Citation: Anthony Pulitano v R; Alessandro Pulitano v R [2016] NSWDC 207
Court: District Court of NSW
Date: 09 September 2016
Judge(s): Mahony SC DCJ
Background
A father and son were each convicted in the Local Court of assaulting a police officer in the execution of his duty, contrary to s 60(1) of the Crimes Act 1900. The incident occurred in January 2015 near the corner of Kent and Bathurst Streets, Sydney. The officer involved was a plain-clothes detective on his lunch break when the father approached him and offered to sell him a wristwatch the officer suspected was stolen.
The officer identified himself as a police officer and placed the father under arrest. The son then became involved, and both men struck the officer on multiple occasions. The officer sustained injuries to his face. Both men were subsequently convicted after a Local Court hearing.
Both appellants brought "all grounds" appeals to the District Court, contending that the Magistrate wrongly accepted the officer's evidence over theirs, that they were unaware the man was a police officer, and that the officer was not acting in the execution of his duty at the time of the alleged assault.
Legal Issues
- Whether the appellants knew, or ought to have known, that the person they assaulted was a police officer
- Whether the officer was acting in the execution of his duty at the time of the assault
- Whether the arrest of the father was lawful, and if not, whether that took the officer outside the execution of his duty
- Whether the appellants could rely on honest and reasonable mistake of fact as a defence
- Whether the appellants' conduct was justified as self-defence under s 418 of the Crimes Act 1900
Decision
The District Court conducted a rehearing on the transcripts and exhibits from the Local Court, applying the principles from Charara v R [2006] NSWCCA 244. The Court acknowledged that, while it must form its own view of the facts, it remained mindful of the advantages held by the Magistrate who saw and heard the witnesses directly.
The Court accepted the Magistrate's finding that the officer had identified himself as a police officer before the assault began. On that basis, it rejected the appellants' claims that they were unaware of his status, and dismissed the arguments based on honest and reasonable mistake of fact and self-defence. The son, in particular, was found to have known clearly that he was dealing with a police officer.
However, the Court upheld the appeals on a different ground: the lawfulness of the arrest itself. The Court found that the officer lacked lawful authority to arrest the father for the suspected offence at that point in the encounter. Because the arrest was unlawful, the officer was not acting in the execution of his duty when the assault occurred. This is a distinct element of the s 60(1) offence: an officer who steps outside the bounds of lawful authority is no longer acting in the execution of duty, and a conviction under that provision cannot stand.
The Court expressly noted, citing McHugh J in Coleman v Power (2004) 220 CLR 1, that its finding did not mean no other offence occurred. The possibility of a conviction for common assault, arising from the same conduct, was left open.
Orders Made
- The appeal upheld in each matter.
- The conviction recorded against each appellant by the Magistrate on 13 November 2015 set aside.
Key Takeaways
- A conviction under s 60(1) of the Crimes Act 1900 for assaulting a police officer requires proof that the officer was acting in the execution of duty at the time of the assault. An unlawful arrest takes an officer outside that execution.
- The District Court confirmed that where an arrest is found to be unlawful, the s 60(1) charge cannot succeed, even where the assault itself clearly occurred.
- Setting aside a s 60(1) conviction does not preclude a finding that other offences, such as common assault, were committed in the same incident. The District Court expressly declined to find that no other offence took place.
- Knowledge of the officer's police status is a relevant element, but its presence here was not sufficient to save the conviction once the unlawful arrest rendered the officer outside the execution of his duty.
- Under AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218, the District Court on appeal under s 18 of the Crimes (Appeal and Review) Act 2001 must form its own view of the facts from the record, while remaining mindful of the Magistrate's advantage in assessing witness credibility.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 60(1), 418
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Criminal Procedure Act 1986 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases:
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Coleman v Power (2004) 220 CLR 1
- DPP v Carr (2002) 127 ACrimR 151
- Michaels v R (1995) 184 CLR 117
- Proudman v Dayman (1941) 67 CLR 536
- R v Donohue (1988) 34 A Crim R 397
- R v Katarzynski [2002] NSWSC 613
- R v Murray (1987) 11 NSWLR 12
- R v Reynhoudt (1962) 107 CLR 381
- Semaan v Poidevin [2013] NSWSC 226