Chu v Henham [1999] VSC 139

Chu v Henham [1999] VSC 139 - VSC 1999 case summary — Zoe

[31]

There is set out in the affidavit of the appellant sworn on 28 July 1998 that which he deposes was the evidence given before the Magistrates' Court by the various witness and also the events and matters which occurred before the Court during the course of the trial. There has been filed an affidavit by Senior Constable Janine Gleeson sworn on 21 January 1999. She was the prosecuting officer before the Magistrates' Court on the trial. In the main she has deposed that she agrees with the content of the affidavit of the appellant with some exceptions both as to evidence given before the Court and matters that occurred during the course of the trial. In Buzatu v Vournazos [1970] VicRp 63; [1970] VR 476 Newton, J at 478 held that in a proceeding such as this there exists the arbitrary rule that where there exists a material conflict between parties' affidavits as to evidence given in the lower Court the version which supports the decision of the lower Court should be accepted in the absence of a fair and practical method of resolving the conflict. Although that is an arbitrary rule of the Court it cannot be applied so as to lead to abuse or to relieve the Court from fulfilling its duty to determine where the truth lies if a material conflict rises in such affidavits: Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360; Thompson v Cross [1954] VicLawRp 89; [1954] VLR 635 and Aherne v Freeman [1974] VicRp 17; [1974] VR 121. When regard is had to the affidavit of Janine Gleeson it appears more that she expands the matters the subject of evidence given before the Magistrates' Court and further there is some additional detail as to what occurred during the course of proceedings which were not specifically dealt with in the affidavit of the appellant. In identifying the evidence given before the Magistrates' Court and the events that occurred on trial I have regard to the affidavit of the appellant as effected and modified by that set out in the affidavit of Janine Gleeson.

[32]

The first witness called before the Magistrate was Allan Sharp who was a security officer employed at the Housing Commission estate in Prahran, including a block of flats at 6 Essex Street Prahran. He gave evidence that at about 10.45 p.m. on 17 February 1998 he was requested to attend Flat 3, 6 Essex Street which premises were occupied by a female tenant, her son and her brother, the appellant. He said that when he attended in the company of another security officer, Robinson, the appellant was sitting downstairs from the flat talking to a male police officer who was saying to the appellant that his sister did not want him to return to the flat that evening. He said that the police officer spoke in a normal fashion and the defendant was "o.k. at first" but then stood up and became agitated and that he was raising his voice. He said the police officer kept asking him for the keys of the flat. He gave evidence that shortly thereafter two female constables arrived and the defendant then stood up and walked out of the stairwell into the rear court yard. He gave evidence that the appellant was becoming very agitated, that the police kept asking him for the keys to the flat, that the appellant said "you lock me up if you want to" to which the police office replied, "we don't want to lock you up we just want to get the keys to the unit". The witness gave evidence that there were then four police officers around the appellant. As appeared from the evidence, three of the police officers were women, including the informant, the respondent. The other was a male. He said that things then became physical and the defendant started going towards the policeman, that the male policeman grabbed the defendant and two policewomen assisted the policeman. He said that one of the policewomen yelled out that she had been bitten and then the appellant was restrained and handcuffed. He identified the respondent as the policewoman who had been bitten saying that she had come down from upstairs shortly before the appellant moved from the stairwell out into the courtyard. The witness in cross-examination said the police were asking the appellant for the keys to the flat and that he refused to give the same to the police, offering to go back to the police station but the police refused to take him there. The witness further said that he saw the appellant move as though he was going to push past the policeman and that the appellant was then grabbed by the policeman, that a scuffle broke out and the appellant was pulled to the ground and handcuffed. He said that it was during the scuffle that the policewoman put her arm out to restrain the appellant. He said further that the appellant was forced to the ground and restrained after he heard the policewoman scream that she had been bitten.

[34]

The respondent gave evidence that she was called to attend a disturbance at Flat 3, 6 Essex Street Prahran and that she attended with Constable Cole. He was the male police officer. She said that when she arrived she found the appellant and a female yelling at one another in an argument. She said the door of the flat was open, but the fly wire door was closed. She gave evidence that she asked Cole to take the defendant outside to speak to him while she spoke to the female. She said that she was told that the female lived at the flat with her son and her brother who is the appellant. She gave evidence that the female told her she did not want the male to return to the flat that night and when she advised the female to lock the flat she was informed that the appellant had keys to the flat and would return. The respondent gave evidence that she was concerned that a fight would occur if he returned and that there was a child on the premises. She said that she and Cole decided that they needed to obtain the keys from the appellant to prevent him from returning to the flat that night. She said that she went downstairs to where Cole was speaking to the appellant. He refused to give her his keys stating that he would go to the police station and stay the night at the police station. She said that she explained he could not come to the police station as it was not a hotel, that he had done nothing wrong and was not under arrest and they would not take him there. She said that they moved away from the stairwell to the rear yard of the premises where the appellant was crying, he was slightly hysterical and sitting down and standing up repeatedly. She said that the appellant got up and went to move towards the stairwell and attempted to push past Constable Cole. She said Constable Cole grabbed the appellant by the upper arm to prevent him from going back and that she put her arm across the appellant's chest as he was going towards Cole. She said that when she put her arm up she made contact with the appellant's mouth, that the appellant then bent his mouth to her arm and bit her causing her to call out, "the bastard has bitten me". She gave evidence that the skin on her arm was broken by the bite and there was some blood. She gave evidence that up to that point the appellant had not been arrested, but he was then arrested, restrained and handcuffed. As part of her evidence she tendered a record of the interview held later that night by her and Cole with the appellant.

[44]

The appellant gave evidence. He said that he lived in flat 3, 6 Essex Street Prahran with his sister and her twelve year old son. He said that he was in his room when the police arrived and that previously there had been an argument between himself, his sister and his sister's friend. He said that he spoke to Cole outside the flat and went downstairs with him. He gave evidence that he was not having any argument at the time that the police came to the flat and further said that it was his sister who had called the police and who had asked them into the flat. The witness said that Cole asked him to give him his house keys because his sister did not want him to return home that night and that he refused to give Cole his keys. He said that all four police officers were wanting him to give his keys to them but he wanted to wait for his sister to go to bed so that he could return and go to bed. He said he wanted to return to the flat when his sister was asleep. The witness gave evidence that Constable Cole was feeling his jeans to see if he had any keys in his pockets and that when the four police officers were around him Cole suddenly grabbed him by the arm and twisted it behind his back, he said that the respondent then put her arm around him at his neck, that someone grabbed him by the neck with a hand and squeezed his neck with a thumb and forefinger. He said that the respondent was squeezing his neck with her arm such that he could no longer breath and that in order to defend himself and to enable him to breath, he bit the arm that was around his neck. The appellant said that he was then pushed to the ground, his arms were twisted hard behind his back. He said that Cole grabbed him to take his keys from him and that he did not make any attempt to go back to the flat and that when he was grabbed by Cole he was not pushing past him nor was he going back up to the flat. Photographs were tendered showing marked discolouration to each side of the appellant's neck. He said that the only reason he bit the policewoman was that he was acting in self defence. The witness said that the respondent's arm was against his neck, that he bent his mouth downwards and bit the arm that was around his neck and then the arm was released and he was able to breath.

[50]

From that which occurred immediately after the Magistrate had announced his findings, concluding that he found the charged proved, it is apparent that Counsel for the appellant objected that he had not been given an opportunity to make a submission in law. It would therefore appear from that fact alone that it was the intention of Counsel to make a submission to the Magistrate on a matter of law at the conclusion of the evidence although it would appear that at no time before the Magistrate announced his finding had Counsel informed the Magistrate of that matter. It does appear, however, from the affidavit of Janine Gleeson that during the course of the luncheon adjournment Counsel for the appellant advised her that he would be arguing that the appellant had a right to assault the police as his arrest was illegal, stating that he would be relying on the decision of Nguyen v. Elliott (unreported 6 February 1995, Hedigan, J,). She has deposed that she stated to Counsel that she believed that the case related to the police officers' duties and obligations to prevent a common law breach of the peace, informing him of the cases that she was going to rely on. One case referred to by Janine Gleeson was Minto v. Police [1987] 1 NZLR 375. The facts of that case were that Minto was one of a group of protesters involved in an anti apartheid demonstration at a tennis tournament. One of the tools used by the protesters, including Minto, was a loud hailer. After its initial use a police officer warned Minto and others that action would be taken for a breach of the peace if they persisted. The loud hailer was used to amplify chanting and comments, the police officer considered that there was a real likelihood of a breach of the peace, he grabbed the loud hailer from Minto who grabbed it back from the police officer, and then Minto was arrested and charged with intentionally obstructing a police constable in the course of executing his duty. In the course of his judgment at p.377 Cooke, P referred to the judgment of Lord Diplock in Albert v. Lavin [1982] AC 546 at p.565 where His Lordship stated -

[69]

It is to be appreciated that Simon Parson and Co differs significantly from the case presently before me. In that case the solicitor had commenced to endeavour to address the court whereas in the circumstances of this case at no time before the Magistrate announced his decision including that he found the charge proved did counsel indicate that he wished, on behalf of his client, to make submissions of law to the court. On behalf of the respondent it was submitted that as Counsel for the plaintiff had at no time before the Magistrate commenced to give his decision inform the court that he wished to make a submission as to law there was no denial of procedural fairness to the plaintiff in the circumstances of this case. It was further submitted, on behalf of the respondent, that if in circumstances where a Magistrate at trial does not actively prevent a submission of law, relevant to the trial, being made or actively decline to hear such a submission, it could be later contended in proceedings such as the present, that the party against whom the decision of the court went had been deprived of procedural fairness on his or her trial, as it was intended to make such a submission had the opportunity been given before the decision was announced, then proceedings such as these could be open to abuse. That is certainly not the case here. I am satisfied that it always was part of the strategy of Counsel in the conduct of the appellant's defence to make a submission of law to the court relevant to the facts in this case. The opportunity to address a Magistrates' Court on the evidence in a trial is the subject of the Rules of Procedure to which I have previously referred. However, if a party appearing before a Magistrates' Court or his or her legal representative wishes to make a submission of law relevant to the case the court should entertain the same. For a Magistrate to decline to hear such a submission it would result in the party appearing before the court being deprived of procedural fairness in the conduct of the trial. As referred to by Batt, J in Simon Parson and Co it is well within the capacity of the Magistrate hearing such a submission to manage and control the same while ensuring that procedural fairness is given to the party making the submission. It is to be noted that in Mooney v. James, Barry J at p.31 held that on a submission of "no case" being made to a Magistrates' Court, which the defendant was entitled to have heard, Counsel was entitled to advance the submission by examination of the evidence. Such would be the case on other submissions of law made to the court.

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