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District Court 4 February 2020

Hitchcock v R

[2020] NSWDC 4

Assault & violence

Citation: Hitchcock v R [2020] NSWDC 4
Court: District Court of New South Wales
Date: 4 February 2020
Judge: Neilson DCJ

Background

The appellant was arrested in Woollahra on 25 March 2016 following an incident at a restaurant. She faced three charges under the Crimes Act 1900: one count of common assault against a civilian (JH), and two counts of assaulting and resisting police officers (Constable Gravolin and Constable Eldridge) in the execution of their duty.

The matter was heard in the Local Court over multiple dates from September 2017 to July 2018 before Atkinson LCM, after a prior magistrate disqualified himself. A key prosecution witness, Constable Gravolin, was unavailable due to illness, and her statement and notebook entries were admitted in evidence rather than live testimony.

The Local Court convicted the appellant on all three charges. She appealed against both conviction and sentence to the District Court.

  • Whether the prosecution proved beyond reasonable doubt that the alleged assault on JH was intentional or reckless, rather than accidental
  • Whether the police officers were acting in the execution of their duty at the relevant time, as required by both the resisting and assaulting police charges
  • Whether the manner in which the prosecution framed the assault on Constable Gravolin (combining two separate alleged incidents into a single charge) was permissible
  • Whether any alternative verdict was available on the evidence

Decision

On the common assault charge involving JH, Neilson DCJ found that the magistrate had failed to deal with submissions going to whether the alleged assault was intentional, reckless, or accidental. Having reviewed the evidence, the District Court was not satisfied beyond reasonable doubt that the prosecution had established either intention or recklessness. That conviction was set aside.

On the charges of resisting and assaulting police in the execution of their duty, an essential element of each offence was that the officers were acting in the execution of their duty at the time. Neilson DCJ reviewed the conflicting evidence and concluded this element had not been established to the required standard of proof. Both convictions were set aside on this basis.

The Court also noted a separate problem with how the assault on Constable Gravolin had been charged. Two physically distinct alleged assaults, a double kick to the chest and a bite to the thigh, at different times and places, had been treated as a single charge. Neilson DCJ observed this ought not to have been permitted, particularly where there was conflicting evidence as to when the bite occurred relative to the arrest.

The Court declined to substitute an alternative verdict for common assault occasioning actual bodily harm in relation to the bite. The prosecution had not sought any alternative verdict in the Local Court, the Crown on appeal did not press for one, and doing so risked exposing the appellant to two assault charges when she had only faced one below. Applying the principle that litigation must ultimately come to an end (interest reipublicae ut finis sit litium), the Court set aside all three convictions without substituting any alternative finding.

Orders Made

  • All convictions recorded and sentences passed by Atkinson LCM in the Downing Centre Local Court on 11 July 2018 were set aside.

Key Takeaways

  • The District Court held that where a magistrate fails to address submissions on the mental element of an assault charge (intention versus recklessness versus accident), and the evidence does not satisfy proof beyond reasonable doubt of either intention or recklessness, a conviction cannot stand.
  • An essential element of offences under s 58 of the Crimes Act 1900 (assaulting or resisting police) is that the officer was acting in the execution of their duty at the relevant time. That element must be proved to the criminal standard; where conflicting evidence leaves it unproven, the charge fails.
  • Charging two physically distinct assaults, occurring at different times and to different parts of the body, as a single offence creates evidentiary and procedural complications, particularly where the timing of one incident relative to an arrest is in dispute.
  • A court on appeal may decline to enter an alternative verdict where the prosecution did not seek one at trial, the Crown does not press for it on appeal, and doing so would prejudice the accused by multiplying the charges they face.
  • Protracted and fragmented proceedings, spanning more than two years in the Local Court across multiple magistrates and adjournments, featured as context for the Court's application of the finality principle in refusing to remit the matter.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 61
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Australian Federal Police Act 1979 (Cth)

Cases
- Adams v Kennedy (2000) 49 NSWLR 78
- Charara v R [2006] NSWCCA 244
- Christie v Leachinsky [1947] AC 573
- New South Wales v Riley (2003) 57 NSWLR 496
- R v Dungay [2001] NSWCCA 443
- R v K (1993) 118 ALR 596
- Thompson v Vincent [2005] NSWCA 219