Clark v Ryan [2004] VSC 106

"The Defendant at Warrnambool on 2 May 2002 did obstruct a member of the Police Force, one Peter Nicholls a member of the Police Force in the execution of his duty contrary to s. 52(1) of the Summary Offences Act 1966."

The second was a charge of behaving in a riotous manner contrary to s. 17(1)(d) of the Summary Offences Act 1966.

7. Mr Clark brought an appeal to the County Court and on 4 December 2003 his appeal against the riotous behaviour conviction was allowed so that the charge was dismissed. With respect to the other charge, obstructing police, his appeal against conviction was dismissed so that the conviction stood; his appeal against sentence was successful in that the fine was reduced to $750.

10. Mr Clark has, by originating motion filed on 12 February 2004, sought relief in the nature of certiorari pursuant to Order 56 against this County Court conviction. He seeks this relief on three grounds, jurisdictional error, error of law on the face of the record and a denial of procedural fairness. The second defendant, the County Court of Victoria, is joined as required by Rule 56.01(3) representing his Honour Judge White whose decision is subject to review. There was no appearance by the second defendant.

13. In order to understand the grounds relied upon, it is necessary that I outline briefly the circumstances of the incident. The charge of obstructing police arose out of an attempt by Sergeant Nicholls to remove from the Criterion Hotel one Jamie Chatfield who had been previously banned from the hotel. When Sergeant Nicholls arrived at the hotel there occurred the alleged incident which gave rise to the charge. In summary, the case for the informant was that Mr Clark resisted or obstructed Sergeant Nicholls' attempts to remove Mr Chatfield, at least for a little time. Counsel told me that the incident occupied some 10 minutes after which Mr Clark moved away, leaving the sergeant to deal with Mr Chatfield. Mr Clark denied that the obstructive acts occurred.

16. When the case came on for re-hearing in the County Court, counsel for Mr Clark sought and obtained from the prosecutor particulars of that charge. The particulars of the obstruction charge were as follows:

"Appellant prevented Sergeant Nichols from performing his duty to assist licensee to expel Chatfield from Criterion Hotel by -

(i) Stopping Nichols from approaching Chatfield.

(ii) Accusing Nichols of racism.

(iii) Aggressively yelling and arguing with Nichols.

(iv) Blocking Nichols way.

(v) Aggressively pointing his finger at Nichols.

(vi) Challenging Nichols' authority to perform his duty.

(vii) Insisting that Nichols provide an explanation as to why Chatfield was to be expelled.

(viii) Threatening that in order to expel Chatfield Nichols would have to fight with other Aboriginals.

23. Having received these particulars, counsel for Mr Clark contended that they contained a number of offences and that the charge as particularised was bad for duplicity. They sought a direction that the prosecutors elect which to pursue and which to abandon. The prosecutors resisted this, arguing that there was but only one incident alleged and one offence. The particulars merely set out the facts which were sought to be proved. It would be for the court to determine, when the evidence was in, which of the matters particularised had been proved and whether these proved acts amounted to obstruction. The judge acceded to this submission on 25 November 2003 and the hearing proceeded for nine days.

26. At the conclusion of the prosecution case the judge acceded to a submission on behalf of Mr Clark and dismissed the riotous behaviour charge. At this time, too, complaint was again made about the form of the obstruction charge but this was again rejected. The defendant gave evidence challenging the accuracy of the prosecution evidence and called witnesses in support of his case. At the conclusion of final submissions, his Honour on 4 December 2003 gave a short judgment setting out his reasons for convicting.

29. Before I turn to the grounds relied upon by the plaintiff before me, I make two general observations upon the nature of the jurisdiction which I exercise under Order 56. This proceeding is not an appeal, whether this be in the nature of a re-hearing or for error of law. I am not entitled to undertake a review of the merits of the decision of the County Court as might be appropriate upon appeal. My concern is only with technical aspects of that proceeding: whether his Honour acted within jurisdiction and, if so, whether his Honour's decision was made in accordance with the requirements of procedural fairness, whether the decision is vitiated by fraud or whether the face of the record discloses an error of law[1]. So much was not challenged before me. Second, the granting of the relief sought is discretionary.

33. In the originating motion the plaintiff set out the relevant facts and grounds for seeking an order quashing the conviction on this ground:

"Particulars of Relevant Facts

(a) The Plaintiff was the Appellant in a criminal appeal from the Magistrates' Court at Warrnambool before His Honour Judge White in relation to a charge of obstructing Sergeant Nicholls, a police officer in the execution of his duty. (b) The charge related to an incident which took place on 1 or 2 May 2002 at the Criterion Hotel at Warrnambool wherein the prosecution alleged that as a result of his conduct, the Plaintiff obstructed Sergeant Nicholls in the execution of his duty. (c) It was alleged by the prosecution that at the time of the alleged acts said to constitute obstruction, Sergeant Nicholls was requesting a patron of the hotel named Chatfield to leave the premises of the hotel as a result of a request by the publican. (d) At the commencement of the appeal, the following acts were said to constitute particulars of the obstruction. The Plaintiff had: (i) stopped Nicholls from approaching Chatfield; (ii) accused Nicholls of racism; (iii) aggressively yelled and argued with Nicholls; (iv) blocked Nicholls way; (v) aggressively pointed his finger at Nicholls; (vi) challenged Nicholls authority to perform his duty; (vii) insisted that Nicholls provide an explanation as to why Chatfield was to be expelled; and (viii) threatened that in order to expel Chatfield, Nicholls would have to fight with other Aboriginals. (e) His Honour Judge White made certain findings on 4 December 2003 including: (i) The Appellant and Sergeant Nicholls did engage in a lengthy conversation concerning the removal of Chatfield from the bar and from the premises. (ii) An aggressive argument developed between the Appellant and Nicholls as to Chatfield being removed from the premises. (iii) The Appellant told Nicholls that Chatfield was not to be removed from the hotel. (iv) The Appellant accused Nicholls of being racist and discriminatory. (v) The Appellant intended to obstruct the police although his motives may have originally not involved any intention to obstruct the police.

Particulars of Grounds

(i) The findings of fact do not constitute the actus reas of obstruction for the purpose of Section 52 of the Summary Offences Act 1966. (ii) Given the overall particulars of the charge, the particulars found proven by the trial judge were incapable of sustaining the charge as particularised. (iii) Given the particulars provided, the Crown failed to establish particulars (i), (iv), (v) and (vi) being the four physical acts of obstruction and therefore the charge as particularised was not made out. (iv) The trial judge relied on the purported evidence of Rowbottom of a conversation between the Plaintiff to police which was contrary to the evidence."

37. Counsel before me were agreed that the principles applicable to this ground are those set out in the decision of the High Court in Craig v South Australia[2]. The court draws a distinction between jurisdictional error and error in the exercise of jurisdiction. Of the latter form of error, their Honours say this:

"... the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."[3]

41. It was contended on behalf of Mr Clark, first, that his Honour's findings of fact do not constitute the actus reus of the charge of obstruction. This is, if true, not a jurisdictional error. The County Court had abundant jurisdiction to make findings of fact and to determine whether these constituted the actus reus of the charge. If there be error here, it is not a jurisdictional error.

44. Next, it was said that the particulars which his Honour found to have been established are incapable of sustaining the charge of obstruction. This, as so formulated, appears to be a suggested error of law. In the course of argument before me, it became apparent that the proposition underlying this contention - that the facts proved, which included no act of what was called "physical obstruction", were incapable of sustaining the charge - was itself not sustainable. I do not accept the argument that words alone, whatever the circumstances in which they are uttered and whatever their context and their content, can never, as a matter of law, amount to obstruction. In any event, the error contended for is one which lay within the jurisdiction of the County Court.

47. The third contention appears to be a suggested error in concluding that the proved particulars did amount to obstruction within the meaning of the section. As this developed in argument, it appeared to be a contention that, since obstruction involves a serious interference with the police officer's exercise of his duties, the particularised matters which were proved did not satisfy this requirement. Again, if error there be, it is not jurisdictional error.

50. The final contention is that his Honour made a finding contrary to the evidence. Again, this is not a jurisdictional error.

54. It was agreed that for this purpose, the record comprised:

s his Honour's reasons for judgment dated 4 December 2003

s the record of the order, in this case being a document entitled "Notice to Certain Officials of a County Court's Appeal Decision" dated 4 December 2003.

60. Counsel for Mr Clark argued, too, that the transcript of the trial or parts of it, were also incorporated by reference in this record. As will appear I reject this.

63. The particulars of relevant facts and grounds as they appear in the originating motion are as follows:

"Particulars of Relevant Facts

(a) The Plaintiff refers to and repeats the particulars (a), (b), (c) and (d) of paragraph 1 herein.

(e) Once particulars were provided objection was taken to the particulars on the grounds of duplicity.

(f) The trial judge ruled that the offence was a continuous one and declined to order the Prosecution to elect.

Particulars of Grounds

(i) The particulars are duplex;

(ii) The findings on the face of the record do not constitute the actus reas of obstruction for the purpose of Section 52 of the Summary Offences Act 1966;

(iii) Given the overall particulars of the charge, the particulars found proven by the trial judge were incapable of sustaining the charge as particularised;

(iv) The trial judge relied on the evidence of Rowbottom of conversations by the Plaintiff to police which is contrary to the evidence."

70. The first contention was that the particulars are duplex. For present purposes, I search for an error on the face of the documents comprising the record. I see nothing. If it were permissible for me to entertain an argument in support of certiorari that the error of law lies in permitting the trial to proceed on the basis of a flawed charge, I would, even so, find no error. The charge, as particularised, is one offence alleged to arise from a series of acts of Mr Clark. As the case was presented by the informant before his Honour, these acts were similar in the context of the alleged offence, they were interconnected and they were united by their common purpose and their temporal proximity[4].

73. Next, it is said that his Honour's findings as they appear on the record do not constitute the actus reus of the offence charged. I am not at all certain that this is an error of law. There is no ground that his Honour misdirected himself as to the offence. In his reasons his Honour defined the offence as follows:

"Where a person does not act which in fact prevents a police officer from carrying out his or her duty or makes it more difficult for him or her to do so, this constitutes intentional obstruction of a police officer."

77. Before me, counsel for Mr Clark submitted that there should be added to this an ingredient making it clear that the criminal sanction should apply only where the acts of the defendant make it substantially more difficult for the police officers to carry out their duty. I am not at all certain that this is correct[5]. In any event, the finding of the trial judge was that Mr Clark prevented Sergeant Nicholls from carrying out his duty. This is clearly within the definition of obstruction. Whether the facts as found warrant such conclusion is not a matter of law.

80. Next, it was put that the particularised facts as found by his Honour were not capable of amounting to obstruction. This I do not accept. They are capable of amounting to a prevention, depending upon the background and context in which the acts occurred.

83. Finally, reliance was placed upon a suggested erroneous finding of his Honour. In paragraph 4 of his reasons his Honour said of the evidence of the witness Luke William Robottom, that he "speaks of Geoff Clark saying to the police they would have a hell of a job to get Chatfield out". It was put that the witness in fact did not say that. In order to make good this contention as an error of law it would be necessary for me to have regard to the transcript of the evidence of that witness, which is not part of the record. In an attempt to include the transcript in the record, it was submitted that the mention of Robottom's evidence by his Honour in his reasons incorporated the transcript, or at least of that part of it which records the evidence. I do not accept that this is so. It is clear that a mere incidental reference in the record to a document or to its content does not incorporate the document or its content[6]. In the present case there is not even such a reference. It follows that there is no substance in this ground.

87. The particulars of this ground are set out in paragraph 3 of the originating motion.

"Particulars of Relevant Facts

The Plaintiff refers to and repeats the particulars in paragraph (a), (b), (c) and (d) of paragraph 1.

Particulars of Grounds

(i) The particulars are duplex; (ii) The Plaintiff was denied procedural fairness in that the particulars which were allowed included matters then relied upon by the learned Judge to find the offence proven which were not particulars which could constitute the offence of obstructing Police; (iii) The learned trial judge having accepted during the course of submissions by Counsel for the Plaintiff that an allegation of racism was not a proper particular of a charge of obstructing police then relied upon that evidence to find the charge proven. (iv) The learned trial judge found that the Plaintiff told Nicholls that Chatfield has not to be removed from the hotel which statement had not been particularised by the prosecution."

91. In order to assess this basis for impugning the decision of the County Court, I am permitted greater latitude in examining what actually transpired before his Honour.

94. Again, the question of the duplicity of the charge as particularised was raised. It was said that it was not clear whether the appellant was entitled to succeed only where the prosecutor failed to establish all of the particulars or only some and if so which of them. Accordingly, Mr Clark was denied procedural fairness because he did not and could not know the case he had to meet. I do not agree. It was clear from the prosecutor's opening and from his Honour's ruling of 25 November 2003 that the case against Mr Clark was that he engaged in a continuous course of conduct in which the eight particularised acts occurred and that this amounted to prevention. In the course of argument on 24 November 2003, at the close of the prosecution case, the evidence which was said to support many of these grounds was identified. There can be no doubt what case the appellant had to meet. The prosecution also alleged that these acts were accompanied by the relevant intent. It was for the prosecutor to satisfy the court that some or all of these acts occurred and, further, that those acts amounted to a prevention of the performance of the police officer's duty and that they were accompanied by the relevant intent.

97. Next, it is said that the particulars which were established were not facts which could constitute the offence of obstruction. Even if this were correct, a view which I do not accept, it would not amount to procedural unfairness.

100. The third matter arises from an exchange between counsel for Mr Clark in the course of their no-case or Prasad submission made after the close of the prosecution case. Counsel submitted to his Honour that the evidence in support of each of the particulars was so tenuous and unreliable that he ought not require the defence to go into evidence. With respect to particular (ii), that Mr Clark accused Sergeant Nicholls of racism, counsel submitted that this was not a particular of any obstruction. His Honour responded, "No, you can pass on from that" and so counsel turned to the next particular. In paragraph 9 of his reasons his Honour said this:

"I find that the appellant told Nicholls that Chatfield was not to be removed from the hotel and he accused Nicholls of being racist and discriminatory. I find that by his conduct, there is clear inference to be drawn that the appellant intended to obstruct the police, being Sergeant Nicholls, in performing his duty in removing Chatfield from the hotel as requested by the publican."

It is clear from this passage and the context in which it is found that his Honour was there concerned, not with the acts obstruction, but rather with the intent of Mr Clark. It was merely part of the background facts in which the conduct of Mr Clark was to be assessed. When his Honour indicated that particular (ii) was not properly to be seen as an act of obstruction, he was not saying that the accusation of racism was not relevant for any purpose. His Honour did not therefore deny Mr Clark procedural fairness in accepting the prosecution evidence that he made the accusation of racism any more than he would have done so by receiving evidence of the whole circumstances of the incident including the evidence of the remaining acts particularised. There is no substance in this complaint.

105. For the same reason his Honour was entitled to receive evidence of and accept that Mr Clark told Sergeant Nicholls that Mr Chatfield was not to be removed from the hotel. This, too, was part of the background against which the particularised acts were to be assessed for the purpose of making findings as to the intent of Mr Clark in performing those acts. There is no denial of procedural fairness here.

108. I conclude, therefore, that none of the grounds relied upon in support of the plaintiff's claims for judicial review have been made out. The application of the plaintiff fails.

[1] Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 175-6.

[2] [1995] HCA 58; (1995) 184 CLR 163 at 177-80.

[3] (1995) 184 CLR 136 at 179-80.

[4] See Walsh v Tattersall (1996) 188 CLR 77 at 104, per Kirby J.

[5] See Hinchcliffe v Sheldon [1955] 3 All ER 406.

[6] Kuek v Willens [2000] VSC 326 at [75] per Gillard J.