R v Tipping
[2019] SASCFC 41
•29 April 2019
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 execution of his duty: Bedi v The Queen (1993) 61 SASR 269; Criminal Law Consolidation Act 1935, s 5AA discussed. If one of the essential elements of an offence is that an officer was acting in the execution of duty, then the charge will fail if this element is not also proven: Hayes v Quinn (1992) 57 SASR 6; Coleman v Power (2004) 220 CLR 1; Re K (1993) 46 FCR 336 discussed. Here, an acquittal of the aggravating circumstances charge would not have prevented the jury from finding the appellant guilty of the substantive offence of assault causing harm: Coleman v Power (2004) 220 CLR 1; Warke v Daire (1983) 32 SASR 321 discussed. The Judge erred in requiring the jury to return only one verdict to the whole of Count 1; separate verdicts should have been taken on the substantive charge and on the charge of aggravating circumstances to Count 1.
4. Held (per curiam): The appellant has not established that the guilty verdict on Count 1 is unreasonable or cannot be supported having regard to the evidence.
Criminal Law Consolidation Act 1935 (SA) ss 5AA(1)(c)(i), 15(3)(a), 15(3)(b), 19(1), 19(2), 20(4); Summary Offences Act 1953 (SA) s 79, referred to.
Adams v Kennedy & Ors (2000) 49 NSWLR 78; Bedi v The Queen (1993) 61 SASR 269; Christie v Leachinsky [1947] AC 573; Coleman v Power (2004) 220 CLR 1; Hayes v Quinn (1992) 57 SASR 6; Johnstone v New South Wales (2010) 202 A Crim R 422; Johnson v Staskos (2015) 48 WAR 349; Police v Williams (2014) 246 A Crim R 317; Re K (1993) 46 FCR 336; R v Stafford (1976) 13 SASR 392; State of NSW v Delly (2007) 70 NSWLR 125; Warke v Daire (1983) 32 SASR 321; Wornes v Rankmore [1976] Qd R 85, discussed.
Doggett v The Queen (2001) 208 CLR 343; Domican v The Queen (1992) 173 CLR 555; Halliday v Nevill (1984) 155 CLR 1; M v The Queen (1994) 181 CLR 487; Neocleous [2017] SASCFC 162; Nicholls v The Queen (2005) 219 CLR 196; Prasad v The Queen (1994) 119 ALR 399; R v Clune (No 2) [1996] 1 VR 1; R v Lawford (1993) 61 SASR 542; Santos and Carrion v The Queen (1987) 75 ALR 161, considered.
R v TIPPING
[2019] SASCFC 41Court of Criminal Appeal: Vanstone, Peek and Blue JJ
VANSTONE J
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.
Jelfs then gave the following evidence as to what next happened:
A.I turned back to - I turned the radio back to the normal Comms operating channel and I turned around and said to Mr Tipping that he had an active warrant and that he was under arrest.
Q. What did he say.
A. That he didn't want to go to gaol.
Q. Did he offer an excuse as to what had happened or anything like that.
A. Yes, he did, he said that he just missed signing in or going to court the day before.
Q. Just tell us how the conversation unfolded from there.
A.So I told Steven that he was - sorry, Mr Tipping that he was under arrest for the warrant, he said that he didn't want to go to gaol, he just failed to sign in, I believe were the words, the day before and I said to him 'I don't know why a warrant's active for you but you are under arrest and you will have to come with me to Holden Hill'.
(emphasis added)
The witness continued:
Q. Then what happened from there.
A.I turned him slightly towards the - face the house and I took him by the left wrist. I took the handcuffs out of the handcuff pouch, I was about to apply to his left wrist when he turned and again repeated that he doesn't want to go to gaol.
Q.Up until the point you took the handcuffs out, so really from the point of you raising the warrant, taking the handcuffs out, how would you describe the accused's demeanour.
A. He was fine, he was amiable.
Q. What happens once you get the handcuffs out.
A.He twisted saying he didn't want to go to gaol. He grabbed my load bearing vest by the left strap which goes over the shoulder and repeated 'I'm not going to gaol'.
Q. Just tell us what happened.
A.Sorry, I then threw the cuffs onto the porch and Mr Tipping looked down at the cuffs and I kicked them off the porch into the grassed area. Mr Tipping then continued to struggle with me and I said to him 'If you stop now I won't add any charges apart from the warrant'. He said 'It's too late' and with that he punched me with the left fist to the side of my face, my right side (INDICATES), knocking my glasses off.
Jelfs continued describing the incident, saying that he believed he punched the appellant and hit his emergency button, engaging a microphone which would send a recording of events to the communications centre. The struggle continued and Jelfs fell to the ground. He said that the appellant was on top of him and “punched me in the head a few times and said that he was going to get my gun and kill me”. He then said he felt a tug on his belt and threw his hand down to protect his firearm. He pressed the magazine release button to disarm it. He said he then curled up into the foetal position. He said the appellant hit him in the head again and he felt a tugging on his firearm and a further hit to the head. He said the appellant kicked him once saying that he could “kick the shit out of me but I’m not going to”, to which Jelfs replied, “I appreciate that”. He said the appellant then stood up and walked to the stairs of the porch and sat down. Moments later another police patrol arrived and the appellant was arrested.
The officer said that he believed he had been punched “maybe eight-ish times”, but that he could not be accurate. He said he was kicked at least once.
The appellant’s version of events, given on oath, was quite different. He said that after handing over his license, Jelfs had a conversation on the radio and then pocketed the license. The appellant said he asked for its return, whereupon Jelfs took hold of his arm, twisted it and pushed him against the wall, pinning his arm behind his back. Jelfs tried to handcuff him and the appellant was trying to prevent that. The appellant said that at no stage was he told that he was under arrest in relation to a warrant, merely that he was being arrested. He described Jelfs’ conduct as follows:
A.I was pushed into the wall, I was pushed in with my neck quite powerfully into the wall with my head, and I had my arm pushed right up behind my back, it was my right arm, not my left arm, and he asked me to give my other arm and it was so painful as he did it quite forcefully that I knew it couldn't be legal, I knew it was wrong.
The appellant continued:
A.There's no way it could be legal. He was so excessive. He was completely - we went from having a conversation about a car to being pushed into the wall.
The appellant said he asked, “What is this for?” and was punched in the back while being held against the wall. They both fell to the ground. At some stage Jelfs’ spectacles fell off and the appellant said that this seemed to cause Jelfs to panic, and to defuse the situation. The appellant denied punching or kicking Jelfs, or threatening him. He also denied attempting to take possession of Jelfs’ firearm, or pulling or tugging at it. The appellant denied telling Jelfs that he had missed signing in the day before, although he acknowledged in cross-examination that a condition of his bail on another matter required him to sign in on Tuesdays at the Holden Hill Police Station and he had omitted to do so on the day prior, the Tuesday.
As can be seen, the two versions of events were diametrically opposed. On the prosecution case the appellant resisted arrest and assaulted Jelfs, who was plainly acting in the course of his official duty. On the appellant’s evidence, Jelfs failed to tell the appellant why he was being arrested. Therefore, Jelfs was acting unlawfully and the appellant was entitled to resist what he saw as a plainly unlawful deprivation of liberty.
Arguments on appeal
The gravamen of the appellant’s main complaint is that when summing up on the elements of the offences – and in particular on the circumstance of aggravation – the Judge failed to direct upon the prerequisites of a lawful arrest and failed to explain what was involved in the notion of an officer acting in the course of his official duty and to specify that it was necessary for the prosecution to prove, not only that Jelfs was so acting, but that the appellant knew he was so acting. It was argued that, unless Jelfs had told the appellant why he was being arrested, the aggravating circumstance could not be made out and therefore it was necessary to take a verdict on each basic charge and then separately ascertain if the jury found the circumstance of aggravation proved.
The appellant’s ground two is a complaint that, in directing with respect to the concept of self-defence, the Judge failed to explain how the factual issue of whether Jelfs told the appellant the reason for his arrest could impact on the appellant’s reasonable belief that Jelfs was acting unlawfully.
It is further argued that, taking into account the jury’s failure to reach a verdict on Counts 2 and 3, the verdict on Count 1 is unreasonable or cannot be supported.
I turn to the Judge’s summing up.
It is true that the Judge did not set out in summary form the elements of a lawful arrest. Neither did the Judge tell the jury in specific terms that Jelfs would not have been acting in the course of his duty if he failed to inform the appellant of the reason for his arrest. Furthermore, the Judge did not expressly direct that proof was necessary, not only that Jelfs was acting in the course of his duty, but that the appellant knew so. What the Judge said under the heading of “Ingredients of the offences” and in addressing the circumstance of aggravation was this:
(a)So that covers the basic offence of assault causing harm. The charge is aggravated assault causing harm the circumstance of aggravation, as you can see on the information, ‘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’. It is a matter for you, but in the circumstances I do not imagine you are going to have much trouble finding that the accused knew that Constable Jelfs was a police officer. He was in uniform and he just had a conversation with the accused about the abandoned car.
(b)Did he know he was acting in the course of his duty? That will be a matter for you as to the factual circumstances you find proved. But on Constable Jelfs’ version, once he had completed the abandoned car inquiry, he turned away and made another radio inquiry, then on his version turned back and told the accused he was arresting him on the warrant. Whereas the accused says ‘No, he completed the abandoned car inquiry, there was a conversation, I did not hear anything of, then he just turned back, grabbed me, twisted my arm up my back and pushed me into the wall, then tried to push me over the balcony’. So, says the accused, ‘I believed he was no longer acting in the course of his official duty as a police officer’.
(c)So you see again, ladies and gentlemen, that will turn on the facts that you find proved. You might think that on Constable Jelfs’ version, the accused would have known he was acting in the course of his duty, he said he was arresting him on the warrant. On the accused’s version, Constable Jelfs did not say that, but just attacked him and that would be fairly plainly outside the scope of his official duties I would have thought.
(d)So you see, the facts you find proved will determine that issue and indeed all of these legal issues, always bearing in mind the onus of proof, as I have directed you.
(paragraphs have been given a letter for ease of reference)
I turn to the directions on self-defence. As has been seen, the appellant did not claim he acted in self-defence. Rather, his evidence was that he merely did what he could – not including any assault – to attempt to forestall Jelfs’ unlawful detention of him. The Judge explained this to the jury and told them that it was necessary for him (the Judge) to cover all “potential versions of the facts” that the jury might accept.
The Judge gave a comprehensive direction on self-defence. The onus of proof was clearly explained. The important aspect for present purposes is this part of it:
(e)Now, that first aspect of defensive purpose can include not only defending yourself from an attack but defending yourself from unlawful imprisonment.
(f)The legal test for that is, I will read it and then repeat it for you: ‘The accused would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Constable Jelfs was acting unlawfully’. As promised I will repeat that: …
(g)Now, again in this regard you have the contrasting version of events that was happening on the porch. They are radically different and, as I touched upon when I talked about the circumstance of aggravation and whether the accused knew that he was acting in the course of his official duty: The versions are radically different, and again your conclusion on the facts will determine the issue.
The Judge commenced his summing up at 2.01 pm on the final day of the trial. The jury retired at 2.48 pm. At 7.35 pm the jury asked a question which is not presently relevant. At 8.19 pm the jury entered the Court room having advised by a note that they could not reach a verdict on Counts 2 and 3. The jury then retired to consider whether more time would assist them. During their retirement the Judge and counsel discussed the question of how the verdict on Count 1 might be taken. The Judge indicated a view that the jury should be asked for “a composite verdict on the basic [offence] and aggravated circumstance”, indicating that this was the way it had been put to the jury all along. Counsel for the prosecution, Ms McDonald SC, agreed with that approach, saying that if the jury did not find the factor of aggravation proved that must mean that they accepted the defence case as a reasonable possibility. His Honour suggested that any finding of guilt of a basic offence without the aggravating circumstance might amount to an inconsistent verdict. Mr Aitken, for the appellant, appeared to agree with the proposal that taking one verdict to encompass each offence as charged would be appropriate. Accordingly, the jury was not asked separately whether the aggravating circumstance was found proved.
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.
In my view, these directions were apt to bring home to the jury that advice of the basis for the arrest was an essential element in proof that Jelfs was acting in the course of his official duty. In addition, there was in practical terms no room on the facts for a middle position. The two versions were starkly different.
As to counsel’s point that the appellant had to know that Jelfs was acting in the course of his duty, this was addressed directly and clearly in paragraph (c). On either version the position was plain. On Jelfs’ version it could not have been clearer; on the appellant’s version what Jelfs did from the time when the appellant asked for the return of his licence “couldn’t [have been] legal”. He said, “it was just too excessive”. This amounted to a positive assertion that the appellant believed Jelfs was not acting in the course of his duty. If the jury rejected this evidence then it would inevitably find that the appellant knew Jelfs was acting in the course of his duty. In my view the directions encapsulated the law and the relevant facts bearing on this issue. This ground is not made out.
I turn to ground 2. The Judge was not initially inclined to sum up on self-defence since it was no part of the defence case. On the appellant’s case he did not assault Jelfs. However, the Judge was persuaded by counsel that he should.
The direction given was in fairly standard terms and in accordance with s 15 of the Act. The jury was told there were two aspects: a defendant’s genuine belief, and proportionality. In relation to the belief, the Judge explained that lawful self-defence required that the defendant had a genuine belief that force was needed for a defensive purpose and that what was done was necessary and reasonable for that purpose. A defensive purpose included defending oneself from attack and defending oneself from unlawful imprisonment. It would not include defending oneself from an apparently genuine arrest.
The essential issue was encapsulated in the passage set out as (f) above. The direction was that the appellant would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Jelfs was acting unlawfully. This wording is taken directly from s 15(4) of the Act. The complaint is that the Judge did not go on to say that the appellant would have a reasonable ground to believe that Jelfs was acting unlawfully if, upon the arrest, Jelfs failed to state the reason for the arrest.
As a proposition, that last is correct. However, was such a direction required in the circumstances of this case bearing in mind the balance of the directions?
In my view the Judge was not required to say more. The issue of unlawfulness encompassed both the suggested failure to inform of the reason for arrest and the violence said to be used by Jelfs. The two aspects could not, on the facts, be separated. While one could contemplate a case theory where they might be treated separately by the jury, in practical terms there was no scope for such a division. It was for that reason, no doubt, that the Judge suggested an approach to the case that the jury might take whereby they would start by determining the facts, because the facts and not the legal niceties would “pretty much” determine the outcome of the trial. (In this context the Judge again reminded the jury of the onus of proof.)
The issue of whether the appellant was told the reason for arrest loomed large throughout the trial including in Mr Aitken’s address. (The prosecutor took a more holistic view of Jelfs’ account of the event.) That it was inextricably bound up in the question of lawfulness of Jelfs’ conduct would have been obvious to the jury. It was a critical feature of both cases. Ground 2 is not sustained.
Furthermore, there is an air of unreality about the arguments underlying these two grounds. On the prosecution case it was in the forefront of the appellant’s mind that he had failed to attend court in answer to his bail on the previous day. According to Jelfs the appellant said as much to him. Although Jelfs attended in relation to the appellant’s apparently abandoned car, when the appellant saw Jelfs communicating on his radio it would have been painfully obvious to him that there was a risk of immediate repercussions from his failure to answer bail. In these circumstances it is not surprising that the appellant’s evidence before the jury focussed not only on the claimed failure to state the reason for arrest, but more particularly on what the appellant said was extraordinary and unwarranted violence shown to him by Jelfs.
I turn to ground 3. The appellant contends that the jury’s verdict on Count 1 is unreasonable having regard to the jury’s failure to agree on a verdict in respect of Counts 2 and 3. He asserts that those two positions are inconsistent.
Counsel appeals to the principles which have been developed in relation to inconsistent verdicts including in MacKenzie v The Queen (1996) 190 CLR 348. He relies on R v Russo (2017) 128 SASR 377 and the cases cited therein for the proposition that the principles concerning inconsistent verdicts may be imported to the situation where the suggested inconsistency is between one or more verdicts of guilty, as against a failure to agree on a verdict for other counts.
In R v R, GJ (2009) 105 SASR 506 at [32] Kourakis J (as he then was) sounded a note of caution in relation to the extension of these principles into a comparison of a guilty verdict with a failure to agree. In particular he noted that it is difficult to see that a verdict of guilty is rendered illogical by the failure to reach a verdict on another count within the same period of time. His Honour reiterated that view in R v Neocleous [2017] SASCFC 162, where Doyle and Peek JJ showed a preparedness to place more weight on a jury failing to agree on some counts. Even so, that appeal was dismissed by all three members of the bench. I, too, would caution against the application of these principles to the current situation, certainly without great circumspection. Nonetheless, I do not say that there could never be an exceptional case where relevant inconsistency might be made out.
Mr Aitken argues that this case turned on the competing accounts of the events of the two witnesses. He put that there was no relevant basis to distinguish between Count 1 as against Counts 2 and 3.
In my view, there was one reason at least to distinguish Count 1 from the other counts. It might be thought to be unusual that a verbal threat should be the subject of alternative counts such as Counts 2 and 3. Usually the prosecution would characterise the threat as being either one to kill or one to harm, and charge accordingly. In her opening address the prosecutor explained to the jury that the real difference between the two offences charged was “what you make of the threat that was uttered if you find such a threat was uttered”.
In examination in chief Jelfs described the threat in the following terms. He said he had fallen to the ground and the appellant was on top of him. The appellant punched him “in the head a few times and said he was going to get my gun and kill me”. After a struggle over his gun Jelfs said the appellant kicked him once and said that “he could kick the shit out of me” but was not going to.
In my opinion, the approach to be taken by the jury to this pair of charges was not at all straightforward. On the face of Jelfs evidence this was a threat to kill or nothing and the availability of an alternative count could only confuse things. Moreover, it was closely followed by an expression of violence of a lesser calibre, which was not to be pursued by the appellant. Some members of the jury might well have doubted the appellant’s intention to arouse a fear that the threat to kill was to be carried out, especially when it was followed so closely by the appellant’s intimation that he intended to go no further. Any such confusion or uncertainty about these charges would have no bearing on Jelfs’ credit or on the reasonableness of the verdict on Count 1. Therefore there is no implication for Count 1 to be drawn from the jury’s failure to agree.
There is a further reason why I consider this argument must fail. In R v Kirkman (1987) 44 SASR 591 at 593 King CJ warned that courts should not be too ready to set aside jury verdicts where they are adequately supported by the evidence. He said that “juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, …”. The Chief Justice went on to say:
Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not logically be justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
In this case the jury would have been well justified in taking the view that the most serious charge was Count 1 and that the threat alleged in Count 2 was merely part and parcel of the same event, and indeed was less serious than the actual assault charged in the first count. Therefore, even had the verdicts on Counts 2 and 3 been verdicts of not guilty I should not have found merit in this ground.
I would dismiss the appeal against conviction.
Application for permission to appeal against sentence
There is also an application for permission to appeal against sentence. It appears that some four days after permission to appeal against conviction was granted, a notice of appeal against sentence was filed. In the circumstances it was referred directly to this Court.
The proposed grounds of appeal are that the sentence imposed was manifestly excessive and that the sentencing Judge erred in declining to suspend the term of imprisonment imposed.
The maximum penalty for aggravated assault causing harm is four years imprisonment. The circumstance of aggravation was that the applicant committed the offence against a police officer, knowing that he was, at the time of the offence, acting in the course of his duty. In sentencing, the Judge took a starting point of two years and three months imprisonment and then deducted three months to reflect a period of 10 months that the applicant spent on home detention bail in relation to the offence, resulting in a head sentence of two years. A non-parole period of 13 months was fixed. The sentence was backdated by over seven months to reflect time spent in custody in relation to the offence.
In his outline of argument the applicant’s counsel, Mr Aitken, asserted that the Judge committed process errors in relation to the sentence. He said this:
The first process error of the learned sentencing judge was to effectively presume that because the assault was on a police officer, and because of the seriousness of the offence, the only sentencing option was immediate imprisonment.
Counsel then asserted that the Judge’s second process error occurred when applying the “test” as to whether there was good reason to suspend the sentence. It was argued that “…it is an error to instead apply a test that there are good reasons for not suspending”. In the alternative it was argued, relying on R v Clancy [2016] SASCFC 4 at [19 – 21], that a judge will fail properly to consider the question of suspension if the judge only considers factors militating against suspending the sentence. Counsel pointed to a distinction made by Von Doussa J in Clarke v Baehnk (1987) 134 LSJS 229 between assaults occurring in the course of a struggle with the police, as opposed to assaults amounting to gratuitous thuggery.
As a fall-back position it was put that the sentence was manifestly excessive taking into account all the circumstances, including that the applicant had already spent seven months, two weeks and a day in custody.
In the context of these complaints it is important to analyse the Judge’s remarks on sentence.
Having set out the maximum penalty for the offence, the Judge turned to the factual basis of sentencing. The Judge referred to the areas of dispute and then indicated that he accepted the police officer’s version of events beyond reasonable doubt. He said that this included that the defendant had tugged at the gun of the officer. He made specific reference to the officer’s evidence on that point. He described it as ‘convincing’. The Judge next dealt with defence counsel’s argument that the tugging at the gun should not be taken into account since that conduct was associated with the charges of threatening life and threatening harm, in relation to which the jury had been unable to agree. The Judge rejected that submission, saying that the gun tugging was “plainly part of the factual matrix of the assault charge as the trial was conducted”.
The Judge then dealt with the applicant’s personal circumstances, including his age (43 years), the extent of his education and work history, the long term relationships he had had, as well as mentioning his two children. The Judge noted the submission that the applicant recently enrolled in a Bachelor of Social Work degree at the University of South Australia. The Judge also dealt with the applicant’s record of criminal offences, observing that they were mainly “low-level offences” but included two assaults and two counts of possessing or using prohibited weapons.
The Judge noted that the officer’s injuries were not serious, although the incident had been traumatic and had had a significant impact upon him both in his employment and his family life.
The Judge then stated, correctly, that offences of “this type” against police officer’s acting in the course of their duties are to be treated seriously and noted the reason for that. He then went onto say this:
Not only is this type of offence serious for the reasons I have just outlined, this particular offence involved the very serious and sinister actions in repeatedly tugging at the holstered firearm of the police officer.
He continued:
In my view, the need for protection of police officers in carrying out their duties on behalf of the community and the serious nature of this particular offence mean that nothing short of a prison sentence actually served is appropriate.
The Judge then imposed sentence.
The last two quoted extracts from the sentencing remarks indicate that counsel’s first asserted process error is misconceived. Far from presuming that offences of this type always called for immediate imprisonment, the Judge specifically referred to the “serious nature of this particular offence” in the context of considering the possibility of suspension.
The second asserted process error was that the Judge failed to consider the issue of whether good reason to suspend existed and merely focused on why the sentence should not be suspended. I do not consider that there was any such error. As already set out, the Judge had summarised, moments earlier, the personal circumstances of the applicant which might, in another case, have amounted to good reason to suspend. There was no need to reiterate them when referring to the issue of possible suspension. The authority of Clancy relied on by Mr Aitken does not prescribe a formula by which a sentencing judge must approach the question of suspension. In that case there were plainly good reasons to suspend to which the Judge made no reference and which must have been overlooked. It was an outcome error.
In relation to whether the sentence was manifestly excessive, I agree with the Judge that while the two punches and a kick were serious enough, the repeated tugging at the officer’s holstered firearm amounted to a very serious and sinister action which, in the Judge’s view – and my own – made this offence a particularly serious one of its kind.
Further, I refute the suggestion that the very fact that the applicant had spent some months in jail of itself amounted to good reason to suspend. Defendants will often have spent a period in custody awaiting the resolution of charges against them, or awaiting sentence. Sometimes the sentencing judge will take the view that the period so spent approximates the period of imprisonment which would otherwise be imposed and will allow for immediate release. Whether that is appropriate is entirely for the judge to assess. It is to be noted that the non-parole period imposed here was almost twice the period already spent in custody.
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 Count
Statement of Offence
Aggravated Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Steven 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 Count
Statement of Offence
Aggravated Threatening Life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Steven 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 Count
Statement of Offence
Aggravated Threatening to Cause Harm. (Section 19(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Steven 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
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.
Jelfs then went on to give evidence that the warrant check confirmed that it was active “and I turned around and said to Mr Tipping that he had an active warrant and that he was under arrest”. Jelfs said that Tipping then said that he did not want to go to gaol and that he had “just failed to sign in” the day before. Jelfs then said “I don't know why a warrant's active for you but you are under arrest and you will have to come with me to Holden Hill”.
Jelfs gave evidence that Tipping said several times that he did not want to go to gaol, that Jelfs attempted to handcuff Tipping, that Tipping grabbed hold of Jelfs’ vest and a struggle ensued. Jelfs gave evidence that he then dropped the handcuffs and kicked them off the porch so that Tipping could not use them as a weapon, that Tipping continued to struggle and that Jelfs said to him “If you stop now I won’t add any charges apart from the warrant”. Jelfs gave evidence that Tipping “said ‘It’s too late’ and with that he punched me with the left fist to the side of my face, my right side (INDICATES), knocking my glasses off”; the struggle continued and Tipping punched Jelfs again. Jelfs stated that “I believe I punched him” (Tipping).
Jelfs gave further evidence that it was only at this rather advanced stage of the events that he engaged the emergency button on the top of his radio (referred to as the ‘hot mike’), which records and opens the line to police communications. (This topic is returned to below.)
Jelfs gave further evidence that he then grabbed Tipping by his jacket, trying to throw him to the ground, but Jelfs lost momentum and fell to the ground; that Tipping then got on top of him and punched him in the head again; that Tipping then said that he was going to get his (Jelfs’) gun and kill him after which Jelfs felt a tugging on his belt and on the pistol; and that Jelfs retained control of the pistol (which was never removed from its holster). Jelfs also gave evidence that he believed that while he was on the ground Tipping kicked him once and then said that he could “kick the shit out of me but I’m not going to”; that Tipping then stood up and Jelfs could hear a siren in the distance; and that Tipping walked to the stairs at the porch and sat down. Other police officers arrived moments later.
Jelfs did not say anything in examination about what he did with Tipping’s driver’s licence. However, in cross-examination appears the following passage:[4]
QYou put the licence in your top pocket, didn’t you.
ANo.
QWhere did you put it.
ABack pocket, right-hand side.
QHas that licence ever been returned to Mr Tipping, so far as you’re aware.
AI’m not, as far as I’m aware, but it was handed in.
[4] The relevance of this matter is discussed below at paragraphs [118]-[121].
The appellant’s version of the subject matter of the charges
In overview, Tipping’s version was that he was arrested by Jelfs in a very forceful manner; and that he only resisted against what he considered to be unjustifiable force being used by Jelfs; and that although he asked Jelfs why he was being arrested, Jelfs at no stage gave him any information as to why he was being arrested.
Tipping gave the following evidence. Upon Jelfs’ arrival, Jelfs asked him about his vehicle and then requested that he get identification. He did so and presented his driver’s licence to Jelfs on the porch. He saw that Jelfs had a radio conversation but he did not think that that concerned him. (And no doubt on Jelfs’ own version that was the impression that Jelfs wanted to give him.)
As to his driver’s licence, Tipping stated:
QWhat, if anything, did Mr Jelfs do with that driver's licence.
AHe proceeded to have a radio conversation.
QDid he put it anywhere.
AAfter the radio conversation, he put it in his pocket.
QWhich pocket.
AI believe it was his top right pocket.
…
AWell, he went to put my licence in his pocket, I've asked him 'Can I have my licence back?', he grabbed my arm, he twisted it around, which caused me to twist around, then he's pushed me into the wall.
It can be seen that Tipping asserted that Jelfs’ act of taking the drivers licence and putting it in his pocket occurred right at the beginning, and before any physical contact, was immediately followed by Jelfs’ initiation of physical contact in that Jelfs “grabbed my arm, he twisted it around, which caused me to twist around, then he's pushed me into the wall”.
Tipping gave evidence that he was struggling to avoid being handcuffed, that Jelfs pulled his right arm up behind him very forcefully and that he was pushed up powerfully against the wall by Jelfs. Tipping gave evidence that he continued to resist Jelfs' attempts to handcuff his left arm, that he received some form of punch or impact, possibly from Jelfs' forearm, whilst against the wall, and that he was then slipping around on loose broken glass that was underfoot on the porch and was very slippery. Tipping gave evidence that they then both fell to the ground and Jelfs’ glasses fell off in the struggle. He stated as to this event:
QI want you to be quite precise here. When the glasses came loose, or came off, did anything in terms of Mr Jelfs' demeanour change.
AIt did.
QCan you tell the ladies and gentlemen what happened.
AI think it seemed to be he was in a blind panic. His whole demeanour sort of changed at that point.
QWhat happened then.
AI assured him I wasn't going to hurt him. I was on the floor. I got up before him. I assured him I wasn't going to hurt him and then calmed the situation down. I grabbed my shoes and I sat on the step and I started to put my shoes on. I could start to hear sirens as I was starting to put my shoes on. I helped Mr Jelfs to his feet before that and I started to put my shoes on. I also pointed out where his glasses were. He asked where his glasses were. I pointed to where his glasses were and he couldn't see them. They were only a metre-and-a-half away from him and he couldn't see them.
It is to be noted that Tipping was quite adamant about three important matters. First, Jelfs told him that he was under arrest but never gave any reason for the arrest, despite Tipping asking. Second, Tipping denied saying anything to Jelfs about not signing in at a police station or saying, “I don’t want to go to gaol”. Tipping gave lengthy evidence in chief and cross-examination explaining what his mental state was at the time of the arrest, that he had got the dates wrong and that he simply did not associate Jelfs’ actions with a breach of his bail; and he was adamant that Jelfs had said nothing on the topic. Third, Tipping denied that he punched Jelfs, attempted to take his firearm or threatened him at any stage.
Tipping’s evidence-in-chief concluded thus:
QWhen Mr Jelfs purported to arrest you, what was going on in your mind.
AI could not believe what he was doing.
QWhy do you say that.
AIt was just so excessive. There's no way it could be legal.
QSorry.
AThere's no way it could be legal. It was just too excessive. Went from a conversation about my car and my identification to having been turned around by the wrist and pushed into the wall and told I'm under arrest.
QIs it your evidence that there was no other words ever uttered save and except 'You're under arrest'.
AHe said 'You're under arrest, you're under arrest, all right' and I said 'What's this for?' I can't believe - my arm is out to get my licence back, I just asked for my driver's licence back and he used the opportunity to grab my arm and twisted it around and say 'You're under arrest, you're under arrest'.
The grounds of appeal
The amended grounds of appeal are as follows:
1.The learned trial judge erred in failing to direct the jury, with respect to the aggravating feature, that:
a. The Prosecution had to prove that the complainant was acting in the course of his official duty when arresting the defendant; and
b. The complainant would not have been acting in the course of his official duty if, when arresting the defendant, he failed to tell the defendant why he was being arrested; and
c. The Prosecution had to prove that the defendant know that the complainant was acting in the course of his official duty; and
d. The defendant could not have known that the complainant was acting in the course of his official duty when arresting the defendant unless the defendant first heard the complainant tell the defendant why he was being arrested; and
e. The aggravating circumstance needed to be considered and proven separately from the basic offence.
2.The learned trial judge erred in failing to direct the jury that in considering whether the defendant was acting in self-defence that:
a. The Prosecution had to prove that the defendant did not genuinely believe, on reasonable grounds, that the complainant was acting unlawfully; and
b. The complainant would have been acting unlawfully and unlawfully imprisoning the defendant if, when arresting the defendant, he failed to tell the defendant why he was being arrested.
3.The verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
a. The jury verdict of guilty on Count 1 being hung on Counts 2 and 3 was inconsistent.
b. The verdict on Count 1 was unsafe or unsatisfactory.
An overview of the legal matrix in Count 1
Even if one restricts consideration to Count 1, the legal matrix to be considered was in fact quite complex.
Concerning the substantive charge in Count 1, the jury had to be satisfied that any violence offered by Tipping was not justified by self-defence. However, in assessing self-defence, questions concerning the lawfulness of the conduct of Jelfs loomed large. On one level, there was the more obvious question of whether Jelfs committed physical assaults on Tipping which of themselves were obviously unjustified such as to be unlawful per se. But on another much less obvious level, there was a further parallel question as to whether the conduct of Jelfs in attempting to arrest Tipping was in fact unlawful ab initio due to a failure to observe the rule in Christie v Leachinsky[5] that for an arrest to be lawful, the officer must tell the arrestee the reason for his arrest.[6]
[5] [1947] AC 573.
[6] The appellant’s complaint is that the Judge failed to acquaint the jury with that rule such that the jury could “find the facts” and apply the law to those found facts; it was, of course, unnecessary for his Honour in summing up to refer to the case by name.
These two questions concerning the substantive offence in Count 1 needed to be clearly distinguished. There was a real danger that they would be elided and such danger was exacerbated by the fact that, in South Australia, a person’s right to resist unlawful arrest is treated as a species of “self-defence”. Thus s 15(3)(a) of the Act lays down a broad structure of self-defence built upon the concept of a “defensive purpose” but s 15(3)(b) then enacts that a “defensive purpose” includes not only self‑defence but also “to prevent or terminate the unlawful imprisonment of himself …”. Thus s 15(3)(b) provides:
(3) For the purposes of this section, a person acts for a defensive purpose if the person acts—
…
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
The Judge’s summing up
The Judge initially directed as to self-defence in the context of the substantive offence in Count 1. His Honour here directed as to the conventional defensive purpose of self-defence from physical attack and commenced thus:[7]
… The Crown must prove that the accused was not acting in lawful self-defence. If a person is under attack or genuinely apprehends that he is about to be attacked, that person may use force to defend themselves and in so doing they are entitled to do what is reasonably necessary to defend themselves.
[7] Summing Up, page 7.
His Honour proceeded to further direct as to genuine belief and proportionality in such circumstances. His Honour then turned to the quite different defensive purpose in s 15(3)(b) (reproduced above) and directed:[8]
Now, that first aspect of defensive purpose can include not only defending yourself from an attack but defending yourself from unlawful imprisonment.
The legal test for that is, I will read it and then repeat it for you: 'The accused would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Constable Jelfs was acting unlawfully.' As promised I will repeat that: 'The accused would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Constable Jelfs was acting unlawfully.'
[8] Summing Up, page 8.
However, the difficulty is that the effect of his Honour's summing up was to restrict the possible basis of unlawfulness of Jelfs’ conduct to unjustified physical violence performed by Jelfs because his Honour simply did not direct the jury as to the rule in Christie v Leachinsky.
As to the aggravating circumstances charge in Count 1, his Honour directed:[9]
So that covers the basic offence of assault causing harm. The charge is aggravated assault causing harm and the circumstances of aggravation, as you see on the information, ‘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’. It is a matter for you, but in the circumstances I do not imagine you are going to have much trouble finding that the accused knew that Constable Jelfs was a police officer. He was in uniform and he just had a conversation with the accused about the abandoned car.
Did he know he was acting in the course of his duty? That will be a matter for you as to the factual circumstances you find proved. But on Constable Jelfs’ version, once he had completed the abandoned car inquiry, he turned away and made another radio enquiry, then on his version turned back and told the accused he was arresting him on the warrant. Whereas the accused says ‘No he completed that abandoned car enquiry, there was a conversation, I did not hear anything of, then he just turned back, grabbed me, twisted my arm up my back and pushed me into the wall, then tried to push me over the balcony’. So, says the accused, ‘I believed he was no longer acting in the course of his official duty as a police officer’.
So you see again, ladies and gentlemen, that will turn on the facts that you find proved. You might think that on Constable Jelfs’ version, the accused would have known he was acting in the course of his duty, he said he was arresting him on the warrant. On the accused’s version, Constable Jelfs did not say that, but just attacked him and that would be fairly plainly outside the scope of his official duties I would have thought.
So you see, the facts you find proved will determine that issue and indeed all of these legal issues, always bearing in mind the onus of proof, as I have directed you.
[9] Summing Up, pages 5-6.
After referring to Counts 2 and 3 his Honour further directed concerning the approach to be taken to that aggravating circumstances charge:[10]
Now, again in this regard you have the contrasting version of events that was happening on the porch. They are radically different and, as I touched upon when I talked about the circumstance of aggravation and whether the accused knew that he was acting in the course of his official duty: The versions are radically different, and again your conclusion on the facts will determine the issue.
Which really brings me to suggest something here, because you may have found being hit with all these ingredients and legal directions it is starting to sound a little bit formidable and complicated. But I am going to suggest an approach that I expect will make this all a fairly clear and straight forward process.
I directed you earlier the facts are for you and my directions need to be applied to the facts as you find them. So, can I suggest an approach. I suggest you, first, decide what facts, if any, you find proved beyond reasonable doubt. That is where I suggest that you use those approaches I talked about earlier about assessing witnesses and how their evidence fits with surrounding facts and circumstances that you find proved and applying your common sense and experience in life. I suggest that the fact finding process will really be pretty much determinative of the outcome in this trial.
So determine, first, I suggest, what evidence you accept is truthful and reliable. In other words, what factual matrix you find proven. Once you do that I do not think you will find it is such a formidable or complicated process and I do not think you will have difficulty in applying the directions I have just given you. In other words, I expect your findings of fact will go a fair way to doing your job in this trial. It will be all ready apparent to you by now that the factual scenarios on the defence and prosecution cases are totally different, chalk and cheese. Importantly, it is not just a matter of choosing which one you prefer. Because, as I have directed you, it is the prosecution who carry the onus of proving their case. The defence carry no onus to prove or disprove anything.
Having said that, inevitably you are going to have to get to grips with the evidence and you are going to need to assess how plausible or implausible you find the different scenarios and how they fit with the surrounding facts and circumstances.
[10] Summing Up, Pages 8-9.
Later, his Honour concluded his summing up thus:[11]
In assessing the evidence you will bring to bear those things I have talked about. If you are satisfied beyond reasonable doubt of the essential prosecution factual scenario, then I expect you will not have much trouble finding, it would follow, that count 1 and either counts 2 or 3 are made out.
If you are not satisfied of the prosecution scenario beyond reasonable doubt either because the accused's evidence strikes you as at least a reasonable possibility; or because you do not know where the truth lies, or for any other reason you are not persuaded beyond reasonable doubt of the prosecution factual scenario; then the prosecution will not have proved its case on any count.
[11] Summing Up, page 12.
It can be seen in the above passages that his Honour once again restricted his directions concerning execution of duty to Tipping’s evidence that he considered that the physical assaults by Jelfs upon him were excessive and unlawful; again, his Honour said nothing about the rule in Christie v Leachinsky.
The jury retired to consider their verdicts at 2.48 pm. The jury returned to Court at 7.35 pm to hear directions answering a question they had sent his Honour, which is not presently relevant. The jury retired again at 7.38 pm. Subsequently the jury sent the Judge a further note the contents of which were read to counsel as follows:
‘We have a verdict on count 1, we are hopelessly hung on counts 2 and 3, what do you want us to do?’, and next to the word ‘hopelessly’ is an asterisk and down the bottom there is ‘no prospect of a (sic)
After some dialogue with the jury, and then with counsel in the absence of the jury, the Judge ultimately gave the jury the following further direction:
JURY RETURNS 8.47 P.M.
HIS HONOUR: As to your note, I am not going to ask any further questions about it. I am going to go along with your request because I accept that you have had plenty of time to think about it and if you say ‘No prospect’, there is no prospect so I will discharge you in relation to those other two counts and I will take a verdict on count 1.
Count 1 is an aggravated assault causing harm which is a basic offence plus the circumstance of aggravation, but in this particular case it has been put as a package, as it were, as the aggravated offence. So I am simply going to ask that one verdict be taken, not split it up. So it is all in there, your verdict is on aggravated assault causing harm as I outlined all of the ingredients to you including the circumstance of aggravation.
CHARGE: AGGRAVATED ASSAULT CAUSING HARM
VERDICT (MAJORITY) GUILTY
…
SUMMING UP COMPLETED 8.50 P.M. [Emphasis added]
It is to be noted that his Honour here positively directed that the jury must return only one verdict on both the substantive charge and the aggravating circumstances charge; in other words the jury were bound to find the appellant guilty on both or not guilty on both.
There was no ground of appeal complaining about this aspect as a discrete error of law (although as will be seen, the matter has relevance when considering the other grounds of appeal). However, it should certainly not be assumed in the future that a Judge has legal power to do such a thing, either as a matter of his own responsibility or with purported consent by either counsel for the defence or the prosecution or both. Speaking for myself, I consider that the Judge had no such power.
It is a required element of the circumstances of aggravation that Jelfs was in fact acting in the course of his duty
The summing up failed to make a number of matters clear to the jury. One important matter is that it was not made clear to the jury that, on the correct construction of s 5AA of the Act, a required element of the charge of aggravating circumstances is that the police officer was in fact acting in the lawful execution of his duty.
In Bedi v The Queen the appellant was charged with an offence of endangering life contrary to s 29(1) of the Act. A question arose as to what were the precise elements of that offence and Duggan J (with whom Bollen and Mullighan JJ concurred) stated:[12]
[12] (1993) 61 SASR 269, 274.
It was argued on behalf of the appellant that an essential element of the charge of endangering life was not averred in the information and that the conviction on the two counts alleging that offence were void or fundamentally flawed. In so far as it is relevant, s 29(1) of the Criminal Law Consolidation Act 1935 provides as follows:
“Where a person, without lawful excuse, does an act or makes an omission —
(a)knowing that the act or omission is likely to endanger the life of another; and
(b)Intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceeding 15 years.”
In my view this provision is clumsily worded. Inherent in the requirement that the accused knew the act or omission was likely to endanger the life of another is the proposition that it was, in fact, likely to produce that result. Accordingly, proof that it was such an act would seem to be an important element in establishing the commission of the offence. It is unsatisfactory that this should be left to inference from the wording of the section. [Emphasis added]
Thus, the words in s 29(1) “knowing that the act or omission is likely to endanger the life of another” necessitate that there must be an additional unstated element of the charge, namely that the act or omission was in fact likely to endanger the life of another for the simple reason that it is impossible to know ‘something’ unless that ‘something’ actually exists.
The position is exactly the same in relation to s 5AA(1)(c)(i) of the Act. Section 5AA relevantly provides:
5AA—Aggravated offences
(1) Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:
(a)the offender committed the offence in the course of deliberately and systematically inflicting severe pain on the victim;
(b)the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence;
(c)the offender committed the offence against a police officer, prison officer or other law enforcement officer—
(i)knowing the victim to be acting in the course of his or her official duty; or
(ii)in retribution for something the offender knows or believes to have been done by the victim in the course of his or her official duty;
…
(3) If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(4) If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict).
Just as in Bedi, the words in s 5AA(1)(c) “knowing the victim to be acting in the course of his or her official duty” necessitate that there must be an additional unstated element of the present charge of aggravating circumstances, namely that Jelfs was in fact acting in the course of his official duty, again for the simple reason that it is impossible to know ‘something’ unless that ‘something’ actually exists. It follows that here the jury should have been directed (but were not) that in order to find the aggravating circumstances facts made out they had to be satisfied beyond reasonable doubt that, at the time of the performance of the relevant act by the appellant, the following matters of fact existed:
-First, that Jelfs was in fact a police officer;
-Second, that Jelfs was in fact acting in the course of his official duty as a police officer; and
-Third, that the appellant knew that Jelfs was in fact acting in the course of his official duty as a police officer.
The jury should also have been directed that if they were satisfied as to the first requirement, but not satisfied of the second, it was unnecessary to proceed to the third because all three requirements had to be established before the appellant could be found guilty of the aggravating circumstances.
Thus, counsel for the appellant asserts that the effect of the rule in Christie v Leachinsky here is that, on the appellant’s version of fact, Jelfs was not acting in the lawful execution of his duty.
Of course, there was a clash of evidence; Jelfs swore that he informed Tipping of the reason for his arrest and Tipping swore that he did not. But the jury were not required to accept either all or nothing of what a witness said. If they had a reasonable doubt about whether Jelfs did tell Tipping the reason for his arrest, the jury had to acquit of the aggravating circumstances charge even if they were prepared to convict of the substantive charge. This aspect of the matter was never left to the jury by the Judge despite strenuous efforts made by defence counsel in the jury’s absence to have the jury properly directed.
An acquittal of the aggravating circumstances charge would not prevent the appellant being found guilty of the substantive offence
The whole thrust of the summing up was that if Tipping were found guilty on the substantive charge in Count 1, it followed that he would also be found guilty on the aggravating circumstances charge. Indeed the ultimate position of the Judge was that he would take only one uniform verdict for both charges in Count 1.
In fact this was quite incorrect. If the jurors had been correctly directed concerning the rule in Christie v Leachinsky and considered that it was reasonably possible that Jelfs did not say why he was arresting Tipping, an acquittal on the aggravating circumstances charge would likely have resulted. However, if the jury acquitted Tipping on this basis, the jury could still convict him of the substantive charge in Count 1 on the basis that they were satisfied beyond reasonable doubt that he had committed acts of violence upon Jelfs that were wholly disproportionate to the unlawfulness of his arrest (and hence the s 15(3)(b) defence was defeated in relation to the substantive charge).
Another helpful way of looking at this matter is that a finding that Jelfs was not acting in the course of his duty lawfully did not prevent the appellant from being convicted of the substantive charge in Count 1 because the status of the victim as a police officer acting in the course of duty is in no way an element of that substantive charge. It is important to note that many summary charges of, say, assaulting a police officer in the execution of duty which have been dismissed through failure to prove the execution of duty element would have succeeded if the charge had been one of common assault simpliciter. This is a point strongly made by McHugh J in Coleman v Power. His Honour there stated:[13]
[13] (2004) 220 CLR 1, 58-59.
[121] Although a charge of assaulting a police officer in the execution of his or her duty will fail when the officer has engaged in unlawful conduct such as an unlawful arrest, the accused may be convicted of common assault if his or her response is excessive. The author of a Comment on Nguyen refers to the availability of this course being open to the prosecution.[14] The author referred to Kerr v DPP[15] where the Queen's Bench Division refused to uphold a conviction for assaulting a constable in the execution of his duty where the constable, believing his partner had already arrested a woman, took hold of her arm to detain her. The woman retaliated by punching the constable. Because no arrest had taken place, the officer's conduct was outside his duty. However, the Court referred to the possibility of an alternative charge of common assault.
[14] Groves, "Case and Comment: Assault (Nguyen v Elliott)," Criminal Law Journal, vol 19 (1995) 342, at p 345.
[15] [1995] Criminal Law Review 394.
[122] In Bentley v Brudzinski[16], Donaldson LJ also suggested that common assault was a course open to the prosecution where the arrest was unlawful. In Bentley, the English Court of Appeal dismissed an appeal against an acquittal on a charge of assaulting a police officer in the execution of his duty. The officer was punched when, at the request of his partner, he attempted to restrain a person for questioning. Donaldson LJ suggested that, where a technical defence may be available to the "execution of duty" element of the charge, common assault should be charged in the alternative in order to support police in their attempts, albeit mistaken, to enforce the law. His Lordship clearly thought that the conduct of the accused in that case was an unreasonable response to the touching on the shoulder.
[16] (1982) 75 Cr App R 217 at 226.
[123] The ratio of Bentley v Brudzinski was applied by the Queen's Bench Division in Collins v Wilcock[17] where a woman, suspected of being a prostitute, scratched a female constable who had unlawfully restrained her for the purpose of issuing a caution. The conviction for assault on the officer was quashed.
[17] [1984] 1 WLR 1172 at 1179; [1984] 3 All ER 374 at 379-380.
[124] These authorities show that once the conduct of an officer is unlawful, the level of physical response offered by an accused is irrelevant to a charge involving the "execution of duty" or "performance of duty". If the appellant had been charged in the alternative with assault contrary to s 246 of the Queensland Criminal Code, the reasonableness of the force that he used would have been an issue. Section 246(1) provides:
"An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law."
[125] One justification is provided by s 31(1)(c) of the Criminal Code:
"A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances ...
(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person ..."
[126] This defence is applicable where the defendant has been unlawfully arrested. The conduct of the accused would be measured according to the requirements of reasonable necessity.
[127] None of those considerations apply in this appeal because assault was not charged independently of the element of an officer executing or performing his or her duty. If the arrest is not made while executing or performing the duty, the authorities establish that the "assault" on the officer is irrelevant because the prosecution has failed to prove an essential element of the offence – that the officer was acting in the execution or performance of his or her duty when or after the "arrest" was made.
I note that earlier in 1983 in Warke v Daire, Zelling J had made the following pertinent observation:[18]
There have been a number of cases in this Court in the recent past in which highly technical questions have been canvassed as to whether or not constables were or were not acting in the execution of their duty. I cannot forbear, before completing this judgment, from quoting the wise words of Donaldson L.J. (as he then was) in Bentley v. Brudzinski[19] that it would be wise for police prosecutors to make an alternative charge of common assault where they think that there may be a technical challenge to an officer's authority and where the reaction of the citizen has been wholly unjustifiable, and I would hope that a similar practice would obtain here.
[18] (1983) 32 SASR 321, 328.
[19] (1982) 75 Cr. App. R. 217, at p. 226.
Zelling J could not have foreseen the burgeoning trend over recent years to make available ever more of these so called “aggravating circumstances”[20] and, indeed, to load up a count on an Information with more than one of them. All of this is done to restrict the discretion of the Judiciary in sentencing; this is bad enough in itself, but it has been done with scant regard to the complications to a trial that their inclusion may cause. The present case is a good example of this problem. Prior to the advent of s 5AA, the present substantive charge would have been laid and, if proven, the aggravating feature of the victim being a police officer carrying out his duty could have been taken into account on sentencing as a common law aggravating feature, if such was the view of the Judge. By contrast, the addition of the aggravating circumstances charge here had the effect of adding a trial of “assault a police officer in the execution of his duty” to be heard by a jury in tandem with the trial of the substantive offence. Ironically, this is to the opposite effect of the wise words of Zelling J above.
[20] See s 5AA of the Criminal Law Consolidation Act 1935.
The hearing of the present appeal
The respondent’s position on the appeal was that the fates of the substantive charge and the charge of aggravating circumstances “were inextricably intertwined”. It was stated in written submissions:
… there was no requirement for any other directions in addition to what the learned trial judge said on the topic. If the appellant’s version was a reasonable possibility then it followed the prosecution had not proved its case beyond reasonable doubt, including that the appellant committed the offence against a police officer (Senior Constable Jelfs), knowing the police officer to be acting in the course of his official duty. Correspondingly, if the jury was satisfied beyond reasonable doubt of Jelfs’ account, it followed that they were also satisfied that the appellant knew Jelfs was acting in the course of his official duty, as a police officer.
…
The onus of proof remained on the prosecution. The discharge of the burden of proof clearly resulted in the jury believing Constable Jelfs’ version of events beyond reasonable doubt and rejecting the appellant’s evidence as a reasonable possibility. [Emphasis added] [Footnotes omitted]
And Tobias JA stated:[63]
[52] It was therefore submitted to the primary judge that in the circumstances the respondent must have known the general nature of the alleged offence for which she had been arrested within the meaning of the third proposition enunciated by Viscount Simon in Christie. It was submitted that the respondent had heard and seen the others being arrested, that she had mopped up the blood in the apartment (although the police did not know that at that stage) and that she had been present during the murder. Accordingly, she knew the reason for her arrest.
…
[63] In my opinion the appellant’s submissions should be rejected. Viscount Simon’s third proposition is that it is only if the person arrested “must know” the general nature of the alleged offence for which he or she is being detained that the requirement that that person be informed of the reason why he or she has been arrested ceases to apply. True it is, as his Lordship’s fourth proposition makes clear, that it is unnecessary that the arrestee be informed by the use of technical or precise language but he or she is still required to be informed in substance of the reason why he or she is required to submit to a restraint on his or her freedom. That reason must be sufficiently precise as to make it clear to the person arrested as to why the arrest is taking place which, in turn, requires the arrestor to notify the arrested person, at least in general terms, of the alleged offence or charge for which the arrest is being made: Adams at 84 [24]; Abbassy v Commissioner of Police of the metropolis [1990] 1 All ER 193 at 197-198.
[64] However, those requirements were far from satisfied in the present case. At the very least, the police would only be discharged from complying with the requirement that the respondent be informed of the reason why she was being arrested if she must have known (not may or likely to or ought to have known) that she was being arrested for some criminal offence that was connected to Harris’ murder. The evidence, from the appellant’s point of view, was at its highest when the respondent agreed that at the time Mark was arrested for Harris’ murder, because of what she had seen and what she had done in terms of cleaning up blood, she “could be in trouble”. In my view that concession falls far short of the requirement that she must have known the general nature of the alleged offence for which she was being arrested. As the respondent submitted, the appellant was able to advance no more than an inference that the respondent had committed some unspecified offence which had something to do with Harris’ murder. [Emphasis added]
[63] (2007) NSWLR 125, 136-139.
I mention one final matter merely for the purpose of dismissing it. There is a further exception that an arrest without reasons stated will not be unlawful if the conduct of the arrestee prevents the officer from giving those reasons. In the present case, the prosecution are bound by their case that Jelfs did in fact give sufficient reasons and that this exception simply does not arise. It was not put to the jury and was not sought to be relied upon on the appeal.
BLUE J
The facts, issues and contentions in this appeal are summarised in the reasons for judgment of Vanstone J and Peek J.
Directions on elements of self defence (ground 2)
It is convenient to address ground 2 before ground 1 because logically the question whether the prosecution has negated self defence arises before the question whether the offence is aggravated.
Under ground 2, the appellant contends that the Judge was required, but failed, to direct the jury that his arrest by Constable Jelfs was unlawful if Constable Jelfs did not tell him that he was arresting him on a warrant issued by the Magistrates Court and such unlawful arrest would have amounted to unlawful imprisonment for the purpose of self defence.
Section 15 of the Criminal Law Consolidation Act 1935 (SA) (the Act) defines the elements of self defence. It relevantly provides:
15—Self defence
(1)It is a defence to a charge of an offence if—
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3)For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)However, if a person—
(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Section 15(3)(a) defines a defensive purpose to include self defence or defence of another. Section 15 renders it a defence to a charge (violence self defence) if:
(a)the defendant genuinely believed his or her conduct to be necessary and reasonable for his or her defence or the defence of another (implicitly against threatened violence) (the subjective limb); and
(b)the defendant’s conduct was in the perceived circumstances reasonably proportionate to the perceived threat (the objective limb).
Section 15(3)(b) defines a defensive purpose to include preventing one’s unlawful imprisonment. Section 15 renders it a defence to a charge (unlawful imprisonment self defence) if:
(a)the defendant genuinely believed his or her conduct to be necessary and reasonable to prevent his or her unlawful imprisonment (the subjective limb); and
(b)the defendant’s conduct was in the perceived circumstances reasonably proportionate to the perceived threat (the objective limb).
Subsection 15(4) proceeds on the basis that one species of unlawful imprisonment is unlawful arrest. Section 15(4)(a) provides that, if a person resists another purporting to exercise a power of arrest, he or she will not be taken to be acting for a defensive purpose unless he or she genuinely believes on reasonable grounds that the other person is acting unlawfully. Sometimes the word “arrest” is used only when the detention is lawful and sometimes to encompass detention which purports to be lawful. I use the word “arrest” in the latter sense.
Section 15 renders it a defence to a charge (unlawful arrest self defence) if:
(a)the defendant genuinely believed on reasonable grounds that the complainant was acting unlawfully in purporting to arrest him (the hybrid limb);
(b)the defendant genuinely believed his or her conduct to be necessary and reasonable to prevent his or her unlawful arrest (the subjective limb); and
(c)the defendant’s conduct was in the perceived circumstances reasonably proportionate to the perceived threat (the objective limb).
Of course, two forms of self defence can apply potentially if for example a defendant is allegedly subjected to both violence and unlawful arrest at the same time. In that event it might ultimately be necessary to consider the subjective and objective limbs by reference to the combined threats of violence and unlawful arrest but nevertheless they are threats of different types and the elements differ due to the additional hybrid element of unlawful arrest self defence.
There are various circumstances in which a police officer is entitled lawfully to arrest a person. They include (without being comprehensive):
·the power of any person to arrest a person in the act of committing or who has just committed an indictable offence, an offence against the person or theft of, destruction of, damage to or interference with property; [64]
·the power of any person to arrest a person to prevent a breach of the peace which is occurring or about to occur or having occurred is likely to be renewed;[65]
·the power of a police officer to arrest a person whom the police officer has reasonable cause to suspect has committed or is about to commit an offence; [66]
·the power of any person to arrest a convicted felon at large;[67]
·the power of a police officer to arrest a person for whose apprehension a warrant has been issued that is in the police officer’s possession;[68]
[64] Criminal Law Consolidation Act 1935 section 271.
[65] At common law: see for example R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, [2007] 2 AC 105 at [29] per Lord Bingham.
[66] Summary Offences Act 1953 (SA) section 75. At common law this power was confined to a person suspected on reasonable grounds of having committed or being about to commit a felony: Nolan v Clifford (1904) 1 CLR 429 at 444 per Griffith CJ (with whom Barton J agreed and O'Connor J relevantly agreed).
[67] At common law: see for example R v Ryan (1890) 11 LR (NSW) L 171.
[68] At common law: see for example Bull v Laing [1929] SASR 65.
the power of a police officer to arrest a person for whose apprehension a warrant has been issued or the officer has reasonable cause for suspecting to have been issued.[69]
[69] Summary Offences Act 1953 (SA) section 79.
It is clearly established that a police officer is only entitled lawfully to arrest a person whom the police officer has reasonable cause to suspect of having committed an offence if the person arrested is informed or otherwise knows of the reason for the arrest.[70] Both parties on appeal proceeded on the basis that this requirement applies to the power of arrest on all grounds and I proceed on that basis.
[70] Christie v Leachinsky [1947] AC 573 at 587-588 per Viscount Simon (with whom Lord Thankerton and Lord Macmillan agreed), 591-595 per Lord Simonds (with whom Lord Thankerton and Lord Macmillan agreed) and 598 per Lord du Parc (with whom Lord Thankerton and Lord Macmillan agreed); Hull v Nuske (1974) 8 SASR 587 at 594 per Walters J; R v Stafford (1976) 13 SASR 392 at 400 per Bray CJ (with whom Hogarth J agreed); Wark v Daire (1983) 32 SASR 321 at 325-326 per Zelling J; R v O’Neil (1988) 48 SASR 51 at 57 per King CJ (with whom Prior J agreed); Horton v Rowbottom (1983) 61 SASR 313 at 323 per Mullighan J.
The Judge introduced the topic of self defence in the following terms (paragraphs numbered for ease of reference):
[1]Fifth, that the accused had no lawful excuse for the application of whatever force you find was applied by the accused to Constable Jelfs. Now the potential lawful excuse that arises for consideration here is whether the accused was acting in self-defence. Of course the accused’s version is that he was the one under attack, he was manhandled by Constable Jelfs and they fell, any harm sustained by Constable Jelfs must have been in the course of that, all of that. So in that sense it was accidental, certainly not as a result of any intentional act of the accused.
[2]Now of course, if that is a reasonable possibility, then you would have to acquit because it has not been proved beyond reasonable doubt that the accused intentionally harmed Constable Jelfs.
[3]So where does self-defence come into it? The accused does not say he harmed Constable Jelfs in self-defence. He is saying, in effect, he was manhandled, they both fell over and Jelfs must have been harmed in the fall. Of course, on Constable Jelfs’ version, Constable Jelfs was telling the accused he was being arrested on the warrant and the accused resisted and attacked Jelfs. So on the face of it, that does not sound like self-defence either.
[4]So you might be asking yourself why does the judge want to give us a direction about self-defence? Good question. As I told you earlier, ladies and gentlemen, it is for you to decide what facts you accept and apply the law to those facts. So my directions need to cover all bases; or potential versions of the facts that you may accept; whatever factual matrix you may find established.
[5]One of the ingredients that the prosecution need to prove is that the accused was not acting in lawful self-defence. Even though this is not one of those cases where the accused says ‘yes, I harmed that person, but I did so in self-defence’. Even though that is not the accused’s evidence, I still need to direct you about self-defence because a charge cannot be made out unless self-defence has been disproved. I will come back to the issue of self-defence when I have finished on the other ingredients of the charge.
The Judge returned to self defence after addressing aggravation. The Judge said:
[6]…The Crown must prove that the accused was not acting in lawful self-defence. If a person is under attack or genuinely apprehends that he is about to be attacked, that person may use force to defend themselves and in so doing they are entitled to do what is reasonably necessary to defend themselves.
[7]There are two aspects to lawful self-defence. The first is that it is a genuine self-defence situation. So for instance, and these are just general examples, but willingly engaging in a fight with someone is not genuine self-defence, it is willingly having a fight. Taking an opportunity to hurt or punish or get back at someone because you are angry or because you think they are interfering in your business, none of those are lawful self-defence either because they would not be a genuine belief that it was a self-defence situation. So it cannot be a pretence of self-defence. It would not be genuine self-defence for a person to resist or fight back to avoid what appears to that person to be an apparently genuine arrest. It needs to be a situation where the accused genuinely believed that what he did was necessary and reasonable for a defensive purpose. Not for a purpose, for instance, of avoiding or resisting an apparent genuine arrest.
[8] So, that first aspect relates to an accused’s genuine belief…
[9]The second aspect of self-defence brings in this concept of proportionality. Again it is both common sense and the law that in responding to what someone considers to be a genuine self-defence situation they have to exercise a degree of proportionality. The precise legal formulation is: in the circumstances as the accused genuinely believed them to be was his response proportionate to the threat that him he genuinely believed to exist. Putting that succinctly: in the circumstances as he genuinely saw them was his response proportionate.
[10]They are the two aspects of self-defence. Firstly, a genuine belief that what he did was necessary and reasonable for a defensive purpose and, secondly, proportionality of response, as I have just outlined.
[11]Now, that first aspect of defensive purpose can include not only defending yourself from an attack but defending yourself from unlawful imprisonment.
[12]The legal test for that is, I will read it and then repeat it for you: ‘The accused would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Constable Jelfs was acting unlawfully’. As promised I will repeat that: ‘The accused would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Constable Jelfs was acting unlawfully’.
[13]Now, again in this regard you have the contrasting version of events that was happening on the porch. They are radically different and, as I touched upon when I talked about the circumstances of aggravation and whether the accused knew that he was acting in the course of his duty: The versions are radically different, and again your conclusion on the facts will determine the issue.
[14]Which really brings me to suggest something here, because you may have found being hit with all these ingredients and legal directions it is starting to sound a little bit formidable and complicated. But I am going to suggest an approach that I expect will make this all a fairly clear and straightforward process.
[15]I directed you earlier the facts are for you and my directions need to be applied to the facts as you find them. So, can I suggest an approach. I suggest you, first, decide what facts, if any, you find proved beyond reasonable doubt… I suggest that that fact-finding process will really be pretty much determinative of the outcome in this trial.
[16]So determine, first, I suggest, whatever you accept as truthful and reliable. In other words, what factual matrix you find proven. Once you do that I do not think you will find it such a formidable or complicated process and I do not think you will have difficulty in applying the directions I have just given you.… It will be already apparent to you by now that the factual scenarios on the defence and prosecution case are totally different, chalk and cheese. Importantly, it is not just a matter of choosing which one you prefer. Because, as I have directed you, it is the prosecution who carry the onus of proving their case. The defence carry no onus to prove or disprove anything.
On the appellant’s evidence, violence self defence and unlawful arrest self defence both arose (if the jury was satisfied that the appellant intentionally inflicted force on Jelfs). The appellant gave evidence that Constable Jelfs gratuitously attacked him by twisting his arm behind his back, pushing him into the wall, punching him in the back and trying to push him over the balcony. The appellant gave evidence that Constable Jelfs did not tell him that he was arresting him on the warrant: if that were so it would have rendered the arrest unlawful and given rise to unlawful imprisonment.
The concept of violence self defence is one with which members of a jury, as laypersons, may be expected to have general familiarity (albeit not necessarily of the specifics of the subjective and objective limbs). The concepts of unlawful imprisonment, unlawful arrest and particularly unlawful imprisonment self defence and unlawful arrest self defence are more esoteric and hence ordinarily will require more explanation to juries.
The jury needed to understand that it could find that the appellant was not acting for a violence defensive purpose and yet could still find that he was acting for an unlawful arrest defensive purpose. Although the Judge referred to both defensive purposes in the course of his directions, nearly all of the directions addressed what the jury would have understood as a violence defensive purpose (paragraphs numbered [1] to [10]) or did not refer to either purpose (paragraphs numbered [13] to [16]). The only reference to unlawful imprisonment self defence was in paragraphs numbered [11] and [12]. The manner in which the Judge addressed self defence gave rise to a potential that the jury might overlook unlawful arrest self defence and/or not understand it or not give separate consideration to it but simply consider self defence holistically and ultimately find that self defence had been disproved because the appellant was not acting for a violence defensive purpose. The risk of this occurring would give rise to an error of law and miscarriage of justice if the Judge did not clearly explain the elements of unlawful arrest self defence.
When the Judge came to address unlawful imprisonment self defence in paragraphs numbered [11] and [12], all that the Judge said was that a defensive purpose includes defending oneself from unlawful imprisonment and the appellant would only be defending himself from unlawful imprisonment if he genuinely believed on reasonable grounds that Constable Jelfs was acting unlawfully. The Judge did not say that one species of unlawful imprisonment is unlawful arrest, although the jury probably would have inferred this. Critically, at no point during the Judge’s directions on self defence did the Judge explain what would render an arrest unlawful. The Judge did not tell the jury that the arrest would have been unlawful if Constable Jelfs did not tell the appellant that he was arresting him on the warrant. The Judge did not tell the jury that, for the purpose of determining whether the prosecution had proved that the appellant did not genuinely believe on reasonable grounds that Constable Jelfs was acting unlawfully, Constable Jelfs would have been acting unlawfully if he purported to arrest the appellant without telling him that he was arresting him on the warrant.
At paragraphs numbered [4] and [5], the Judge told the jury that he was going to give directions on self defence even though it did not arise if the jury accepted Constable Jelfs’ evidence in its entirety or the appellant’s evidence in its entirety because the Judge needed to cover all potential versions of the facts that the jury may accept, ie intermediate versions between both extremes. However, ultimately at paragraphs numbered [13] to [16] the Judge simply observed that the two versions were radically different and invited the jury to choose between them.
The Judge failed, in his directions on self defence, to identify for the jury in a manner tailored to the evidence and issues the elements of self defence and in particular the element of Constable Jelfs being believed to be acting unlawfully. The Director contends that, even if the directions on self defence were deficient, nevertheless the jury must necessarily have understood from the directions on aggravation that the arrest would have been unlawful if Constable Jelfs did not tell the appellant that he was arresting him on the warrant. I therefore defer reaching a conclusion on ground 2 until I have considered ground 1.
Direction on elements of aggravation (ground 1)
Under ground 1, the appellant contends that the Judge was required, but failed, to direct the jury that the arrest by Constable Jelfs of the appellant was unlawful if Constable Jelfs did not tell the appellant that he was arresting him on a warrant issued by the Magistrates Court, such an unlawful arrest would in itself have entailed that Constable Jelfs was not acting in the course of his official duty and the appellant could not in that case be guilty of the aggravated form of the offence of assault.
Subsection 20(4) of the Act creates the offence of causing harm in the following terms:
(4) A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 3 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
Section 5AA identifies circumstances in which an offence is aggravated. Section 5AA(1)(c)(i) provides:
(1)Subject to this section, an aggravated offence is an offence committed in 1 or more of the following circumstances:
…
(c) the offender committed the offence against a police officer, prison officer or other law enforcement officer—
(i)knowing the victim to be acting in the course of his or her official duty;
There are many and varied circumstances in which a police officer may be acting in the course of his or her official duty. One such circumstance is when a police officer is conducting a lawful arrest of the defendant.
Both parties on appeal proceeded on the basis that Constable Jelfs would only have been acting in the course of his official duty if not only he had reasonable cause for suspecting that a warrant had been issued for the apprehension of the appellant but also the appellant was informed that this was the reason for his arrest. The parties also proceeded on the basis that Constable Jelfs would not have been acting in the course of his official duty if he gratuitously attacked the appellant (in the manner described by the appellant in his evidence) in the course of arresting him. I proceed on these bases.
The elements of aggravation contained in section 5AA(1)(c)(i) can be identified as:
1. the victim of the offence was a police officer;
2.the victim was acting in the course of his or her official duty as a police officer; and
3. the defendant knew that the victim was so acting.
In a case in which the victim allegedly arrested the defendant because the victim had reasonable cause for suspecting that a warrant had been issued for the defendant’s apprehension, the elements of aggravation can be more specifically identified as:
1. the victim of the offence was a police officer;
2.the victim was acting in the course of his or her official duty as a police officer, for which can be substituted:
(a) the police officer was arresting the defendant for whose apprehension a warrant had been issued (or was reasonably suspected of having been issued);
(b) the police officer told the defendant (or the defendant otherwise knew) that he or she was a police officer and was arresting the defendant on the ground that a warrant of apprehension had been issued (or was reasonably suspected of having been issued); and
(c) the police officer did not utilise the occasion to inflict gratuitous violence on the defendant; and
3.the defendant knew that the victim was a police officer and that he or she was being arrested on the ground that a warrant of apprehension had been issued (or was reasonably suspected of having been issued) and that the police officer was not utilising the occasion to inflict gratuitous violence.
It can be seen that elements 2(b) and 3 are largely the same. The duplication arises from the fact that knowledge of the defendant is an element of all lawful arrests as well as an element of aggravation pursuant to section 5AA(1)(c)(i) of the Act.
The Judge was not required to direct the jury that it needed to be twice satisfied that the defendant had the requisite knowledge. It was sufficient that the Judge directed the jury that this was an essential element of the aggravated form of the offence.[71]
[71] It does not matter for the purposes of this appeal whether subsection 20(4) creates a single offence (with the penalty varying depending on the existence and nature of an aggravating feature) or two offences (basic or aggravated) or three offences (basic, aggravated or aggravated involving an offensive weapon).
In the present case, there was no dispute about the objective elements of the aggravated form of the offence that Constable Jelfs was a police officer and a warrant had been issued for the appellant’s arrest. The dispute was about the subjective element that the appellant knew that he was being arrested pursuant to a warrant.
The Judge gave to the jury the following directions on the aggravation elements of the aggravated form of the offence of assault (paragraphs numbered for ease of reference):
[1]…The charge is aggravated assault causing harm and the circumstances of aggravation, as you can see on the information, ‘It is further alleged that Stephen 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’. It is a matter for you, but in the circumstances I do not imagine you are going to have much trouble finding that the accused knew that Constable Jelfs was a police officer. He was in uniform and he just had a conversation with the accused about the abandoned car.
[2]Did he know he was acting in the course of his duty? That will be a matter for you as to the factual circumstances you find proven. But on Constable Jelfs’ version, once he had completed the abandoned car enquiry, he turned away and made another radio enquiry, and on his version turned back and told the accused he was arresting him on the warrant. Whereas the accused says ‘No, he completed the abandoned car enquiry, there was a conversation, I did not hear anything of, then he just turned back, grabbed me, twisted my arm up my back and pushed me into the wall, then tried to push me over the balcony’. So, says the accused, ‘I believed he was no longer acting in the course of his official duty as a police officer’.
[3]So you see again, ladies and gentlemen, that would turn on the facts that you find proven. You might think that on Constable Jelfs’ version, the accused would have known he was acting in the course of his duty, he said he was arresting him on the warrant. On the accused’s version, Constable Jelfs did not say that, but just attacked him and that would be fairly plainly outside the scope of his official duties I would have thought.
The Judge did not direct the jury that the arrest by Constable Jelfs would have been unlawful and outside the course of his official duty if he did not tell the appellant that he was arresting him on the warrant. The problem was compounded because there were two different reasons why, on the appellant’s version of the facts, Constable Jelfs would not have been acting in the course of his duty. First, on the appellant’s evidence, Constable Jelfs engaged in gratuitous violence towards him. Secondly, on the appellant’s evidence, Constable Jelfs did not tell him that he was arresting him on the warrant. While the Judge referred to the appellant’s evidence about both the gratuitous violence and Constable Jelfs not telling him that he was arresting him on the warrant, the Judge conflated these two matters and did not make it clear that, if the jury was satisfied beyond reasonable doubt that Constable Jelfs did not engage in gratuitous violence, nevertheless the appellant was not guilty of the aggravated form of the offence unless the jury was satisfied beyond reasonable doubt that Constable Jelfs told him that he was arresting him on the warrant.
Given the manner in which the Judge rolled together these two matters, the jury may have thought that the question whether Constable Jelfs told the appellant that he was arresting him on the warrant was merely part and parcel of determining whether Constable Jelfs engaged in gratuitous violence and was thereby not acting in the course of his official duty. Alternatively, the jury may have thought that it was to consider a holistic question whether Constable Jelfs was acting in the course of his official duty, and any gratuitous violence and/or absence of the appellant being told that he was being arrested on the warrant were merely factors to be taken into account in answering that holistic question.
The risk of the jury forming such an understanding was increased by the last statement made by the Judge that Constable Jelfs’ just attacking the appellant “would be fairly plainly outside the scope of his official duties I would have thought”. This placed the emphasis on the gratuitous violence. The references to “fairly plainly” and “I would have thought” also suggested that the jury was to engage in an evaluative exercise rather than making a simple finding of fact whether it was satisfied beyond reasonable doubt that Constable Jelfs told the appellant that he was arresting him on the warrant (or for that matter whether it was satisfied beyond reasonable doubt that Constable Jelfs engaged in gratuitous violence). The risk was also reinforced by the summary by the Judge in paragraph numbered [2] of the appellant’s evidence to the effect that it was Constable Jelfs’ gratuitous violence which led the appellant to believe that he was no longer acting in the course of his official duty.
It follows that ground 1 is made out. It also follows that ground 2 is made out because the directions on aggravation did not compensate for the inadequacy of the directions on self defence.
Unreasonable verdict (ground 3)
Ground 3 is that the verdict of guilty on count 1 is unreasonable or incapable of being supported having regard to the evidence (misdescribed as the verdict being “unsafe and unsatisfactory”).
I agree with Peek J that the verdict of guilty on count 1 is not unreasonable or incapable of being supported having regard to the evidence. I agree with Vanstone J that the verdict of guilty of count 1 is not inconsistent with the hung verdict on counts 2 and 3 because it was open to some members of the jury to accept that it was a reasonable possibility that the appellant did not have the requisite intention that Constable Jelfs fear for his life or fear physical harm.
Ground 3 is not made out.
The proviso
The question arises whether, despite the inadequacy of the directions concerning self-defence and aggravation, nevertheless there was no substantial miscarriage of justice.
As the Judge observed, the jury was faced with radically different versions by Constable Jelfs and the appellant as to what occurred. On Constable Jelfs’ version, the appellant was guilty of the aggravated offence and no form of self defence arose. On the appellant’s version, the appellant was not guilty of assault. In addition, if the jury accepted beyond reasonable doubt Constable Jelfs’ version insofar as he did not gratuitously attack the appellant and the appellant was not acting in violence self-defence (as it must to have found the appellant guilty of assault), it is likely that the jury would also have accepted his evidence that he informed the appellant why he was arresting him.
However, it is always open to a trier of fact to accept one part of what a witness says and not another part. Juries are universally directed to this effect and the Judge gave a standard direction to the jury in this respect. Similarly, the Judge told the jury that he was only giving directions on self-defence because it might find an intermediate position between the extreme versions of Constable Jelfs and the appellant.
It is impossible to rule out the possibility that the jury was not or would not have been satisfied beyond reasonable doubt that Constable Jelfs did tell the appellant why he was arresting him. This is particularly so given the content of the police recording of conversations between Constable Jelfs and the appellant during which Constable Jelfs told the appellant that he was arresting him but did not tell him why. Of course, that recording does not prove that Constable Jelfs did not earlier tell the appellant that he was arresting him on the warrant but the content of the recording was a factor which might (not must) have given rise to a reasonable doubt by the jury whether Constable Jelfs did tell the appellant that he was arresting him on the warrant.
In OKS v Western Australia[72] Bell, Keane, Nettle and Gordon JJ said in relation to the proviso:
It is well settled that, in a case that does not involve a fundamental defect, the proviso cannot be applied "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict". And as explained in Weiss v The Queen, there are cases in which the natural limitations of proceeding on the record do not permit the appellate court to attain that satisfaction. This was such a case. The Court of Appeal's only gauge of the sufficiency of S's evidence to prove the appellant's guilt to the criminal standard was the verdict. It cannot be assumed that the misdirection had no effect upon the jury's verdict in circumstances in which the misdirection precluded the jury from adopting a process of reasoning, favourable to the appellant, that was open to it.[73]
[72] [2019] HCA 10.
[73] At [31]. (Footnotes omitted)
In the present case, it cannot be assumed that the misdirections had no effect upon the jury’s verdict because they may have resulted in the jury not adopting a process of reasoning, favourable to the appellant, that was open to it. The proviso cannot be applied.
Conclusion
I would allow the appeal, set aside the verdict of guilty on count 1 and remit the matter to the District Court for a new trial on all counts.
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