R v Clearihan [2002] ACTSC 60

4. This being a trial on indictment before a judge alone, I am obliged to proceed in accordance with s 68C of the Supreme Court Act 1933, that is:

"(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict."

5. It follows from s 68C that I must not only direct myself and express the principles of law applicable to the matter, I must also make any finding of fact which I consider to be appropriate on the evidence given before me, including any inferences I draw from those facts.

6. This is a criminal charge. It follows that the burden of establishing the guilt of the accused lies on the prosecution. The accused bears no onus of proof nor is he obliged to offer any rebuttal of the prosecution case. If, after all the available evidence is given and considered, there remains an hypothesis reasonably open consistent with innocence then it is not for the accused to establish it but for the prosecution to rebut it.

7. The elements of the offence must be proved by the prosecution beyond reasonable doubt. To find any fact or to draw any adverse inference necessary to establish any such element, I must be satisfied that that fact is proved beyond reasonable doubt and that the inference in question is the only inference reasonably open.

8. The accused is presumed to be innocent until and unless the contrary has been established beyond reasonable doubt.

9. That also means that in considering each part of the evidence if more than one inference is open then that inference most consistent with innocence must be drawn unless other evidence excludes it.

10. Thus I cannot find the accused guilty unless, having considered all the evidence, I am of the view that no other conclusion is reasonably open.

11. The charge is common assault. "Common" simply means that no particular circumstance of aggravation, for example, "actual body harm", needs to be proved.

12. The event giving rise to the charge, it is not disputed, occurred on 21 November 2000, at about 10.15am in Mort Street Canberra City in the vicinity of the Australian Federal Police Headquarters. Further, it is not disputed that there was a confrontation between the accused and Constable Thomas at that location at that time.

13. Insofar as those matters need to be proved, I accept them as proved. Of course, where I refer, in these reasons, to a matter as proved, it will have been proved to my satisfaction beyond reasonable doubt.

14. The essence of an assault is the intentional application of force (or the apprehension of immediate and unlawful violence) to the person of another without the consent of that other person and without any lawful excuse or justification.

15. In the present case the prosecution alleges an actual application of force to the person. No threat, express or implied, to apply such unlawful force is relied upon.

16. Thus I have to be satisfied, in order to convict the accused:

1. That, by an act or series of acts, he applied force to the person of Constable Thomas;

2. That such acts or series of acts was or were intentional and voluntary, that is, the accused performed those acts according to his will AND foresaw that his act or acts would have the result of applying force to the person of Constable Thomas;

3. That there was no consent to or lawful excuse or justification for that application of force.

Principles to be applied in the assessment of evidence

17. In this case, the prosecution proceeded, with the consent of the accused, by way of tender of the statements of five witnesses. All except Dr Klaus Czoban gave further oral evidence at least in cross-examination.

18. Dr Czoban provided a medical report the contents of which were not disputed. I am thus satisfied as to the truth of the observations made and the conclusions expressed in that report though I did not see or hear him give evidence.

19. As to the other witnesses, including the accused and the one other witness he called, I bear in mind that the recollection of witnesses, though honestly given, may nevertheless differ. The same event may be seen differently. Some witnesses will be less accurate in their recall than others. Some witnesses will assume a fact though they have seen only a part of events leading to it and because of bias, pre-disposition or otherwise, assume that the fact occurred and that they have observed it. Yet other witnesses may have some particular interest to be served or some particular purpose to be achieved in giving the evidence they do. They may embellish their true observations or even give a deliberately false account in whole or part.

20. I also bear in mind that, even if I am satisfied that the accused has given false evidence in some respect or other, I cannot draw any inference from the falsity of the evidence that he is, or is more likely to be, guilty of the offence charged unless I am also satisfied that the inaccuracy was deliberate and betrays a consciousness of guilt.

21. Further, I have to bear in mind that, though after the event in question the accused spoke to police answering some questions put to him concerning the event, he was not obliged to do so. Nor can I draw any adverse inference from any failure on the part of the accused to then advance some positive matter of refutation, though, of course, the fact that a positive matter of refutation is but latterly advanced may support a conclusion of recent invention. Also, a failure to refute or deny positive evidence of guilt, where it would be reasonable to expect that an accused could do so, may support the acceptance of that evidence. It does not require its acceptance nor does it lessen the onus of proof on the prosecution or enable it to be concluded that, because adverse evidence is not denied, it is, for that reason only, more likely to be true. In this case, the accused, when questioned, did offer a refutation of the charge levelled against him.

22. I further bear in mind that, where an accused has given and adduced evidence in contradiction of prosecution evidence, he does not assume any onus of persuasion let alone of proof. Indeed, to convict the accused not only must I accept positively the prosecution evidence as truthful and accurate, but assuming that, if so accepted, the charge would be made out, I must also be satisfied that the contrary evidence is to be rejected.

23. His evidence was that, on Tuesday 21 November 2000, he was performing plainclothes duties in the Canberra City area. As appeared from cross-examination, those duties involved covert surveillance of some person or persons in the Mort Street area. Insofar as may be relevant, none of those persons was the accused.

24. Constable Thomas parked his vehicle in a parking bay outside the Australian Federal Police Headquarters. He next became aware of a maroon Mercedes sedan stopping adjacent to and slightly in front of his vehicle. The Mercedes reversed rapidly and stopped adjacent to the police vehicle.

25. The accused exited the driver's side of the Mercedes. He ran around to the driver's side of Constable Thomas' Magna. He was agitated. Constable Thomas concluded that he was "enraged".

26. Stopping at the open window, the accused yelled (on Constable Thomas' account):

"What are you fucking doing? Stop dogging me."

Constable Thomas_: "I am not following you, you are paranoid mate."_

"As he was yelling at me Clearihan reached in through the open window of the police vehicle and with his right hand gripped the collar of my shirt and pulled it tightly on my neck. At the same time Clearihan struck me on the corner of my right eye with the heel of his left palm causing my sunglasses to be dislodged and resulting in a centimetre long graze on the corner of my right eye. I then grabbed both of Clearihan's arms around the forearm areas to prevent him from assaulting me further."

28. I take the latter comment as evidence of Constable Thomas' state of mind rather than as supporting a conclusion that the accused was in fact intending to use further force on Constable Thomas.

29. The accused whilst so acting was saying, Constable Thomas deposed:

"I know you are fucking police why are you dogging me?"

Constable Thomas: "I am not following you, let me get out of the car to talk to you."

30. The accused continued his grip of Constable Thomas' shirt "causing a two-centimetre tear on the collar area of the shirt."

31. The shirt was not tendered in evidence, though, of course, the existence of such a tear would not be conclusive proof that the event had occurred as Constable Thomas alleged. It would, however, have been consistent with that assertion.

32. According to Constable Thomas he then observed Federal Agent Keith Staniforth and Sergeant Bill Rawlinson approach the accused. Agent Staniforth said, "Let him go Chris, let him go". The accused did so and stepped away from the police vehicle. Agent Staniforth said "What is going on?" The accused replied, "I know this bloke is an undercover cop and he has been dogging me for the last couple of days. I just want him to get off my tail and leave me alone."

33. Agent Staniforth then stepped between the accused and the police vehicle so as to forestall an apparent move back towards the driver's door by the accused.

34. Sergeant Rawlinson and the accused had two conversations, one before and one after the accused moved his Mercedes. Constable Thomas did not hear what was said.

35. In cross-examination Constable Thomas did not deny the possibility that the Mercedes had arrived in the area before his vehicle arrived. Nor did he dispute a version of the conversation put to him in terms a little different from that reported by him but to similar effect.

36. Of more significance was his reaction to the following question:

"And I suggest to you that he put his left hand down towards where the ignition keys were?"

"...No, that's incorrect, the first - his first movement was his left hand towards my facial area."

37. Despite that variance Constable Thomas asserted that he was not resiling from the description of the incident given in his statement.

38. There was nothing in Constable Thomas' demeanour or manner of response which suggested he was dissembling. The contradiction between his statement and the answer given above was not explained.

39. Given, however, that his statement was not compiled until the day after the incident, the possibility of error as to some details must be considered. So also, the contradictory statement made in cross-examination, could be an error.

40. There was some medical evidence supporting Constable Thomas' version of the incident.

41. At about 3.00pm on 22 November 2000, Dr Klaus Czoban examined Constable Thomas and reported as follows:

"A brief history was given; Glenn Thomas was in a motor vehicle, undertaking surveillance duties, when he was approached by a male person, who pushed him, with his hand against the face. Glenn who was still seated in his vehicle, was wearing glasses, and the frame was pushed against the face, just distal to the lateral aspect of the right eye, causing a small abrasion and some red bruising."

42. Pain in the left shoulder was reported but there were no objective signs of any injury thereto.

43. It is curious that Dr Czoban did not expressly state that he observed the abrasion in question. Nor does he mention any complaint of the shirt being tightly gripped about the neck area, let alone being torn. However, I accept that Dr Czoban's report should be interpreted as supporting the existence of the "small abrasion and some red bruising" to which it refers.

44. Agent Staniforth had been standing on the footpath outside AFP Headquarters with Sergeant Bill Rawlinson when his attention was attracted to the Mercedes.

45. He observed the Mercedes reverse "in an aggressive manner", stopping adjacent to the Magna. He saw the accused standing at the driver's side of the Magna engaged in a "heated discussion" with the driver. He and Sergeant Rawlinson approached.

"What are you doing mate, get off my tail, stop dogging me, I'm sick of you cunts dogging me."

"I also observed that Clearihan had reached into the vehicle and appeared to have hold of the driver around the neck area of his clothing. I further saw Chris Clearihan shake the upper body of the driver of the white sedan. I saw Chris Clearihan strike the driver of the Magna sedan in the facial area with what appeared to be an open hand."

48. His statement then repeats the conversation attributed to him by Constable Thomas. He also stated that he stepped between the accused and the vehicle as the accused seemed to be moving towards it again. He says that he said to the accused (though Constable Thomas gave no evidence of it):

"Settle down or you will end up in the watch house."

49. He noticed the accused and Sergeant Rawlinson conversing. He heard:

Rawlinson: "Chris come over here with me and let's talk about what is going on."

Accused: "Okay. I will talk to you."

Rawlinson: "Move over here, let's go away from here."

50. In cross-examination, Agent Staniforth conceded that, in fact, he had compiled his statement by adopting parts of Sergeant Rawlinson's statement which had by then been compiled in electronic form.

51. He also agreed that his description of the apparent contact between the accused and Constable Thomas was adopted from Sergeant Rawlinson's statement. He insisted that he saw that the accused was:

"... sort of leaning to the window, with his hands inside the vehicle."

52. Sergeant Rawlinson described the contact between Constable Thomas and the accused in the following terms (following the statement about "dogging me" which Agent Staniforth had adopted from his statement):

"I also observed that Clearihan had reached into the vehicle and appeared to have hold of the driver around the neck area of his clothing."

53. Significantly, Sergeant Rawlinson made no mention of any "shaking" or of any striking of the driver. It is highly unlikely that if Sergeant Rawlinson had noticed either of those actions he would have failed to mention it. His was the first witness statement made following the event complained of.

54. In cross-examination, Sergeant Rawlinson resiled further from the allegation that the accused had taken hold of Constable Thomas. He conceded that whilst he had seen the accused reach into the police vehicle:

"It's an assumption he [the accused] - that he had hold of him [Constable Thomas] around the neck ... I didn't see any contact."

55. Sergeant Rawlinson also knew Mr Clearihan previously.

56. Detective Sergeant McCann was the leader of the team to which Constable Thomas had been assigned. He gave evidence that Constable Thomas had been on covert surveillance duties on 21 November 2000. However, the target of that surveillance was not the accused. He was given a report of the encounter with the accused by Sergeant Rawlinson. He directed each of the three previous witnesses to prepare statements.

57. He then, on 22 November 2000, attended the accused's business premises at 36 Mort Street Braddon (Braddon Auto Mart). Despite the accused's objection to him doing so, he recorded the conversation he had with the accused. Nevertheless, the tape and transcript were tendered without objection.

58. On tape, the accused complained of police harassment. Detective Sergeant McCann attempted to reassure the accused that police had no interest in him. He referred to the assault allegation in the following conversation:

McCann: "And the young bloke that you grabbed hold of yesterday."

Clearihan: "I didn't grab hold of him, all right. I didn't grab hold of him."

McCann: "Whatever, okay."

Clearihan: "Mate, if I grab hold of him ... Let me just say this, that if I grab hold of him, he wouldn't be sitting there talking to us."

59. The accused then proceeded to complain of harassment and of being followed by unregistered motor vehicles. He went on:

"Mate, do your best and I'll tell you now, before you embarrass yourself I have got witnesses that I never - right and I'll just write this down on record. Ah, the person that was standing there that watched the whole scene, who I went and saw after the incident is a guy by the name of Chuck Wayne."

McCann: "M'mm."

Clearihan: "Right. A painter in that building observed everything. So, don't embarrass yourself about taking me to court because I never put a hand. I put my hand - on record - I put my hand through the window to take the keys out of the car because the car's unregistered, right. That car was unregistered and I was being followed. So, please do not embarrass yourself."

60. That assertion was repeated as was the accused's complaint of harassment and Detective Sergeant McCann's denial of any police interest in the accused.

61. In re-examination Detective Sergeant McCann said that he had interviewed Mr Wayne, the painter referred to by the accused. He said:

"I spoke to him [Mr Wayne] last Thursday and he indicated that he'd been working in the area of Mort Street doing a painting job and that he was going to get coffee at a nearby coffee shop, he heard a - an amount of swearing coming from a particular area and he turned around and saw a person he knows as Chris putting his hand in through the window of a car ..."

62. The accused, though he was not obliged to do so, gave evidence.

63. He claimed to have been followed by the Magna. He resolved to hedge it in and confront the driver. He agreed he backed his vehicle rapidly to a position alongside the Magna. He got out and approached the driver's side.

64. His account of the subsequent contact was as follows:

"What did you do?" --- "I put my hand down the side of the door and tried to pull the keys out."

"Which hand did you put into the car?" --- "The left-hand hand."

"Why did you do that?" --- "Because that's the only way I could put my hand in to grab the keys ...."

"Why did you put your hand into the car to grab the keys?" --- "The reason I did that is because the - the car - that particular car had followed me for 2 weeks harassing me ... that was the reason for my decision to put my hand down and pull the keys out so that the car would become immobilised."

65. He agreed that he had accused Constable Thomas of being a "fucking undercover policeman" and of "dogging me".

66. It was, he said "all done very, very quickly".

"Were you able to take the keys?" --- "I wasn't. He grabbed my hand ..."

67. He indicated just above the left wrist. He then pulled his hand away. He had noticed Sergeant Rawlinson, whom he knew, when he looked left after backing up to block the Magna. He denied grabbing hold of the driver's clothing. He said.

"...At no stage did I ever - at no stage did I ever - ever put a hand on him and simply because there was police witnesses there who I identified and it would just be plain stupidity to grab someone, you know."

68. He denied that Agent Staniforth had intervened, as the latter had claimed. He asserted that he met Sergeant Rawlinson about half way with a view to seeking his assistance to stop the harassment.

69. At no stage, he said, did any of the three police officers allege that he had taken hold of or struck Constable Thomas.

70. That latter assertion is, in fact, in accordance with the prosecution evidence. He agreed that Sergeant Rawlinson had told him to calm down and that, as he was speaking to the latter, Agent Staniforth approached the driver of the Magna and spoke with him.

71. The accused was then approached by a man in "painting gear".

72. In cross-examination, the accused denied being "very annoyed" by the Magna driver. He preferred the expression "frustrated". He had, he said, noted before speaking to the driver, that there was no registration label on the vehicle.

73. That fact was not disputed by the prosecution.

74. The accused further denied that he was angry though he did realise that there could be "retaliation" from the driver if he took the keys. He believed he could get the key out of the ignition lock before the driver could retaliate.

75. Mr Wayne was one of a team of painters working on the building next to the AFP Headquarters. He had taken a coffee break and had obtained a cup of coffee from a nearby coffee shop. He was close by when, as he stated:

"... I saw two cars coming in, '95 Marina (sic - he meant "Magna"), white, and a maroon Mercedes sedan ... I stood there when I saw the cars come in, one hit the brake very fast, which is the maroon Mercedes, he reversed back - and the wheels were squealing - he was alongside the white sedan ...

"Did you hear anything?" --- "Yes, I saw a gentleman get out of the maroon Mercedes, walk towards the white car, to either (sic - "the driver's") side door, and there was a lot of yelling going on - usually at each other, swearing, a lot of carrying on ..."

"... did you see the driver of the Mercedes do anything else?" --- "Yes, I saw him reach his left hand into the car window, he put it down very fast, and there was a bit of swearing and carrying on together." - --

Then the Mercedes driver withdrew his hand. After that:

"He walked back towards where I was on the pole - he kept coming away from the car, walking back this way, which it wouldn't have been any more than a little bit closer than what you [that is, counsel for accused] are now [about 5 metres]. And he stood there with the anger and still carrying on with "What are you doing here?", you know."

76. Mr Wayne noticed Sergeant Rawlinson's intervention. The latter came forward and said "Hey, come on, Chris stop it, just stop it." Sergeant Rawlinson managed to calm the accused down. He did not see Agent Staniforth intervene. Nor did he see Constable Thomas get out of his vehicle as the accused had suggested that he had.

77. Thus Mr Wayne's evidence was at variance from that of the accused in relation to the latter's emotional state and his assertion that Constable Thomas got out of the vehicle.

78. However, it was also at variance with that of Constable Thomas and Agent Staniforth on the very significant issue as to whether the accused reached into the Magna with only his left hand and lunged in a downwards direction as the latter had claimed.

79. With the concession made by Sergeant Rawlinson as to what he saw, compared with what he assumed, his evidence on that critical question was not inconsistent with that of Mr Wayne.

80. Mr Sahu Khan, for the Crown, submitted that each of the Crown witnesses had given evidence in a straightforward and apparently honest manner. There was little difference in the opening events leading up to the accused putting an arm or arms into the police Magna.

81. He questioned whether the accused had falsely been endeavouring to give the impression in his evidence, despite his opening statement to Constable Thomas, that he did not know the driver was a police officer. He agreed that it was not inherently implausible that the accused had made an attempt to immobilise the Magna, if that was his objective, by taking the keys. He suggested, however, that the evidence of the accused should be rejected because to take the keys of a police vehicle outside police headquarters under the gaze of at least one other police officer would be foolhardy. To say that he expected no retaliation from such an action was, he submitted, not credible.

82. Further, he submitted, I should also reject Mr Wayne's evidence because it agreed with that of the accused, though he placed reliance on the variances between them as supporting the rejection of the accused's evidence.

83. He also criticised Mr Wayne for not volunteering his name and address to police at the scene but only to the accused.

84. Mr Sabharwal, for the accused, relied on the fact that Mr Wayne, an apparently independent witness, had given virtually unchallenged evidence consistent with the accused's evidence but not reconcilable with that of Constable Thomas or, indeed, of Agent Staniforth.

85. So far as the medical evidence was concerned, Mr Sabharwal noted that it was not until 30 hours later that any witness, apart, perhaps, from Constable Thomas himself, noticed the abrasion in the region of his right eye. It could, he suggested, have happened later or perhaps, in the scuffle the accused admitted occurred when his attempt to grab the keys was resisted by Constable Thomas.

86. I have already observed that the police officers who gave evidence did not appear to me to be dissembling. Nor was their evidence necessarily inconsistent as between them.

87. Constable Thomas' version is consistent with an angry man, believing he was being "tailed", demanding an explanation. Indeed, had a citizen been followed as he believed he had without lawful justification, an apprehended violence order might have been available to prevent it. Had the evidence of Constable Thomas stood alone, I could have unhesitatingly accepted it.

88. Further, Agent Staniforth supported the assertion that a blow was struck by the accused as well as the "shirt-fronting".

89. However, the evidence of Sergeant Rawlinson sows a seed of doubt. He saw no blow. He saw no contact. He saw only that the accused reached into the car. Yet he was in no worse a position than Agent Staniforth to have observed the same things.

90. The accused gave evidence and I make the observation that he was a less impressive witness than those who preceded him.

91. In particular, his assertion that he was not angry at the time of the incident I found entirely unpersuasive.

92. However, I did accept his assertion that he believed he was the target of police covert surveillance. Given his occupation, I can understand he would pay close attention to motor vehicles and I have no doubt that he saw vehicles which, from his trade knowledge, he could ascertain were not conventionally registered. He did, I am sure, reasonably conclude that there were unmarked police vehicles following him. However, there would be nothing surprising in that if, as Sergeant McCann said, the true target was also in the Braddon area.

93. Nevertheless, it is not a lawful excuse, even if a person believes another is "stalking" them, to take the law into their own hands and do violence to that person. The accused was not, nor did he think he was, under such imminent threat as would justify that. In any event, he could, as he conceded he knew, complain to senior police. If that failed, he could have taken other lawful measures.

94. However, that is not the central issue here. The accused claims that he did not "shirt-front" or strike Constable Thomas. He says he reached into the vehicle for the keys. He says that, quick though he was, he was foiled by Constable Thomas grabbing his wrist. He pulled free.

95. Now that version is consistent with Mr Wayne's account of what he saw. I could find no reason, particularly as his version was virtually unchallenged, to reject it. Indeed, Sergeant Rawlinson's account is consistent with it, though it is also consistent with the other two officers' evidence. That does that not mean that I reject the evidence of any of the police witnesses. It simply means that I cannot reject the version relied on by the accused with sufficient certainty to say that I have no reasonable doubt as to which version is the truth.

96. What then of the abrasion to Constable Thomas' eye? I accept that it happened but I cannot exclude the hypothesis that, in the struggle over the keys (albeit that Constable Thomas was unaware of the accused's intentions), the accused, who was not looking into the car at the time, bumped Constable Thomas' glasses with the heel of his left hand. The struggle may have strained Constable Thomas' shoulder. It may have caused a small tear in his shirt. However, though I am satisfied he genuinely believed the accused was attacking him, I cannot exclude the hypothesis that the event occurred much as the accused described it.

97. In reaching for the keys, the accused, albeit he had no criminal intent, was nevertheless committing a trespass. Constable Thomas was entitled to resist that act (as he did). Had the accused intentionally applied force to Constable Thomas' person, to resist the latter's attempts to prevent him from taking possession of the car keys, that would have been an assault on Constable Thomas by the accused.

98. Had Constable Thomas suffered an injury compensable under the tort of negligence, the accused could not have resisted a claim for damages for personal injury inflicted in the course of a trespass, even if it was unintentionally inflicted. Indeed, if the degree of negligence amounted to recklessness, a case could be made out that an assault had occurred (see Vallance v R [1961] HCA 42; (1961) 108 CLR 56).

99. However, in this case, the prosecution squarely based its case upon an allegation that the accused had reached into the vehicle intending to forcefully lay hands on Constable Thomas and proceeded to do so. It was not part of the prosecution case that there was an accidental application of force in the course of a trespass to goods.

100. Accordingly, though I am not positively persuaded that the accused did not intentionally use force upon Constable Thomas, I cannot be satisfied beyond reasonable doubt that he did.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Verdict herein of his Honour Justice Higgins.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the Accused: Baxter & O'Keefe Lawyers