that it was in the interests of justice to permit additional evidence to be led in those circumstances and that, if there was a mistake on the part of the Crown in failing to lead that evidence either in the trial or pursuant to a grant of leave pursuant to s 68E(2) of the Supreme Court Act, it was in the interests of justice that it not be held to that mistake.
Counsel for Ms Timbrell submitted that in circumstances where the Crown had indicated that it was content to have the case determined upon the evidence previously given and, as a result, submissions had been made on the part of the defendant which disclosed difficulties with the prosecution case, it would not be appropriate to grant leave to permit additional evidence to be led in order to remedy those difficulties. He submitted that the reference to an “ambush” was inapt having regard to the nature and burden of proof in a criminal case. He referred to the significant reluctance of courts to permit the Crown to split its case other than in exceptional circumstances: Shaw v The Queen (1952) 85 CLR 365. While he recognised that this was not strictly a case of reopening, he submitted that the principle to be applied in a case where additional evidence was sought to be led after submissions by a defendant had already been made was no less strict.
The discretion to permit additional evidence would clearly have been exercised in favour of permitting the additional evidence had that course been suggested by the Crown when the matter was first dealt with. That is because the existence of the related charge had been overlooked and the evidence going beyond that which was led in the trial may well have been relevant. However, in circumstances where the Crown has unequivocally indicated that it is content to have the charge dealt with on the basis of the evidence already given, counsel for the defendant has made submissions and there are no other circumstances that would make the grant of leave appropriate, I do not consider it appropriate that leave be granted to lead additional evidence in order to address an evidentiary difficulty in the prosecution case. Therefore, I refuse leave to the Crown to lead additional evidence.
Facts
The factual basis for the charge was that following Ms Timbrell’s arrest in relation to the indictable offences on which she subsequently stood trial, she was being led to a police vehicle by Constables Nisbett and Phillips. Constable Phillips’ evidence was that he attended Ms Timbrell’s house at 2:55am on 28 April 2017. He observed her standing at the front portico entrance area and approached her and told her that she was under arrest. Ms Timbrell asked if she could go back into the house and check on the well‑being of her dog. After that Constables Phillips and Nisbett escorted her to the caged police vehicle. Constable Phillips had recorded in his statement “Constable Nisbett and I were escorting Timbrell to her vehicle when Ms Timbrell became aggressive and struck out at Constable Nisbett and I. As a result, I was struck to the right side of my face by Timbrell’s forearm.” He said that he was struck with medium force “sort of brushed the side of my face and just grazed me type strike”. He believed that he was struck by the arm that had the cast on it, her left arm. As a result of that act, the police officers believed she was non‑compliant and they placed her on the ground and handcuffed her. It was suggested to the officer that either he or Constable Nisbett had twisted her left arm causing her to try to withdraw her left arm to the front of her body. He disagreed with that proposition. It was suggested to him that as a consequence of Ms Timbrell retrieving her arm to the front of her body she was forcibly taken to the ground and knocked unconscious. He disagreed with that.
Constable Nisbett gave evidence that at 2:55am he and Constable Phillips had observed Ms Timbrell on the front veranda of her residence and that Constable Phillips had placed her under arrest. While escorting Ms Timbrell she became aggressive and started flailing her arms around. She was then placed on the ground and Constable Phillips placed handcuffs on her. She was then transported to the ACT watch house. In cross‑examination, Constable Nisbett said that he had not observed Ms Timbrell strike Constable Phillips in the face. He said that he was with Constable Phillips throughout the duration of the arrest. He also said that if he had observed Ms Timbrell strike another officer in the face, then that would be something that he would have contemporaneously recorded in his notebook.
In re-examination he said that as he and Constable Phillips were leading her to her vehicle she became non-compliant and started flailing her arms around everywhere. He said that the officers were concerned for their safety and handcuffed her and that she was taken to the ground and cuffed.
Submissions
There were three submissions made by counsel for Ms Timbrell. First, that Constable Phillips was not absolutely sure which arm was that which struck him, there was no evidence that any injury was suffered and that Constable Nisbett did not see such conduct.
The next point related to the limitations on Constable Nisbett’s evidence in that he did not see Constable Phillips being struck and that he had not recorded any striking in his notebook.
The third point was that there was no evidence that either officer suspected on reasonable grounds that proceeding by summons would not achieve the purposes set out in s 212(1)(b) of the Crimes Act and that, as a result, the arrest had not been proven to be a lawful one. Counsel therefore submitted that Constable Phillips was not proven beyond reasonable doubt to be exercising his function as a public official. This submission was based upon the decision of the Court of Appeal in Licciardello v The Queen [2012] ACTCA 16; 6 ACTLR 233. In that case, a person had been arrested because police suspected that he had committed driving related offences. No evidence was given that the arresting officer suspected on reasonable grounds that proceeding by summons against the person would not achieve one or more of the purposes set out in s 212(1)(b). The point had not been taken at trial. The Court of Appeal allowed the point to be taken on appeal. The Court followed the decision of Refshauge J in R v Hill [2012] ACTSC 17; 6 ACTLR 167 that the question was whether the belief was actually held, not whether it could justifiably have been held. The Court therefore found that the fact that the officer could have held the necessary suspicion was no basis for inferring beyond reasonable doubt that he did so. As a consequence, the Court found that the arrest was unlawful and the charge of escaping from lawful custody was set aside.
Consideration
I accept the evidence of Constable Phillips. There was nothing in the manner in which he gave evidence which would cast doubt upon the reliability of his evidence. Although he was uncertain as to which arm had a cast on it, I do not see that as casting any doubt upon his evidence. Although Constable Nisbett did not see him being struck on the left hand side of his face, he did corroborate Constable Phillips’ evidence to the extent that he said that he said Ms Timbrell became aggressive and started flailing her arms around. I do not consider the fact that he did not observe the glancing blow to the side of Constable Phillips’ head as being significant. First, the events occurred in the early hours of the morning in an area which had less than complete lighting. Second, Constable Nisbett is likely to have been focusing on the fact that the arrested person was flailing her arms around rather than precisely what happened to the other officer. Third, the blow described by Constable Phillips was a glancing one consistent with it occurring during the course of Ms Timbrell flailing her arms around rather than being a more obvious blow directed at his head.
I am therefore satisfied beyond reasonable doubt that Ms Timbrell resisted arrest by flailing her arms around and, during the course of doing so, struck Constable Phillips a glancing blow to the side of his face with her forearm which had a plaster cast on it. I am therefore satisfied that the acts were sufficient to constitute resistance of Constable Phillips.
It is necessarily implied in s 361 of the Criminal Code 2002 (ACT) that the performance of the duties by the public official must be the lawful performance of the duties rather than the purported performance of the duties. Because no evidence was led about the officer’s state of mind at the point at which Ms Timbrell was arrested, I am not satisfied beyond reasonable doubt that the acts of resistance occurred when Constable Phillips was exercising the functions of a public official. I accept that in this case, having regard to the statements in R v Hill and Licciardello v The Queen, it is not sufficient to show that there may well have been a proper basis for an officer to reasonably suspect one or more of the matters referred to in s 212(1)(b) of the Crimes Act. That is because the Crown has not proved beyond reasonable doubt that Constable Phillips did, in fact, hold such a reasonable suspicion. As a consequence, the Crown has not proved beyond reasonable doubt that Constable Phillips was lawfully entitled to arrest Ms Timbrell as he did. If the arrest was not lawful, then it cannot be said that in seeking to maintain custody of Ms Timbrell following that arrest, Constable Phillips was performing his duties as a public official.
Therefore, Ms Timbrell is found not guilty of this offence.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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