Director of Public Prosecutions v Evans

1. [1]

   On 14 March 2016 his Honour Magistrate Brown in the Local Court at Penrith found the Defendant not guilty of two offences being assault officer in the execution of his duty and resist officer in the execution of his duty. The Director of Public Prosecutions (NSW) appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against the dismissal of those charges by Magistrate Brown. The DPP seeks an order that the matter be remitted to the Local Court to be dealt with according to law. Under s 56(1) an appeal may only be brought on a ground that involves a question of law alone.

Background

1. [2]

   On 12 March 2015 Constable Russell Budin and Constable Alexandra Kent attended a house fire in Londonderry in response to a 000 call. Officers from the NSW Fire Brigade and the Rural Fire Services were in attendance.

2. [3]

   Constable Budin, the complainant, saw the Defendant standing on a verandah hosing the roof of the house. Constable Budin was asked by one of the fire officers to remove the Defendant from the verandah for his own safety. The fire officer informed Constable Budin that the house was filled with asbestos fibro and that the roof might collapse.

3. [4]

   Constable Budin saw the Defendant standing on the verandah between the house and an extra room on the right hand side of the house. The Defendant had a hose in his hands and was hosing the roof of the house.

4. [5]

   According to Constable Budin he approached the Defendant and the following exchange occurred:

5. [6]

   Constable Budin said that he walked up the three or four steps on to the veranda and took hold of the Defendant by his clothing. He walked down the stairs, presumably pulling the Defendant with him, and back onto the front lawn or driveway area. Constable Budin said that at this point the Defendant started swinging punches towards his head in a downward motion. He felt the Defendant hit him at least three times on the top of his head and forehead.

6. [7]

   Constable Budin ducked down and used his arms to cover his head and he took a step to the side. He then stood up and used a closed fist hammer strike with his right hand to the left side of the Defendant’s neck. He then stepped back and yelled "Get back, you’re under arrest”. The Defendant brought both his hands up to head height and stood in a boxer's stance. At that point Constable Budin removed his capsicum spray from his belt and delivered a short burst into the Defendant's face. The Defendant then turned around and ran towards the rear of the property. Both Constable Budin and Constable Kent attempted to follow and find the Defendant but were unsuccessful in doing so.

7. [8]

   The Defendant later spoke to Constable Budin on the telephone. Constable Budin told the Defendant that he should come to Penrith Police Station. The following day the Defendant came of his own accord to Penrith Police Station and participated in an ERISP. His account of what happened appears as his answer to question 51 as follows:

8. [9]

   The matter was heard on 14 March 2016. Constable Budin gave evidence in accordance with what has been recorded above. Constable Kent gave evidence which largely corroborated Constable Budin’s evidence although she was not able to hear what was said between Constable Budin and the Defendant. She did hear Constable Budin call out to the Defendant after he ran off “Get back here, you are under arrest”.

9. [10]

   The Defendant gave evidence where, in contradistinction to his ERISP in which he said he tripped and fell on Constable Budin, he said that Constable Budin dragged him down the stairs. He also denied punching Constable Budin and denied the initial conversation that Constable Budin gave evidence about.

10. [11]

    The Defendant also called his half-brother, Christopher Smith, whose evidence was that the police told the Defendant to get down from where he was, that the Defendant refused by shaking his head and remaining, that the police officer stepped up and took hold of the Defendant’s shirt and that they fell to the ground with the Defendant tripping. He saw a small struggle on the ground and when both of them stood up the police officer swung around and punched the Defendant’s lower left lip. He then sprayed mace on him. Mr Smith said he did not see the Defendant punch the police officer.

The Magistrate’s judgment

1. [12]

   The learned Magistrate, having recited matters concerning the charges and the fire went on to say:

The appeal

1. [13]

   The DPP relies on four grounds of appeal, asserting that the learned Magistrate erred in law in:

2. [14]

   When the matter was called on for hearing there was no appearance for the Defendant. Senior Counsel for the DPP read a number of affidavits dealing with notifications to the Defendant and drew attention to two specific legislative provisions regarding requirements for service of material in appeals under the Crimes (Appeal and Review) Act. I ruled that the hearing should proceed in the absence of the Defendant. My reasons for doing so are as follows.

3. [15]

   Part 51B of the Supreme Court Rules 1970 (NSW) applies to appeals to the Court under Part 5 of the Crimes (Appeal and Review) Act where s 56 appears. Rule 11 requires that the summons instituting the appeal be served on the defendant personally on the day the summons is filed or as soon as practicable thereafter. The affidavit of David Gillard sworn 3 August 2016 proved service of the Summons, an affidavit in support and a notice under s 10 of the Director of Public Prosecutions Act 1986 (NSW) on the Defendant personally.

4. [16]

   Although no solicitor filed a Notice of Appearance indicating that they represented the Defendant the solicitor who had appeared for the Defendant before the Magistrate, Michael Doughty, was informally acting for the Defendant in an attempt to obtain Legal Aid for the present proceedings. An affidavit of Dominique Anne Kelly sworn 2 February 2017 sets out in detail the contact between the solicitor for the DPP and Mr Doughty. The material in that affidavit demonstrates that Mr Doughty was informed of the hearing date which had been appointed by the Registrar on 26 October 2016. It was also clear from the correspondence annexed to that affidavit that Mr Doughty had been in contact with the Defendant, and the Defendant was aware from conversations with Mr Doughty that the hearing was listed for 2 February 2017.

5. [17]

   The material annexed to Ms Kelly’s affidavit showed also that on two separate occasions the DPP had forwarded all the material prepared by the DPP since the Summons had been served to the address where the Defendant lived and had lived for some years. That material clearly indicated that the hearing was to be on 2 February 2017. It must be accepted, however, that this material forwarded by the DPP was not served personally.

6. [18]

   Part 51B r 16 provides:

7. [19]

   The relevance of that Rule is that the Summons filed on 18 July 2016 was amended by a Supplementary Notice filed 14 December 2016. That Supplementary Notice expanded the factual background set out in the Summons and amended the grounds of appeal in form although not in substance. The effect of r 16 when taken with r 11 required personal service of the Supplementary Notice.

8. [20]

   However, s 62 of the Crimes (Appeal and Review) Act 2001 relevantly provides:

9. [21]

   In the light of the evidence in Ms Kelly’s affidavit I was satisfied that the Defendant was aware of the date, time and place fixed for dealing with the appeal and that he had not been prejudiced to the extent that the supplementary material had not been personally served.

Extension of time

1. [22]

   Part 51B r 6 provides an appeal must be instituted within 28 days after the material date. The material date is defined in r 3, relevantly, as meaning the date on which the decision is pronounced or given.

2. [23]

   The Magistrate’s decision was given on 14 March 2016. The Summons was not filed until 18 July 2016. The DPP seeks an extension of time up to the date of the filing of the Summons.

3. [24]

   The explanation for the delay is found an affidavit of Liza Brown sworn 16 December 2016. Ms Brown is a police officer in the role of Legal Officer – Appeals. She is tasked with receiving requests for an appeal from police prosecutors, assessing the merits of those requests, and forwarding them to the office of the DPP.

4. [25]

   On 15 March 2016 she received a request for an appeal from Senior Constable Pawar who had prosecuted the matter at Penrith Local Court. She promptly sought the material from him which was received on or before 21 March 2016. On that day she drafted a letter to the Office of the DPP requesting an appeal. However, she overlooked sending the letter to the DPP. From 21 March until 15 June she believed she had sent the email attaching the letter.

5. [26]

   She was on leave from 1 April to 27 April 2016. After she returned from leave she twice reviewed an internal police spreadsheet and saw that the matter had not been allocated to a solicitor at the DPP with the result that no decision had been made about whether an appeal would be filed. It was only when she spoke to the Advisings Manager on 15 June that she discovered she had never sent the letter of 21 March 2016.

6. [27]

   The matter is far from satisfactory. Ms Brown should be taken to know that appeals are to be lodged within 28 days of the decision. When she received an email from Senior Constable Pawar requesting an update (as she did when she was on leave) she ought to have made contact with the DPP immediately on her return to work or requested another officer in her office to do so. Merely checking an internal police spreadsheet and seeing that the matter had not been allocated at the DPP was an inadequate response given the time limits imposed by the Rules.

7. [28]

   However, the Defendant does not appear to complain about the oversight on Ms Brown’s part and the delay which it engendered. Nor is any particular prejudice to the Defendant apparent in contradistinction to the general prejudice in the matter remaining unresolved. I consider, therefore, that an extension of time should be granted to the date of filing of Summons.

Legislative provisions

1. [29]

   The charges were laid under s 58 of the Crimes Act 1900 (NSW) which provides:

2. [30]

   The relevant provisions of the Crimes Act relating to self-defence are these:

Submissions

1. [31]

   In relation to ground 1, the DPP submitted that s 418(2)(c) of the Crimes Act had no application because there was no “unlawful taking, destruction, damage or interference" by Constable Budin. There was no other basis for the application of s 418 with the result that self-defence had no role to play in the determination of the charges.

2. [32]

   In relation to ground 2, the DPP submitted that the Magistrate erred in law in proceeding on the basis that the objective element of self-defence within s 418, namely that the conduct is a reasonable response in the circumstances as perceived by the Defendant, can be satisfied where there is no concurrence between the source of the threat and the target of the otherwise unlawful conduct constituting the alleged self-defence. The DPP submitted that the police officer was not the source of any threat to the Defendant's property within the meaning of s 418(2)(c).

3. [33]

   In relation to ground 3, the DPP submitted that the Magistrate erred in holding that self-defence had been raised in accordance with ss 418 and 419 of the Crimes Act. Whether self-defence is raised is a question of law and not of fact even though it involves an evaluation of the evidence. The DPP submitted that there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence.

4. [34]

   In relation to ground 4, the DPP submitted that the Magistrate had failed in his duty to give proper reasons in that he failed to make any finding on the central factual issue about whether or not the Defendant assaulted Constable Budin by punching him.

Consideration

1. [35]

   By reason of the overlap of the grounds of appeal it is convenient to deal with them together.

2. [36]

   As a preliminary matter, a few things should be noted about the Magistrate’s judgment. First, his Honour found that a police officer seeking to persuade someone in the Defendant's position to come away from the fire was certainly acting in the execution of his duty. Secondly, his Honour found that the Defendant would be entitled under s 418 to a defence of self-defence by resisting any attempt to apply physical force to the Defendant when his clear desire was to protect his property from unlawful taking, destruction, damage or interference. Thirdly, his Honour said that it was a little hard to fathom what the Defendant was under arrest for. Fourthly, his Honour found that the most troubling part of the case was that there were a lot of potential witnesses on both sides who did not give evidence. Fifthly, his Honour made no findings on the principal issue of fact about whether the Defendant punched Constable Budin but he said that if he accepted Constable Budin’s version then the defence of self-defence would be clearly made out on behalf of the Defendant.

3. [37]

   The Magistrate correctly held that the Defendant was acting within the execution of his duty. His Honour correctly considered that he was bound by the decision of DPP v Gribble [2004] NSWSC 926. Further support can be found in Coyle v State of New South Wales [2006] NSWCA 95 at [72] and, in a situation where, unlike in Gribble, the defendant could not be said to be acting irrationally, see Director of Public Prosecutions (NSW) v Araura [2012] NSWSC 1120.

4. [38]

   Implicit in the finding that Constable Budin had acted within the execution of his duty in grabbing the Defendant by his clothing to pull him away from the fire was the notion that Constable Budin’s actions were reasonable and necessary in all the circumstances: Gribble at [23] and [29]; Araura at [18]. It was then necessary for the Magistrate to deal with the central factual dispute being the issue of whether the Defendant assaulted Constable Budin by punching him. Until that matter was determined, and determined in favour of the account given by Constable Budin and supported by Constable Kent, no issue relating to self-defence could possibly arise.

5. [39]

   In Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 Johnson J said:

6. [40]

   In Downes v DPP [2000] NSWSC 1054 the Plaintiff was charged with driving whilst disqualified and using an unregistered and uninsured motor vehicle. The prosecution case depended in part upon admissions by the Plaintiff to a police officer. The Plaintiff challenged the admissibility of those admissions on the basis that he had been induced to make them by a statement from the interviewing police officer to the effect that the Plaintiff would only be fined. Whether the admissions should be admitted attracted consideration of ss 85 and 90 of the Evidence Act 1995 (NSW). The Magistrate heard the evidence on the voir dire and, after hearing submissions, ruled that the evidence of the admissions ought to be admitted into evidence. On appeal to this Court Studdert J said:

7. [41]

   In the course of submissions before the Magistrate both the prosecutor and the solicitor for the Defendant made clear that there was a factual issue that needed to be determined and that the issue arose not only from the conflict between the police witnesses on the one hand and the Defendant and his witness on the other but because of inconsistencies between what the Defendant had said in his ERISP and what he said in Court. The solicitor for the Defendant said during the course of his submissions:

8. [42]

   The failure of the Magistrate to make findings of fact about what actually happened was an error of law. The issue of whether the Defendant punched the police officer was the critical issue. The error was so fundamental that it undermined the whole process. The Magistrate should not have gone about his task, as he did, by saying that even if he accepted Constable Budin’s evidence self-defence would operate with the result that the prosecution could not succeed. Until the Magistrate made precise factual findings about what occurred he was in no position to deal with the matter of self-defence, particularly because it involved the question of what a reasonable response was by the Defendant.

9. [43]

   Although, for the reasons given, error has been identified with the result that the matter should be remitted, it is important to consider the issue of whether self-defence was available.

10. [44]

    The only basis upon which self-defence was available was in reliance on s 418(2)(c) of the Crimes Act. Whilst the Magistrate understood that that was so, his Honour assumed, without considering the matter, that the Defendant’s desire was to “protect property from unlawful taking, destruction, damage or interference”. Whilst it is the case that the Magistrate did not receive any assistance in relation to the law in this matter, that appears to be because it was the Magistrate himself who suggested that the Defendant was asserting self-defence. That was not at all obvious. Nothing in the evidence led by the Defendant nor the cross-examination by his solicitor suggested anything other than that he had not at any time struck the police officer except by accidentally falling on him as the Defendant tripped and fell down the stairs.

11. [45]

    In The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 the Respondent had been convicted at trial of the murder of his wife. He had denied any involvement in her death. On appeal the Court of Appeal of Queensland set aside the murder conviction and substituted one of manslaughter on the basis that there might well have been a confrontation that did not involve any intent on his part to kill or inflict grievous bodily harm.

12. [46]

    In restoring the conviction for murder the High Court said:

13. [47]

    In Douglas v R [2005] NSWCCA 419 Simpson J (Adams and Hoeben JJ agreeing) said in the context of a criminal trial with a jury:

14. [48]

    In Flanagan v R [2013] NSWCCA 320 the appellant complained that the trial judge should have left self-defence to the jury. She had been charged with wounding with intent to cause grievous bodily harm. The appellant had become involved in a fight initiated by her brother against the victim.

15. [49]

    The Court of Criminal Appeal said:

16. [50]

    In Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Hodgson JA (with whom Handley and Ipp JJA agreed) said:

17. [51]

    In my opinion, there was no evidence in the present case which gave rise to a need on the Magistrate’s part to consider, as the tribunal of fact, the issue of self-defence. Nothing suggested that the Defendant had any belief that he was acting in self-defence. The Defendant gave no evidence that he believed his conduct was necessary, but that was precisely because he denied hitting the police officer. As Colosimo makes clear, in the absence of such direct evidence, ordinarily inferences will be drawn on the basis of what beliefs and perceptions a person in the position of the Defendant could reasonably hold. The Magistrate made no finding about whether such a person could reasonably think that punching a police officer in the head three times was necessary in the circumstances of this case.

18. [52]

    The Defendant’s case, as in Baden-Clay, Douglas and Flanagan, was inconsistent with that defence. Although, after the Magistrate raised the matter, the solicitor for the Defendant agreed that s 418 was raised, no basis for that was articulated. The thrust of the Defendant’s submissions before the Magistrate was that the police officer was not acting in the execution of his duty and that the factual dispute ought to be found in the Defendant’s favour.

19. [53]

    There is a further reason why the issue of self-defence did not arise. That is because the destruction or damage of the property had to be unlawful destruction or damage and the unlawfulness had to be able to be attributed to the person against whom the defence was raised.

20. [54]

    In R v Burgess; R v Saunders [2005] NSWCCA 52 Adams J with whom James J and Newman AJ agreed said of the statutory defence of self-defence:

21. [55]

    Acting Justice Newman also said this:

22. [56]

    There was no evidence that any destruction or damage of the property by the fire was unlawful, but even if it was it was not in any way related to Constable Budin. As Newman AJ made clear the concept of self-defence only arises where the actions of the accused by way of self-defence are directly taken against the person threatening (here) the accused’s property.

23. [57]

    Moreover, the reasonableness of the Defendant’s response to the police officer’s attempt to pull him away from the fire had to be judged from the perspective that the police officer was not the source of any threat to the Defendant’s property, that the police officer was acting lawfully, and judged by the extent of any force being applied to the Defendant by the police officer. Further, the reasonableness of the response could be judged in the light of the Defendant’s subsequent action, after punching the police officer in the head on a number of occasions, in running away and hiding rather than going back to fight the fire and protect his property.

24. [58]

    Section 418 was never engaged in this case. For these reasons, the errors of law identified in grounds 1 – 3 are also made out.

Conclusion

1. [59]

   In the light of the errors found the matter should be remitted to the Local Court for determination according to law. The DPP asks that the matter be dealt with by a magistrate other than the Magistrate the subject of the appeal. Although credit findings were not made by the Magistrate some of the comments made in the judgment suggest that the matter would be better dealt with by a magistrate who comes to the matter afresh.

2. [60]

   At one point the Magistrate made reference to Constable Budin’s evidence at the point where he punched the left-hand side of the Defendant’s neck and said “Get back, you’re under arrest”. The Magistrate commented “What he was under arrest for is a little hard to fathom”. It is difficult to see how the Magistrate could have made that comment unless he had disbelieved Constable Budin’s evidence that he had been punched a number of times by the Defendant.

3. [61]

   A little further in the judgment the Magistrate commented that:

4. [62]

   Accordingly, the orders that I make are these: