Vogel v Broomhall
[2019] ACTSC 194
•30 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Vogel v Broomhall |
Citation: | [2019] ACTSC 194 |
Hearing Date: | 15 July 2019 |
DecisionDate: | 30 July 2019 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against verdict – Whether verdict is unreasonable and cannot be supported by the evidence – Inconsistent and illogical evidence – Inconsistent verdicts – Unlawfulness of arrest. |
Legislation Cited: | Crimes Act 1900 (ACT) s 222(1) Criminal Code 2002 (ACT) s 361 Human Rights Act 2004 (ACT) s 18(3) |
Cases Cited: | Achuthun v Coates (1986) 6 NSWLR 472 DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Peverill v Crampton [2010] ACTSC 79 |
Parties: | Mark Vogel (Appellant) Lisa Maree Broomhall (Respondent) |
Representation: | Counsel Self-represented (Appellant) S Janackovic (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 8 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 14 December 2018 Case Title: The Police v Vogel Court File Numbers: CC18/10892 |
Murrell CJ
The Appeal
On 17 December 2018, the Magistrates Court convicted the appellant of the offence that, on 2 August 2018, he obstructed a public official contrary to s 361 of the Criminal Code 2002 (ACT). The charge related to the circumstances in which the appellant was arrested and handcuffed in a bedroom of his premises.
In relation to the same incident, the appellant was acquitted of charges of assaulting his domestic partner (on the basis of self-defence) and resist arrest. The charge of resisting arrest related to the appellant’s conduct while he was being escorted from his premises to a police vehicle.
The appellant appealed against the verdict of guilty, claiming that it was unreasonable and could not be supported on the evidence. The appellant submitted that:
(a)The evidence of the police officers was inconsistent and illogical.
(b)The finding of guilty was inconsistent with the finding of not guilty on the charge of resist arrest; the latter finding reflected doubt about the reliability of the police evidence due to the differing accounts given by various officers.
(c)The appellant’s own exculpatory account was consistent and believable.
(d)The Magistrate failed to clearly explain his evidentiary findings and the reasons for the different verdicts.
Further, the appellant contended that the Magistrate had failed to consider whether the arrest was lawful. The appellant submitted that, at the time of his arrest, he was not told of the reasons for the arrest as required by s 222(1) of the Crimes Act 1900 (ACT) and s 18(3) of the Human Rights Act 2004 (ACT).
Nature of Appeal
An appeal from the Magistrates Court is a rehearing on the evidence before the Magistrate, together with any other evidence that the Supreme Court allows: Luketela v Birch [2008] ACTSC 99; 164 ACTR 24 at [28]–[29]. The appeal court must conduct a real and independent review of the evidence, making due allowance for the advantage enjoyed by the lower court in seeing and hearing the witnesses: Peverill v Crampton [2010] ACTSC 79 (Peverill) per Refshauge J at [24]. The appeal court may intervene where the lower court has applied a wrong legal principle, relied upon incorrect facts, or exercised its discretion on the basis of a wrong principle or in a manner that was clearly wrong: Peverill at [24].
When considering whether a verdict is unreasonable or cannot be supported having regard to the evidence, the question for the appeal court is whether, upon the whole of the evidence, it was open to the factfinder to be satisfied of guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487 (M v The Queen) at 493–494. In other words, the question is whether the factfinder must necessarily have entertained a doubt about guilt: Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]. In M v The Queen, the majority said (at 494):
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an in innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence.
It is an error to fail to provide adequate reasons for decision. However, ex tempore remarks made in a busy magistrates’ court should not be “picked over”: DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15] per Johnson J. Rather, an appeal court is concerned with the “substance of what the magistrate said”: Achuthun v Coates (1986) 6 NSWLR 472 at 479.
Evidence
There was no dispute that, on the evening of 2 August 2018, there was a physical altercation between Ms H and her partner, the appellant, at their residence in Downer.
At about 10 PM, Officers Leicester, Odell and Broomhall attended the residence in response to a 000 call from Ms H. The police transmission said that Ms H had been assaulted by her partner.
When the police knocked at the door, the appellant advised Ms H that she was not obliged to open the door. The police received another radio call saying that the complainant was being prevented from answering the door.
After some delay, Ms H opened the door and indicated to the police that the appellant was in a bedroom towards the rear of the house.
The three officers opened the door to the bedroom and saw the appellant seated on a bed. The bedroom lights were not illuminated. The appellant appeared to be calm.
The appellant told the police to leave his house. He then agreed to speak to them provided that it was outside the bedroom.
Evidence of Ms H
Ms H gave evidence that she showed the officers to the bedroom and then went to the living room with Officer Broomhall. From there, she heard the appellant saying something about the living room. She heard one of the officers shouting and saying words to the effect of “I make the decisions”.
She heard the officers swearing at the appellant, saying “you fucking cunt”. She heard the appellant calling out (in Spanish) that the officers were insulting or abusing him and asking her to record what was occurring.
She made her way down the hallway towards the bedroom, accompanied by Officer Broomhall. She could see the appellant “squashed up against a wardrobe” with two officers in close proximity. However, she did not have a clear view because one of the officers was positioned between her and the appellant. She heard an officer swearing. The officers “dragged him out”. The appellant was complaining about maltreatment.
Evidence of Officer Leicester
Officer Leicester said that, when the front door was opened by Ms H, she looked “absolutely terrified, as scared as anyone I’ve ever seen in my policing career of nearly 30 years” and that she was “shaking like a leaf”.
Officer Leicester said that, when the officers entered the bedroom, the appellant told them to get out of his house. He then said that he would speak to them outside the bedroom. When Officer Leicester said that that could not occur, the appellant attempted to shoulder or barge his way past Officers Leicester and Odell.
Officer Leicester grabbed the appellant by the shoulder, more or less simultaneously with the “shoving”, and pushed the appellant against the wardrobe so that the appellant was facing the wardrobe. Officer Leicester informed the appellant that he was under arrest for family violence assault; Officer Leicester believed that the appellant had assaulted his wife and had attempted to stop her from answering the front door, and that there was a risk that the appellant would commit further assaults.
Officer Leicester said that, while the appellant was standing at the wardrobe, he and Officer Odell wrestled with the appellant and attempted to place his hands behind his back so that they could handcuff him, but he pulled away and resisted. Officer Leicester told the appellant at least twice to put his hands behind his back, but he did not do so. The appellant was pulling away as they tried to handcuff him. The appellant called out in another language. There was a risk that the appellant would flail around with one handcuff on and cause injury to the officers. In cross-examination, Officer Leicester agreed that Officer Odell may have twisted the appellant’s arm for the purpose of applying the handcuffs. Officer Leicester was uncertain about whether any handcuff was secured while the appellant was standing up, but said that the appellant was not completely cuffed.
For the purpose of applying the handcuffs, Officer Leicester twisted the appellant around and placed him face first on the bed. He and Officer Odell finished applying the handcuffs.
Officer Leicester said that, because the appellant was continuing to struggle with the police, he was placed in an “escort hold”. He also said that, once the appellant was handcuffed, he was “under control”.
Other police arrived to help and the appellant was escorted from the house. Officer Leicester also said that the appellant had “struggled the whole way” and had to be placed in an “escort hold” for the purpose of loading him into the police vehicle.
He recalled that, as the police were walking the appellant to the car, the appellant asked them to be careful with his leg or knee because he had recently undergone surgery.
Evidence of Officer Odell
Officer Odell said that, when Ms H answered the door, her voice was shaky and it seemed that she had been crying.
Officer Odell gave evidence that, when Officer Leicester told the appellant that the police were investigating an assault, the appellant said that he wanted to speak to Ms H in the living area but Officer Leicester told him to remain in the room. The appellant then rose and attempted to “shoulder” his way between himself and Officer Leicester for the purpose of leaving through the bedroom door. Officer Leicester blocked the appellant’s exit with his arm and told him that he was under arrest for family violence assault.
Officer Leicester moved the appellant to face the wardrobe, told him to put his arms behind his back, and said that he was under arrest. Officer Leicester had hold of the appellant’s left arm and was trying to place it behind his back. The appellant attempted to pull away. Officer Odell then grabbed the appellant’s right arm and attempted to put it behind his back. The appellant continued to pull away. However, Officer Odell managed to apply one of the handcuffs.
After a short struggle, the officers manoeuvred the appellant to a position where he was face down on the bed, placed the appellant’s arms behind his back and Officer Odell secured both handcuffs.
The only swearing that Officer Odell recalled was when, during the struggle, Officer Odell had told the appellant to “stop acting like a dickhead”.
Officer Odell escorted the appellant to the police vehicle, while the appellant continued to lean back and push against Officer Odell. Officer Bragg assisted Officer Odell to place the appellant in the police vehicle.
Evidence of Officer Broomhall
Officer Broomhall said that she had entered the bedroom in which the appellant was seated but then left to be with Ms H, who was “very meek and very quiet”.
Officer Broomhall then heard Officer Leicester’s “booming voice” telling the appellant that he was under arrest. She returned to the bedroom and saw that the appellant was against the wardrobe door. His arms were in front of him, pulled down and Officer Leicester was directing him to release his arms and place them behind his back. One of the officers (she thinks that it was Officer Leicester) was trying to take hold of the appellant’s right arm and pull it behind his back. The appellant was calling out.
Ms H approached, and Officer Broomhall ushered her back to the living room.
When Officer Broomhall heard loud voices once more, she returned to the bedroom to see the appellant face down on the bed with the other officers handcuffing him. All three were yelling.
Officer Broomhall was only aware of one instance of swearing; at one point she heard someone yelling out “dickhead”
She saw Officers Leicester and Odell walk the appellant outside, assisted by Officer Bragg.
Appellant’s evidence
The appellant gave evidence that, when the police came to the door, he told Ms H that she did not have to open the door. At that stage, she was quite calm. He was also calm.
The appellant said that he had been seated in the bedroom when three police officers came barging through the partially open doorway of the room, announcing that they were police and that they wanted to “have a chat”. He did not tell them to go away. He told them that he was prepared to chat in the living room. Officer Leicester stated loudly “you don’t make demands around here, I do”. Officer Odell walked across the room to the appellant and said “you fucking cunt”.
Officer Leicester then told the appellant that he was under arrest. He responded “No. Why?” Officer Leicester told him that it was because “someone alleged you assaulted them”. Officer Leicester directed him to stand up and place his hands behind his back. The appellant reacted calmly, standing up and placing his hands behind his back. He did not attempt to shoulder his way past the officers. He was compliant and polite.
Officer Leicester started to apply handcuffs to the appellant’s left wrist, which was behind the appellant’s back. Officer Odell lifted the appellant’s right arm up above the appellant’s head and twisted it while yelling more swear words. One of the officers “bashed” the appellant’s lower back and “slammed” the appellant into the wardrobe. The appellant believes that his left wrist was cuffed at this stage. He protested this treatment and called out to Ms H in Spanish.
The appellant stood beside the wardrobe for five or 10 seconds while Officer Leicester spoke to the other officers in police jargon, ultimately instructing them to “flip” the appellant. Three officers then grabbed him and flipped him onto the bed, face down, before pulling his arms together and “slamming on” both handcuffs very tightly. The appellant called out in pain. The officers ignored him. They lifted him up. He asked that they take care because he had undergone recent surgery to his left knee.
Three or four officers conveyed him to the police vehicle, dragging him down the hallway with his feet barely touching the floor. When they reached the street, they allowed him to walk. He climbed into the back of the police vehicle. He was blasted with extremely cold air from the air conditioner.
Reasons for decision
When discussing the appellant’s evidence generally (not just in relation to the matter under appeal), the Magistrate observed that there were parts of the appellant’s evidence that caused “some concerns”, including the appellant’s description of Officer Odell seizing his arm, which his Honour described as “unusual, but I don’t think it reaches a point of being inherently implausible”.
The Magistrate found that the appellant was not guilty of the charge of resisting a territory official while being escorted to the police vehicle on the bases that:
(a)The evidence of the three police officers differed in relation to the appellant’s conduct while he was being escorted to the police vehicle.
(b)At its highest, the evidence was that the appellant had struggled the whole way (per Officer Leicester) or pushed back (per Officer Odell). The Magistrate stated that, even if that evidence was true, given that the appellant was in pain he was not satisfied that the appellant had intentionally attempted to resist the officers.
As to the charge of resisting a territory official while in the bedroom, the Magistrate found that the appellant had deliberately and intentionally resisted the placement of handcuffs. His Honour observed that:
(a)Overall, Officer Leicester’s evidence was “unusual” both in relation to content and because of the way in which he gave it. For example, Officer Leicester had described Ms H as terrified, but this observation was not matched by those of the other officers. However, in relation to the incident in the bedroom, the evidence of the officers should be accepted.
(b)The appellant’s evidence that he had acquiesced when asked to stand, turn around and place his hands behind his back lacked credibility and should not be accepted. His evidence that, despite his acquiescence, Officer Odell had raised his arm and caused discomfort to him and that the officers had left him standing for five to 10 seconds next to the wardrobe while they had a conversation was implausible.
(c)The appellant himself said that, on being told that he was under arrest, he had responded “no”. Such a response was consistent with the appellant physically resisting the police.
Ground 1: inconsistency and illogicality of the prosecution evidence
The appellant submitted that there were a number of inconsistencies in the police evidence.
The appellant submitted that the officers had given differing accounts of the degree to which Ms H was distressed and the appellant observed that, during the 000 call, Ms H had spoken in a calm manner.
It is true that Officer Leicester described Ms H as highly distressed while the other officers recalled a lower level of distress. Of itself, this is a matter of little moment; different officers may have made different observations and their interpretation of what they saw may have been influenced by their own emotional state.
The appellant submitted that the officers had given different accounts about the number and identity of the officers who had escorted the appellant to the police vehicle. The Magistrate observed that the accounts were different; the associated unreliability was one reason why his Honour dismissed the charge relating to this part of the incident. Notably, his Honour did not find that any officer had lied; rather, he noted that their evidence was not entirely consistent (and, therefore, not entirely reliable) concerning the circumstances in which the appellant had been conveyed to the police vehicle.
The appellant submitted that there were inconsistencies concerning the opening of the bedroom door and the extent to which the bedroom was illuminated when the officers entered.
These were incidental matters about which memories might legitimately differ without raising any issue of reliability. At most, any differences would reflect upon the reliability of the officers’ memories, whereas, at the hearing in the Magistrates Court, the appellant contended that the officers had lied to conceal their own misconduct.
The appellant said that Officer Odell had described a scenario of seizing and holding him that was physically impossible.
It is not clear to me that any of the positions described by Officer Odell were physically impossible.
The appellant submitted that the evidence of the police officers had differed in relation to the location of his arms and their conduct in endeavouring to attach handcuffs to his wrists.
On my reading of the transcript, in relation to this matter the evidence of the police officers was consistent. While they did not give identical accounts, the observations of each officer were consistent with the observations of the other officers.
The appellant submitted that the police officers’ evidence concerning the extent to which they had sworn differed from the evidence of both the appellant and Ms H, whose evidence was generally accepted.
This point was well taken. The Magistrate did not specifically address this conflict in the evidence. However, as the extent of swearing was extensively canvassed in the cross-examination, the issue could not have escaped his Honour. I infer that his Honour concluded that the police may have understated the extent of their swearing (either deliberately or subconsciously) but decided that this matter did not undermine confidence in the police account of the central events in the bedroom.
The other discrepancies in the prosecution evidence concerned peripheral matters and did not necessarily reflect adversely on the reliability of the prosecution witnesses about the critical events in the bedroom.
This ground is not made out.
Ground 2: consistency and believability of the appellant’s evidence
I accept that the appellant’s evidence was reasonably consistent.
Common sense supports the proposition that, at the end of a volatile, physical encounter with his partner, when confronted with police officers who clearly supported his partner and loudly demanded his submission, and in circumstances where he admittedly questioned the officers’ authority, the appellant may also have offered physical resistance.
In effect, this ground asserts that, based on the appellant’s evidence and that of Ms H, any reasonable factfinder would have harboured a reasonable doubt about the police account of what had occurred in the bedroom.
I disagree. Having applied his common sense and having assessed the demeanour of the witnesses (and despite the consistency of the appellant’s evidence), the Magistrate was entitled to find that the appellant’s account of what had occurred in the bedroom was implausible. In relation to that aspect of the incident, the Magistrate was entitled to accept the evidence of the police beyond reasonable doubt.
This ground is not made out.
Ground 3: inconsistent verdicts
I accept that, when considering the charges subject to the appeal, it was relevant for the Magistrate to consider the reliability of the police evidence concerning other matters, including the circumstances in which the appellant had been conveyed to the police vehicle.
However, it was well open to the Magistrate to accept the police evidence concerning the incident in the bedroom (in effect, finding that the police did not lie about this matter and had reliable memories about it) while harbouring reservations about the reliability of their evidence on other matters (not because they were lying, but because their memories differed).
This ground is not made out.
Ground 4: Unlawfulness of arrest
The appellant submitted that, contrary to the assertion of the police officers, there was no need to arrest him because of the threat of violence or fears for the safety of Ms H.
The appellant was legally represented at the hearing in the Magistrates Court, and this issue was not raised at any stage. It was not raised during addresses. Indeed, in opening, the appellant’s legal representative indicated that there would be a factual dispute and that there would be a legal issue of self-defence in relation to the family violence charges. Officer Leicester’s explanation as to why he arrested the appellant was not challenged or even touched upon in cross-examination.
Consequently, the appellant should not be permitted to raise this matter on appeal.
The appeal is dismissed and the orders of the Magistrates Court are confirmed.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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