[2017] NSWDC 231
Monis v RDroudis v R (2013) 249 CLR 92
Judgment (8 paragraphs)
[1]
Judgment
Stephen James Rowlands was convicted in the Local Court on two offences: offensive language in a public place and resisting an officer in the execution of his duty. The incident giving rise to the charges occurred in a shopping centre. The offensive language offence involved Mr Rowlands allegedly swearing at two police officers; the resisting was confined by the prosecutor to Mr Rowlands resisting his arrest on the offensive language charge.
Mr Rowlands appeals against the convictions.
[2]
Rehearing
A conviction appeal involves a rehearing on the basis of the evidence before the Magistrate, including by use of the transcript of evidence. Whilst the Court forms its own judgment in relation to the evidence, it recognises the advantage enjoyed by the Magistrate in seeing and hearing the witnesses. Here the Magistrate held that Mr Rowlands genuinely believed that what he has told the Court was true [1] so the advantage of the Magistrate may be of less significance since all the witnesses were found to be honest.
The Court is entitled to correct any legal, factual or discretionary errors. [2]
[3]
Background
On 28 November 2019 Mr Rowlands was purchasing some goods at the Coles supermarket in the Eastgate shopping centre at Bondi Junction. He overheard police conversing with another person, one Daniel Carlsson, in terms Mr Rowlands regarded as "rude and condescending". [3] As the police officers, Officer Starr and Officer Culligan, waited outside Coles for Mr Carlsson to complete his shopping, Mr Rowlands, carrying his shopping bag, approached Officer Starr who was standing by a pillar. They had a conversation. The nature of that approach and the terms of that conversation are in dispute. It was common ground that Mr Rowlands and Mr Carlsson were unrelated and had never previously met.
After a short period, Officer Culligan, who had been standing some metres away near the escalator across the walkway from the pillar and engaging in a telephone conversation, approached Officer Starr and Mr Rowlands. Thereafter, Officer Starr put down the lunch bag he was carrying, and Officer Culligan aggressively pushed Mr Rowlands backwards towards the escalator. As Officer Culligan again motioned to push Mr Rowlands backwards towards the escalator, Mr Rowlands, moving backwards, struck or pushed Officer Culligan's hand away as both officers moved Mr Rowlands towards the escalator. Officer Starr then threw Mr Rowlands on his back onto the floor where Mr Rowlands ended up in a facedown position with his shopping bag and purchases scattered on the floor. He was subsequently handcuffed, directed to move next to the escalator, searched and thereafter stood and had his handcuffs removed.
During this period, the other person, Mr Carlsson, who apparently recorded some of the exchange involving the officers and Mr Rowlands, was also arrested. Any such recording was not in evidence.
The evidence comprised two items of CCTV footage from the shopping centre, two items of body worn camera footage from officers who arrived subsequent to the incident the subject of the charges, and the testimony of Officer Starr, Officer Culligan and Mr Rowlands. The background events that I have just described are those which are apparent from the CCTV footage.
[4]
Credit
In general terms, there were two officers who gave evidence, both of the language of Mr Rowlands and also of him striking the arm of Officer Culligan, the latter being said to constitute the action of resisting arrest. Mr Rowlands strongly denied using the terms alleged against him, such as "fuck off", "get fucked", "fuck yeah I've had a shit tonne" and other like terms. The prosecutor did not rely on the last phrase as constituting offensive language and principally relied on Mr Rowlands' use of the term "get fucked" towards the police officers as constituting conduct that amounted to the offence of offensive language in a public place. Whilst in one sense the evidence may be viewed as two witnesses, namely the two police officers, against one, namely Mr Rowlands, there are other matters for consideration.
It was not disputed that Mr Rowlands was entitled to the benefit of being a person of good character: he had no offences in his 48 years of life, nor had he had any relevant involvement with the law. Mr Rowlands' good character entitles him to two presumptions.
First, Mr Rowlands' evidence has more credit and is more likely to be honest because of his good character. As indicated, the Magistrate appeared to accept the honesty of Mr Rowlands.
Secondly, Mr Rowlands' good character makes it less likely that he committed the alleged offences.
Assessing the evidence of the witnesses against the CCTV footage does not involve the mere question of which version is the more likely true account. The burden of proof to the criminal standard of beyond reasonable doubt remains on the prosecutor throughout. If Mr Rowlands' account is believed, or even if his account is regarded as reasonably possibly correct, he is entitled to an acquittal. Even if Mr Rowlands' account is rejected, the Court still must ask itself whether the other evidence persuades the Court beyond reasonable doubt of the offences.
Her Honour appears to have rejected Mr Rowlands' evidence, at least in part, because she could not find a reason for why the police officers would have lied. Asking the question as she does, "Why would the police lie?" repeatedly, is unhelpful and inappropriate. It effectively reverses the onus of proof, suggesting it is for Mr Rowlands to explain why the officers would make a false or mistaken allegation. [4] The Magistrate's reasons indicate that the convictions may have been reached in part because there was no obvious plausible reason for why the police would have lied or been mistaken, in the mind of the Magistrate, and that therefore the police must be telling the truth.
There are other reasons why the police evidence must be examined carefully. It is not at all apparent why the incorrect testimony of the police must have been as a result of a lie. Recollections of conversations, especially of conversations that are not recent, are notoriously inaccurate so far as the detail of a conversation is concerned.
Secondly, it seems to be common ground that the other person, Mr Carlsson, whose actions the police officers were initially concerned with at the time that Mr Rowlands approached them and who ultimately was arrested along with Mr Rowlands, did swear in the presence of the police. This raises the possibility that the police, when recollecting these events sometime later, might not have accurately distinguished between the swearing and even potential intoxication of the other person, Mr Carlsson, and the words and conduct of Mr Rowlands.
Thirdly, there is nothing in the CCTV footage or the body worn recordings, as the prosecutor readily conceded, that established either that Mr Rowlands was intoxicated or that he swore. The reactions of the nearby persons shown on the CCTV footage do not support the assertion of noticeably loud or offensive language in the vicinity. Those persons seem to pay no regard to what is going on between Mr Rowlands and Officer Starr, and subsequently the two police officers, until such time as the physical engagement between the officers and Mr Rowlands occurs.
There are other matters impacting on the reliability of the police account to which I will return.
[5]
Offensive language
Officer Starr gave evidence that he felt two heavy slaps or taps on his left shoulder, and that Mr Rowlands then begun to address him. [5] He said Mr Rowlands "started asking me what's going on or words to that effect. Can't remember exactly what he was asking, but he was questioning me in regards to why we were waiting where we were for Mr Carlsson". Officer Starr said he told Mr Rowlands, "[T]hat is a police matter, it's not his concern and to keeping walking along". [6] He said Mr Rowlands then said, "Fucking leave him alone, stuff like that" in a high tone and high volume, whereupon Officer Starr repeated telling him it is police business. The conversation continued, [7] although Officer Starr did not give any further detail of what then was said.
Officer Starr gave evidence that he "noticed a strong smell of alcohol from [Mr Rowlands'] breath and his demeanour".
How Mr Rowlands' demeanour manifested a strong smell of alcohol was not explained and the prosecutor, as I indicated, conceded that the footage did not evidence that Mr Rowlands was affected by alcohol.
Officer Starr also said that Mr Rowlands' eyes were "watering", and his speech was "not coherent". When he noticed this, he asked Mr Rowlands if he was drinking to which Mr Rowlands said, to Officer Starr's memory, "Fuck you I've had a shit tonne". Officer Starr gave no further details of the conversation other than they "continued to quarrel for a little bit" about "why I need to tell him why we were there as regards to Mr Carlsson".
Officer Culligan then, according to Officer Starr, came across to join in the conversation. Officer Starr said Officer Culligan issued Mr Rowlands a move on direction and Mr Rowlands said, "Get fucked," extremely loudly. Officer Starr "heard Constable Culligan place him under arrest" saying, "You're under arrest for offensive language".
Officer Culligan's account is that he noticed Mr Rowlands talking to Officer Starr. He could not hear what they were talking about. [8] He watched them for less than a minute. Officer Culligan moved over because "it looked to me things were going to get out of hand". He observed nothing of Mr Rowlands' demeanour, although he saw "hand gestures".
Nothing in the CCTV footage indicates a particular concern of Officer Culligan to the interaction between Mr Rowlands and Officer Starr until Officer Culligan moved to join the conversation.
Officer Culligan said that he told Mr Rowlands, when he arrived next to him, "This doesn't concern you, you should move on, you should go". Officer Culligan did not explain how he determined that Mr Rowlands' conversation was related to the third party, Mr Carlsson, and was not about something of immediate and direct concern to Mr Rowlands.
Officer Culligan said that Mr Rowlands tapped Officer Starr a couple of times on the arm at that stage. That action is not visible on the footage.
Officer Culligan said that after telling Mr Rowlands to go, "He used some coarse language and said 'get fucked', words to that effect". He said that Mr Rowlands said the words, "get fucked", after he was placed under arrest, after Officer Culligan told him to stop swearing. He could not recall anything else being said.
Officer Culligan said Mr Rowlands was right in Officer Starr's "space" and said that "I went to move him back" and then Mr Rowlands used his arm to hit Officer Culligan's arm away "as I tried to get him away from Constable Starr and my personal space".
The footage shows conduct a little different from this. As Officer Starr puts down a bag, Mr Rowlands moves backwards away from the officer, then both officers step towards him, Officer Culligan pushes him back twice, the second time Mr Rowlands forcefully pushes Officer Culligan's arm away as Mr Rowlands is forced backwards towards the escalator.
As I indicated, the reactions of the other surrounding people indicate that up until that time, when Mr Rowlands moves back towards the escalator, there was apparently no loud yelling as the surrounding people appear to pay no attention to the conversations between Mr Rowlands and Officer Starr or both police officers, walking past oblivious to it or standing in the vicinity paying it no regard. Those surrounding reactions indicate that whatever was being said was not especially offensive, noteworthy or loud. Once the pushing and throwing of Mr Rowlands to the floor occurs, the reactions of nearby persons and their interest in the event is apparent.
Officer Culligan said that at the time Mr Rowlands was still using coarse language. He was loud and "I think he said, 'Get fucked,' again. Saying something, leave him alone in regards to Carlsson, why we were talking to him, for some reason…Yeah, something like that". [9]
Officer Culligan also gave evidence that, "It appeared to me he was intoxicated", [10] "I could smell alcohol coming from him" and "either me or Constable Starr asked him if he'd been drinking, he said, 'Yeah, I've had a shit tonne'". [11] Officer Culligan also said, "[H]is speech seemed a bit slurred. He appeared flushed in the face".
Mr Rowlands' evidence was of a strong denial to saying the words attributed to him, telling the police to "get fucked", or having consumed any alcohol.
Officer Culligan gave evidence that he made the Facts Sheet soon after the incident, although the evidence indicated that the Facts Sheet was created almost a month later. [12] He also accepted that Mr Carlsson had said words to the effect, "You fucking something" during the incident as recorded in the body worn footage. [13]
I spoke earlier about three matters relevant to the reliability of the police officers' accounts. A fourth matter is that the evidence of Officer Culligan included a reference, as I have just read, to "yeah, I've had a shit tonne", a comment allegedly said by Mr Rowlands in relation to his drinking. Officer Starr gave evidence that this occurred before Officer Culligan joined the conversation whereas Officer Culligan, although he gave evidence that he did not hear any of the conversation before he joined it, gave evidence of the same comment.
Fifthly, and perhaps significantly, the police officers were giving evidence of conversations that occurred some 18 months earlier and their statements, from which their memory may have been refreshed, were prepared some five months after the incident. Officer Starr expressly referred to using the Facts Sheet prepared by Officer Culligan when Officer Starr prepared his statement of evidence.
These matters, along with the terminology used by the officers in their testimony where they say words "to the effect" or "something like" these words, are matters which cause me to doubt the reliability of the officers' recollection in terms of the detail of the words spoken.
The circumstances of the officers giving testimony of words to the effect; the circumstance that the testimony involves a recollection of conversations a long time previous and not recorded contemporaneously by them with the events in question; the circumstance that one police officer in the preparation of his statement used the Facts Sheet prepared a month after the event by the other, the circumstance that Mr Carlsson may have said similar things to what is alleged against Mr Rowlands, when viewed in the context of Mr Rowlands' honest and vehement denial, his good character and the CCTV footage which seems not to support either that Mr Rowlands was affected by alcohol or spoke in any loud or offensive manner judging by the reactions of surrounding people in the shopping centre, all operate together to leave a reasonable doubt in my mind as to whether Mr Rowlands did tell the police "get fucked" as their testimony asserts. Those words are the basis of the offensive language charge and if they were not proved to have occurred, Mr Rowlands is entitled to an acquittal on that charge.
There is another matter that bears upon the charge. It is whether the language alleged to have been used by Mr Rowlands in the circumstances properly constitutes the offence of offensive language. Or to put the matter another way, were I satisfied beyond a reasonable doubt that Mr Rowlands said the things asserted by the police, would that in any event constitute the offence of using offensive language in a public place.
There is high authority for the proposition that there is a high threshold to be surmounted before the content of a communication could be characterised as offensive. [14] It has been said in this Court in the decision of Lim v R [15] that:
"21. For behaviour to be offensive, it must be likely to provoke reactions such as anger, disgust, resentment or outrage: Beck v State of New South Wales [2012] NSWSC 1483 at [20], Connolly v Willis [1984] 1 NSWLR 373 at 384, Ball v McIntyre (1966) 9 FLR 237 at 243, Worcester v Smith (1951) VLR 316 at 318.
22. The behaviour must arouse a significant emotional reaction: Ball at 243 and Monis v The Queen (2103) 249 CLR 92 at [303] per Crennan, Kiefel and Bell JJ.
23. It is not enough that the conduct is hurtful, blameworthy or improper even though that might offend someone.
24. The reasonable person is reasonably tolerant and understanding and reasonably contemporary in his or her reactions: Ball at 245.
25. The use of an offensive word will not be prima facie offensive. Whether or not the language is offensive will depend on the application of an evaluatory standard after due consideration of the circumstances and the context: Dalton v Bartlett (1972) 3 SASR 549 at 555, cited in Dowse v New South Wales [2012] NSWCA 337 at [24] per Basten JA (McColl and Hoeben JJA agreeing).
26. Conduct capable of amounting to an offence should be limited to conduct at the high end of the range that could be considered 'offensive'. The purpose of section 4 is to protect members of the public from undue disturbance of the use and enjoyment of public places: Coleman v Power (2004) 220 CLR 1 at [32] per Gleeson CJ." [16]
Terms such as "fuck" and its derivatives in their various forms often serve merely to emphasise the purpose or the proposition that is being said in conjunction with the term. Nowadays those terms are understood often to merely indicate an emphasis or exaggeration of a proposition rather than having some other offensive meaning. If that is the case, they do not reach the high levels of offence required to make out the charge and are unlikely to cause offence, outrage and significant emotional reaction to a reasonably tolerant bystander, who must be regarded as a robust, contemporary and not especially sensitive person. [17]
In judging these words, if they were said, it is very relevant that they seem not to have attracted the attention of anybody in the shopping centre. In circumstances where they are said in an especially loud volume or repeated, the circumstances may well be different. But the use of the terms in a conversation, in my view, do not constitute offensive language.
The matter might be compared with a circumstance where the police overheard somebody using those terms in a conversation with another person. It seems unlikely that that would warrant a charge of offensive language. The circumstance that the terms were used in criticism of the police's conduct or the mode of their dealing with Mr Carlsson seems to have been a significant factor in them taking offence rather than simply the language that was used.
In the Local Court, there was no consideration by the Magistrate of whether the words alleged met the high standard of offensive language required to constitute the offence.
In the circumstances of this case, I am not satisfied beyond a reasonable doubt that the words alleged were said by Mr Rowlands. Nor am I satisfied to the criminal standard that even if they were said, given the context, volume and particular usage of those terms, and the non-reaction of the surrounding people in the shopping centre, that they would be sufficient to constitute offensive language. Mr Rowlands is entitled to an acquittal in respect of the offensive language charge.
[6]
Resist arrest
I turn to the resist arrest conviction.
Although this offence is accurately termed resisting an officer in the execution of his duty, the prosecutor asserted that, in this particular case, the resistance was to the arrest by the officers of Mr Rowlands. That was the case that was run before the Magistrate, who found that Officer Culligan uttered the words of arrest at the time when Officer Starr put down his lunch onto the floor whilst the two officers and Mr Rowlands were standing near the pillar.
The offence of resisting arrest requires, as it seems the learned Magistrate found, that the arrest must have commenced prior to the alleged resistance, otherwise there is no arrest in place to be the subject of the resistance by Mr Rowlands. Here, the CCTV footage indicates that the actions Mr Rowlands is resisting involves the police pushing him backwards rather than securing his detention. At least at the moment of Mr Rowlands' conduct that is alleged to constitute the resisting, namely his striking or pushing away the arm of Officer Culligan, the officer is pushing him backwards.
Mr Rowlands denied that any words of arrest were uttered at any time, and as I earlier indicated, his good character renders this evidence on the point more likely to be true.
Officer Starr gave evidence that Officer Culligan uttered those words whilst Officer Starr and Officer Culligan were at the pillar. His testimony was that Officer Culligan came over to Officer Starr and gave Mr Rowlands a move on direction, he was told to "Get fucked" and then Officer Culligan said, "You're under arrest for offensive language". [18]
Officer Culligan's testimony was different. He said the words of arrest were uttered by him at about the time Mr Rowlands was being thrown to the floor, before Mr Rowlands was handcuffed, but after Mr Rowlands had struck away Officer Culligan's hand. This order of events was given both in evidence-in-chief and in cross-examination. In cross-examination, he conceded the possibility that the words of arrest were said "as soon as possible after he was restrained" [19] and possibly at no time prior to Mr Rowlands being brought to the ground, although he believed it was before Mr Rowlands was taken to ground. [20]
The prosecutor fairly made the point that one might expect some differences in chronology between the two officers, that their evidence is not expected to be identical, and I accept that submission has some force in supporting the honesty of the police officers' accounts. However, that disagreement is of little assistance in establishing beyond reasonable doubt a matter of importance in the chronology.
The Magistrate concluded that the arrest occurred whilst Mr Rowlands stood with the officers by the pillar and involved an acceptance of Officer Starr's testimony. Officer Culligan was the speaker of those words of arrest. He did not assert that they were spoken before Mr Rowlands was pushed backwards and had pushed or hit Officer Culligan's hand away. The Magistrate did not explore that difference of evidence in her judgment, although she noted that there were some inconsistencies between the two officers' evidence. In my view, that difference created a doubt about whether an arrest had occurred prior to Mr Rowlands being pushed back towards the escalator.
Further, Mr Rowlands' own testimony, which the Magistrate accepted to be honest, his good character, the footage indicating that Mr Rowlands was not seeking to escape the attention of the police, and the differences between the accounts of the officers to which I have made mention, increase the doubt I have as to whether the words of arrest were spoken, at least before the conduct said to constitute the offence of resisting arrest. These matters leave me unpersuaded to the criminal standard that Mr Rowlands resisted the arrest by the police officers.
Even if words of arrest had been uttered before that time, I do not regard the one arm action of Mr Rowlands as resisting arrest. He appears to be resisting getting pushed backwards, for his own safety. In all other respects, his conduct during the encounter and thereafter displayed submission. In circumstances where he is being pushed backwards, his actions reflect an attempt to avoid a potential danger behind him rather than resisting submission to the officers.
For these reasons, I retain a reasonable doubt that Mr Rowlands' actions were an attempt to resist his arrest and therefore, he is entitled to an acquittal.
There is no evidence that Mr Rowlands was asked to provide any identification or asked to provide his name or address. The officers asserted that he was being arrested for offensive language, an offence not punishable by imprisonment. Those matters may render it less likely that an arrest was an appropriate way to proceed, although the matter was not explored before the Magistrate as to, among other things, whether the requirements in s 99 of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) were satisfied.
Further, the appellant raised the question of self-defence in respect to Mr Rowlands' actions. That requires a reasonable possibility that Mr Rowlands believed his conduct was necessary to defend himself and a reasonable possibility that his response was reasonable in the circumstances he perceived them to be. The Magistrate appeared to accept the first proposition. In any event, it is clear that I do and similarly I regard his response as reasonable in the circumstances as he perceived them. It follows that I accept that the action of Mr Rowlands in striking away Officer Culligan's arm as the officer went to force him backwards was an action that would satisfy the requirements of self-defence.
Whether the requirements of s 99 of LEPRA were satisfied to establish the legality of the arrest may raise a question of whether the arrest must be proved beyond reasonable doubt to be lawful as an element of the resist arrest offence. A finding on that point is unnecessary in view of the other findings and I do not propose to express a concluded view.
Accordingly, I am not satisfied beyond reasonable doubt of either offence having been committed. In those circumstances, Mr Rowlands is entitled to an acquittal on both charges.
[7]
Orders
The orders of the Court are:
1. The conviction appeal is upheld.
2. I set aside the convictions and orders of Magistrate Greenwood made on 9 June 2021.
3. I find the accused not guilty on both charges.
4. I grant liberty to the appellant to make any application in respect of costs by email to my associate within 7 days.
[8]
Endnotes
9/6/21, T47/10.
Dyason v Butterworth [2015] NSWCA 52 at [28].
9/6/21, T15/37.
Cf R v Jovanovic (1997) 42 NSWLR 520, in a different context.
18/3/21, T21/4-26.
18/3/21, T21/26.
18/3/21, T21/40.
18/3/21, T3/30.
18/3/21, T5/26-29.
18/3/21, T5/44.
18/3/21, T6/16.
9/6/21, T4/46.
18/3/21, 14/3.
Monis v R; Droudis v R (2013) 249 CLR 92; [2013] HCA 4 at [20].
(2017) 25 DCLR (NSW) 253; [2017] NSWDC 231.
At [21]-[26].
Police v Paton [2009] NSWLC 34 at [24].
18/3/21, T22/1-15.
18/3/21, T12/10.
18/3/21, T12/35.
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Decision last updated: 28 April 2022