R v Tran (Ruling No 4)
[2013] VSC 202
•24 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUOC HAI TRAN NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE |
---
JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2013 | |
DATE OF RULING: | 24 April 2013 | |
CASE MAY BE CITED AS: | R v Tran & ors (Ruling No 4) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 202 | |
---
CRIMINAL LAW - Charges including assault, unlawful imprisonment and intentionally causing injury – Whether defence available in addition to self-defence – Prevention of breach of the peace – Lawful ejection of a trespasser – Prevention of commission of an indictable offence pursuant to s 462A Crimes Act 1958 – Obligation not to permit indecent, violent, quarrelsome conduct pursuant to s 153C Casino Control Act 1991 – Obligation not to permit drunken or disorderly persons to be on licensed premises pursuant to s 108(4)(b) Liquor Control Reform Act 1998 – No defences other than self-defence available.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney SC and Mr A. Moore | Office of Public Prosecutions |
| For the Accused Tran | Mr L. Carter | Tony Hargreaves and Partners |
| For the Accused Levchenko | Mr I. Hill QC and Mr T. Walsh | |
| For the Accused Fucile | Mr J. McMahon and Ms R. Shann |
HIS HONOUR:
In this trial the three accused, Tran, Levchenko and Fucile are charged with a number of offences arising from an incident involving Olivia Ferguson and Matthew Anderson which occurred at the Crown Casino on Sunday 3 July 2011.
In the course of various submissions, an issue has arisen as to the defences which are open to the accused. The same issue arose in the related trial of R v Lawson, Sanderson & Vigo,[1] and in that ruling I concluded that:
I therefore do not propose to leave to the jury any defence on the element of unlawfulness in either the manslaughter count against Lawson and Sanderson or the assault count against Vigo that relies on a belief of entitlement to use force based on the possibility that because Anthony Dunning may have been intoxicated, he may have been a trespasser on the premises at Crown casino.
[1][2012] VSC 531
The issue has arisen again. On 23 April 2013, oral submissions were made in support of leaving various defences to the jury over and above self-defence by Mr Carter on behalf of the accused Tran. Counsel for Levchenko and Fucile adopted these submissions without much elaboration. In order to understand the issue, it is necessary to outline the facts as the Crown case is put in this trial, as I have done in a number of other rulings.[2] It is sufficient to say that the issues in this case are such as to require a ruling on the substance of the argument.
[2]R v Tran & Ors [2013] VSC 153R; R v Tran & Ors (Ruling No. 2) [2013] VSC 160R; R v Tran & Ors (Ruling No. 3) [2013] VSC 183R.
The incident began at about 10.43pm on Sunday 3 July 2011 when Anthony Dunning, a friend of Olivia Ferguson and Matthew Anderson, was observed by security staff at the Crown Casino and they concluded that he was intoxicated. It was determined that he should be asked to leave. As he followed security staff towards the exit, his friends Olivia Ferguson and Matthew Anderson, who had been away at a food court, returned to where Dunning was. There were then a number of discussions, in the course of which the evidence suggests that all three people had determined that they would leave although clearly Anthony Dunning was reluctant to do so and it seems he could not see why he should. The evidence suggests that Ferguson and Anderson were willing to leave and to persuade Dunning to do so. It seems they succeeded and as the party, now consisting of the three patrons and a number of security personnel from the casino, moved towards an exit, a comment was alleged to have been made about Dunning by the accused man Quoc Tran. Whether that comment was made is in issue. In all events, Ferguson responded to the comment she says was made by slapping Tran to the face. There is an issue about the force used in the slap.
The CCTV footage tells the story of what occurred next. As the Crown put it, the accused Tran grabbed Ferguson around the neck with his right arm and unnecessarily and violently brought her to the floor face first and restrained her there. Upon seeing his partner put to the ground in the manner described, Matthew Anderson moved a short distance in her direction, was grabbed by the accused Levchenko and Fucile, and was also put to the ground and held there.
A number of other incidents occurred, but in essence the offences alleged against the accused to this point are the offences of assault by Tran on Ferguson (Charge 1) and the offence of causing serious injury recklessly, or the alternative of intentionally causing injury, to Anderson by Levchenko and Fucile (Charges 2 and 3).
Both Ferguson and Anderson were restrained on the ground for a short period of time. They were each then brought to their feet and forcibly removed from the premises via different exits whilst being held in what has been called “wrist-locks” or “horizontal transport” holds. The prosecution alleges that in the course of restraining Ferguson and escorting her to an exit, two other security personnel, who were procured to do so by Tran, caused injury to Olivia Ferguson (Charges 5 and 6). It is the restraint of Ferguson after she is on her feet and as she is escorted out of the Casino which is said to give rise to the offence of false imprisonment (Charge 4).
As to the case against Levchenko and Fucile, it is alleged by the Crown that the restraint of Anderson during his ejection from the casino also amounts to the offence of false imprisonment (Charge 7).
Against that factual background, an issue arises as to whether or not defences other than self-defence or the defence of others is open to be left to the jury.
The submissions
On behalf of the accused Tran, Mr Carter of counsel has raised several potential additional defences which he says are available in respect of every charge. Two of these are pursuant to the common law and the remainder arise under statute. They include following.
· First, the right or duty to prevent a breach of the peace at common law.
· Second, the exclusion of a trespasser from the premises of the Crown Casino.
· Third, pursuant to s 462A of the Crimes Act:
A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.
· Fourth, s 153C of the Casino Control Act 1991 in relation to a casino operator not being permitted to allow any indecent, violent or quarrelsome conduct within the casino.
· Finally, he relies on s 108 of the Liquor Control Reform Act 1988 which, by s 108(4)(b), requires that the licensee or permittee under that Act “must not permit drunken or disorderly persons to be on the licensed premises or on any authorised premises”.
As Mr Carter has submitted, the elements of each of the offences charged includes a requirement that the prosecution prove beyond reasonable doubt that the actions of the accused in the particular case were without lawful justification or excuse. The issue of self-defence has been raised. In terms of this case, it will be put that when the accused put Olivia Ferguson to the floor and then put Matthew Anderson to the floor, they each believed that what was done by them was necessary in the defence of themselves or another from the risk of attack. Mr Carter has submitted that the matters I have identified above are additional defences which will also have to be negatived by the Crown before a verdict of guilty on any of the counts can be delivered.
Mr Moore, for the prosecution, argues that the only lawful excuse for any of the offences charged is self-defence and that the jury should not be directed as to any further defence beyond that.
Analysis
The prosecution must disprove beyond reasonable doubt any justifications or excuses that are open on the evidence. Examples of such justifications which are not open on the evidence in the case of common assault, but which illustrate the point, include consent, touching in the course of ordinary social activity and lawfully correcting a child. Clearly self-defence has arisen and the jury will require direction on that defence.
As to the additional defences said to arise, it seems to me necessary to consider both whether the defences arise on the evidence and their relationship with the concept of self-defence in the context of this case. I am of the opinion that, if in finding that the prosecution had disproved self-defence, the jury must have made a factual finding which would necessarily result in the conclusion that the additional defence had been disproved, then it is not necessary that the jury be directed on the issue.[3]
[3]Stevens v The Queen (2005) 227 CLR 319; R v Thompson (2008) 21 VR 135 at [108]; R v Chang (2003) 7 VR 236 at [51].
First, as to Mr Carter’s submission that the acts could have been done in exercise of the right or duty to take reasonable steps to prevent breaches of the peace, he relies on a passage from Albert v Lavin that:[4]
…every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty…
[4][1982] AC 546; (1981) 74 Cr App R 150 at 152.
The exact scope of what will constitute a breach of the peace is not clear.[5] However, for the purposes of this ruling I am content to adopt Logan J’s finding in Li v Chief of Army following a review of the case law, that a breach of the peace is “some form of actual harm done to a person or his or her property in that person’s presence or some other form of violent disorder.”[6]
[5] Kuru v NSW (2008) 236 CLR 1 at [50].
[6][2013] FCAFC 20 at [190]. See also Nilsson v McDonald [2009] TASSC 66.
Ferguson’s slap of Tran, as an assault, may have constituted a breach of the peace. Mr Carter spent some time in his submissions seeking to persuade me that that was so and referred to several cases. He relied particularly on the judgment of the English Court of Appeal in Howell,[7] where in the judgment of Watkins LJ the following appears:
We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.
[7][1982] QB 416 at p.37.
There is no doubt some force in Mr Carter’s argument. But, “reasonable steps to make [her refrain from] breaking or threatening to break the peace” in relation to the alleged assault (Charge 1) could not possibly exceed what was lawful under self-defence in this case. As to whether this argument might provide some defence for the subsequent unlawful imprisonment, there is no evidence that, following the slap, Ferguson was breaking or threatening to break the peace. That is really the end of the matter. But if I am wrong in that, I cannot see how “reasonable steps” in these circumstances could exceed what was necessary in the defence of one’s self or others. For the sake of completeness, as it really need not be said, it cannot be a justification to the allegation that Hewetson and Turner, as procured by Tran, intentionally or recklessly inflicted pain on Ferguson by the manner in which they applied the wrist-lock holds, that it was an action necessary to prevent a breach of the peace.
As to whether prevention of a breach of the peace is an answer to the charges against Levchenko and Fucile, nothing that Anderson had said or done could constitute a breach or threatened breach of the peace. Again, even if I am wrong, and moving a short distance towards one’s partner could constitute a breach of the peace, a lawful response would not exceed self-defence.
Leaving aside for a short time the issue of trespass, I turn to the submission in relation to s 462A of the Crimes Act 1958 which reads:
A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.
Mr Carter allowed for the possibility that on the evidence, Ms Ferguson, and for that matter, Mr Anderson, could be regarded as having been arrested. I do not see how that can be so. Any arrest, whether by citizen or member of the police force, can only be made for the purpose of putting the person arrested before a court.[8] There is simply no evidence of any such intention to do so.
[8]See for example ss 458 and 462 of the Crimes Act 1958. The power of arrest referred to in s 462A is clearly the power of arrest referred to in the earlier sections. See also Zaravinos v State of NSW (2004) 62 NSWLR 58 at [37] and Williams v R (1986) 161 CLR 278.
As to the prevention of the commission of an indictable offence, the use of force contemplated by the section must be not be disproportionate to the objective which is believed on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence. Bearing in mind that the jury are to be directed on self-defence, it is logically impossible for the Crown to succeed on that issue but fail on s 462A.
As to the provisions of the CasinoControlAct1991, s 153C is relied upon. It reads:
A casino operator must not permit any indecent, violent or quarrelsome conduct within the casino.
The Liquor Control Reform Act 1998 contains the following in s 108(4):
(4) A licensee or permittee—
(a) must not supply liquor to a person who is in a state of intoxication;
(b) must not permit drunken or disorderly persons to be on the licensed premises or on any authorised premises.
The provisions create obligations, they do not create a right to use force. It may be that in the course of executing these obligations, it will be necessary to exclude patrons from the premises. But that is as far as the provisions go. Once it is determined that a patron must be excluded according to the provisions, the law of trespass operates to govern the conduct. I expressed this view in Lawson & ors (Ruling No 5),[9] to which Mr Carter referred during the course of pre-trial argument, and no authority has been provided to dissuade me from this view. To interpret these provisions as creating an independent and more expansive right to use force would be absurd. Of course, self-defence runs in parallel to these provisions and provides an independent basis for the use of force and forcible exclusion of patrons.
[9][2012] VSC 531 at [15].
I turn then to the submission on lawful ejection of a trespasser. As I understand Mr Carter’s submissions, he relies on the conduct of Ms Ferguson in slapping the accused Tran as creating her status as a trespasser. As I endeavoured to explain in the course of submissions, there are difficulties about that. At the time when the slap to Tran’s face occurred, Ferguson together with Anderson and Anthony Dunning were in the process of leaving the premises. At no time, were either Ferguson or Anderson themselves requested to leave the premises.
Ferguson’s conduct in slapping Tran did constitute an assault and may be described as “violent” or “quarrelsome”. It entitled security staff to require her to leave. But no request or order that she leave was made. She was immediately put to the ground and then constantly restrained until she was outside the premises. Mr Carter submitted, in effect, that in instances of an unlawful application of force, a person automatically becomes a trespasser and no reasonable time to leave is required. He relied on a passage in The Law of Torts[10] which reads:
The amount of force that one may use to exclude or expel a trespasser varies with the nature of the intrusion and the resistance encountered. Ordinarily, no force at all is justified, until he has first been requested to leave and given a reasonable opportunity to comply. But when a trespass is committed with actual force, counterforce may be applied forthwith, since the intruder’s conduct makes it clear that a formal request to desist would be futile. (Citations omitted.)
[10]Fleming, J G, The Law of Torts (9th ed, LBC Information Services, Sydney, 1998).
In my opinion, this passage does not support Mr Carter’s submission. It seems to me that the passage relates to force being used in order to commit the trespass. It does not relate to an application of force to a person which might then provide a reason for exclusion from premises. I do not mean to say that persons who have committed an assault on particular premises cannot lawfully be forcibly removed from those premises without first being given the opportunity to leave of their own volition, but this can only be done pursuant to the laws of self-defence.
Mr Carter also relied on Cowell v Rosehill Racecourse,[11] and in my opinion this case correctly states the law.In that case the plaintiff had brought an action against the racecourse for damages for assault. The defence was that the plaintiff was a trespasser, he had been asked to leave, he had refused and the force used on him was no more than was necessary to remove him. The plaintiff’s reply claimed an equitable entitlement, having paid to enter the racecourse, to remain and watch the races. The High Court concluded that the licence did not create a proprietary interest in the land but a contractual right only. It was revocable.
[11](1937) 56 CLR 605.
The question for determination by me is at what stage Ms Ferguson may have become a trespasser. In Cowell, Dixon J said:[12]
A licence which is not coupled with or granted in aid of an interest is revocable at law. It operates as a bare permission to do what would otherwise be an invasion of the licensor’s rights. If the permission is terminated, further continuance of the acts it authorized becomes wrongful. A licensee does not become a trespasser until he has received notice that the licence is countermanded and until a reasonable time has elapsed in which he may withdraw from the land and remove whatever property he has brought in pursuance of the licence (Cornish v. Stubbs). But, if he then refuse to leave the premises, he cannot complain of his forcible removal. (Citations omitted).
Later:[13]
There can, I think, be no doubt that at law the plaintiff could not recover in tort in respect of his forcible expulsion. His remedy in contract does not include damages for the assault. As it was the plaintiff's legal duty to leave the premises after notice that his licence to remain was withdrawn, and as the assault was the lawful consequence of his failure to do so, the assault could hardly be considered a reasonable and probable consequence of the defendant’s breach of contract in withdrawing the licence. Perhaps it does not follow that in no circumstances can anything beyond repayment of the price of admission be recovered ex contractu. But if there be any cause for dissatisfaction with the common law rule, it arises less from the substance of the rule than from the measure of damages allowed in an action of contract (See Addis v. Gramophone Co. Ltd.). For the assault, the defendant is under no liability at common law. (Citations omitted.)
[12]At 630-631.
[13]At 632.
In Robson & Anor. v Hallett,[14] the Queen’s Bench Division were concerned with a melee which occurred after police had gone to premises to make inquiries about an offence and had been directed to leave the property. The facts have little in common with the facts in this case. However, in the course of the judgment of Lord Parker CJ, his Lordship noted that
In the present case, Sgt. McCaffrey was doing all he could to leave, and was not asserting any right to stay. It seems to me that, when a license is revoked as a result of which something has to be done by the licensee, a reasonable time must be implied in which he can do so, in this case to get of the premises; no doubt it will be a very short time, but he was doing here his best to leave the premises.
[14][1967] 2 All ER 407,
In this case, there was no question but that Dunning, Ferguson and Anderson were on the premises of Crown casino as licensees.[15] Their license to be there was revocable. In my opinion, and notwithstanding Mr Carter’s submissions to the contrary, it would not have been unreasonable for Ms Ferguson to be told, no doubt in strong terms, that as a result of having slapped Tran, she was required to leave the premises. If she had then refused to leave, she would clearly be a trespasser. None of that happened. In my opinion there is no evidence that either Ferguson or Anderson were asked to leave the premises. As I understand the judgement in Cowell they do not become trespassers until that request is made. The only request that had been made was to Anthony Dunning earlier before these incidents occurred. That request was directed at him because of his alleged intoxication. Reluctantly, he had twice agreed to leave so that when this incident occurred Dunning, Ferguson and Anderson were in the process of leaving the premises.
[15]Casino Control Act 1991 s 70.
I therefore reject the submission that Ferguson or Anderson became trespassers at any stage of the proceedings. No defence of lawful ejection of a trespasser will be left to the jury as it does not arise on the evidence.
Conclusion
In summary, as to the restraint and removal of Anderson, in my opinion none of the common law principles or statutory provisions relied upon could apply to him on the evidence. Unlike Ms Ferguson, he had not done anything which would have entitled the staff to require him to leave. He had committed no violent act. He was not drunk to the observation of any employee of the casino. No requirement had been made of him to leave. On no basis could he be described as a trespasser. The concern of the security was not any threat from Anderson but the threat from Dunning. The evidence clearly demonstrates that Anderson had done no more than try to assist to diffuse the situation by trying to persuade Dunning to leave the premises. In the case of the offences alleged to have been committed against Anderson I will not leave any other defences or lawful justifications beyond self-defence.
As to whether the right to prevent a breach of the peace or to prevent the commission, continuance or completion of an indictable offence could be answers to the charges in this case, in the case of Ferguson, even if these defences were correctly described as arising on the evidence, the defences would necessarily be disproved by a finding that the accused were not acting in self-defence.
Sections 153C of the Casino Control Act 1991 and 108(4) of the Liquor Control Reform Act 1998 do not create defences for what would otherwise be criminal conduct. These provisions create obligations, the execution of which is subject to the laws of self-defence and the lawful ejection of trespassers. Self-defence will be left to the jury. The defence of lawful ejection of a trespasser does not arise on the evidence as Ferguson and Anderson were not trespassers at any time of the proceedings.
Therefore, the only lawful justification available to the accused on each count is that of self-defence.
0
16
0