Stratton v Allen
[2002] WASCA 43
•8 MARCH 2002
STRATTON -v- ALLEN [2002] WASCA 43
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 43 | |
| Case No: | SJA:1128/2001 | 25 FEBRUARY 2002 | |
| Coram: | MURRAY J | 8/03/02 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against convictions dismissedAppeal against sentences allowed | ||
| B | |||
| PDF Version |
| Parties: | VANCE RONALD STRATTON JAI ALLEN |
Catchwords: | Criminal law and procedure Appeal against conviction Review of fact finding process adopted by Magistrate Whether correct application of onus of proof Role of particulars Whether police officer acting in course of duty Whether Magistrate failed to consider questions of accident and selfdefence Sentence Aggregate term of 3 years imprisonment to be immediately served with eligibility for parole for refusal to give address, resisting arrest and four offences of assaulting police officers while performing a function of their office, manifestly excessive One course of serious offending on the one occasion Offender of otherwise good character Whether cumulative service of sentences proper in circumstances |
Legislation: | Nil |
Case References: | Carew v Carone (1991) 5 WAR 1 State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Dinsdale v R (2000) 202 CLR 321 Esteban v Wolpers, unreported; SCt of WA; Library No 7376; 16 November 1988 Etrelezis v R [2001] WASCA 327 Farmer v R, unreported; SCt of WA; Library No 940075; 16 February 1994 Hodges v Hagen [2001] WASCA 41 Hookway v Evans, unreported; SCt of WA; Library No 7138; 20 May 1988 James v R (1985) 14 A Crim R 364 Langridge v R (1996) 17 WAR 346; 87 A Crim R 1 Latham v R [2000] WASCA 338 Milstead v Cream, unreported; SCt of WA; Library No 8648; 19 December 1990 Monahan v Ostrowski [2001] WASCA 331 Postiglione v R (1997) 189 CLR 295 R v Clifton, unreported; SCt of WA; Library No 8142; 15 March 1990 R v Reynhoudt (1962) 107 CLR 381 Ruane v R (1979) 1 A Crim R 284 Smith v R (1992) 7 WAR 527 Thomson v R (1998) 105 A Crim R 150 Trobridge v Hardy (1956) 94 CLR 147 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Wilde v R (1988) 164 CLR 365 Yarran v Czerkasow [1982] WAR 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
JAI ALLEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against conviction - Review of fact finding process adopted by Magistrate - Whether correct application of onus of proof - Role of particulars - Whether police officer acting in course of duty - Whether Magistrate failed to consider questions of accident and selfdefence
Sentence - Aggregate term of 3 years imprisonment to be immediately served with eligibility for parole for refusal to give address, resisting arrest and four offences of assaulting police officers while performing a function of their office, manifestly excessive - One course of serious offending on the one occasion - Offender of otherwise good character - Whether cumulative service of sentences proper in circumstances
Legislation:
Nil
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Result:
Appeal against convictions dismissed
Appeal against sentences allowed
Category: B
Representation:
Counsel:
Appellant : Ms J G Fordham
Respondent : Ms A L Forrester
Solicitors:
Appellant : Leonard Cohen & Co
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Carew v Carone (1991) 5 WAR 1
State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
Case(s) also cited:
Dinsdale v R (2000) 202 CLR 321
Esteban v Wolpers, unreported; SCt of WA; Library No 7376; 16 November 1988
Etrelezis v R [2001] WASCA 327
Farmer v R, unreported; SCt of WA; Library No 940075; 16 February 1994
Hodges v Hagen [2001] WASCA 41
Hookway v Evans, unreported; SCt of WA; Library No 7138; 20 May 1988
James v R (1985) 14 A Crim R 364
Langridge v R (1996) 17 WAR 346; 87 A Crim R 1
Latham v R [2000] WASCA 338
Milstead v Cream, unreported; SCt of WA; Library No 8648; 19 December 1990
(Page 3)
Monahan v Ostrowski [2001] WASCA 331
Postiglione v R (1997) 189 CLR 295
R v Clifton, unreported; SCt of WA; Library No 8142; 15 March 1990
R v Reynhoudt (1962) 107 CLR 381
Ruane v R (1979) 1 A Crim R 284
Smith v R (1992) 7 WAR 527
Thomson v R (1998) 105 A Crim R 150
Trobridge v Hardy (1956) 94 CLR 147
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Wilde v R (1988) 164 CLR 365
Yarran v Czerkasow [1982] WAR 239
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1 MURRAY J: At about midnight on the night of 21/22 December 2000, the respondent, PC Allen, and a colleague, PC Roberts, were seated in a marked traffic car in Fitzgerald Street, Northam, observing the Fitzgerald Hotel. Through large windows, they saw a fight erupt in the main bar.
2 The two officers entered the bar to find a number of people fighting. Two were wrestling and exchanging blows on the floor. One was the appellant. He was under the other person and appeared to be getting the worst of the exchange. PC Allen separated these two and took the appellant outside into the street, leaving PC Roberts to deal with the other persons in the bar.
3 There are differences in the accounts given by Allen and Roberts as to the nature of the fight between the appellant and the other man which they witnessed. There are also differences in their accounts of what was happening in the bar among those who were left behind when Allen and the appellant left. The differences in the accounts of the two police officers seem to me to be immaterial, indeed, the sort of thing one expects of witnesses honestly endeavouring to give an accurate account of an incident which involved a number of people, violent movement and events happening at speed.
4 The police officers at the scene had called the station for assistance. The first to arrive was PC McDonald. He seems to have been alone, but in Fitzgerald Street he approached Allen and the appellant, who were together. PC Allen was asking the appellant for his name and address saying, in effect, that he needed his particulars because he had been involved in a fight. Allen says he told the appellant he needed to ask him some questions. Both officers say the appellant was at that time bleeding from the mouth; he was intoxicated and aggressive, all of which was denied by the appellant in evidence. He said that he had, over a period of three hours at the hotel, consumed eight or nine middies of beer. He was not intoxicated. In the hotel he had simply slipped and fallen. His friend, a Mr Grogan, whom he called as a witness, picked him up. Grogan confirmed that evidence. The appellant says that he saw a lone police officer entering the bar. He left the hotel because it was closing time. He was not intoxicated and he was not injured.
5 The police officers say that when they asked the appellant for his name and address, he aggressively refused. Eventually, he gave the name "Peter Page" and said "I don't live anywhere". When told again that he was required to give an address, the appellant replied, "You can get fucked". PC Allen placed him under arrest. The appellant denies the
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- correctness of this version, although he concedes that when asked for his name, he refused to give it saying, "I have done nothing wrong". He says he was then arrested. His evidence about that was not supported by Grogan who said he remained inside the hotel to finish his beer. The next thing he saw of the appellant was of part of the incident after the arrest had been made. The appellant was later charged with refusing to give his address when requested to do so by PC Allen, contrary to the Police Act 1892 (WA), s 50.
6 What then transpired is also a matter upon which there are differences in the versions given in evidence by different witnesses. PC Allen says that he took the appellant's left arm and held it in two hands, gripping the upper arm and the forearm. McDonald took hold of his right arm in the same fashion. The appellant began to struggle violently. Allen released his hold with one hand, obtained his capsicum spray from his utility belt and, telling the appellant to stop resisting, presented the spray to him. The appellant knocked it from his grasp. It fell to the pavement and the appellant kicked it under a nearby parked car.
7 The hotel had been closed and there were about 30 people milling around in the street outside. Roberts appeared to be still inside the bar dealing with patrons there. A number of those in the street were behaving aggressively towards the police officers. Allen and McDonald managed to wrestle the appellant to the ground. Allen was kneeling. A person came from the crowd and was making threatening gestures towards him. Allen showed his person his baton and told him to move away. The struggle continued.
8 In the course of it, the appellant bit Allen on the inside of his thigh on his left leg. Allen had difficulty getting the appellant to release his grip and he was still trying to prevent the intervention of the bystander. It is not entirely clear from Allen's evidence, but while he was being bitten by the appellant, he was either on his knees or struggling to his feet. McDonald also warned the applicant to stop resisting and said that he had capsicum spray which McDonald then used on the appellant who immediately released his grip, stopped struggling, put his hands to his face and walked away from the two officers. At that time, Sgt Snashall, PC Maguire and PC Rowe arrived. The appellant was apprehended and placed in the rear of a police security van.
9 McDonald's evidence was generally corroborative of this account but he did not see the appellant bite PC Allen on the leg. He says that Allen was actually touched by one of the bystanders who intervened, although
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- he did not hear, as Allen said, any person say, "Leave him alone". Allen got up at that time, as did the appellant, so presumably Allen had by then been bitten. But it will be recalled that Allen says that the appellant did not release the bite until he was subjected to the capsicum spray. On the other hand, McDonald says that after the bystander intervened, McDonald continued to try to restrain the appellant who continued his struggles.
10 McDonald tried to take hold of the appellant in a way which I would interpret as a neck hold. As he put his arm around the appellant's neck and in front of the appellant's face, the appellant bit him on the left hand. McDonald managed to get his capsicum spray and he sprayed it into the appellant's face, suffering some effects of the spray himself because of his close proximity to the appellant at the time. He agrees that once he was sprayed, the appellant ceased his resistance and the officers were able to apprehend him and place him into the security vehicle.
11 There are, of course, differences between these accounts and there is some confusion as to the precise sequence of events and the relative positions of people when particular things happened. Apart from those differences evident in the recitation of the evidence which I have set out above, I note that McDonald said that at one time during the struggle with the appellant, efforts were made to restrain him with the use of handcuffs. Handcuffs were not mentioned by any other officer. For the appellant it is argued that the differences are so profound as to compel the court below to reach the conclusion that neither officer was a credible witness upon whose evidence reliance could be placed, but I do not consider that to be so.
12 I think that in this area of the account, as in respect of the earlier events leading up to the arrest of the appellant, it is perfectly clear that things were happening quickly. There was a great amount of activity, considerable violence, both officers were involved in the struggle. They were not able to see all of what was going on and such capacity as they had to dispassionately observe what was happening was, no doubt, adversely affected by the fact that, as the photographs reveal, each of them suffered quite severe bites; Allen to his upper thigh and McDonald to his left hand. I can see no reason why it would be necessary to conclude that their evidence that the appellant resisted arrest by struggling violently should necessarily be rejected. The appellant was later charged with resisting PC Allen then acting in the execution of his duty, by his struggles in Fitzgerald Street. The offence is one against s 20 of the Police Act.
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13 The appellant's evidence offered a markedly different account of the incident. He says that when arrested for refusing to give his name, not his address, one officer pushed his left arm up behind his back and the other took hold of his right arm and both these actions caused him pain. He tried to push his arms down and relieve the pressure, and he was then sprayed with the capsicum spray which caused very considerable pain in his eyes. His only struggles were as a result of the pain he was in, not by way of resisting the police officers. He did not then bite anyone and he has no idea how McDonald was injured. It should be noted that McDonald was not in contact with the appellant back at the police station, but one of the charges laid was a charge of assaulting PC McDonald while performing a function of his office, contrary to the Criminal Code, s 318(1)(d).
14 That brings us logically to the next part of the incident when the appellant, the only person who had been arrested, was brought back to the police station in the security van. The officers principally involved with the appellant at that time, by removing him from the van, were PC Rowe and PC Maguire who had earlier been at Fitzgerald Street and who, I think, travelled in the security van back to the police station, and a PC Abbott who was present to meet the van when it arrived at the police station.
15 PC Rowe says that he and Abbott opened the rear door of the van. The appellant jumped out swinging punches at the police officers. There was a violent struggle in which the officers forced the appellant to the ground, restrained and handcuffed him. They were then proposing to take the appellant to a tap on the wall where they could wash his face and eyes clear of the capsicum spray. As they walked him there, he turned and said, "You guys are fucking girls. Come on, let's have a go." He then looked at Rowe and spat at him. There was blood in his mouth and blood and spittle landed on Rowe's shirt. It was a definite spit. The appellant was not, as defence counsel put it in cross-examination, "coughing up" blood.
16 PC Allen returned separately to the police station, but he arrived to see the appellant emerge from the van and become involved in a struggle with the police officers who were there. He was not involved at that time in subduing the appellant and taking him to the tap, but he described what he saw. He must have been relatively close because he says he spoke to the appellant, telling him that they were taking him to a tap to wash his face and stop it stinging. The appellant was spitting. PC Rowe told him to stop doing so. The appellant immediately turned to face Rowe and
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- "spat directly at" him. He described the spittle as white and he said that it hit Rowe on the shirt. When cross-examined, Allen confirmed that what he saw was white saliva, not blood. Although he said there was blood on the appellant's face and lips, Allen said the inside of his mouth was not bleeding (although how he would know this is not clear to me), and he was not "coughing up blood because he had been struck".
17 The other officer to give evidence about this was PC Abbott who, with Rowe, was the officer principally involved in restraining the appellant when he was removed from the van. He confirmed Rowe's evidence in its detail and so here the inconsistency in the evidence is between PC Rowe and PC Abbott on the one hand and PC Allen on the other as to whether the spittle contained blood, but not as to whether the appellant deliberately spat at Rowe as opposed to accidentally striking him with some such material because he was coughing up blood.
18 PC Abbott says that once the appellant's face had been washed and as he was being taken to the cells at the lockup by Abbott and Rowe, the appellant turned towards him and said, "Come on, you and me. One on one." Abbott said that the appellant then head-butted him in the face and nose. It was painful and his nose bled. Rowe confirmed this evidence. It was a forward movement of the appellant's head directly into PC Abbott's face. Allen apparently did not see this because he had gone ahead to open the gate to the lockup area. Neither did PC Maguire who had gone to the police station to get the keys to the cells. Both of these officers, however, saw Abbott with blood streaming from his nose. The photograph in evidence shows the injury clearly.
19 This evidence, consistently given by the three officers, is different from the way in which this incident was particularised orally by the prosecuting sergeant at the commencement of the trial in the Court of Petty Sessions. He said the allegation was that the blow to Abbott's face by the appellant was delivered by violently jerking his head backwards rather than forwards. There was no evidence to support that version of the facts.
20 There were four charges of assault laid. The first, as I have mentioned, was the assault upon Allen by biting his leg. The second was the assault upon McDonald by biting his hand. The third was by spitting upon Rowe and the fourth was the blow delivered to Abbott's face in some fashion by the appellant's head. I have mentioned that McDonald did not have contact with the appellant at the police station and that the appellant says he has no idea how McDonald received the injury to his hand. He
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- says that all the other incidents must have occurred at the police station. Having been pepper sprayed and, without resistance, having been placed in the police van and conveyed to the police station, he was then told to get out of the van. He did so, asking for water because of the pain.
21 A police officer tripped him; he was pushed into the ground; his head was rubbed on the ground; he was handcuffed and, in short, he was attacked by police officers who started "getting into" him. He struggled but he was endeavouring to defend himself. If he bit Allen, it was because Allen's leg was across his throat restricting his capacity to breathe. The appellant could not use his hands because he was handcuffed. He bit wherever he could get contact. He bit no-one in Fitzgerald Street. He spat on no-one, although he was coughing up blood. He did not head-butt Abbott. Photographs were produced showing abrasions and bruising, no doubt received in the course of the appellant's conflict with police officers. The appellant did not see Abbott bleeding from the face. If he did receive a blow to the face in some fashion, the appellant knew nothing of it.
22 The complaints made by the respondent were tried together in the Court of Petty Sessions, Northam, on 6 June 2001. The appellant was convicted upon all the charges. His Worship delivered reasons orally at that time. He adjourned the sentencing proceedings and ordered a pre-sentence report. Meanwhile, the appellant was admitted to bail.
23 The matter came on again on 20 July 2001 when the report was available. The defence provided five character references to the Court. A plea in mitigation was made. The Court was told that the appellant had the means to pay a substantial fine. If imprisonment was to be imposed, his Worship was asked to suspend its service.
24 The learned Magistrate made some remarks explaining his approach to the sentencing of the appellant. He imposed a sentence of 16 months imprisonment for the assault by biting PC Allen. For the assault by biting PC McDonald, his Worship imposed a sentence of 14 months imprisonment to be served cumulatively. For the assault by head-butting PC Abbott, a sentence of 6 months imprisonment was imposed, again to be served cumulatively. The aggregate term thus arrived at was one of 3 years imprisonment. All the other sentences imposed were to be served concurrently. A sentence of 3 months imprisonment was imposed "for spitting blood upon Constable Rowe". The resisting arrest charge attracted a sentence of 3 months imprisonment and the offence of giving a false address was punished by imprisonment for 1 month.
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25 The learned Magistrate made a parole eligibility order but his Worship rejected the submission that service of the sentences of imprisonment imposed should be suspended. His concluding remark was:
"I have only sympathy for the police officers with regards to what they have endured because of your behaviour. I've absolutely no hesitation at all in imposing the term of imprisonment on you."
26 The appellant now appeals, by leave, against both the convictions and the sentences passed.
27 The first two grounds of appeal against conviction may be taken together. They allege that the decision to convict on all the complaints was against the totality of the evidence and the weight of the evidence and, in particular, failed to give any or sufficient weight to conflicting evidence given by the police when assessing their credibility. I have referred to the main matters of conflict upon which reliance is placed. The learned Magistrate referred to some, if not most, of these matters. At trial it was put to him by the defence in effect that the police evidence was generally fabricated. The learned Magistrate did not accept that proposition. His Worship thought that in truth it was the evidence of the defendant and his witness which was not capable of belief. He said the appellant's version of the facts could not possibly be true.
28 He preferred the evidence given by the police officers and he could find no support for the proposition that their evidence was fabricated. Indeed, his Worship said, although not precisely in these words, that it seemed clear to him that their evidence was in each case the independent recollection of the witness concerned. His Worship said that each of them had given evidence "which is independent of the other", and yet he found that the prosecution evidence fitted together as a credible story. He rejected the conspiracy theory and he said that none of the prosecution witnesses, it appeared to him, "has given evidence which is remotely connected, that is, directly that evidence of the other person." No doubt the fact that there were differences in the accounts supported that conclusion.
29 In any event, it was a conclusion well open to the Magistrate as the tribunal of fact and although I have closely examined the evidence and the process of reasoning adopted by the Magistrate in support of his conclusion as to the body of evidence which he preferred and accepted, I can find no error in the process or failure to use his Worship's advantage
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- as the court of trial, sufficient to persuade me that a miscarriage of justice has occurred in respect of his Worship's conclusions about the credibility of the evidence and the choice he made of the evidence upon which he was content to rely: State Rail Authority of NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at par [3-4], [81-86] and [93].
30 Many of the inconsistencies relied upon by the appellant to which I have referred are matters of relative detail. They do not strike at the general reliability of the accounts given by witnesses as to the matters of fact constituting the commission of the various offences charged. I summarise this conclusion in this way. There was a clear body of evidence capable of supporting the conclusion that when asked by PC Allen, the appellant refused to give his address (and, incidentally, his correct name). On the same body of evidence, when arrested, he resisted with considerable violence in Fitzgerald Street until he could be subdued by the use of the capsicum spray. In the course of that struggle, PC Allen was bitten on the leg. Precisely how the appellant as the assailant and Allen as the victim were placed in respect of each other and what exactly was going on at the time were matters of detail upon which acceptable accounts could vary. At about the same time, PC McDonald was bitten on the hand. It must have been then and it could not have been later at the police station.
31 At the police station, the appellant continued his violent struggles when he alighted from the van. There is a clear body of evidence to support the view that the appellant spat upon PC Rowe. Again, precisely what was the mix of blood and saliva, or whether blood was seen by all the officers present would seem to me to be a matter of detail upon which accounts could be expected to vary. All were clear that what they described was deliberate spitting rather than involuntary coughing. There could be little doubt that the evidence favoured the conclusion that PC Abbott suffered injuries to his face caused by a blow delivered by the appellant with his head. On this the evidence was consistent that it was a head-butt. It was not the appellant's case that he was not guilty of that offence because the blow was delivered with the back of the head. His case was that he had delivered no such blow and he had no idea how PC Abbott came to receive his injury. In short, there was a coherent body of evidence to support each of the above conclusions of fact which the Magistrate was entitled to accept and did accept. Grounds 1 and 2 are not made out.
32 Ground 3 complains that the learned Magistrate erred in convicting the appellant of the assault upon PC Abbott once it was the case that the
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- evidence given in support of that charge departed from the particular provided by the prosecuting sergeant at the commencement of the trial. Particulars perform an important function. They allow a defendant to know with some precision the case that he must meet, but neither in the case of a trial of an indictable offence by a jury, nor, a fortiori, in the case of a summary trial before a Court of Petty Sessions is the defendant able to shelter behind the mere technicality that there has been a variance between the way in which an offence is particularised and the evidence led in support of the charge.
33 The question in every case will be whether the way in which the trial was conducted, involving a departure from the particulars given, was such as to produce a miscarriage of justice in that the defendant is seen to have been deprived of a fair opportunity to meet the case against him or her, or in some other way the defendant has been deprived of a fair chance of acquittal. The mere failure to give accurate particulars does not, in my opinion, constitute the sort of fundamental irregularity in the trial process as will cause an appellate court to come to the conclusion that the trial has miscarried and resulting convictions must be quashed. I reject the argument presented for the appellant to that effect.
34 Specifically in relation to a Court of Petty Sessions, and in line with the above general statement of the law, are the provisions of the Justices Act 1902 (WA), ss 44 – 47. They provide in turn that in a complaint, no greater particularity is required than in an indictment and, as in the case of an indictment, to describe the offence in the words of the statute or other instrument creating it shall be sufficient in law. Particulars may be required to be given, but by s 46, no objection is to be taken to any complaint "for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the Justices at the hearing." By s 47, if to make that amendment is productive of any injustice to the defendant, the Justices may adjourn the hearing to a date when the defendant may be better prepared to meet the case against him or her, if such an adjournment is requested.
35 I discussed such a problem as this in Carew v Carone (1991) 5 WAR 1 at 2 – 3. I would take the view in this case, as I did in that, that the misdescription of the offence in the particulars provided was immaterial. There was only one alleged assault upon PC Abbott and both sides knew in general terms what the prosecution complained of in that regard. Ground 3 is not made out.
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36 Ground 4 is concerned with an alleged reversal of the onus of proof. If that ground is made out, then, of course, a fundamental error in the trial process has occurred and the appeal should be allowed, the convictions quashed and the case remitted to the Court of Petty Sessions for retrial without needing to attend to any other questions affecting the convictions recorded. I have mentioned that in giving oral reasons for his decision, at the conclusion of the trial held on 6 June 2001, the learned Magistrate embarked upon an extensive review of the evidence and indicated which body of evidence by and large he accepted and which he rejected. He concluded by saying that the evidence of the police officers was, he thought, the true version of what occurred. His Worship continued:
"What I have to decide is whether or not the defendant's version of events was a possible version of events as to what transpired at the Fitzgerald's Hotel, and I find that it is not."
37 In the first place, that is obviously not a complete question because it says nothing about the events later at the police station to which his Worship later referred, but, in terms, it seems to me that his Worship was simply being careful to note that the question so far as the defence case was concerned was not whether or not he accepted the appellant's version of events as true but whether it was a possible version of events. If it might be true, if it could not be excluded, then the prosecution case could not be proved beyond reasonable doubt.
38 That this was what his Worship intended to convey is made clear, in my opinion, by what follows. He said that he did not accept the evidence of the defendant or Mr Grogan as to what occurred, not only at the hotel but also at the police station. Their evidence, he said, was untrue. He said he accepted unreservedly on the other hand the evidence of the police officers. His Worship went on to convert that conclusion into specific findings of guilt of each of the offences charged, a process which he concluded by saying:
"The prosecution must prove beyond reasonable doubt all the elements of the offences which I have referred to. In my view, the prosecution have proved beyond reasonable doubt all of those elements and I find the defendant guilty on each charge."
- In my opinion, there has been no reversal of the onus of proof but a correct statement of where the onus lay and how it was to be discharged. Ground 4 is not made out.
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39 There are then a number of rather more specific grounds of appeal. Ground 5 contends that the learned Magistrate failed to consider whether PC Allen was acting in the course of his duty at the time when the appellant was said to have resisted arrest, but this ground cannot be made out because his Worship described the events in terms which were only consistent with the conclusion that PC Allen was acting in the execution of his duty at the relevant time and in his Worship's concluding remarks he said:
"In my view, the police officer, Constable Allen, did have the authority in the circumstances to demand from the defendant his name and address, and therefore, from the outset he was acting in the execution of his duty, or as it is now put, performing a function of his office at that particular time. So were all the other police officers who were affected by the events of the 22nd of December and the actions of the defendant."
40 Next, there is the contention that in respect of the charge of assaulting PC Rowe by spitting on him, the learned Magistrate failed to consider the defence of accident. As I understand the argument, it is that if it might have been the case that spittle and blood, landed on PC Rowe because the appellant was coughing up blood, and if it was open to find that he did this involuntarily rather than deliberately, then the prosecution would have failed to negate in respect of that particular offence the view that the act said to constitute the assault occurred independently of the exercise of the will of the appellant within the meaning of the Criminal Code, s 23. In that event, the appellant would be acquitted of that offence because it would be constituted by an act for which he was not criminally responsible unless the prosecution negated the application of s 23.
41 No such contention was put to the learned Magistrate but no doubt it is the case that if the evidence accepted by the Court fairly raised the point and the Magistrate failed to deal with it, the conviction would be liable to be set aside on that ground. But the learned Magistrate dealt with this. It will be recalled that the police officers were cross-examined so as to put the proposition that the appellant did not spit at or upon Rowe but merely coughed up blood because of the assault which had been committed upon him. However, his Worship said that he accepted PC Allen's evidence that:
" … he saw the defendant spitting. He was spitting forward to start with. He was told to stop spitting by Rowe and the defendant turned to the right and spat directly at Senior
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- Constable Rowe. Senior Constable Rowe described that the spittle-blood had then adhered to his uniform shirt."
- Later, in referring to Rowe's evidence which he also accepted, the Magistrate said that the appellant "spat blood" on PC Rowe's shirt. Finally, his Worship pronounced himself to be satisfied that at the police station the appellant "spat at Constable Rowe". On those findings, no question of the application of s 23 arose. This ground fails.
42 Finally, in relation to conviction, it is said that in respect of the assault upon Allen, his Worship should have considered the question of self-defence. Again, that was not put to the court below. The argument is that what was said to be the assault by biting Allen was in truth that the appellant was merely trying to preserve himself from the use of excessive, unlawful force in effecting his arrest in that Allen was exerting force by his knee on the appellant's windpipe and was stopping his breath. The short answer to the contention that the issue of self-defence arose for consideration is that it required some evidence capable of raising the proposition that the appellant had been unlawfully assaulted without provocation by Allen and he was simply using such force as was reasonably necessary to make effectual defence against that assault: Criminal Code, s 248.
43 As has been seen, the learned Magistrate rejected that version of the facts which came only from the appellant. The Magistrate found no such unlawful assault by Allen. On the contrary, he concluded that Allen was performing a function of his office in endeavouring to overcome the appellant's violent resistance to his arrest. On the basis of the evidence accepted by his Worship, there could be no suggestion that the police used excessive force. It was then, his Worship found, that both PC Allen and PC McDonald were bitten by the appellant. On the version of the facts accepted by the learned Magistrate, the question of self-defence simply did not arise for consideration. The appeal against conviction is dismissed.
44 There is an appeal against sentence grounded on the propositions that the aggregate term of 3 years imprisonment was excessive, that insufficient consideration was given to a fine or suspended imprisonment and that the appellant was sentenced on the basis of facts not established by the evidence. The respondent accepts that the appeal against sentence must succeed upon the basis that the aggregate term was too great. Counsel told me that the respondent's position was not that imprisonment to be immediately served was not justified, or that the terms imposed for individual offences were too great, but the total effect of ordering the
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- three most severe sentences to be served cumulatively produced an aggregate which was too great regarding the events of the night in question as one incident which commenced in Fitzgerald Street and concluded with the events at the police station.
45 In my opinion, in those terms the concession is well made. At least to that extent I consider that the grounds of appeal against sentence are made out and to that extent the appeal is allowed. I set aside the sentences imposed. Under the Justices Act, s 199(1)(c), I may substitute a decision that ought to have been made by the Court of Petty Sessions. I have before me all the evidence concerning the offences committed. I have the findings of the learned Magistrate as to what occurred. I may judge the seriousness of the offences. In addition, there is a pre-sentence report and other evidence concerning the character and antecedents of the appellant. Rather than remit the matter to the learned Magistrate to resentence, it seems to me to be convenient that, using the power conferred upon me by the Justices Act, I should now pass appropriate sentences. I will hear counsel as to whether they should be sentences of imprisonment to be immediately served, whether there should be suspended imprisonment, or whether some other disposition of the case should be made.
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