Westwater v Police No. Scgrg-98-1358 Judgment No. S6976

[1998] SASC 6976

WESTWATER v POLICE
[1998] SASC 6976

Magistrates Appeal

1. MILLHOUSE J.       The appellant, a 38-year old single woman, suffers from a form of psychiatric illness, bi-polar mood disorder.  She takes pills for it.  She drinks too much alcohol.  When she mixes the drugs with the alcohol the result is disastrous, as it was for her on the evening of the last 19 February.

2. She decided to go over to a friend's house and have out with her some real or imagined grievance.  According to the opinion of the psychiatrist, Dr Raeside, despite her intoxicated condition she would have known what she was doing.

3. At the house the appellant made a thorough nuisance of herself: so much so that her friend, the occupier of the house, had to call the police.  Three police officers turned up.  When they arrived the appellant was in the kitchen.  The police asked her to leave.  She demurred (to put it at its lowest).   According to the police she eventually went to go but as she was walking towards the front door she suddenly turned down a side passage to the bathroom in which she tried to barricade herself.  A police aide, Constable Rigney, got his foot in the bathroom door before the appellant could close it and used his weight to push it open again.  He and Constable Dredge then tried to force the appellant out of the bathroom to take her out to their car at the front of the house.  The appellant was yelling and violently resisting.  The two officers took her each by an arm.  The appellant continued to struggle.  She bent forward to try to bite Dredge on the arm.  This was agreed by everyone.

4. Miss Claire O'Connor appeared for the appellant before the learned sentencing Magistrate as she did before me.  Her original submission to me was that her client's teeth made no contact with Dredge's skin:-

   "HIS HONOUR: She did bite him.

   Ms O'CONNOR:        No.  She bit him on a clothed arm. 

   She did not break the clothing or break the skin, but went to bite him and he moved his arm away.  There is no contact with the arm.  The assault was on the basis that it was a movement towards the arm with the teeth.  There was no contact made at all.  You cannot get a least serious form of assault, and anything less would have been a resist arrest really.  It was just her attempt to try and break his hold on her.  He moved his arm away and there was no further physical altercation on her part."

1. On the other hand Miss Judith Bradsen for the respondent Police asserted, following the police apprehension report, that the appellant's teeth actually touched Dredge's arm before he pulled away.

2. This was a clear dispute of fact.  I am mystified as to why it had not come out in the Magistrates Court but it had not.  I did not follow that up as I was interested only in what actually happened on the night.  Eventually the appellant gave evidence before me and after an adjournment so did Constables Dredge and Rigney.

3. The appellant (who incidentally said this struggle was on the driveway in front of the house, not near the bathroom) denied any actual touching.  She admitted though that Dredge was wearing a short sleeved shirt.  She said to him:-

   " 'If you don't let go of my effing arm I'll bite you', and I turned around and went like that and showed him my teeth ..." (She bared her teeth at him).
   ...

   " ' ...and I got the reaction I wanted and he let go of my arm.' "

4. Constable Dredge gave this evidence:-

   "A.    Constable Rigney had hold of her left arm and at

   that point we were just going to take her outside

   and that's when the accused then went down to

   bite on my left wrist.

..................          Q.    What do you mean when you say the accused went

down to bite on your left wrist.

..................          A.    She motioned, tilted her head down to where my wrist
..................                   was.  I felt the teeth on my skin, it was just starting to
..................                   bite into it, that's when I just pulled away.  I could feel
..................                   it started to bite, I've just let go of my grip and pulled
..................                   away."

1. Constable Rigney corroborated Constable Dredge's evidence.

2. Having seen and heard the three witnesses I do not hesitate to accept the evidence of the police officers (both as to where the struggle was and what happened) and reject that of the appellant.  I have no doubt at all that the appellant's teeth made contact with the constable's wrist.  Fortunately he was able to pull away before the skin could be broken.

3. The three of them fell in a heap outside the bathroom door but eventually the appellant was handcuffed and put in the police car.  She was charged with both assaulting a member of the police force in the execution of his duty and resisting a member of the police force in the execution of his duty.

4. The appellant appeared before a magistrate at Elizabeth.

5. She already had a police record, inter alia, two offences of assaulting police in 1991, refusing breath analysis in 1994 and driving disqualified in 1997.  For the last of these she was given a suspended sentence of 14 days and put on a bond: the bond had not expired at the time of this incident.

6. The appellant pleaded guilty.  The magistrate gave her 28 days on the two charges, estreated the bond, ordered her to serve the 14 days and accumulated the 28 days: effectively imprisonment for six weeks.

7. The appellant complains that the sentence is "manifestly excessive": it should have been suspended and the bond should not have been estreated.

8. Miss O'Connor put to me lengthy submissions as she had to the magistrate and cited a number of authorities.  The gist of her submissions was that given her client's medical and financial conditions imprisonment would be a particular hardship to her: given her psychiatric condition general deterrence should not be a significant element in sentencing.  Miss O'Connor suggested that her client should have been given a fresh bond and not be made to serve the 14 days: a more appropriate course would be to suspend the sentences.

9. Miss  Bradsen on the other hand pointed to the seriousness of the offence of assault police and of offending when on a bond.

10. I am bound to say that in this instance I do not think the penalties imposed were manifestly excessive, indeed not excessive at all, quite appropriate.  The appellant was being a complete nuisance to the householder. She was violent in word and deed to the police, bit one of the officers.  She was on a bond at the time.  She deserved what she got.

11. The magistrate exercised his discretion not to suspend.  Nothing has been shewn to suggest his discretion miscarried.  I should not interfere even if I were minded to.

12. The appeal is dismissed.