Kurt Michael Devetak v R

District Court of NSW|2018-02-06

Judgment

Kurt Devetak (the appellant) appeals against the conviction entered by her Honour Magistrate McIntyre on 14 June 2017 at the Downing Centre Local Court.
The appellant pleaded not guilty to one count of assault occasioning actual bodily harm contrary to section 59 Crimes Act 1900¸ and one count of common assault contrary to section 61 Crimes Act 1900.
On 17 June 2016 Wayne William Tompkins was in custody at Redfern Police Station. He was being kept in a holding cell situated in the charge room. At about 8.44pm he was banging on the cell door and calling out. The appellant who was a police officer went to the cell door and opened it.
There was a scuffle at the cell door. Mr Tompkins was remonstrating with the appellant and trying to leave the cell. The appellant tried to push Mr Tompkins back into the cell and close the door. Mr Tompkins advanced and took hold of the appellant's clothing or vest at around the appellant's shoulder level.
At about this time, another police officer Constable Cross saw the scuffle and moved quickly towards the cell door. By this time the appellant and Mr Tompkins had hold of each other at arm's length with each holding the other's clothing at or about shoulder height. The appellant then pushed Mr Tompkins forcefully back into the cell, and in the course of doing so fell on top of Mr Tompkins as he landed on the floor of the cell. At this time, Constable Cross had approached the 2 men from behind the appellant and pushed Mr Tompkins' legs in the same direction into the cell.
A short time after landing on top of Mr Tompkins, the appellant punched him with his right hand connecting with the left hand side of Mr Tompkins' head. At about this time Constable Cross was lying on Mr Tompkins' legs and pinning them to the ground. The appellant then got up and stood with his legs on either side of Mr Tompkins' torso. He then leant down towards Mr Tompkins before standing up a little and then punching him again with his right hand connecting with the left hand side of Mr Tompkins' head.

The relevant law

The applicable principles to be applied in determination of the appeal are as follows.
Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].
The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]..
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA.
Section 418 Crimes Act 1900 provides: (1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or (b) … (c) …. (d) …. and the conduct is a reasonable response in the circumstances as he or she perceives them.
The statutory test for self-defence was considered in R v Katarzynski [2002] NSWCCA 613. The questions to be considered by the tribunal of fact when self-defence is raised are: 1. is there a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself (or another); and 2. if there was, is there also a reasonable possibility that what the accused did it was a reasonable response to the circumstances as he or she perceived them?
The first question is to be determined from a completely subjective point of view considering all the personal characteristics of the accused at the time he or she carried out the conduct. The second question is determined by an entirely objective assessment of the proportionality of the accused's response to the situation as the accused subjectively believed he or she faced. The prosecution negatives self-defence if it proves beyond reasonable doubt that either: 1. the accused did not genuinely believe that it was necessary to act as he or she did in his or her own defence (or that of another); or 2. what the accused did was not a reasonable response to the danger, as he or she perceived it to be..
Care must be exercised in analysing cases involving self-defence to avoid the "unreality of dissecting into minute detail" events that occurred in a short period of time: R v Conlon (1993) 69 A Crim R 92 at 97. Further the self-defence need not be the sole state of mind on the part of the accused at the time he or she acted, but must be the dominant state of mind on his or her part: R v Viro (1978) 141 CLR 88 at 127.
Section 231 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) provides that a police officer may use such force as is reasonably necessary to effect an arrest or prevent a person from escaping after the arrest. In order to negative the operation of section 231 the prosecution was required to prove beyond reasonable doubt that either: 1. the appellant did not genuinely believe that it was necessary to act as he did to prevent an escape; or 2. what the appellant did was not a reasonable response to the circumstances as he perceived them to be.
In Woodley v Boyd [2001] NSWCA 35 at [37], Heydon JA (as he then was) stated: What is a reasonable depends upon two factors. He is entitled to use such degree of force as in the circumstances he reasonably believes to be necessary to affect his purpose, provided that the means adopted by him are such that a reasonable man placed as he was placed would not consider it disproportionate to the evil to be prevented… In evaluating what is reasonable, necessary or reasonably necessary the duties of police officers must be remembered. In Lindley v Rutter [1981] QB 128 at 134 Donaldson LJ said: "It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence does not commit further crimes such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case." The same duties and considerations apply were a police officer is deciding how to effect an arrest. And, in evaluating the police conduct, the matter must be judged by reference to the pressure of events the agony of the moment, not by reference to hindsight. In McIntosh v Webster (1980) 43 FLR 112 at 123, Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and their make-up minute retrospective criticisms of what an arresting constable might or might not have done all believed in the circumstances".
In State of New South Wales v Nominal Defendant [2009] NSWCA 225 at [46] Beazley JA (as she then was) stated: "[T]he surrounding circumstances have to be considered, including the nature of the possible offence involved, the need to make quick decisions as to whether to take action and if so, what action to take. Indeed, many such decisions of their nature, will be almost spontaneously reactive to the circumstances presenting themselves to the police officer. The police officer is also required, in the same short period of time, to weigh up whether, in making a decision to take action, the safety of the public outweighs the need to take action".

Analysis of the magistrate's reasons

The case below was presented by the parties on the basis of self-defence alone. In the course of the appeal I raised the issue of section 231 LEPRA as appearing to be relevant. The tests to be applied are similar.
The prosecution put its case before me that that the offence was committed by the appellant punching Mr Tompkins twice in the head. The prosecution did not contend that the appellant had acted unlawfully by forcefully pushing Mr Tomkins to the floor of the cell. The prosecution contended that the injury to the right hand side of Mr Tompkins' head was incurred when the punches of the appellant caused his head to hit the floor.
I have set out these matters because on my review of the magistrate's reasons it is possible that a slightly different case was put to her Honour.
The magistrate summarised the facts and noted that the appellant had raised self-defence. The magistrate then proceeded to set out the correct test for self-defence, citing Katarzynski.
The magistrate then turned to the injuries sustained by Mr Tompkins, stating that it was abundantly clear that Mr Tompkins was not injured before being tackled and struck to the face. The magistrate described it as being 'open' to the Court to find that the swelling to the right cheek of Mr Tomkins was sustained when his face hit the floor as a result of the appellant's punches. She then described being of the 'firm view' that the injuries were inflicted by the strikes, but does not state the reason for those firm views. The magistrate did not consider that the injuries may have been sustained in the tackle and that is perhaps because she understood that the prosecution's allegations included that aspect.
The magistrate then turned to the issue of self-defence. The magistrate found that the appellant had no responsibilities involving Mr Tompkins in the holding cell and that he had taken it upon himself to get involved. The magistrate was critical of the appellant getting involved and did not believe his evidence about why he did so. In my view, the prosecution did not establish that the appellant should not have involved himself. The evidence could not establish that he went to the cell door with an improper motive. For my part, I would not come to the same conclusions on this point. There is nothing to suggest in the evidence that the appellant was doing anything other than his sworn duty.
I agree with the magistrate that there were aspects of the appellant's evidence that were unsatisfactory. By and large his description of the event cannot be reconciled with the video footage. To some extent that is as a result of the fallibility of the human memory. The magistrate did not believe the appellant's evidence that he believed or observed Mr Tompkins about to spit blood at him and I agree with that finding. I note that the magistrate described the appellant's evidence as 'self-serving': that is to some extent unavoidable in a self-defence case.
The magistrate found that there was no 'hint of a fight back' by Mr Toimpkins. I would with respect take a different view of the CCTV footage. When the cell door is opened Mr Tompkins steps towards it in a clear attempt to leave the cell. There was pushing and shoving between the appellant and Mr Tompkins at that point. Mr Tompkins' advances were preventing the cell door from being closed. The appellant was entitled to use reasonable force to return Mr Tompkins to the cell. Initially the appellant used less force, before using all of his body weight to force Mr Tompkins back into the cell. During that manoeuvre they fell onto the floor. I am satisfied that this amounts to factual error.
The magistrate then dealt with the offence as being defined by the tackle and the punches, which for the reasons I have set out is not the way I was asked to look at it. In my view, the prosecution's concession on the appeal was properly made. The magistrate found it 'impossible to accept that [the appellant] believed it was reasonably necessary to tackle [Mr Tompkins] to the floor and then to strike him in the face'. That ultimate finding misstates the test to be applied and I am satisfied that it amounts to a legal error.

The actual bodily harm issue

The effect of the appellant pushing Mr Tompkins back into the cell caused them both to fall quite hard to the floor of the cell. The appellant landed on top of Mr Tompkins, with Mr Tompkins landing heavily on his right side.
The injury to Mr Tomkins was described by the paramedic and the treating doctor at the hospital as swelling to the right cheek. Whilst it is apparent from the video footage that there was some blood on the floor immediately after the incident, there was no medical evidence supporting an injury inside his mouth, where on the evidence the blood apparently came from.
I agree with the magistrate that there was no evidence of a pre-existing facial injury to Mr Tompkins.
I have a reasonable doubt about whether the injury to Mr Tompkins' right cheek was sustained in the way that the prosecution contends. It is reasonably possible on my viewing of the video footage that when Mr Tompkins was forced to the ground that the right hand side of his face came into contact with the cell floor. If there was a contribution from either punch, it is much more likely that it was the first punch rather than the second and that is significant for the reasons given under the following heading.
It is also reasonably possible that the injury to the inside of Mr Tompkins' mouth was sustained in the fall to the floor.
I am not satisfied beyond reasonable doubt that Mr Tompkins sustained the injury to his right cheek or the inside of his mouth as a result of the appellant's punches to the left hand side of his head, because it is reasonably possible that they were sustained in the fall.
The appeal against conviction on that count should be allowed.

Was the appellant guilty of common assault?

The offence of common assault was laid as a back-up charge.
In my view the appellant's first punch occurred in the course of subduing Mr Tompkins. It occurred so close in time to the pushing that it can be regarded as part of the same action of the appellant. I am not satisfied beyond reasonable doubt that the prosecution have negatived self-defence relating to the first punch. The first punch was thrown in the heat of the moment and I am satisfied that the appellant thought it was necessary to do what he did by throwing the first punch and that it was a reasonably proportionate response in the circumstances as the appellant perceived them. It is reasonably possible that the appellant did not know that Constable Cross had come to his aid at that time and that he perceived that Mr Tompkins would continue the struggle on the ground or that he was in fact continuing the struggle. I am satisfied that the appellant was acting with the dominant purpose of defending himself or subduing Mr Tompkins to return him to the cell.
It is possible that the injury to Mr Tomkins right cheek and or to the inside of his mouth was sustained as a result of the first punch. For the reasons I have given the appellant was acting lawfully at the time of throwing the first punch and for these additional reasons, the conviction for the assault occasioning actual bodily harm offence should be allowed.
The second punch was thrown when Mr Tompkins had been subdued. I am satisfied that the appellant knew that Constable Cross was assisting him at that point and that Mr Tompkins was no longer a threat. Prior to throwing the second punch the appellant got to his feet and stood with his feet either side of Mr Tompkins' torso. Mr Tompkins did not appear to move at all or aggressively at this point in time. The appellant then leant down and appeared to say something to Mr Tompkins before delivering the second punch. I am satisfied beyond reasonable doubt that the prosecution has disproved self-defence and or the lawful excuse provided by section 231 LEPRA in relation to the second punch. The second punch was of much less force than the first punch and appeared to be thrown in retribution. This conclusion is supported by the smiling demeanour of the appellant after leaving the cell that was depicted on the video footage.
For these reasons, the appellant should be found guilty of the common assault offence.

Conclusion

The orders I make are as follows: 1. Appeal against conviction is allowed in part. 2. I set aside the conviction for the offence of assault occasioning actual bodily harm and the penalty imposed by the magistrate for that offence. 3. I find the offence of common assault proven. 4. I will hear the parties on sentence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2018

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Judgment (7 paragraphs)

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Cases Cited (12)