Whiteside v Hall
[2013] QDC 136
•21 June 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Whiteside v Hall [2013] QDC 136
PARTIES:
LEWIS WHITESIDE
(First Appellant)
v
SERGEANT G HALL
(Respondent)and
SALLY MARIE SUMMERSGILL
(Second Appellant)
v
SERGEANT G HALL
(Respondent)and
STEPHAN JARRETT
(Third Appellant)
v
SERGEANT G HALL
(Respondent)FILE NO/S:
58 of 2012
59 of 2012
60 of 2012
DIVISION:
Appellate
PROCEEDING:
Appeals s 222 Justices Act 1886
ORIGINATING COURT:
Magistrates Court, Cairns
DELIVERED ON:
21 June 2013
DELIVERED AT:
Cairns
HEARING DATE:
13 September 2012
JUDGE:
Harrison DCJ
ORDER:
That the appeal by the first appellant against conviction and sentence is dismissed.1.
That the appeal by the second appellant against conviction is dismissed but the appeal by her against sentence is upheld. The original sentence is set aside and she is fined the sum of $250.00 to be referred to the State Penalties Enforcement Register and no conviction is recorded.2.
That the appeal by the third appellant against conviction is upheld and both of the convictions against him for obstruction of police in the performance of their duties are set aside.3.
CATCHWORDS:
APPEAL – APPEAL BY WAY OF REHEARING – APPEAL AGAINST CONVICTION – Justice Act 1986 (Qld) s 222 – where appellants convicted of offences of obstruct police and serious assault – whether police acting in execution of their duty or in performance of their duties – where first appellant claims defences of extraordinary emergency, self defence and provocation – whether late amendment of charges prejudiced first appellant – whether third appellant’s actions sustained charges of obstructing police
APPEAL AGAINST SENTENCE – whether sentences imposed were manifestly excessiveLEGISLATION:
Criminal Code ss 25, 269, 271, 340
Justices Act 1886 ss 48, 49, 222
Penalties and Sentences Act 1992 s 12
Police Powers and Responsibilities Act 2000 ss 36, 790(1)
Summary Offences Act 2005 s 6CASES:
Coleman v Power (2004) 78 ALJR 166
Couchy v Birchley [2005] QDC 334
Mbuzi v Torcetti [2008] QCA 231
Paulger v Hall [2002] QCA 353
R v Conway [2005] QCA 194
R v George (unreported decision of Court of Appeal on 2 November 1999)
R v Kazakoff CA236 of 1998
R v Mathieson [2005] QCA 313
R v Williams CA385 of 1997
R v Wotton (unreported decision of Court of Appeal on 9 September 1999)
Rowe v Kemper (2008) QCA 175COUNSEL:
P Feeney for the Appellants
RW English for the Respondent
SOLICITORS:
The Law Office for the Appellants
Office of the Director of Public Prosecutions for the Respondent
On the 29th February 2012 the three appellants, following a conjoint trial in the Magistrates Court at Cairns on the 20th February 2012 and the 21st February 2012, were found guilty of the following offences:
First Appellant
1. Public Nuisance Sentenced to one month imprisonment 2. Obstruct Police (Const Ejneberg) Sentenced to one month imprisonment 3. Serious Assault (Sgt Harrold) Sentenced to two months imprisonment 4. Obstruct Police (Const Ejneberg) Sentenced to one month imprisonment All terms of imprisonment were to be served concurrently and his parole release date was fixed at the 26 April 2012.
Second Appellant
1. Serious Assault (Sgt Harrold) Sentenced to one month imprisonment wholly suspended for an operational period of twelve months She was found not guilty of an offence of obstructing Sgt Harrold in the execution of his duty.
Third Appellant
1. Obstruct Police (Sgt Harrold) Convicted and fined $1000.00 2. Obstruct Police (Const Ejneberg) Convicted and fined $1000.00 He was found not guilty of an offence of serious assault on Sgt Harrold.
All charges arose from incidents at the Palm Cove Caravan Park in the early hours of the 29th September 2011. All three appellants were English travellers who had for sometime been residing at the caravan park.
All three appellants appeal against conviction and sentence under s 222 of the Justices Act 1886 (Qld) and all three appeals were heard conjointly in this court.
Grounds of Appeal
The main ground of appeal in relation to the first appellant relates to whether or not the two police officers involved, Sgt Harrold and Const Ejneberg, were acting in the execution of their duty or in the performance of their duties. It was argued that there was evidence that, prior to any obstruction or serious assault on the part of the first appellant, he had in fact been assaulted by Sgt Harrold who had pushed him. It was argued that this took Sgt Harrold outside the ambit of his duty and that Const Ejneberg was acting in concert with him. It was argued that it was an essential element of each of the obstruct police charges and of the serous assault charge that they were acting in the performance of their duties or in the execution of their duty. On this basis it was argued that the convictions against the first appellant should be set aside as unsafe and unsatisfactory.
The first appellant also argued that he was prejudiced by the late amendment of the obstruct police charges by the learned Magistrate at the time she gave her decision. Originally the first appellant was charged with obstructing both Sgt Harrold and Const Ejneberg on both of the obstruct charges but the learned Magistrate in her decision amended both charges to include obstruct as against Const Ejneberg only, deleting all reference to Sgt Harrold.
The second appellant also argued that her conviction for serious assault should be set aside as unsafe and unsatisfactory. She relies on the same argument advanced by the first appellant in relation to whether the police were acting in the performance of their duty or in the execution of their duty at the relevant time.
The third appellant also relied upon the same argument. It was also argued on his behalf that the learned Magistrate clearly rejected the evidence of Sgt Harrold in relation to an alleged serous assault upon him by the third appellant yet accepted Sgt Harrold’s evidence at least in part to convict him of the two charges of obstruct police. It was also argued that what he did did not sustain a charge of obstructing police.
All three appealed against sentence on the basis that the respective sentences imposed were manifestly excessive.
Appeals by way of rehearing
It is well accepted that appeals of this type are by way of rehearing on the original evidence unless leave is obtained to adduce any further evidence. This court should make its own determination of the relevant facts in issue from the evidence at the same time giving proper deference to the learned Magistrate’s view having regard to the fact that she had the benefit of seeing and hearing the witnesses give evidence.[1]
[1]Rowe v Kemper (2008) QCA 175 at [5].
Witnesses called for prosecution
The following witnesses were called by the prosecution:
1. Graeme Eric Barber who, with his partner, managed the Palm Cove Camping Ground;
2. Sergeant David Richard Harrold who was one of the first police at the scene;
3. Constable Sebastian Damian Ejneberg who arrived at the scene with Sgt Harrold;
4. Anthony James Green who was residing with his partner at campsite 47 at the relevant time;
5. Lyn Joy Cain who was the partner of Barber and co manager of the camping ground;
6. Robert Duncan McKillop who was another resident of the camping ground and who was residing at either site 35 or site 36 at the relevant time;
7. Margaret May Cox who was the partner of Green and residing with him at campsite 47 at the relevant time;
8. Detective Sergeant Gary James Hall who was the investigating officer.
McKillop gave evidence by telephone and all of the other witnesses gave evidence in person.
Witnesses called for the defence
The following witnesses were called for the defence:
The second appellant;
The third appellant;
The first appellant;
Lorraine Edith Cameron who was a resident at a site near where the appellants were camped at the relevant time;
Tracey Michelle Cameron who was the daughter of Lorraine Cameron and who was a resident with her at the relevant time.
Both Lorraine and Tracey Cameron gave evidence by telephone.
Events prior to involvement of police
What happened prior to the involvement of the police in the early hours of that morning is contained in the evidence of Barber, Cain, the first appellant and the second appellant.
It is clear that all three appellants had been residing in different tents at site 46 at the caravan park. These sites are identifiable on the two plans tendered through Barber numbered exhibit 2 (layout of the camping ground immediately before construction work was commenced on a new toilet block) and exhibit 1 (which showed the layout at the relevant time). The area where the construction was taking place was identified by Barber as being in the areas marked F, M, SH, T, SH and T on exhibit 1.
On their own evidence, both the first appellant and the second appellant had been drinking that night. The third appellant had also been drinking earlier but had clearly gone to his tent and was presumably asleep when events started to unfold. The first appellant and the second appellant had previously been involved in a relationship although it appears that they were not together at the relevant time and each had their own tent. The second appellant said that she had about 6 bottles of beer to drink throughout the course of the evening. She had been drinking earlier in the evening with the third appellant at the bench near the esplanade at Palm Cove and, after he left to go home, she met three other men and drank with them for about 20 minutes at the bench near the camping area. While she was drinking with these three men the first appellant appeared and she introduced them before both she and the first appellant moved towards the camping area.
It appears that an argument then developed between the first appellant and the second appellant. According to the second appellant this was because of jealousy on his part but the first appellant, in evidence, denied that he was being jealous on the evening. The second appellant then proceeded to the women’s toilets which, at that stage, were located in an area which is marked 9 and with an X on exhibit 1. The first appellant followed the second appellant into the toilet area and it seems clear that there was an argument there between them and, in the course of that, a beer stubby bottle was broken. The second appellant agreed that she was the one that had the bottle and said, in evidence, that she had dropped it. It is also clear that she screamed whilst in there. It appears as though she then cut her foot slightly on the broken glass.
The first appellant also agreed that he had been drinking that night and he had purchased a bottle of whisky. He says that he shared that with a number of people including the third appellant.
It was about at that stage that the managers Barber and Cain became involved. Upon being woken up by Cain, Barber could recall looking out the window and seeing someone running past. He said that he then went to the old toilet block with Cain and Cain went inside where she remained for about 5 minutes. He could hear the second appellant inside being abusive to Cain and he could recall his wife coming out of the toilet block at the same time as the second appellant and the second appellant went back towards site 46 where she was residing. Barber said that he and Cain went to site 46 and they could see the second appellant packing her tent up and then the first appellant came through the site and he was being very loud and using a lot of bad language. He said that they both tried to quieten him down but were unsuccessful. He also said that, in the course of that incident, he told them all to leave the camping ground. He told the first appellant that he was going to ring the police and the first appellant told him that he was going to ring the police. It appears as though both did.
Cain gave similar evidence to Barber. She recalled being woken up by a scream from the toilet block and, when she got there, she noticed three or four young men standing outside. On the evidence it would appear as though this included the group that the second appellant had been drinking with shortly before. She entered the toilet block and saw the second appellant in an upset state swearing and complaining that all she wanted to do was go to bed. She too described how they went back to the site after she and the second appellant came out of the toilet block and described the arrival at that scene of the first appellant. She described him as being quite upset and loud and swearing and confirmed that, when Barber said he was going to call the police, he said he would do the same and then ran out of the camping ground.
The second appellant described how she went back to the campsite and tried to wake up the third appellant but was unsuccessful. She described how the manager then arrived at the site and she was told she had ten minutes to get out of the place and how the first appellant then became upset.
The first appellant agreed that he and the second appellant had exchanged words after they left the other men and walked towards the toilet block and agreed that he had been in a pretty bad mood. He agreed that he did raise with her why she had been with those three men and that the argument just escalated from there with her becoming more agitated. He agreed that, inside the toilet, she was yelling at him to get away. He said that he was just trying to calm her down. He said that she screamed at one stage in there. He agreed that he went back to the campsite after that and he said that he was also trying to wake up the third appellant. He said that he panicked after what had happened in the toilet block with the second appellant screaming and with the bottle getting dropped and he saw these other men moving towards him when he came out and he thought that they posed some threat to him. He ran from them. He said that, when he was trying to wake up the third appellant, the manager appeared and told him to leave and he said that he complained that it was three o’clock in the morning and they had no car, no transport and nowhere to stay. He denied that he had been aggressive towards the manager in the incident at the site. He agreed that he called the police and said he did that because he thought that the other three men were going to beat the living hell out of him after the scream and the bottle breaking and him running out of the toilet.
Arrival of police
Both Sgt Harrold and Const Ejneberg gave evidence that they received a call about a 2.45am and then proceeded to the camping ground.
They both described how the first appellant was outside the Palm Cove Surf Lifesaving Club on Williams Esplanade when they arrived about 200-300 metres short of the camping ground. They said that he spoke to them and told them both that people were trying to kill him or hurt him and he made reference to “the old man and the old lady.” Both Sgt Harrold and Const Ejneberg, at that stage, formed the view that he was under the influence of alcohol or drugs. Sgt Harrold said that he told him to wait where he was and that he would come back and speak to him.
They then described how they went to the site where the appellants had been residing. Sgt Harrold said that he spoke firstly to the second appellant and that she was asked to provide her name. She enquired as to whether she had to and he said it would be an offence not to and then she provided the name which he wrote down. He said that from her speech he formed the opinion that she was under the influence of either alcohol or drugs. At that stage, he had not spoken to the third appellant at all and he described how the first appellant then arrived at the site running from his right hand side towards a tent at the same time yelling and swearing. Sgt Harrold said that he was initially concerned that the female may be harmed so he positioned himself between the second appellant and the first appellant. He said that he continued to try and get details from her whilst the first appellant continued to be loud and whilst Const Ejneberg approached the first appellant and asked him repeatedly to be quiet or to settle down. He then said that he continued to hear Const Ejneberg telling him to settle down and be quiet and he continued to hear the first appellant yelling and screaming and then heard Const Ejneberg tell him that he was under arrest and saw him grasp hold of him. He then described how the first appellant struggled and tried to pull away from Const Ejneberg who held onto him. He said that he ran over to them and he grabbed hold of one arm with Const Ejneberg already having hold of the other and that the first appellant tried to pull away from him also. He said that he tried to calm him down and reiterated that he was under arrest but he continued to pull and struggle. He described how the first appellant was swearing throughout all of this. He said that they managed to force him across to the police vehicle with the intention of putting him over the front of the vehicle but he jumped forward and spun and ended up backwards over the front of the police vehicle with his back to the car. He said that he tried to restrain him again by putting a more secure restraint on him but he again managed to twist and break free. He said that the first appellant then took a step backwards towards the tent taking out a fighting stance and swearing at them and that he then activated his capsicum spray at the same time telling his partner that he was going to use it. He said he deployed a one second burst in the direction of the first appellant’s face.
He said that he had not seen the third appellant before then but, as he was activating the spray, the third appellant raced in from his right hand side and barged into his right shoulder which pushed him off balance to his left. He said that he then turned towards the third appellant, told him to get back and deployed a second burst of the spray which he believed would have hit him in the face. He said that, immediately after that, the first appellant came racing at him and kicked him in the ‘area of the right thigh’ just to the side of his genitals. He then said that the first appellant then punched him to the left side of the face with a clenched fist just between the nose and his cheek. He identified a series of photographs (Exhibit 4) showing an obvious injury under his right eye. He said that he believed that he was hit twice with punches in the area of the face and that he was stunned initially and that the first appellant then ran away and that he told Const Ejneberg to get him.
In cross examination Sgt Harrold denied pushing and shoving the first appellant at any stage of the incident.
Const Ejneberg gave evidence of how the managers took them to the site and how he saw the second appellant and the third appellant. He said that he spoke to the third appellant while Sgt Harrold spoke to the second appellant. He said that he could recall the first appellant running into the site from around the back of the tents and that he was placing something into a backpack and was swearing and yelling at the second appellant. He said that he was being very loud. He said that he got between the two of them and told him to be quiet and calm down. He said that the first appellant continued to direct abuse at the second appellant and continued to swear even though he continued to tell him to calm down and be quiet. He said that, at one stage, he told him to be quiet because there were plenty of people around. He said that he did not calm down and he (Ejneberg) got closer to him and told him he was under arrest and grabbed him by the arm. He said that the first appellant struggled a bit at first and then struggled more as he tried to guide him towards the police vehicle. He said that Sgt Harrold also grabbed him. He said that he lost his grip when they reached the police vehicle as the first appellant struggled and that Sgt Harrold also lost his grip and Sgt Harrold said something to the effect “don’t make me spray you” and that Harrold then told him (Ejneberg) he was going to use the spray. He then noticed that the spray was used. He said the spray was in the direction of the first appellant’s head and some of the spray also got him (Ejneberg).
He then said that he saw the third appellant coming from the vicinity of the tents to where they were and described how Sgt Harrold also sprayed him. He did not see any contact as between Sgt Harrold and the third appellant. He then described how the first appellant came back in towards Sgt Harrold and he saw him kick him in the area of the groin but he did not see any other conduct by the first appellant towards Sgt Harrold at that point. He said, however, that shortly afterwards, he noticed blood coming down the side of Sgt Harrold’s face. He then described how the first appellant ran off from the scene and how he ran after him.
The managers Barber and Cain also gave evidence of what happened at site 46 when the police arrived. Barber described how, when he got there, the second and third appellants were embracing each other. He said the police started talking to the second appellant and then the first appellant appeared on the scene talking very loudly. He said he could recall the Constable trying to quieten him down. He said that the first appellant was going on loudly about how he and the girl had been together for four years. He said that after being told to quieten down he just got louder and louder and the police said that they would have to arrest him. He said that when the police put their arms on him he started swinging and he hit the Constable first and as the Sergeant rushed into help he swung around and directed a full blown kick at the Sergeant which appeared to connect in the groin area. He said that they actually got him onto a bonnet of a car but before they could get the handcuffs on him he broke free and ran away.
In cross examination he denied that the Sergeant had been pushing or shoving the first appellant at the start of the incident. He never gave any evidence at all of any alleged barging on the part of the third appellant in the course of that incident.
Cain described how the police initially spoke to the second appellant and how she refused to give her name and how there was reference to her being in trouble if she did not. She also said that the police spoke to the third appellant and that while they were talking to him the first appellant stomped through the campsite. She said that the police tried to talk to him nicely but he was “off his face” and he started hitting and kicking the Sergeant and he eventually broke free. When asked for more detail she said that he stomped through the campsite in a wild and very aggressive manner. She said that his demeanour changed when the police started talking to him and he just threw himself at them. She said she had some recollection of the capsicum spray being used and of them falling against a car.
In cross examination, she agreed that at no stage in that incident at the campsite did the third appellant attack the police in any way.
Anthony Green gave evidence of being woken up by a noise from the adjoining site 46. He explained how he could hear the man her referred to as the shorter guy with the short black hair (obviously the first appellant) saying something to the effect “they’re going to kill me” and saying this over and over again. He referred to the third appellant as the one with the longer hair and there was also considerable evidence throughout the case that he wore glasses. He could recall the managers coming to the site and asking them to leave and the conversation where both talked about calling the police. Mr Green could remember the police arriving and said that the first interaction was the shorter policeman (on the evidence clearly Sgt Harrold) asking the woman her details. He described how the first appellant then came back into the campsite and how the taller police officer (obviously Const Ejneberg) went to settle him down. He described the first appellant as being agitated and talking in a very loud voice although he could not remember the words. He then described how Const Ejneberg tried to settle him down again and how he may have grabbed his arm or something and how he became a little bit more agitated. He said that the other policeman then came over to give him a hand and the first appellant then broke free from Const Ejneberg. He then said that a scuffle broke out which he described as like pushing and shoving between the first appellant and one of the police officers. He said he saw a lot of spray which he presumed was capsicum spray. He said that after being sprayed the first appellant exploded and started throwing punches and kicked the policeman in the groin or in the stomach area. He then described how the first appellant took off and how the police officers took off after him.
In cross examination, he agreed that he saw the third appellant at the site but he did not see him at any time hit either of the police officers or shoulder charge either of the police officers. Further, in cross examination, he said that he did not hear any of the officers say “you’re under arrest” and he said that the Constable took hold of the first appellant after the first appellant took a couple of steps in his direction. He also denied that Sgt Harrold pushed the first appellant at the start of the incident.
Green’s partner Margaret Cox gave evidence that she was woken up by a noise from a person she described as a short male from the camp site saying “wake up, wake up. They’re going to kick my head in.” She said that this went on for about 5 minutes. She identified the short male as the first appellant in court. She also gave evidence about the camp managers arriving and the manager telling them that they had to leave in 10 minutes. She also heard reference to both the manager and the first appellant saying that they would call the police. She described the first appellant as appearing to be drunk when she saw him. She was also present when the police arrived and she described how there was some problem about getting the proper name from the girl and how one of the officers said “if you don’t tell us your right name, you can hop in the back of the car.” She said it was then that the shorter man (obviously the first appellant) started arguing with the police. He was very agitated and his argument was directed at the police and he was told to quieten down. She said that when the man was arguing with the police, she went to check on her grandson and the next thing she was aware of was that there was a scuffle. She said she saw the short guy coming over towards the police and the police using the capsicum spray. She then said that the man said something to the effect “catch me if you can” and started running and then everyone left the scene. It does not appear as though she witnessed anything at the time the third appellant was alleged to have assaulted Sgt Harrold. In cross examination, she agreed that she did not see the third appellant assault either of the police officers.
Robert McKillop gave evidence that he was residing at either site 35 or 36. If that was correct then he would have had to have been a substantial distance from site 46 as is apparent from the site plans exhibits 1 and 2. He gave evidence that he was woken up in the early hours of that morning by a girl shouting and he also could hear a male voice. He indicated that this was somewhere in the region of the toilet block laundry area. He said that the female sounded upset. He said that the next thing he could recall was sometime later when there was a sort of scuffling and people running and shouting followed by a scream. He said that the first set of noises and the scream were about half and hour apart and he heard the sounds of footsteps in between.
He did not see or give any evidence about what happened at site 46.
Lorraine Cameron gave evidence that she and her daughter Tracey were staying at the camping ground at the relevant time. They were residing in a caravan along with her husband and her granddaughter. She said that she woke up at about 2am to a loud scream. She said she got up and looked out the windows when she saw one of the young fellows run to where there were three little tents. She said that the young fellow was trying to wake up the taller fellow with glasses who kept telling him to go back to bed. She said that, while this was happening, the girl came and, after that, the caretakers came. She confirmed that the caretaker said something about ringing the police and the young man said he was going to as well. She said that before long the police were there and there was a spotlight shining behind her van shining right on the other people. She confirmed that one of the police started interviewing the girl and that the shorter of the young boys, the one with the olive skin came back and tried to tell the policeman what was going on and the policeman shoved him. She was obviously referring to the first appellant. She said that the young guy continued talking and it was then that they got into a bit of a predicament. She said that both policemen tried to grab him and pin him to the bonnet of a white car and he said something to the effect “I can drop you”. She said that he then hit the taller policeman in the face and the shorter one in the groin and after that within seconds he was running off and the shorter stubbier policeman (who on the evidence can only be Sgt Harrold) was running after him. After that she heard a big scream. She said that the managers were both there at the scene and they told the other two, the taller one and the girl, to stay there but they also ran after them. She said that capsicum spray was used and she could actually see it on the face of the taller fellow with glasses. She said that she did not see the taller one assault either of the police officers.
In cross examination, she said that the younger man said to the taller man when he was trying to wake him up “wake up, man, I need you. I think I killed her.” She said that when the girl arrived the shorter man apologised to her and told her that he was sorry he hit her. She also agreed that she heard the younger man say something to the effect “I’m gonna ring your mother and tell her what you’re really like.” She was asked whether or not any colourful language was being used and she said that she could not hear any. She said that she could also remember the park manager arriving. She said that she was staying at either site 76 or site 77 which on exhibits 1 and 2 are clearly positioned diagonally across a small walkway from site 46. She said that the man with the short hair was trying to tell the police what had happened and was being told to shut up and was being pushed away by the more stockier of the police. She did not agree that the man with the short hair was being aggressive towards the park managers before the police arrived. She was questioned about her view of the incident when the police arrived and whether the police car was between her and site 46 and she said that it was and that she could see over the top of the police car.
She disagreed with the proposition that the taller officer had told the man with the short hair to calm down and to settle down. She said he was trying to tell the policeman what had been going on and, in response to a question to whether or not he was swearing loudly, she said that he did swear but it was not a lot. She said that he was using words such as “bloody” and stuff but said she did not have a clear recollection of what he was saying or what the swearing was. In response to a suggestion that the policeman was trying to calm him down and to get him to be quiet she said that the shorter of the policemen was poking him. She disagreed with the proposition that it was the taller policeman that took hold of the man first. She disagreed with the proposition that it was the Sergeant that was hit in the face and not the taller policeman.
She was questioned about the third appellant having capsicum spray in his face and she agreed it could have been sprayed on him but went on to say “yes, but he wasn’t even doing anything.” She denied the suggestion that neither officer had poked the man with the short hair after he arrived. She was asked whether she could remember the taller officer telling the man with the short hair to calm down and be quiet and she said that one of them did but she could not recall who. She also said that she did not hear any of the police officers saying that he was under arrest.
Her daughter Tracey Cameron also gave evidence of being woken in the early hours of that morning by loud voices. She said she could hear someone saying “I’m going” and she could also hear someone trying to wake up another person. She said that the police arrived 10 maybe 15 minutes after that and the car pulled up outside their van on the road between where their caravan was and where the tents of the young people were. She said everything was lit up by a spotlight. She said that the police went over to the young girl and to the man with the glasses who was comforting her and she can recall the girl spelling her name back to the police. She said that, by this stage, the man with the short hair came back and went up to his tent and it looked like he was trying to get his gear together. She said he walked towards a police officer saying “I’ve called you” and that he was told to shut up but he continued to walk towards the police officer and was told to stop again. She said that that was when he was pushed by the police officer and when questioned as to which one she said it was the one that was heaviest built. Again, on the evidence, this could only be Sgt Harrold. She said that he pushed him quite forcefully backwards and was telling him stop and shut up and that this happened three times. She said that the man with the short hair kept coming back so both officers then grabbed him and then tried to put his hands behind his back and that they were struggling and that they were trying to push him down onto the bonnet of the police car. She said that as they were struggling and she saw him trying to get out of the grasp that they had on him and she did see capsicum spray being released because she could see a mist in the area covered by the spotlight. She then said that the young man then sort of went off and then he hit the slim build officer in the face. She then said that he got away from their hands and he went towards the back of the site where the three tents were and where the tall man with the glasses was. She said that she thought the capsicum spray went off again and that the young man with the dark hair kneed the larger built police officer in the groin. She said that the larger built police officer was then flung back into the white car and landed on the ground and that the young man then ran off and the thin built police officer went after him and so did the other one after he got up. She said that she can recall the manager telling the others to stay there but they continued off. When asked whether the thin man with the glasses assaulted either of the police officers she said that he did not.
In cross examination, she agreed that she remained in the caravan the whole time. She was questioned about the police vehicle being between her and the relevant site and she said that she could still see directly to where the three tents were. She did not agree with the proposition that one of the young men at the start said something to the effect “wake up man, I need you. I think I killed her.” She said she was not clear as to what was said at that time. She was asked whether or not the young man’s voice was fairly loud at that point and she said that it was loud enough to wake them. She could not recall whether he was swearing. She agreed that, at one stage, she could hear the girl’s voice saying “leave me alone” and that she sounded angry. She agreed that there may have been things that happened that she did not see but she said that she did see what happened when the police car arrived. She said, in cross examination, that it was actually the larger set police officer that pushed him on the three occasions. She said as he was pushed the first appellant kept coming forward and was pushed or shoved again. She was adamant that the man with the short hair kneed the Sergeant in the groin and did not kick him. She denied that the Constable took hold of him first and that the Sergeant took hold of him second.
All three of the appellants also gave evidence about the incident at the site.
The second appellant said that after the police arrived Sgt Harrold started talking to her and that the taller police officer stood behind him. She agreed that there was some conversation about her giving her name and she said that the first appellant walked in as she was spelling out her name to Sgt Harrold. She said that he was really upset and appeared to be quite panicked and he started zipping the top of his bag up saying things to the police to the effect that he was the one who had rung them. She said that Sgt Harrold then walked over towards him and told him to shut up and pushed him on the upper chest. She said that the first appellant said “what are you doing” and complained that he needed their help and that he was going to get his stuff and leave. She said he was shouting as he did this. She said that Sgt Harrold again said “shut up” and pushed him again on the upper chest. She said that the first appellant then really panicked and was pretty upset. She said that Sgt Harrold then put his arms up and it appeared as though he was trying to grab the first appellant’s arms. She said that the first appellant then dodged him and twisted and that his arm swung out and that he pushed Sgt Harrold and set off running with both the police officers more or less right behind him and ran away into the shadows. She said she was not aware of capsicum spray being used and she said that she did not see the first appellant hit Sgt Harrold nor did she see him kick Sgt Harrold.
She agreed that she had six or seven stubbies of beer in the course of the night. She did not accept the proposition that she was drunk that night when questioned about not recalling any use of capsicum spray or the first appellant hitting or kicking Sgt Harrold.
The third appellant also gave evidence as to what happened at the site. He said that he was intoxicated that night and that it was his 31st birthday and it was about a month before he was going to leave Australia and it was the one time he was going to let his hair down.
He said he could remember being woken up by the first appellant who appeared very anxious and scared and that it took him a long time to stir him because of his condition. He said that he could remember the second appellant crying and playing about with her tent and he went across to her and put his arms around her and comforted her. He said that it was only a minute or so later that the police arrived and the second appellant walked across towards them. He could remember her being asked for her name and he could remember her name being spelt out and, at the same time, the first appellant approached near a little tree where his tent had been erected. He said that he was quite animated and he was saying things to the police to the effect that he would go because he had phoned them. He said that there was movement from the police towards the first appellant and he was still saying something to the effect “for fuck’s sake, I called you. I’ll go. Don’t worry. Don’t worry.” He said that he was forcibly told to shut up.
He said that all this happened against a background when he was drunk and he had bad eyesight as well and he was struggling to put his glasses on when he first got up. He then went on to describe how people moved from that area and how the second appellant moved and then he started moving towards the sound of the scream. He denied assaulting either of the police officers in the area of the camp site.
It is not necessary to go into his cross examination in any detail other than to say that he did concede that he was intoxicated on a number of occasions and he did concede that his memory about what had happened was sketchy.
The first appellant also gave evidence in relation to what had happened at the site.
He said that he waved the two police officers down and spoke to them on the esplanade because he had waited for them there. He said that, after speaking to the police, he went back to the camp site to get his stuff so that he could leave and that one of the people there, it could have been anyone, asked him what he was doing. He said that he looked at the Constable and told him something to the effect “don’t worry about it mate. I called you. You don’t want to help I’ll get my stuff and leave.” He said that he continued to pack his tent away into his backpack and that his clothes were everywhere and he said that Sgt Harrold walked over and pushed him. He said that this did not bother him at the time as it was just a little “shut up be quiet.” He said that he then tried to explain that he was getting his things and leaving and that he was pushed by Sgt Harrold a second time a lot harder which made him feel frightened. He said that the push made contact with his chest and that he stumbled back and said “don’t you fucking dare push me one more time.” He then said that he got angry and that he said something to Harrold to the effect “what are you doing? I called you and you’re pushing me. Don’t do that again.” He said he wanted him to know not to push him again. He said that Harrold then lunged towards him and he jumped with his foot just trying to get away from him and they collided. He said he now knew that the foot hit him in the right thigh. He said that he did push him and that his hand could have come into contact with his back, his shoulder, his face, his chest or his stomach because he did not know where he contacted. At some stage of this incident he said that he couldn’t see a thing with his face on fire. This was obviously a reference to the capsicum spray. He said that he kicked him in the leg and pushed him round because Harrold sort of stumbled forward and he said that he did not feel safe so he then just ran. He said that he was acting in self defence and that if someone is going to attack you you kick them and run. He said that it just flashed into his head that he should just aim at his testicles and put him off balance and run because he was scared. He said he thought that Sgt Harrold was about to punch him or kick him or do something to him after he had pushed him twice for no reason.
He gave evidence that he had been drinking whisky earlier in the night and he said that he had three single whiskies and a couple of shots and that he had not taken any drugs that night.
In cross examination, he denied that he said anything to the police on the esplanade about old people trying to kill him. When questioned further about his drinking he said he would have had in total five or six single measures of whisky. He was reminded that he had a blood alcohol concentration of .12percent at 5.00am (Detective Sergeant Hall gave evidence of this). It was suggested to him that this was a high reading and he agreed that he may have had shared a beer as well as having the whisky.
He agreed that he returned to the site after the police arrived and he said that he was not as agitated and aggressive as he had been earlier. He denied that one of the police officers told him to quieten down and calm down because there were people about. He said he did not know whether one of them told him that he was under arrest and took him by the arm. When questioned why he did not know he said that he was a little bit inebriated that night but he was not drunk and that he was not sober and he said that no one could remember all of these events from start to finish perfectly. It was put to him that he was arrested by Const Ejneberg and that he started to struggle and resist him and he said that he could not remember any interaction at the site between him and Ejneberg. He was asked whether he tried to move towards the police car. He said that he had heard various people talk about that but he had no recollection of moving in the direction of the police car. He was questioned further about that and said that whilst he had no recollection of that he certainly heard evidence from Sgt Harrold and from another person at the campsite and from another lady at the campsite the day before and that he was confused. He said, in effect, that the first contact he had with Const Ejneberg was after he ran away and Const Ejneberg caught up with him at the construction site. It was put to him that the two police officers were trying to restrain him and that the third appellant intervened and rushed into one of the officers and he said that he did not see that. Further, he denied punching Sgt Harrold. When questioned about the injury to Sgt Harrold’s face he said that he kicked him to get away from him and that he pushed him one way and himself the other way. He said he did not know where his push contacted Sgt Harrold because he just pushed him and ran. He agreed that he kicked Sgt Harrold in the groin. He was questioned about the capsicum spray and he said that he could remember his face burning as he was running away. He described the initial contact between him and Harrold as being more like a little collision. It was suggested to him that he was yelling words at Sgt Harrold to the effect of “come on cunt” and “you fucking cunts”. He said that he could not remember the exact words but it was along the lines of what he had said earlier about not pushing him and he agreed that he swore. He was asked about whether or not there was any attempt by the police to restrain him on the bonnet of the car and he said he could remember running into something really hard as he ran away but he had no recollection of being restrained on the bonnet of the car.
Charges arising our of incident at campsite
As a result of the incident at the camp site the first appellant was originally charged with public nuisance and obstructing police (both Sgt Harrold and Const Ejneberg) and serious assault on Sgt Harrold.
The second appellant was not charged with any offences arising from the incident at the campsite and the third appellant was charged with an offence of serious assault on Sgt Harrold.
Incident at construction site
On all of the evidence, the first appellant ran through the park from the area of site 46 across to the area where the construction was taking place previously identified in exhibit 1 by Barber.
Not all of the witnesses saw or heard what happened there but it is clear that when the first appellant ran into that area, which was poorly lit, he tripped over something and fell to the ground. Const Ejneberg caught up with him there.
Barber gave evidence that he proceeded to that area after the first appellant and the police. He said that when he got there the first appellant was on the ground and two policemen were trying to control him while he was kicking and swinging and that he remembered one of the police officers saying “we’ll have to taser him” and the next thing he heard the taser gun go off. He said he was pretty sure that the Sergeant might have had the taser in hand. He said that while the police were trying to control the first appellant the second appellant came rushing through and straight past them and she came up and jumped up on top of the Sergeant who immediately put his arm up to push her away. She then fell back and she got up and jumped on him again and he said he was not sure but she then fell to the ground. He said that he had not seen the third appellant at the scene up to that point but it was just after that that the third appellant just charged straight through and split the police. As he went through he was stumbling along and then the Constable took after him and grabbed him and they were wrestling on the ground about 4 metres from the first appellant. He said that he then went and helped the Constable hold the third appellant. He said that he looked back at the first appellant and he could see that he was still swinging and jumping around and that the Sergeant was trying to quieten him down. He said that the first appellant was complaining about his wrist and being unable to feel his wrist. He said that at that stage the girl was about 6 to 8 metres away from him and she was hardly moving and he thought she was unconscious. He said that she was on the other side of the first appellant and the Sergeant from him. He was questioned as to whether or not the first appellant had handcuffs on and he said that he thought that he did but he could not be 100% sure. He then described how, when things had settled down a bit, the second appellant was still not moving and the Sergeant appeared to be putting her in a position to keep her airways open.
In cross examination, he agreed that there was some obstruction affecting his view near the fenced off construction site. He said he did not see the Sergeant punch the second appellant in the head and was definite that he did not run her up against the fence three or four times. He said that the did not see the Sergeant handcuff her and that he did not see the Sergeant pick her up, turn her around and hit her head on the ground. He said that he did hear the taser go off because he heard a popping noise but this was just once. He said that he heard a few screams from the first appellant after the popping noise and he heard him screaming again after that. He was questioned further about the handcuffs and he could not say whether the first appellant was handcuffed when he was first tasered but he could recall handcuffs at the end of the incident but he could not recall when they were put on. When questioned further about handcuffs he said that while the first appellant was on the ground he was swinging his hands around and they were trying to hang onto him. He did not recall anyone removing any of the probes from the taser gun but he could recall some discussion about trying to find a probe later on. He described how when the third appellant ran through where the people were in the construction site, he stumbled forward and fell to the ground and then the Constable ran over and handcuffed him. He could not say whether or not he had connected with either of the police officers when he ran through the area and he said that he came from the left hand side of the police officers straight between the pair of them. He said that the police officers were standing about half a metre apart at the time he passed between the two of them. He said that he did not see the third appellant strike either of the police officers and that he just charged straight through and he agreed that he would have actually had to have jumped over where the first appellant was lying on the ground. He said that he was handcuffed immediately after he stumbled to the ground and he was then very calm. He could also recall him saying something about not seeing anything without his glasses but he could not recall whether he had his glasses on at the relevant time. He said he could not recall a bad gravel rash injury on the second appellant after the incident. There was evidence before the court (photographs, exhibits 9&10) which showed quite a pronounced gravel rash type injury to the upper arm near the right shoulder. When questioned further about what the second appellant did when she approached the Sergeant at the construction site he said that she grabbed him around the shoulders on two separate occasions and that he brushed her off the first time and she jumped back on again and he brushed her off the second time. He said that he did not know what she said in the context of it being put to him that she had said “don’t hurt him.”
Sgt Harrold also gave evidence of what happened at construction site.
He described how, after the first appellant ran off and Const Ejneberg chased him, he followed at the same time calling for an ambulance and back up. He said that he had blood running down his face from the injury underneath the eye. He identified through a number of photographic exhibits the area of the construction site and he identified an area near a shaded cloth section of temporary fencing with a white sign on it as appeared in photograph number 8 which was part of exhibit 3. He said that it was still dark when he came around to that point and first saw Const Ejneberg and the first appellant. He said that the first appellant was on the ground thrashing and fighting and he saw Const Ejneberg kneeling either beside him or over the top of him trying to hold him down. He said that he had his taser in his hand and there was a light on the taser and that otherwise the area was poorly lit. He said that it was obvious that the first appellant had to be restrained and he had to stop him from hurting anyone and that he then warned Const Ejneberg that he was going to use his taser and told him to step back. He said that Const Ejneberg got back and he then deployed his taser in the direction of the first appellant from about 2 metres away from him. He then explained how a taser works basically by means of probes attached to wires through which the current is sent. He said that if there was no noise or very slight noise then that was an indication that it was working properly. He said that you also look for a change in the behaviour of the person and he said that after he activated the taser the first appellant did not scream, did not try to get up and fight and merely laid flat as he was commanded to do.
He said that, as this was happening, the third appellant ran from his left side and ran into his left hand shoulder and shoved him. He said he tried to avoid him as best he could but he hit him and he went straight between himself and the first appellant through the taser wires and off to his right hand side. He said that he could not guarantee that the taser was cycling properly after that because he confirmed later that one of the probes had been pulled out. He said that he then saw Const Ejneberg grab the third appellant and that they fell to the ground and started wrestling.
He said that the second appellant then came in from his left hand side and assaulted him. He said that she was screaming “leave him alone, leave him alone.” He said she came in and started swinging at him and started shoving and hit into his left shoulder. When asked about Const Ejneberg and the third appellant at that stage, he said that the third appellant was fighting violently in the dirt to his right hand side. He said that when the third appellant arrived the first appellant tried to get up on his feet and fight but he said that he then rolled over and he noticed that the first appellant was handcuffed so he assumed that Const Ejneberg had handcuffed him earlier. He said that he was trying to get up and was making threats at the same time. He said that when the second appellant ran in and shoved him he directed her to get back but she did not get back. When asked what he meant by shoving he said that he could not remember it clearly but her remembered feeling hits on his shoulder. He said that he attempted to reload the taser by taking out the spent cartridge and reloading a second cartridge in case he had to use the taser on her. He said that her tried to fend her back with his left hand and she sort of stepped back and then came in towards him again. He said that as she came towards him again he was still concerned about the first appellant and he said he used the last bit of strength he had and struck her in the side of her head with his fist because he believed that she was trying to bash him like her friend and there was no doubt in his mind about that. He also said that she was again saying “leave him alone, leave him alone.” He said that he never thought anything further would happen with her after the punch and that he then went to deal with the first appellant but she came in again yelling and swinging and he grabbed her by the arm and turned her and used a restraint and handcuffed her up against the mesh fence. He said that he still considered that she was a threat because she rammed her body into him and then he grabbed her and transitioned her to the ground forcibly yelling “get on the ground, stay on the ground.”
He said that, meanwhile, the first appellant was starting to go quiet and he was on his side still on the ground. When asked about the third appellant he said that he could see that Ejneberg was on top of him restraining him and holding him pinning him to the ground. He said that he then intended to deal with the first appellant and remove the probes but that he noticed that the second appellant was not moving and he checked her breathing and he could not detect a pulse on her neck. He said that he then rubbed her sternum with a clenched fist which was a means of waking an unconscious person this being something that he had been taught as part of his training. He said that she coughed after that and started breathing. It was after that that he went back to the first appellant and he removed one of the probes but found that the other one was lodged in the dirt. He said that he deployed the taser only once but it had been activated unintentionally on the second occasion when he said he was being struck. He said that on this occasion he heard a loud clicking sound which indicated to him that it was not arcing or cycling properly and that there had not been a circuit formed. He then described how his attention focused on the first appellant and how he, too, was placed in the recovery position before the ambulance arrived.
In cross examination, Sgt Harrold denied that the second appellant had jumped on his back and put her arms around him. He said that she was swinging her fists at him. He agreed that he had an injured left eye but he said that he did see her on his left and that he saw and felt the contact. He agreed that he punched her in the head and that he pushed her up against the fence but denied that he did this three times. He agreed that he handcuffed her while she was up against the fence but denied that he then picked her up and rammed her head first into the ground. He was asked whether or not he saw a bad gravel rash on her shoulder and he said that he did see her after the interaction. He said that he did believe that she had stopped breathing and had no pulse after the incident
He was questioned at length about his statement which was subsequently tendered (exhibit 11) and the statement of Const Ejneberg which was also tendered (exhibit 12). It was pointed out to him that both of them when referring to the conversation with the first appellant outside made the same grammatical error. In paragraph 8 of Sgt Harrold’s statement Const Ejneberg is said to have said to the first appellant “whose trying to hurt you.” In Const Ejneberg’s statement in paragraph 6 there is exactly the same reference. It was pointed out that that should have read “who’s” as opposed to “whose”. Sgt Harrold agreed that that appeared but denied that there had been any collusion in the preparation of both statements.
He agreed that he waited for Const Ejneberg to move away from the first appellant before he applied the taser. He agreed that he never asked Const Ejneberg whether he was handcuffed before applying the taser and said he did not realise until later that he had been handcuffed. He said that he never noticed any injuries on the first appellant because he (the Sergeant) was taken away shortly after the incident and did not see him again.
It was put to him that the third appellant did not contact him or assault him at the construction site and that he had simply run between where he was and where Const Ejneberg was and in the process jumped over the second appellant and stumbled and fell. He rejected that proposition. He did agree that one of the probes may have been loosened by the third appellant as he ran through. He also said that the third appellant did not go to the ground until the Constable restrained him and put him on the ground where he said they both fought. When asked whether the park manager was there at the relevant time he said that he did not recall seeing him until after the ambulance arrived. He said that the attack on him by the second appellant occurred whilst the third appellant was on the ground.
He was questioned at length about the use of the taser and it was put to him that the taser was used twice but he was adamant that it was used only once and did not function the second time. He was questioned about reloading the second time and said that he was still not aware at that stage that the first appellant had been handcuffed and he did not realise that until later. He said that he reloaded because he believed that he was in danger from the second appellant. It was put to him that there were actually probes in the back and arm of the first appellant and also marks on his hand. He disagreed with that. He confirmed that he completed an incident report and in re-examination records were produced which showed that all bar one of the cartridges was returned. He agreed that both of the prongs from the first cartridge were retrieved and when found neither were attached to the first appellant although they were probably within a metre of where he was. He said he only ever saw one prong mark and that was when he withdrew one of them from the first appellant.
Const Ejneberg described how he chased after the first appellant when he ran away from the campsite. He described how they ran through different campsites jumping over camp ropes and over other peoples pot gardens and how other people were calling out and how he eventually caught up with him at the other end of the park near the temporary fence which had the shade cloth on it. He said he saw him tripping over and falling and that when he caught up with him he was lying flat on his back with his arms out. He said he told him to put his hands behind his back and he told him not to move and then he grabbed one of his wrists and pulled it across his body turning him over on his stomach and he then handcuffed him from behind. He said he then tried to get him onto his side and that the first appellant started struggling with him by jerking around and kicking his feet out. He said that, as he was trying to restrain the first appellant, Sgt Harrold came from the direction of the camp. He said that he was huffing and puffing and appeared quite tired and he noticed that he had the taser in his hand. He said that Sgt Harrold then said “taser” and then deployed the taser after telling Const Ejneberg to move back. He said that it appeared that the two probes went in and he could hear the first appellant reacting to the taser. He said that he then saw the third appellant coming through. He said that he manoeuvred himself around because he did not want to come into contact with the probes and that the third appellant had come past him. He said that it appeared that he barged Sgt Harrold and that he had gone into the taser probes after they had finished cycling. He said that he then grabbed the third appellant by the arm and asked him what he was doing. He said that he tried to move him away and that he started to struggle and he put his arms around his shoulders and took him to the ground. He said that the third appellant continued to struggle on the ground and he continued to attempt to restrain him. He told him to stop struggling and put his hands behind his back and the third appellant eventually did that. He said that, once he had restrained the third appellant, he had intended asking Sgt Harrold for this handcuffs because his own handcuffs were on the first appellant but he then saw the second appellant come out of the dark from the tent area and go straight up to Sgt Harrold and he could see her arms thrashing about at his front. He said that he saw Sgt Harrold place her against the fence which was a chain link fence and then he saw him handcuff her behind her back and place her to the ground. He agreed that throughout all of this his eyes were stinging from the capsicum spray that had been applied earlier.
Through him a series of photographs (exhibit 6) were tendered showing an injury on his right elbow which he said was sustained in the incident.
In cross examination, he was questioned further about the third appellant running through the scene at the construction site. He agreed that the first appellant was on the ground at the time and that the wires were connected from Sgt Harrold who was holding the taser back to the first appellant on the ground. He agreed that the third appellant passed through the area of the wires and agreed that he hit the wires inadvertently. He agreed that he passed in front of Sgt Harrold between him and the first appellant. He denied that the third appellant stumbled and fell and when asked further about what he had done inappropriately he said that he thought he had barged Sgt Harrold and this is why he took hold of him,
He was also questioned at length about the two police statements and about the grammatical error referred to earlier and about the use of other words which were common to both statements. He also denied any collusion. It was put to him that he had not actually seen the third appellant do anything to Sgt Harrold and he replied “I saw him do what I thought was barging into Sgt Harrold.” It was then put to him that he never saw any actual contact and he said that, from where he was standing, he could not have seen any actual contact. He denied being influenced in any way by any discussions that he may have had with Sgt Harrold before he prepared his statement.
He was questioned about the presence of the camp manager Barber at the construction site. He said that he could not recall him being there when the taser was used but he could recall him assisting and holding onto the third appellant while he was on the ground. He agreed that the third appellant was not struggling at that stage. He also agreed that the third appellant was saying something about not being able to see without his glasses. He was then questioned about the arrival of the second appellant at the construction site. When asked what she was doing he said she was thrashing her arms at Sgt Harrold’s chest and he said that she hit him more than six but less than twelve times. He said that he did not see Sgt Harrold punch her in the head but he saw him push her up against the metal fence only once. He said that it was then that he handcuffed her. He said that Sgt Harrold then pulled her backwards and that she ended up on her behind on the ground and then on her side. He denied that she was thrown bodily onto the ground or that Sgt Harrold had let her drop under the force of gravity. He denied that Sgt Harrold picked her up and turned her head towards the ground and forcefully pushed her into the ground. He was then asked whether or not she had been pushed over his leg or tripped over his leg and was referred to a passage in Sgt Harrold’s statement where he said that he had forced her across his left leg forcing her to the ground. He said he did not see anything like that.
He was questioned about whether there was some concern about finding the prongs and he said that he could remember something about that once the ambulance arrived. He did not agree that there would have been three prongs because he was aware that only one cartridge was activated and that was a maximum of two. He agreed that he had already handcuffed the first appellant before Sgt Harrold tasered him and agreed that he did not tell Sgt Harrold that he had before he deployed the taser. He said that he could recall the first appellant screaming in response to the initial tasering but denied that that happened the second time. He said that he could recall Sgt Harrold placing the second appellant in the recovery position at the end of the incident. He said that he never saw any injury on her including any bad gravel rash injury to her shoulder.
Mrs Cain also attended the scene at the construction site but it was clear that this was after everything had calmed down.
Mr McKillop gave evidence that he heard people shouting and running and how he decided to go and see what was happening and he saw two police officers there with three people who were on the ground. He said that one of the persons was quite agitated and was thrashing around and moving quite a lot at that point in time. He said that this was the person who had been hit by the taser because it looked as though he had wires sticking out of his shoulder. He described how that person was asking for the probes to be taken out. He said that that person sort of calmed down after that and the probe was taken out of his arm. He noticed that the girl was very quiet and appeared to be in shock and the other male was very quiet and not saying much at all. He obviously never saw the earlier critical stages of the incident. He did see the police officers try and place the first male in the recovery position and also the girl in a recovery position.
The second appellant described how the first appellant ran away and how she heard a really loud scream and how it sounded as though he was in real pain. She said that she then ran in that general direction. She said that she stopped about 5 metres from where they all were and started walking towards them. She said that she then saw Sgt Harrold with what appeared to be a gun and that it was pointing at the first appellant so she started walking towards them shouting really loudly and asked him what they were doing and what he had done. She said that she got within about a metre of Sgt Harrold and kept on asking him what he was doing saying that this was ridiculous. She said that she was also swearing. She said that his arm came at her and hit her across the side of the face and she pointed to the area above her right ear. She could not be clear whether it was an open handed blow or a fist. She said she was hit more than once. She said she turned towards the mesh fence and, all of a sudden, she was pushed up against it with her arms up behind her back and her face was pushed up against the fence three or four times. She said that she realised then that there was something on her face and she found out later that that was capsicum spray. She said she had no idea how that got on her. She said she was then handcuffed and then she felt as though she was picked up and actually slammed onto the ground something like a wrestling move. She then appeared to be saying that she lost consciousness for a while because she said that she then woke up with a knuckle being pressed into an area above her left breast and she was having trouble breathing. She said she thought she was having a panic attack.
Through her that the photographs of her injuries (exhibit 8 and exhibit 9) were tendered.
In cross examination, she agreed that she was a slight lady about 5 foot 2 to 5 foot 3 inches tall and about 50 kilos in weight. She was questioned extensively about her alcohol consumption it was put to her that she consumed a lot for someone of her size she said that she accepted that. It was put to her that she was upset when she heard the first appellant scream and she agreed with that and she also agreed that she was upset when she saw the Sergeant pointing what looked like a gun at him. She said that she did not know what was going on and that is why she asked what he was doing. She denied that she ran in and assaulted Sgt Harrold and that he pushed her away and that she came at him again. She agreed that she was handcuffed when she was standing up against the fence and said that all of a sudden she was on the floor. It was put to her that her memory of events was poor because of her extremely heightened emotional state and because she was affected by alcohol but she said that she did remember what happened and that she was definitely slammed to the floor.
Because of some questions, which it was held amounted to an allegation of recent invention, she was allowed to refer to in re-examination an earlier affidavit that had been prepared on her behalf containing a similar account to what she gave in evidence.
The third appellant gave evidence that he heard the scream which he described as blood curdling and that he moved in the direction of the scream. He said he followed the second appellant to the scene but he was struggling getting there conceding that he was still inebriated. He said that when he got there he could visually see the first appellant lying on the floor with one officer at the back of him and another at his side and instinctively he walked towards them at speed stumbling at the same time. He said he was trying to see what was happening because he thought the first appellant was getting seriously injured. He said that when he got close he realised that he had to jump over the first appellant and when he did so when he landed in a heap on the floor and the next minute one of the police officers had him on his back and he struggled for a couple of seconds asking what was happening. He also said that as he was approaching he was shouting “leave him alone leave him alone.” He said that he presumed that he lost his glasses when he dived over the first appellant and he said that he had really bad eyesight without them. He said that he tried to avoid any contact with anyone and he tried to avoid landing in a heap on top of everyone when he realised he was going to fall. He said he presumed his glasses came off at that stage. He denied that he shoulder charged the Sergeant. He said that on the ground he was asked what he was doing by the other officer and he told him that he was trying to ask them what was going on.
In cross examination, it was put to him that, when he saw the Sergeant and the Constable standing over the first appellant at the construction site, he ran in and shoved the Sergeant and he denied that. It was then put to him that he barged into him and he denied that. It was put to him that he was actually taken to the ground by the Constable and he said that he was actually stumbling even before he reached the first appellant. It was put to him that he struggled with the Constable on the ground and he said that he probably struggled for a couple of seconds and then calmed down after the short conversation he referred to earlier.
The first appellant gave evidence that, after he ran away from the campsite, he ran for about 10 seconds. He said that his eyes were stinging from the capsicum spray and he was running blind and that he hit something and fell over and he had no idea where he was. The next thing he could recall was someone on his back trying to grab his arms. He agreed that he did not just lie there and let this person grab his arms and that he tried to get his arms free and then eventually he was handcuffed. He said he was still trying to get up and trying to move when all of a sudden he got electrocuted really badly and screamed and he could not remember much after that. He said that there were two separate occasions when he could feel the electrocution or the electric shock and he realised it was the taser gun. He said that there were a few prongs in him and it felt as though someone was really nipping at him in quite a few different places. He said he experienced this in both elbows and in the back and that there was definitely one in his head because he still had a scar where it was ripped out and he also thought that there was something in his neck or ear or the side of his head.
He could recall the paramedic arriving sometime after the incident. It does not appear that he saw anything happen as between the third appellant and the police or the second appellant and the police because of the condition he was in after being tasered. In cross examination he said he did not see the taser being deployed but he did not purport to see what happened to them at the critical times.
Charges arising out of the incident at the construction site
The first appellant was charged with obstructing both police officers in the performance of their duties but this charge was amended by the learned Magistrate in her decision to refer only to Const Ejneberg.
The second appellant was charged with serious assault of Sgt Harrold and also charged with obstructing Sgt Harrold in the performance of his duties.
The third appellant was charged with obstructing Sgt Harrold in the performance of his duty in respect of when he initially ran in and with obstructing Const Ejneberg in the performance of his duties.
Arguments advanced on trial
Defence counsel on the trial argued that there was evidence not only from the appellants but also from Leanne and Tracey Cameron to the effect that Sgt Harrold had initially assaulted the first appellant and argued that neither officer was acting in the execution of or the performance of their duties at the time all of the subsequent offending is alleged to have occurred.
Specific arguments were also raised in relation to defences which it was argued were open to the first appellant because of this evidence about the Sergeant pushing him namely extraordinary emergency, self defence and provocation. It was argued that the prosecution could not negative those defences in this particular case. In relation to the argument about whether or not the police were acting in the execution of or in the performance of their duties counsel relied upon a decision of McGill DCJ in Couchy v Birchley [2005] QDC 334 where he adopted comments from McHugh J in Coleman v Power (2004) 78 ALJR 166 at [1189] and argued that that an element of each offence was missing if the officers acted outside their duties.
It was argued that there was no evidence whatsoever from anyone other than Sgt Harrold about the alleged barging of him at the campsite by the third appellant and that that charge should be dismissed. It was argued, in essence, that the whole issues arose because of the conduct on the part of Sgt Harrold in the first place in that he was aggressive towards the first appellant and effectively assaulted the first appellant.
In relation to the charges involving the third appellant at the construction site, reliance was placed on the evidence of Barber to the effect that there had not been any contact and it was argued that, at best, there could have been unintentional contact such that a defence under s 23 of the Criminal Code was raised and could not be negatived.
In relation to the second appellant it was argued the court would not be satisfied beyond reasonable doubt that she committed the offences. Her evidence was that she had not touched him in any way and it was argued that there was just no explanation on any of the police evidence as to how she sustained the serious injuries that she did.
It was also argued that there was collusion on the part of the police officers in the preparation of the statements and that was something that should be taken into account in assessing the evidence.
The prosecutor submitted that the learned Magistrate would accept the police evidence and pointed to where it was supported by other evidence. He argued that there was clear evidence that justified the public nuisance charge as against the first appellant and that this justified the original arrest of him by Const Ejneberg.
The learned Magistrate was urged to accept Sgt Harrold’s evidence about the barging by the third appellant at the campsite. It was argued that the other officer may not have seen that because he was occupied with the first appellant.
The prosecutor argued that all three appellants admitted that they were affected by alcohol to varying degrees and urged the learned Magistrate to take that into account in the overall assessment of the evidence.
In relation to the second appellant, he argued that, even if she thought it was a gun, that was not any defence to any charge of serious assault as against Sgt Harrold. In relation to the substantive argument about execution of duty or performance of duties, he argued that both officers were clearly acting within the execution or performance of their duties and he urged the learned Magistrate to convict on all charges.
The learned Magistrates decision
Even if it could be assumed that Sgt Harrold did push him a number of times and that that was not provoked in any way by the first appellant what clearly becomes relevant is the issue of the reasonableness of any force used by the first appellant in those circumstances. It seems to me that even if he was being pushed away from the situation when the police were trying to talk to someone else and where he continued to be aggressive and loud it could not be said that the force he actually used, namely punching the police officer in the face and kicking him in the area of the groin, was reasonably necessary to make an effectual defence against the alleged assault or assaults constituted by the pushing.
Like the learned Magistrate I would have had no difficulty finding that any potential defence of self defence was negatived on the evidence.
s 269 of the Criminal Code provides:
269 Defence of provocation
(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.
(2) Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.
Again I would have had no difficulty in finding that any potential defence of provocation was negatived on the evidence even if there was some pushing by Sgt Harrold in the first place. Firstly, I fail to see how his pushing him back away from where he had been talking to the second appellant would deprive someone in the position of the first appellant of his power of self control. Secondly, and more importantly, it seems clear that the force used as described earlier was clearly disproportionate to any such provocation. The mere fact that someone is pushed away from the scene by police does not of itself justify him then turning around and assaulting a police officer in such a serious fashion.
s 25 of the Criminal Code provides:
25 Extraordinary emergencies
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be
expected to act otherwise.
Again I would have had no difficulty finding that any potential defence has been negatived even if it was accepted that Sgt Harrold did the pushing complained of. The mere fact that someone is pushed away from the scene by a police officer in the circumstances as described by the Colemans, for example, could not be said to constitute such circumstances of sudden or extraordinary emergency that a person possessing ordinary power of self control could not reasonably be expected to act otherwise then punching the police officer in the face and kicking him in the area of the groin.
On any view of the evidence I would have had no difficulty in being satisfied beyond reasonable doubt that he did assault Sgt Harrold by punching him in the face and kicking him in the area of the groin whist he was acting in the execution of his duty and that conviction should stand.
Before considering the two charges of obstruct police as against the first appellant it is necessary to consider the argument raised in relation to the late amendment of the two obstruct police charges to exclude the reference to Sgt Harrold. I was told in argument by counsel for the appellants that no particulars were provided but I am aware of the practice wherein the statements of the police are provided. Clearly the defence had both those statements in this case because the defence eventually caused them to be introduced into evidence through cross examination of both police officers.
In amending the charges the learned Magistrate exercised her powers under s 48 of the Justices Act 1886 which provides:
Amendment of complaint
If at the hearing of a complaint, it appears to the justices that—
(a) there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
(b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof; then—
(d) if an objection is taken for any such defect or variance—the justices shall; or
(e) if no such objection is taken—the justices may;
make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.She obviously found the complaints were defective as duplicitous because of the reference to the two complainants.
I was also referred to s 49 of the Act which provides:
49 Amendment
If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant, or whether or not the defendant is in custody, may grant the defendant bail or may suffer the defendant to go at large without bail.It was argued that no offer to adjourn was made under s 49 by the learned Magistrate prior to the amendment. It should be noted that the learned Magistrate appeared to proceed on the basis that there were defects in the original complaints because of duplicity not that there was a variance between the original complaints and the evidence at the hearing.
It appears that the power for adjournment under s 49 applies in circumstances where the defendant was misled by the form in which the complaint was made out for where there was a variance between the complaint and the evidence at the hearing. Neither of those situations applied here.
I was referred to a decision in Mbuzi v Torcetti [2008] QCA 231 where Justice Fraser said at [31-32]:
[31] The applicant next argues that he was denied natural justice because he was only informed of the amended charge after the completion of the hearing. Reference to the transcript demonstrates, however, that the magistrate raised the question whether the applicant had admitted to a different offence both during the prosecutor’s address and during the applicant’s address. The relevant provision, s 138(1), was brought to the applicant’s attention by the prosecutor. The magistrate clearly alerted the applicant to the possibility that the court might amend the charge to charge the offence admitted in the applicant’s evidence. The magistrate said in terms that he brought that to the applicant’s attention so that the applicant was not caught by surprise at the end.
[32] Section 49 of the Justices Act 1886 (Qld) confers a discretion on a magistrate to adjourn the hearing after making an amendment if the magistrate considers that the defendant has been deceived or misled by the variance between the complaint and the evidence led at the hearing. That discretion must be exercised if the defendant has been deceived or misled and requests an adjournment. Section 50 requires a copy of the order for amendment to be given to the party against whom the order is made upon request by that party.
I was also referred to a copy of the decision in Paulger v Hall [2002] QCA 353. That decision dealt with circumstances where there was a variance between the complaint and the evidence as used at the hearing. From my reading of that decision what is really relevant in terms of the exercise of the discretion to amend is whether or not there is any prejudice to the accused.
The practical effect of the amendment was that the decision to convict on those two charges related to the behaviour of the first appellant vis-a-vis Const Ejneberg at both the campsite and the construction site. That behaviour was clearly detailed in his earlier statement and he gave evidence along similar lines at the hearing. The first appellant knew the case that he had to meet because it was contained in the statements that were clearly provided in advance of the trial. The first appellant was not prejudiced in any way by the late amendment. There was evidence that he resisted both officers at the campsite and at the construction site and this merely meant it was unnecessary for the learned Magistrate to then consider the extent to which he resisted Sgt Harrold at the campsite and at the construction site.
Further I am not satisfied that, in the particular circumstances of this case, the learned Magistrate was required to offer the adjournment under s 49 of the Justices Act particularly where there was no necessary variance between what was complained of and the evidence given at the trial.
There was clear evidence that the first appellant resisted quite forcefully when Const Ejneberg first took him by the hand and I have no difficulty being satisfied beyond a reasonable doubt of my rehearing of the matter that he did resist quite violently from that point on.
Similarly there is clear evidence from Const Ejneberg, supported by Barber, of the extent to which he did struggle and resist at the construction site and again I would have no difficulty on my rehearing of the matter being satisfied beyond a reasonable doubt that that constituted the offence charged.
Both convictions should stand.
In relation to the second appellant it is necessary to consider the evidence of Sgt Harrold, Const Ejneberg, Barber and her in terms of what happened at the scene. There is a considerable variance in that evidence. Sgt Harrold maintains that he was punched or hit several times in the shoulder area. Const Ejneberg spoke of her hitting him in a thrashing way somewhere between six and twelve times in the chest. Barber said she jumped on top of Sgt Harrold twice. She said that she never came into any contact with him at all other than the contact he made with her.
The learned Magistrate was fairly general in her findings and found that she had hit him in the execution of his duty.
Issues were raised about his use of the taser in circumstances where the first appellant was already handcuffed. Certainly it does seem unusual to activate the taser in those circumstances although, on the evidence, it is not clear that he knew that the first appellant was handcuffed until sometime after he deployed the taser. Certainly there was no attempt on the part of Const Ejneberg to tell him that he was handcuffed even though he knew the taser was about to be deployed.
I have already rejected the argument about the earlier pushing and shoving. Even if concerns may genuinely be raised about whether or not the taser should have been introduced I am still satisfied that Sgt Harrold was acting in the execution of his duty at the relevant time.
The most independent evidence given was that of Barber and I am satisfied beyond reasonable doubt that there was physical contact as between the second appellant and Sgt Harrold at the construction site.
It seems to me, however, that I should proceed on the basis of what Barber said namely that she jumped on him on two separate occasions. Acting on Barber’s evidence would be consistent with how the learned Magistrate dealt with the incident at the construction site involving the third appellant.
The conviction should stand.
I am concerned however about the state of the evidence in relation to the third appellant at the construction site. Sgt Harrold was the only one who saw or felt any contact. Barber was clear that he passed through between Sgt Harrold and the first appellant without any contact. On all accounts, he was substantially affected by alcohol and, on his own account, he said that he was merely trying to find out what was happening.
The learned Magistrate in her findings accepted essentially what Barber had to say and importantly accepted that he did attempt to jump over the first appellant on the ground. I do not see any reason to interfere with those findings.
I have great difficulty accepting that a case of obstructing police has been made out purely because he ran to the scene in response to the scream and jumped over the top of the first appellant when he reached the scene.
The lighting in the immediate area was very poor and, importantly, he would not have been in a position to see the wires or the probes from the taser that had been deployed. It seems that everything happened fairly quickly from the point when the first appellant first ran away from the campsite in the direction of the construction site and the third appellant’s arrival after hearing the scream. There is support from all of the witnesses to the effect that there was a very loud scream.
I am not satisfied beyond reasonable doubt that running to the scene in response to the scream, stumbling across the others and then attempting to jump over the first appellant during the course of his run and then inadvertently disconnecting one of the probes whist at the same time shouting “leave him alone” amounts to an obstruction of the police.
I agree with the findings that the learned Magistrate made in terms of what he did but do not accept that what was found was sufficient to make out the charge.
It may have been different if he did something deliberately physical to them or deliberately tried to disengage the probes on the taser but Const Ejneberg clearly accepted that that happened inadvertently.
In those circumstances the appeal in relation to that charge should be upheld.
I believe that that finding should also flow through in terms of what happened immediately after that.
Whilst Sgt Harrold said that there was some violent fighting between Const Ejneberg and the third appellant on the ground this is not supported by Const Ejneberg or by Barber. At best all there is evidence of is the struggling for a short period. This occurred in circumstances where he had lost his glasses where the lighting was poor and it would have been difficult for him to know where he was and what was happening. It seems, however, that he calmed down quickly and asked what was happening and from that point on cooperated with the police officers.
In view of my findings in relation to the earlier charge it seems to me that that initial struggle for a short period against that background is not sufficient to make out the charge of obstruct as against Const Ejneberg I am not satisfied beyond reasonable doubt that that charge has been made out.
In the circumstances his appeal against that conviction should also be upheld.
Appeal against sentence first defendant
The first defendant appeals on the basis that the sentence imposed against him was manifestly excessive.
The learned Magistrate made it clear that she felt that a sentence of six months imprisonment to be released after two months was justified in his case but she had regard to the fact that he was a traveller from England who was about to return to home.
She then structured her sentence such that it was for two months on the serious assault with concurrent sentences on the other three charges and such that he served the entire head sentence of two months.
In circumstances where the sentence imposed results in orders which require the person to serve more than 50% she must give reasons but she clearly did so by saying what she would have done but for his impending return to England.
The learned Magistrate had regard to a number of comparative sentences including R v Wotton a decision of the Court of Appeal on the 9th September 1999 where Chesterman J adopted with approval the comments of Dowset J in R v Williams CA385 of 1997 where he said:
“the maintenance of order in our society depends upon those who are charged with enforcing it being adequately protected to the greatest extent possible in the performance of their duties. Where police officers innocently and with good will are going about their duties, it is not fair the them that they should be exposed to assaults of this kind. Nor is it in the best interests of the community that they should be so exposed. If there is to be peace in the community and that those charged with maintaining it are to go about their duties in an acceptable way they must be protected. It is important that the sentence not appear to be merely a nominal one.”
Chesterman J also adopted with approval the comments of Byrne J in R v Kazakoff CA236 of 1998 where he said:
“the protection of police officers acting in the execution of their duty must surely be a matter of considerable concern to the court and the community. Those who, like this respondent, acting in company meet out violence with a weapon to a police officer, must accept condign punishment.”
It must be said that the offending in Wotton was far more serious and that he was part of a crowd which had effectively turned on police.
The learned Magistrate also referred to the decision of the Court of Appeal in R v George (unreported decision 2 November 1999) which involved two brothers who punched a police officer on a number of occasions and where one of the also kneed him in the face. The applicant there committed the more serious of the offending which involved punching and kneeing the police officer. He apparently had a minimal criminal history and he was sentenced to 9 months imprisonment the same as his brother who had a far more significant criminal history. This was reduced on appeal to 6 months to be suspended after he served 3 months.
The learned Magistrate also referred to a decision of R v Mathieson [2005] QCA 313 where the appellant was convicted of an assault occasioning bodily harm against a police officer and a 12 month sentence was reduced on appeal to one of 6 months to be suspended after 2 months for an operational period of 18 months. The applicant there was a woman who affected by alcohol and involved in an altercation with someone else before the police arrived. She was arrested on their arrival and strongly resisted a female police officer who was trying to place her in a vehicle. Firstly she grabbed her by the hair and forcibly tugged it backwards at the same time pulling an earring out of her ear. After the police got her into the passenger seat of the police vehicle she kicked a male officer in the shoulder and the head and then struck the female officer several times in the face with her closed fist and actually tore some hair out of her head. She was a young mother of two boys who continued for their care and she had only one minor previous conviction and it was accepted that the incident took place on one of the rare occasions when she went out and when she was able to find a babysitter to look after her children.
The court there also had regard to the statements of principle in R v Wotton and also in another decision of R v Conway [2005] QCA 194 where McMurdo P said:
“police officers acting properly and reasonably in the execution of their duty must know that they have the support of the community and the protection of the courts.”
Conway was a more serious case in that the police officer sustained a fractured nose from a punch and later suffered from post traumatic stress disorder. The sentence there was 12 months imprisonment to be suspended after 3 months.
In my analysis of these comparative sentences it could not possibly be said that the sentence imposed as against the first appellant was manifestly excessive.
I would agree with the learned Magistrates comments to the effect that a head sentence in the region of 6 months to be suspended after 2 months was clearly justified even after having regard to the matters in the first appellants favour particularly his age and previous good background.
Considerable force was used in the punch causing an injury which drew considerable blood and it is clear that considerable force was also used with the kick.
This is a matter where general deterrence and protection of the police officers needed to be reflected in the sentence. Because of the serious level of the violence that could not properly have been reflected in a sentence that was fully suspended.
The appeal against sentence is dismissed.
Appeal against sentence second appellant
The effective sentence against the second appellant was imprisonment for one month suspended after 12 months.
I have dismissed the appeal against conviction but, in doing so, I have accepted the evidence of Barber who saw what happened. She has to be sentenced on the basis that she appeared on the scene after hearing the scream from the first appellant, saw the police officer with what appeared to be a gun in the very poor light that prevailed and then jumped on him on two separate occasions.
Her offending is far less serious than the offending in the various authorities that I referred to. Even if, as the learned Magistrate found, she had hit the Sergeant upon arriving it seems to me that the original sentence was manifestly excessive.
There is little comparison between what she did and the very serious offending on the part of the first appellant. She to had no previous convictions and was only young (21 years of age). Whilst there had clearly been problems with her behaviour prior to the arrival of the police she had clearly calmed down by the time they arrived. Unlike the first appellant she did not precipitate what happened from there. There was some reluctance on her part to provide her name to the police but this was given and spelt out slowly when it was explained to her that she had to. There were no problems with her during the course of the incident at the campsite and she only became involved it would seem after the scream that she heard earlier.
It would have been a fairly difficult situation for a young woman like her when she confronted what she saw at the scene with the first appellant obviously in pain and the police officer pointing what appeared to be a gun at him. Certainly she should not have intervened at all but I accept that her involvement went no further than what was described by Barber. I also note that she sustained an injury to her head in this incident and the quite pronounced gravel rash injury in the area of her right shoulder which is apparent in the photographs which were tendered.
Having accepted a different factual basis for the conviction than the learned Magistrate, it is appropriate for me to exercise my own discretion when sentencing her.
A monetary penalty would be appropriate in her case and I need to consider whether or not any conviction should be recorded.
I have had regard to s 12 of the Penalties and Sentences Act 1992 and it seems to me that even though she comes from overseas any recording of her conviction could potentially impact on her chances of finding employment and on her economical social wellbeing. She has undertaken tertiary studies and may be required to disclose any conviction.
Even though the offence per se is serous her offending is much towards the lesser end of that offending against what for her was a very difficult set of circumstances leading up to it. Her previous good character and age are clearly relevant.
In the circumstances the appeal against sentence is upheld, the original sentence is set aside and I find her $250.00 to be referred to the State Penalties Enforcement Register and I order that no conviction be recorded.
Orders
The court makes the following orders:
1. That the appeal by the first appellant against conviction and sentence is dismissed.
2. That the appeal by the second appellant against conviction is dismissed but the appeal by her against sentence is upheld. The original sentence is set aside and she is fined the sum of $250.00 to be referred to the State Penalties Enforcement Register and no conviction is recorded.
3. That the appeal by the third appellant against conviction is upheld and both of the convictions against him for obstruction of police in the performance of their duties are set aside.
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