Visser v W K S [2001] TASSC 36

Briscoe v Turner Unreported 128/1997; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, referred to.

Judgment ID Number: [2001] TASSC 36

1 The applicant was charged with three counts in a complaint. After a defended hearing, the third count was found proved. It charged the applicant with threatening two police officers in the execution of their duty by saying certain words. The first and second counts were found not to have been proved. They both charged assaults under the Criminal Code, s184, on Constable Piper by spitting saliva and blood at him, causing it to enter his eyes. The first assault was alleged to have taken place in or near a vacant block fronting onto Goulburn Street, George Town. The second assault was alleged to have taken place in a police vehicle, shortly after the first assault. Although the learned magistrate found that the respondent's blood and saliva did hit the constable on both occasions, his Worship was not satisfied beyond reasonable doubt that the respondent intentionally spat the blood or saliva at the officer.

2 The applicant sought to review the dismissal of counts 1 and 2 on four grounds. The third ground asserts that the learned magistrate erred in law when in the course of his reasons, he said that "the charges under s184 of the Code are offences of specific intent". It was submitted by the applicant's counsel that the crime of assault is not one of specific intent. Regardless of what label may correctly be put on it in that regard, it is plain that what the learned magistrate meant was that "an assault is the act of intentionally applying force to the person of another", to adopt the words of the definition of an assault in the Code, s182(1). If there was an error, on the part of the learned magistrate, in the words he used, I am satisfied that no miscarriage of justice resulted (see the Justices Act 1959, s110(2)(ab)), and that the motion to review cannot succeed on the third ground. Counsel for the applicant conceded that.

3 By ground 4, the applicant complained that the learned magistrate erred in law because he "failed to adequately state his findings and the reason for his decision (to acquit) in respect of the said charges". The learned magistrate gave detailed reasons for his decision. In the course of them his Worship stated that in giving his evidence the respondent was not an impressive witness and gave a confused and confusing account. He concluded that the respondent's evidence could not be relied upon, unless supported by other evidence which was credible. His Worship found one of the respondent's witnesses, Paul Frame, to have been a confused and unhelpful witness. Most of the evidence of another, Michael Payne, was found to be "a reconstruction at best, or at worst he was prepared to put the police behaviour in the worst possible light". The learned magistrate found that another witness for the defence, Ricky Hulse, had no independent memory of an alleged assault on Constable Piper by the respondent, and he concluded that the evidence of the respondent's mother could not be relied upon. Not surprisingly, the applicant's counsel had no criticism of the learned magistrate's conclusions concerning the credibility of the defence witnesses.

4 Of course, a conclusion that the defence witnesses were not credible did not lead directly to a conclusion that the charges had been proved. The prosecution case was also in trouble if the prosecution witnesses, particularly Constable Piper, were not credible as well.

5 The learned magistrate referred to much of the evidence, including that of prosecution witnesses, Jerome O'Connor, Constable Piper and Constable Smithurst. Constable Piper was the only witness who claimed to have directly witnessed the two assaults upon himself. As to the first alleged assault, Constable Smithurst's evidence was that (after the assault was alleged to have happened) he saw from approximately 15 metres away that Constable Piper was wiping his face and he heard Constable Piper tell the respondent he was under arrest for assault. As to the second alleged assault, Constable Smithurst's evidence was that he was driving the police vehicle when he heard Constable Piper say from the back seat, where he was sitting next to the respondent, "you've spat on me again".

6 Concerning the evidence of Constable Piper, the learned magistrate had the following to say:

"The overwhelming evidence is that the defendant and Mr Hulse were grappling with sufficient force to cause the defendant to fall to the ground, and the defendant was still there when Constable Piper arrived and observed the defendant in a condition to warrant ambulance attention and called for one, he and Constable Smithurst noticing blood on the defendant's face.

It transpired that the defendant commenced to move away towards a vacant block and Constable Piper decided to follow the defendant to inform him to stay put as an ambulance was coming. He initially said that he approached the defendant and the defendant turned and faced him and said fuck off in a loud voice and spat a quantity of blood and saliva in his face, into his eyes. He then put the defendant under arrest. The defendant resisted, and a struggle took place.

In cross-examination he said that the defendant was walking away as he approached him, and he called out to him to hold on there, adding that until I touched him I [sic] he didn't know that the defendant had actually heard him. It is apparent that he touched the defendant on the upper arm to gain his attention I infer, and when he did that the defendant turned around, he said, and he told the defendant to hold on as an ambulance was coming. When the defendant spat at him he put the defendant under arrest. ...

It is patent from the evidence that Constable Piper did not have a clear recollection of the sequence of events of the encounter between him and the defendant and I cannot exclude as a reasonable possibility that he has reconstructed part of his recollection concerning the spitting. I accept the substance of his evidence that he did receive on his body a projection of saliva and blood from the defendant's mouth on the vacant block, but I am not persuaded that it was not reasonably likely to be a consequence of the verbal rebuke expressed by the defendant when he was halted from his wandering, given the evidence that the defendant was bleeding from his mouth. The defendant denies spitting on the constable and I am not in all the circumstances able to exclude his evidence of this as a reasonable possibility. Similar observations apply to the constable's version in the car, that is I am not able to exclude as a reasonable possibility that he has reconstructed the evidence of spitting and it was the unwitting consequence of the defendant remonstrating angrily with the constable."

7 Later the learned magistrate said that "except where otherwise mentioned in these reasons I accept the substance of the prosecution evidence". He dismissed the two assault charges because he was not satisfied beyond reasonable doubt that the respondent had intentionally spat upon Constable Piper on each occasion.

8 In support of the fourth ground of the motion to review, counsel for the applicant relied upon the principles stated in Briscoe v Turner Unreported 128/1997 at 6 - 8 in which Underwood J referred to a number of cases, in particular Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 and Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 280.

9 I am not satisfied that the ground has been established. Having regard to the rejection of the credibility of the defence witnesses, the success of the prosecution case depended on the evidence of Constable Piper being accepted and on that evidence being sufficient to persuade the court that the blood and saliva which hit the constable on both occasions was intentionally spat by the respondent at him. The learned magistrate concluded, as stated in his reasons, that it was clear that Constable Piper did not have a clear recollection of the sequence of the events. No ground of the motion attacks that finding on the basis that it was not reasonably open on the evidence.

10 A reading of the transcript of the cross-examination of Constable Piper concerning what took place in the police vehicle, reveals that he did not have a clear recollection of some of what occurred. He accepted that his recollection was "not clear" as to what was said in the vehicle, and that the respondent "could have said a lot of things". There was "quite possibly" discussion between Constable Piper and Constable Smithurst. He could not remember what he said upon being spat upon by the respondent, although he "would have" said something, but "I don't know", and it was "most likely along the lines of exclamation". He did not recall whether the respondent's mother, who was in the front passenger seat, kept turning around to look at her son. Asked whether he had told anyone else that he had been spat at, he said "I think I told either Constable Smithurst or Sergeant Shea after we got out of the vehicle". The transcript reveals that Constable Piper was more positive in his recollection of the events surrounding the first alleged assault. Nevertheless, he gave different versions of the way in which he attracted the respondent's attention, in examination and cross-examination, and the learned magistrate had an advantage I do not have, of observing the constable give his evidence, and it may well be that an impression was gained by his Worship that the constable's recollection of the sequence of events was not clear.

11 The ultimate conclusion of the learned magistrate was that he had a reasonable doubt concerning whether the spitting was intentional or accidental. There was evidence that the respondent was in an excited state and that he had blood around his mouth. Constable Piper did not give evidence that the spitting was intentional and of course, he could not lawfully have done so. The intention was to be inferred from the evidence of what the respondent physically did. There was evidence from the officer concerning the amount and distribution of the spit and blood when he was hit, but none about how the substances were delivered. No doubt it would have been difficult to describe.

12 Although substantially accepting the prosecution witnesses, including Constable Piper, and rejecting the evidence of the defence witnesses, the learned magistrate explained that he could not exclude from his mind that there was a reasonable possibility that Constable Piper had reconstructed part of his recollection concerning the spitting. In the end the learned magistrate was left with a reasonable doubt about whether the impelling of the saliva and blood at the officer was intentional and I am not persuaded that insufficient reasons were given for his Worship's state of doubt. Ground 4 has not been made out.

13 Grounds 1 and 2 attack the conclusion of the learned magistrate that he was left with a reasonable doubt. It was submitted by the applicant 's counsel that having regard to the findings that were made in favour of the prosecution case, the only conclusion reasonably open was that the charges of assault had been proved. I am left unpersuaded that his Worship's conclusion that he was left with a reasonable doubt was an unreasonable one and not one that was reasonably open.