R v Walle

[1994] QCA 493

[1994] QCA 493

COURT OF APPEAL

FITZGERALD P McPHERSON JA DERRINGTON J

Nos CA 337 of 1994

CA 341 of 1994

THE QUEEN
v.

TIMOTHY JASON WALLE Appellant

BRISBANE
..DATE 17/10/94
THE PRESIDENT: This is an appeal against conviction and an
application for leave to appeal against sentence on a charge
of assaulting a police officer while acting in the execution
of his duty.

The appellant was convicted and sentenced in the Magistrates Court at Cairns on 15 August 1994. He was sentenced to three months' imprisonment. On 18 April 1994, the appellant was arrested at his residence by two police officers and conveyed to the police station. He was drunk and perhaps affected by a drug other than alcohol.

Another officer at the police station also noticed the appellant's condition. The appellant was continually raising his voice and swearing at the police. Two of the police officers then decided to take him to the watch-house.

As one of them walked over to him, the appellant insulted the police officer. One of the other officers directed the officer to whom the insult was addressed not to worry about it or not to worry about the appellant as he was "stoned." The appellant then proceeded with a volley of insults and abuse.

One of the officers then warned the appellant that if he
continued in the way he had been speaking, he would be charged
"with everything you've said". According to the police, the
appellant then spat in the officer's face and swung a punch
which the officer managed to duck, although the appellant's
hand clipped him on the right ear.
The appellant gave evidence that he was very disrespectful to
the police and admitted having been drinking on the night and
said that he was under the influence of marijuana. He said
he was being a "smart arse". However, he denied spitting at
the police officer.

He said he feared being assaulted because of his remarks to the police and that on his way to the watch-house, one of the officers grabbed him on the shoulder, whereupon he thought, "This is where I'm going to get it, a touch, a serve for being so smart." He then punched the police officer who did not retaliate, demonstrating commendable self restraint.

No attempt was made to argue on behalf of the appellant that the circumstances justified or excused his action. In the circumstances, his conviction was inevitable. There was a plain admission of guilt. It is unnecessary to consider McKinney or other cases but prima facie, McKinney has nothing to say about a situation like this, especially in the context of the admission and no suggestion of fabrication except in so far as spitting was denied.

In my opinion, therefore, the appeal against conviction should
be dismissed. As stated earlier, the appellant also applied
for leave to appeal against sentence. He is 24 years of age
and has a minor criminal history including convictions for
assault, hindering police and a minor drug matter.
In his favour, he was under the influence at the time and
later remorseful. However, the police have a difficult job
and I am not persuaded that the sentence was manifestly
excessive, especially since it was accepted on his behalf or
largely accepted that a term of imprisonment was not
inappropriate, the only suggestion being that it should have
not been three months but one month.

I would therefore not only dismiss the appeal against conviction but refuse the application for leave to appeal against sentence.

MR McPHERSON JA: I agree. I would also commend the police officers for their forbearance in respect of the applicant's behaviour in this matter. I agree that the appeal and the application for leave to appeal should be dismissed.

DERRINGTON J: I agree with the President and support my brother McPherson in respect of his commendation.

THE PRESIDENT: The order of the Court is appeal dismissed,

application for leave to appeal against sentence refused.

MR MEREDITH: Your Honour-----
THE PRESIDENT: I am sorry.
MR MEREDITH: The appellant was granted bail on this charge, pending his appeal. I would ask for a warrant for his arrest.
THE PRESIDENT: Have you anything to say about that? I know Mr Rafter has left, but if you want to say anything, we will give you a chance to do so.
CLERK: Just that the applicant is on bail and he has served
30 days.
THE PRESIDENT: I see and you do not want us to stand it down
to hear Mr Rafter on this point? I understand that Mr Rafter
was aware if this before he left, is that correct?
CLERK: Yes, he was.
THE PRESIDENT: Yes, very well. So, what is the order you want, bail revoked and a warrant to issue for his arrest unless he presents himself to whom?
MR MEREDITH: To the watch-house keeper, Cairns.
THE PRESIDENT: Within 48 hours?
MR MEREDITH: Yes, Your Honour.
THE PRESIDENT: Yes, order accordingly.

MR MEREDITH: Thank you.

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