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District Court 3 July 2009

Jolly, Sean Graham v R

[2009] NSWDC 212

Assault & violencePublic order & justice offences
CRIMINAL LAW CONVICTION APPEALS AFFRAY OFFENSIVE LANGUAGE HINDERING OFFICER IN COURSE OF DUTY RESISTING OFFICER IN COURSE OF DUTY

Citation: Jolly, Sean Graham v R [2009] NSWDC 212
Court: District Court of New South Wales
Date: 3 July 2009
Judge(s): Cogswell SC DCJ

Background

The appellant had been convicted by a magistrate of six offences arising from a large street brawl in Emerton in the early hours of 9 December 2007. His fiancée had been injured during the fighting and was lying on the roadway when police arrived. The appellant, who was drunk, came into conflict with police as they worked to control the scene.

The six charges were: affray; using offensive language; hindering a police officer in the execution of duty; resisting officers in the execution of duty; and two counts of assaulting officers in the execution of duty. The appellant appealed all convictions to the District Court, seeking acquittals on every count. The prosecution opposed all appeals.

  • Whether the identification evidence supporting the affray charge was sufficient to establish guilt beyond reasonable doubt
  • Whether the appellant's use of offensive language before and after being bitten by a police dog was proved
  • Whether the police were acting in the execution of their duty, which is an element of the hindering, resisting, and assault charges
  • Whether the assault charge relating to Constable Giles was duplicitous (that is, whether it overlapped impermissibly with the resisting charge arising from the same conduct)
  • Whether the appellant's intoxication and confusion about who he was dealing with provided a defence to the remaining charges

Decision

Affray: The District Court set aside the affray conviction. The charge rested almost entirely on the evidence of one officer, Constable Papandrea, who identified the appellant holding a broken chair and advancing on others. The Court found that the circumstances of that identification, including the darkness, the distance involved, the large crowd, the officer's secondary exposure to capsicum spray, and confusion about the description of the person she saw, raised a reasonable doubt. The appellant's own admissions about confronting someone in the crowd did not fill the gap because they lacked sufficient detail to establish the unlawful violence element of affray.

Offensive language: The conviction was upheld. The Court accepted that the appellant used offensive language both before and after a police dog bit him. The Court examined the purpose of the offensive language offence and relevant authorities, and concluded that the evidence supported the charge.

Hindering, resisting, and assaulting Constable Hauver: The conviction for hindering Constable Giles was set aside. However, the convictions for resisting officers Giles and Hauver, and for assaulting Constable Hauver, were upheld. The Court was satisfied that the officers were acting in the execution of their duty and that the appellant knew they were police. Video evidence, reviewed by the Court, clearly showed the appellant attempting to push past officers and assault Constable Hauver. The Court rejected the submission that the appellant was simply confused and trying to reach his injured fiancée.

Assault on Constable Giles: The prosecution itself acknowledged a potential duplicity problem between the assault charge relating to Constable Giles and the resisting charge arising from the same conduct. The Court accepted that concession and set aside the assault conviction involving Constable Giles, treating the relevant conduct as properly captured by the resisting charge instead.

Orders Made

  • Convictions for affray, hindering police (Constable Giles), and assaulting police (Constable Giles) set aside
  • Appeals dismissed in respect of offensive language, resisting an officer in the execution of duty (Constables Giles and Hauver), and assaulting an officer in the execution of duty (Constable Hauver)
  • Orders and penalties imposed by the magistrate confirmed in respect of the charges where the appeals were dismissed

Key Takeaways

  • Identification evidence based on a single witness, observed at night, at uncertain distance, in a chaotic crowd, and while affected by capsicum spray, may not sustain a conviction beyond reasonable doubt even where the witness is certain of their identification.
  • A conviction for affray requires proof of unlawful violence sufficient to cause a reasonable person in the vicinity to fear for their safety; a defendant's own admission to "going after" someone does not automatically satisfy that element without sufficient detail of the conduct.
  • Where two charges arising from the same conduct overlap, a court may set aside one charge and treat the conduct as properly captured by the other, avoiding duplicity.
  • Intoxication and claimed confusion about whether persons were police officers did not provide a defence where the District Court was satisfied beyond reasonable doubt that the appellant knew he was dealing with police.
  • An accused's partial admissions in evidence can cut both ways: here, they did not establish affray, but they informed the court's assessment of the appellant's state of mind on the other charges.

Legislation and Cases Referenced

Legislation:
- Summary Offences Act 1988 (NSW), s 4A(2) (offensive language)
- Crimes Act 1900 (NSW), s 546C (hindering/resisting officer), s 58 (assaulting officer), s 93C(1) (affray)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20 (basis for the District Court's appeal jurisdiction)

Cases:
- Director of Public Prosecutions v Gribble (2004) 151 A Crim R 256
- Police v Butler [2003] NSWLC 2
- R v Connolly and Willis [1984] 1 NSWLR 373
- Re K (1993) 46 FCR 336
- R v Smith [1974] 2 NSWLR 568
- R v Stutsel and Reid (1990) 20 NSWLR 661
- R v Worcester and Smith [1951] VLR 317
- The Queen v Reynhoudt (1962) 107 CLR 381