R v Tipping

Case [2019] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TIPPING

[2019] SASCFC 41

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Blue)

29 April 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - OTHER PARTICULAR CASES

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - WARRANTS FOR ARREST AND DETENTION - EXECUTION

CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST - INFORMING PERSON ARRESTED OF FACT AND REASON

A jury, by majority verdict, found the appellant guilty of aggravated assault causing harm (Count 1). The jury was unable to reach a verdict on either Count 2 (aggravated threatening life) or Count 3 (aggravated threatening to cause harm), which were alternative charges. The appellant appeals against conviction on Count 1.

On 8 July 2015, Senior Constable Jelfs (Jelfs) attended at an apparently abandoned vehicle. He performed checks revealing that it belonged to the appellant and that there was an active arrest warrant for the appellant for non-appearance at Court. Jelfs then attended at the appellant’s home and inquired about the vehicle. After performing a warrant check which confirmed that the arrest warrant was still active, Jelfs told the appellant that he was under arrest. There followed a violent altercation which formed the subject matter of all three Counts. Jelfs’ evidence was that he told the appellant both of his arrest and of the reason for it; and that the appellant acted violently. The appellant’s evidence was that he asked the reason for his arrest but was given none; and that Jelfs acted violently toward him but he did not act violently toward Jelfs.

On appeal, the primary issue was whether Jelfs had informed the appellant of the reason for his arrest and, accordingly, whether Jelfs was lawfully acting in the course of his duties as a police officer.

1. Held (per curiam): For an arrest on a warrant or without warrant to be lawful, the officer must tell the arrestee the reason for his or her arrest. Christie v Leachinsky [1947] AC 573 discussed.

2. Held, per Peek J and per Blue J, allowing the appeal and ordering a re-trial (Vanstone J dissenting): The Judge did not make clear to the jury that, as to Count 1, the Christie v Leachinsky principles and the asserted unlawful conduct by Jelfs were relevant to the jury’s consideration of both whether the aggravating circumstances were established and whether self-defence was negated in relation to the substantive charge.

3. Held, per Peek J: The Judge did not make clear to the jury that a required element of the charge of aggravating circumstances was that Jelfs was in fact acting in the lawful…

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R v Tipping [2019] SASCFC 41
Case
[2019] SASCFC 41
Decision Date

CaseChat Overview and Summary

Steven John Tipping appealed his conviction for aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA), to the Full Court of the Supreme Court of South Australia. The appeal also sought permission to appeal against the sentence imposed. The conviction arose from an incident where Tipping allegedly assaulted Senior Constable Jelfs, who was acting in the course of his official duty, a circumstance of aggravation. The jury had returned a majority verdict of guilty on the aggravated assault charge, but could not reach a verdict on alternative charges of aggravated threatening life or aggravated threatening harm.

The central legal issues before the Full Court concerned whether the trial judge’s directions to the jury on the elements of the offences, particularly the aggravating circumstance of the victim being a police officer acting in the course of duty, were adequate. Tipping argued that the jury’s verdict on the first count was inconsistent with their inability to agree on the other counts, and that the directions regarding the circumstances of aggravation were flawed. The court was required to determine if the jury had been properly instructed on the factual findings necessary to establish that Senior Constable Jelfs was acting in the course of his official duty at the time of the alleged assault.

The Full Court, comprising Vanstone, Peek, and Blue JJ, considered the legal principles surrounding arrest and the requirement for a police officer to inform an arrested person of the fact and reason for their arrest, referencing authorities such as *Christie v Leachinsky* [1947] AC 573. The court noted that while a warrant for Tipping's arrest existed, it was not tendered in evidence. However, Tipping admitted to failing to answer bail, which led to the warrant's issuance. The critical question was whether the trial judge had sufficiently directed the jury that if they did not accept Senior Constable Jelfs' evidence that he informed Tipping of the arrest warrant, then Jelfs would not have been acting in the course of his official duty. The court found that the judge’s directions, which presented both the prosecution and defence versions of events concerning the notification of the arrest and Tipping's belief about Jelfs' duty status, adequately addressed this issue.

Ultimately, the Full Court dismissed the appeal against conviction and refused permission to appeal against the sentence. The court concluded that the trial judge’s directions, when viewed in their entirety, had properly brought home to the jury the necessary elements to be considered for the aggravating circumstance, and that there was no basis to interfere with the jury's majority verdict on the charge of aggravated assault causing harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Steven John Tipping was tried before Judge and jury in the District Court upon an information charging him with aggravated assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (the Act), aggravated threatening life and, in the alternative, aggravated threatening harm. The circumstance of aggravation alleged in each instance was that he knew that the victim, a police officer, was acting in the course of his official duty. He was found guilty by majority of Count 1, but the jury was unable to agree in respect of the aggravated threatening life or its alternative. He now appeals against the conviction on Count 1, arguing that the Judge’s directions upon the elements of the offences were flawed, and that the verdict on the first count is inconsistent with the failure to convict on either Count 2 or Count 3. Further, he seeks permission to appeal against the sentence imposed upon him for Count 1.Background The incident giving rise to the charges occurred on 8 July 2015 at the appellant’s house premises at Highbury. On that day the victim, Senior Constable Jelfs was acting as a response traffic patrol, operating from the Holden Hill Police Station. Jelfs was an officer of over 10 years’ experience. He told the jury that on that morning when he logged on in his solo patrol there were no taskings for him to perform. He determined to drive his police fleet in the streets of Holden Hill looking out for breaches of the Road Traffic Act 1961 (SA). Although Jelfs was in uniform his police vehicle was unmarked. At some stage he was tasked to go to the scene of an abandoned vehicle in Dernancourt and he attended there. He located the vehicle, which he said was in poor condition with accident damage. It did not appear to him to be stolen. A registration check gave him the address of the registered owner, the appellant. He decided to go to that address. On the way he performed what was referred to as “a PIMS check” to obtain information about the owner. Jelfs also electronically requested information regarding any outstanding warrants for the owner. He was informed there was a warrant in relation to the appellant. When he arrived at the front door of the appellant’s home he found the screen door open and the main door closed. He said he knocked on the door. Initially there was no response but he heard a noise from within the house. Eventually the appellant presented himself. He was asked about the vehicle in Dernancourt and he said that he had to arrange to have it towed away. Jelfs asked him for identification and the appellant fetched his wallet. He took his driver’s license out and gave it to Jelfs. Jelfs then did a warrant check on the appellant’s name. He said that in doing so he turned down the volume of his radio for the sake of discretion. His purpose was to confirm what he had already ascertained, namely that there was a first instance warrant in existence for the appellant and that it was a “no bail warrant”, which meant that the appellant would probably not be given bail.

Evidence

Evidence Before The Court

Pursuant to s 5AA(1)(c)(i) Criminal Law Consolidation Act 1935 (the Act) each of the three substantive counts was accompanied by a separate averment of aggravating circumstances (the aggravating circumstances charge) that the appellant had committed the offence against a police officer, knowing him to be acting in the course of his official duty.[2][2] The nature and correct interpretation of the aggravating circumstances averment is considered below.The evidence at trial Both Senior Constable Jelfs (Jelfs) and Tipping gave evidence of their respective factual versions before the jury; these were starkly different in a number of respects. As is dealt with in detail below, it was critical that the jury were correctly directed concerning the impact that the precise version of fact that they were prepared to find beyond reasonable doubt might have on their particular verdicts. Such is rather confirmed by the eventual outcome of the trial, a majority verdict on Count 1 and an inability to reach a verdict on either Count 2 or Count 3.Senior Constable Jelfs’ version of the subject matter of the charges In overview, Jelfs’ version was that he arrested Tipping on the basis that he was in possession of information that there was an outstanding active warrant for Tipping’s arrest in existence;[3] that upon arresting Tipping he informed him that such was the reason for his arrest; that Tipping thereupon attacked him causing him injury (during the course of which onslaught Tipping threatened his life and/or threatened harm to him); and that Jelfs did no more than attempt to defend himself. [3] Vide s 79 of the Summary Offences Act 1953. Jelfs gave the following evidence. He had joined the police department in 2006. Following an initial period in general patrols, he had spent all of his career in traffic duty without a partner. On the morning of 8 July 2015, he was driving an unmarked police car “around the streets probably of Holden Hill etc., looking for breaches of the Road Traffic Act, people that were breaking the law and taking appropriate action”. After a time, he received a radio tasking to check an apparently abandoned vehicle. He attended at the address supplied and inspected it; he formed the view that it had not been stolen since there were “a lot of personal items in the vehicle”. He performed a registration and licence check, which indicated that the owner was the appellant and lived at an address at Highbury. His checks also revealed that an active warrant in relation to the appellant existed and he proceeded to attend at the appellant’s house alone. Jelfs’ evidence as to the events at Tipping’s house was as follows. He knocked at the door, Tipping answered, and Jelfs inquired about the vehicle. Tipping said that it needed to be towed; his demeanour was “very pleasant”. Jelfs asked for identification and Tipping went inside the house and then returned to the front porch with his wallet and handed Jelfs his driving licence. The following passage in examination then appears:QDid you check the licence. AI checked the licence and it matched the description or the photo resembled Mr Tipping. I then changed channels on my radio and did a warrant check for Mr Tipping. QDid you do that standing at the front door, or did you move away for that purpose. AI was standing at the front door and just turned away a bit from Mr Tipping.

Decision

Reasons for decision

In my opinion the application for permission to appeal against sentence is without merit and I would refuse it.Conclusion I would make the following orders:1.Dismiss the appeal against conviction;2.Refuse permission to appeal against sentence.PEEK J The appellant, Mr Steven John Tipping (Tipping) was charged on Information with the following offences:[1][1] Counts 2 and 3 were additional to Count 1 but alternatives as between themselves.First CountStatement of OffenceAggravated Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceSteven John Tipping on the 8th day of July 2015 at Highbury, assaulted Paul Jelfs, and thereby caused him harm.It is further alleged that Steven John Tipping committed the offence against a police officer, knowing the victim, at the time of the offence, was acting in the course of his official duty.Second CountStatement of OffenceAggravated Threatening Life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceSteven John Tipping on the 8th day of July 2015 at Highbury, without lawful excuse, threatened to endanger the life of Paul Jelfs, intending to arouse such a fear that the threat would be, or was likely to be, carried out, or being recklessly indifferent as to whether such a fear was aroused.It is further alleged that Steven John Tipping committed the offence against a police officer, knowing the victim, at the time of the offence, was acting in the course of his official duty.Third CountStatement of OffenceAggravated Threatening to Cause Harm. (Section 19(2) of the Criminal Law Consolidation Act, 1935).Particulars of OffenceSteven John Tipping on the 8th day of July 2015 at Highbury, without lawful excuse, threatened to cause harm to Paul Jelfs, intending to arouse such a fear that the threat would be, or was likely to be, carried out, or being recklessly indifferent as to whether such a fear was aroused.It is further alleged that Steven John Tipping committed the offence against a police officer, knowing the victim, at the time of the offence, was acting in the course of his official duty. Pursuant to s 5AA(1)(c)(i) Criminal Law Consolidation Act 1935 (the Act) each of the three substantive counts was accompanied by a separate averment of aggravating circumstances (the aggravating circumstances charge) that the appellant had committed the offence against a police officer, knowing him to be acting in the course of his official duty.[2][2] The nature and correct interpretation of the aggravating circumstances averment is considered below.The evidence at trial Both Senior Constable Jelfs (Jelfs) and Tipping gave evidence of their respective factual versions before the jury; these were starkly different in a number of respects. As is dealt with in detail below, it was critical that the jury were correctly directed concerning the impact that the precise version of fact that they were prepared to find beyond reasonable doubt might have on their particular verdicts. Such is rather confirmed by the eventual outcome of the trial, a majority verdict on Count 1 and an inability to reach a verdict on either Count 2 or Count 3.Senior Constable Jelfs’ version of the subject matter of the charges

Ratio Decidendi

Legal Principle Established

At 8.47 pm the jury delivered a majority verdict of guilty on Count 1 and was discharged in relation to Counts 2 and 3.Consideration Allowing for some specific exceptions, a police officer arresting a person without a warrant is obliged to inform that person of the fact and reason for the arrest. If he does not do so, the police officer is liable for false imprisonment. The arrest is certainly wrongful and, on the preponderance of authorities, unlawful: Christie v Leachinsky [1947] AC 573; Police v Dafov (2008) 102 SASR 8; P Gillies, The Law of Criminal Investigation (Law Book Company, 1982) at 144 and 203. As seen, Jelfs claimed to arrest the appellant on a warrant. The warrant was not tendered in evidence. However, it was admitted by the appellant (pursuant to s 34 of the Evidence Act 1929 (SA)) that the appellant had failed to answer his bail for separate charges on 7 July 2015 and on that day a warrant for his apprehension was issued in the Magistrates Court of South Australia. Further, it was admitted that the “warrant was endorsed with bail excluded”. A warrant must “state shortly the matter of the information upon which it is founded”: s 20 of the Criminal Procedure Act 1921 (SA). Jelfs did not claim to be in possession of the warrant at the time of executing it. At common law that was required: Bull v Laing [1929] SASR 65. However, s 79(2) of the Summary Offences Act 1953 (SA) empowers a police officer without a warrant to take into custody a person in relation to whom he has reasonable grounds for suspecting that a warrant has been issued by a Justice, and requires him to be taken to the nearest police station where the warrant is to be produced to him. It appears from the “agreed facts” that this was done. There does not seem to have been any suggestion in the court below that Jelfs’ claimed explanation to the appellant that he was arresting him on a warrant was insufficient in terms of the extent of information required to be given. That is not surprising as it will be remembered that, according to Jelfs, when the appellant was told he was under arrest he immediately acknowledged his failure to attend court on the previous day. Therefore, whether the officer was required to advise the reason underlying the warrant is not a matter which arises. The first question for decision, then, is whether the Judge brought home to the jury that, unless they accepted Jelfs’ evidence that he told the appellant that he was being arrested pursuant to a warrant, he would not have been acting in the course of his official duty. In paragraph (a) above, the Judge first reiterated the terms of the circumstance of aggravation itself and suggested that the appellant would have obviously known that Jelfs was a police officer. In paragraph (b) the Judge specifically adverted to whether the jury would find that Jelfs was “acting in the course of his duty”. The Judge encapsulated the two versions so far as they bore on that very point: on the prosecution case Jelfs’ advice to the appellant that he was arresting him on a warrant, and on the defence case, no mention of a warrant, but an assault by Jelfs and the appellant forming a belief that Jelfs was no longer acting in the course of his duty. At paragraph (d) the Judge reminded the jury of the onus of proof.