Wilson v White

[2006] TASSC 76

[2006] TASSC 76

CITATION:              Wilson v White [2006] TASSC 76

PARTIES:  WILSON, Robert David
  v
  WHITE, Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 11/2006
DELIVERED ON:  18 October 2006
DELIVERED AT:  Launceston
HEARING DATE:  22 September and 2 October 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – Review of sentence and conviction – Principles applicable – The hearing - Generally – Whether sentence manifestly excessive – Particulars of complaint treated as one continuing course of conduct – Acting with common purpose with co-accused.

Thornton v R (1959-1995) 14 Tas R 113, followed.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  E G Hughes
             Respondent:  J Ransom
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 76
Number of paragraphs:  17

Serial No 76/2006
File No LCA 11/2006

ROBERT DAVID WILSON v GRAHAM ROSS WHITE

REASONS FOR JUDGMENT  SLICER J

18 October 2006

1. The applicant was convicted of the offence of assault, contrary to the Police Offences Act 1935 ("the Act"), s35(1). Proceedings were commenced by a complaint which was badly drawn. The complaint alleged the offences of assault by three individuals on two persons. However, the hearing of the case against the applicant which occurred on 28 March 2006 involved just the one defendant. It would appear that the persons jointly charged have yet to be dealt with. The complaint alleged against the three:

"… on the 13th March, 2005 at Cressy in Tasmania, unlawfully assaulting Aaron MacKinlay ford and Jodie Maree howell by surrounding their vehicle, punching the panels and windows to this vehicle, and behaving in an aggressive manner causing them to believe if you gained entry or they exited the vehicle they would suffer physical harm and by chasing their vehicle with your vehicle around the streets for a sustained amount of time, attempting to stop them causing them to believe if they did stop they would receive physical harm."

1. The magistrate accepted that the complaint alleged a continuing offence.  No objection was taken prior to, or at, the hearing, of the form of the complaint.  It was accepted that the three defendants were engaged in common activity and were jointly responsible for the varying acts of assault.  However on the hearing of the appeal, the applicant's counsel contended that, as a matter of law, the applicant could not be convicted of any assault committed through the use of the vehicle and that only the driver of the vehicle could be so convicted.

1. In essence the general circumstances and evidence giving rise to conviction can be summarised as:

(1)The complainants, Mr Ford and Ms Howell, were preparing to leave Ms Howell's unit in Cressy to drive to St Helens.  Mr Ford was driving a Hilux 4 wheel drive vehicle. 

(2)As they did so, a vehicle containing three persons, the applicant, Andrew Semmens and Sheridan Whatley, pulled up nearby.  It would appear that Andrew Semmens was the driver.

(3)The three men alighted and approached the Hilux.  Ms Howell was still placing items into her vehicle but, alerted by Mr Ford, hurriedly got into the Hilux.

(4)The three men began to physically attack the Hilux vehicle.  Semmens attacked the driver's side, Whatley got onto the front and began jumping up and down on the bumper bar and bull bar and the bonnet.  The men repeatedly struck the vehicle, attempting to gain entry and to inflict damage to the vehicle. 

(5)Mr Ford drove off throwing Whatley, who was still on the bonnet, onto the ground.  Mr Ford intended to drive to the Cressy police station and obtain assistance.  As the Hilux drove off, Ms Howell made an emergency call to summon assistance with her mobile telephone. 

(6)The Hilux was pursued by the three men.  There was a relatively lengthy chase with the attackers' vehicle driving close to, or alongside, Mr Ford's vehicle.  The applicant and Whatley were, at times, leaning out through the windows of the vehicle, shaking their fists and making threatening gestures to the occupants of the Hilux.  This chase continued for some time as Mr Ford attempted to drive to, and passed, the police station hoping, that the resident officer would be present.  At one stage the two vehicles came into contact. 

1. The Act, s35(1), provides:

"A person shall not unlawfully assault another person."

The definition of "assault" is provided by the Criminal Code, s182, which relevantly states:

"(1)   An assault is the act of intentionally applying force to the person of another, directly or indirectly, or attempting or threatening by any gesture to apply such force to the person of another if the person making the attempt or threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose; or the act of depriving another of his liberty.

(2)    Words alone cannot constitute an assault."

1. Relevant to this appeal, the crime of assault can comprise two courses of conduct, namely that the conduct was the threat:

"… by any gesture to apply such force to the person of another if the person making or threat has present ability to effect his purpose; or

the person threatened by any gesture to apply such force if that person causes the other to believe on reasonable grounds that he has present ability to effect his purpose".

1. The ingredients of the crime or offence are as stated by the Court of Criminal Appeal in Thornton v R (1959-1995) 14 Tas R 113.

Grounds of appeal

1. The grounds of appeal as originally formulated stated:

"1The Magistrate erred in fact and or in law in finding that the Applicant had present ability to effect his purpose pursuant to section 182(1) of the Criminal Code.

2The Magistrate erred in fact and or in law in finding that the complainant had a reasonable belief that the Applicant had present ability to effect his purpose pursuant to section 182(1) of the Criminal Code.

3The Magistrate otherwise erred by mis-directing himself in relation to the law of Assault by Threat by Gesture.

4The Magistrate erred in fact and or in law by treating the particulars of the complaint as one continuing course of conduct.

5The Magistrate erred in fact and or in law in finding that the Applicant had acted with a common purpose with co-accused.

6The Magistrate erred in fact and or in law in finding the Applicant liable upon the complaint for the acts of driving particularised, when the Applicant was a passenger in the vehicle at all material times, and erred in finding that those acts constituted an Assault."

1. However, on the hearing of the prosecution, the defence had contended that none of the physical events described by the complainants had occurred.  The defence, as conducted, simply denied the acts of physical aggression and claimed either misunderstanding or mendaciousness by the prosecution witnesses.  Any suggestion of aggression was either that of the others who were not on trial, or exaggeration on the part of the complainants.  The applicant gave evidence.  He said that as the other two men walked up to Mr Ford's vehicle it suddenly took off, causing Whatley to roll onto the ground.  As the vehicle moved off, he, the applicant, merely slapped the back of the Hilux.  He was not sure what was the purpose in approaching the vehicle in the first place.  He then said that he and his companions followed the Hilux, the inference being that they were simply seeking to enquire as to the sudden movement of the Hilux.  On his account, it was the Hilux which had run into the vehicle being driven by Semmens.

1. However, the evidence of the complainants was in stark contrast.  Mr Ford said that as Ms Howell was outside the Hilux "sorting her stuff out getting ready to get into the car", the occupants of the hatchback vehicle got out of their car and "headed over towards us in a pretty quick manner and one bloke didn't look real happy about things".  Mr Ford said he told Ms Howell to get into the vehicle quickly and as she did so:

"… she just got her door locked, when one bloke was trying to get into her side of the car, pull the door open, and then the other guy come round … he punched my window pretty hard, I thought he was actually going to break it but he didn't come through. … And then the other bloke was jumping up and down on the bonnet of the car and … there was just people everywhere … people all over the place trying to get into the car."

He said that he had no idea what was going on and "you could just see they were consistently punching the window and that trying to get in the car …" that [Semmens] punched the window "three or four, half a dozen times" and that that the person on Ms Howell's side "was still trying to get into that side of the car".  He said the attack took place over 30 seconds to a minute and that since he did not want anything to happen to Ms Howell, he took off.  The complainant described his feelings as:

"I was going to get a flogging either way, I knew I was going to get it, if they got into the car or I got out of the car I was going to get it, so – but I was more concerned for her too like."

He described Ms Howell's reaction as:

"… she didn't know what was going on either … she was screaming and crying and yelling and she didn't know what was happening."

1. Mr Ford had never seen the three assailants before.  He said he was afeared for his own safety and that of Ms Howell. 

1. His evidence was corroborated by Ms Howell.  She knew two of the men, since they had been at school together.  She could give no reason for the attack.  She said that Mr Ford told her to get into the car as the men approached and as she began to do so, Semmens went to the driver's side door and Wilson came to her door while Semmens was yelling and punching the driver's side window, Whatley was at the front of the car "jumping on the bull bar, kind of jumping up and down on the bull bar".  Her evidence was:

"By this time Sheridan Whatley was at the front of the car and I kind of shut my door and swung around with my right hand to push the lock down on the door and when I did that I noticed Robert Wilson standing, or coming towards my side of the car. … when I locked the door he was about a step away from my car, he was probably a foot away from my side of the car. … he was yelling, I'm not entirely sure what it was that he was yelling but he had an extremely angry look on his face.  He kind of launched at the car, started punching the windows, kicked the door a bit, my mirror on the Hilux, the mirrors on the side can actually bend in, they're on a hinge that can actually bend in, the mirror was bent right back in. … As we drove off I heard him punch the window behind me."

She said that as they drove off she attempted to summon assistance.

1. Her description of the ensuing chase matched that given by Mr Ford.  Her state of mind was:

"I thought that they'd bash us if they got in the car, that … I wasn't entirely sure why but you know I definitely thought that if they got in the car, if we got out of the car, that they'd hit us."

Argument of applicant

1. On the hearing of the appeal, the applicant advanced two propositions:

(1)Since the complainants' vehicle was locked at the time of the commencement of the attack, its engine running and that it drove off shortly after the attack commenced, it could not be said that the applicant had the ability to effect his purpose.  Further, that since the complainant Ms Howell had already locked her door, it could not, on reasonable grounds, be said that Wilson could effect his purpose or that she could have believed he had that ability.  She was protected by the door and window of a large vehicle which moved off shortly after the commencement of the attack.  The applicant contended, consistent with the comments of Evans J in Lees v Visser (1999) 9 Tas R 103 that the offence requires a temporal connection between the making of the threat or gesture and the belief on the part of the person threatened that the attack could effect his or her purpose. Two answers may be had to this proposition. Accepting that none of the three assailants had, as a matter of fact, the immediate capacity to enter the vehicle, each was nevertheless responsible for the conduct of the other two. The complainants were faced with three men, each independently seeking to cause damage and, if possible, gaining entry into the vehicle. Neither of the complainants could be sure that a window would not break, that a solid object might not be obtained and used to break the windscreen, side windows, or indeed, the lock of the vehicle. Neither could be sure that the other door of the vehicle was firmly locked. The attack was sudden and violent. The ingredients had clearly been established on the evidence.

(2)In relation to the initial argument that the applicant could not be held responsible for the act of driving of Semmens, the evidence clearly established separate acts of assault by threat and gesture.  The applicant and the non-driving occupant made independent threats and gestures during the course of the driving.

1. In any event I am satisfied that the magistrate was entitled to find that he was:

"… satisfied that when surrounding the car and when pursuing the 4-wheel-drive in their car that there was a sufficient immediacy to amount – for those aspects to amount to an assault particularly when one comes to the point where, on my findings, where the hatchback drove in front of the 4-wheel-drive so as to stop its further forward motion so that the occupants of the hatchback could get out and deal with the occupants in the cab of that car.  In my view there was a present ability throughout the initial surrounding of the car and the ultimate stopping of the car to enable the occupants of the hatchback to effect their purpose which was clearly to cause harm to the occupants of the 4-wheel-drive."

1. The motion to review as to conviction ought be dismissed.

Appeal against sentence

1. The applicant was sentenced to the one sentence of imprisonment on his conviction for the assault and a separate complaint of repeated breaches of bail which had followed the original offence.  The breaches of bail related to the condition requiring the applicant to report to an officer on duty at the Longford police station.

1. It was accepted that on many occasions, the applicant did go to the police station but instead left a note in lieu of signing the register of persons reporting.  The Longford police station is open between 9am and 4pm and the applicant would leave a written message before opening time.  On at least nine occasions he did not leave a note.  On those nine occasions he was away from Tasmania in the course of his employment.  The failures were more technical than real, but nevertheless, the applicant did not take steps to have his bail conditions varied, he was warned by police that he should properly comply with the bail conditions and the method he adopted shows at least a degree of indifference to his responsibilities.  The magistrate imposed a single sentence and it is difficult to determine the weight he gave to this offence in his determination of penalty.  The applicant had prior convictions for minor traffic matters, burglary, stealing and damage to property.  Significantly he was convicted on 23 October 2000 of the crime of manslaughter.  The death arose as a result of his driving.  On that day, the applicant was sentenced to 12 months' imprisonment and disqualified from holding or obtaining a driver's licence for a period of four years from the date he was released from prison.  He was released on parole on 30 April 2001.  Here, his conduct involved the use of a motor vehicle.  He was a party to an unprovoked assault and the pursuit of the victims of that assault by a motor vehicle.  There was no evidence that he did anything to dissuade the driver of his vehicle from persisting with a course of dangerous driving which could have resulted in death or serious injury to others.  He was responsible for his own conduct in leaning out of the pursuing vehicle and repeating threats and gestures to the occupants of the other vehicle.  That conduct alone was dangerous and had the potential of the driver of the pursued vehicle to increase speed or take evasive action which, in turn, might have led to death or serious injury.  The applicant had already been responsible for the death of another through the use of a motor vehicle.  He had not accepted responsibility for his conduct on the day of the assault and there was no evidence of remorse or regret for his conduct.  The ground of appeal against sentence ought not be sustained.

1. The motion to review is dismissed.