DPP v Gribble [2004] NSWSC 926

Reported Decision : 151 A Crim R 256

New South Wales Supreme Court

CITATION : DPP v Gribble [2004] NSWSC 926 HEARING DATE(S) : 17 September 2004 JUDGMENT DATE : 8 October 2004

JUDGMENT OF : Barr J at 1 DECISION : See para 33.

PARTIES : Director of Public Prosecutions v Matthew Charles GRIBBLE FILE NUMBER(S) : SC 11878/2004 COUNSEL : Plaintiff: I Bourke Defendant: A Haesler SOLICITORS : Plaintiff: S C Kavanagh Defendant: Steve O'Connor

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUSTICE GRAHAM BARR

8 October 2004

11878/2004 Director of Public Prosecutions v Matthew Charles GRIBBLE

JUDGMENT 1 HIS HONOUR: At about 10pm on 24 October 2003 two police officers were driving along a city street when they came upon the defendant wearing dark clothing, standing in the middle of the road. Police directed him to move off the road but he refused. He resisted their efforts to move him to the safety of the footpath. Once the defendant had been removed to the footpath, one of the officers remained with him to stop him going back onto the road while the other called for assistance. As those things were happening the defendant started punching the first police officer. He was arrested and charged with one count of resisting police in the execution of their duty and two counts of assaulting police in the execution of their duty: see ss58, 60 (1) Crimes Act 1900. 2 On 27 February 2004 the defendant appeared before Ms L Gilmour, Magistrate, and pleaded not guilty to the charges. The prosecution presented its case, in the course of which the two police officers, Senior Constable Suitor and Senior Constable Duffey, gave evidence. At the conclusion of the prosecution case the solicitor for the defendant moved for a dismissal of the three charges because, it was asserted, no prima facie case had been made out. In an ex tempore judgment the magistrate up held the submission and dismissed the three charges. There was a fourth charge which was being heard concurrently, that the defendant failed to obey a reasonable direction for the safe and efficient regulation of traffic. That charge was not the subject of the no-case submission and the defendant was in due course found to have committed the offence. 3 By his summons filed on 21 June 2004 the plaintiff, the Director of Public Prosecutions, seeks orders setting aside the orders of the Magistrate dismissing the charges and remitting them to the Local Court to be dealt with in accordance with the orders of the Court. 4 The plaintiff submits that the Magistrate erred in law in finding that there was no prima facie case on each of the three offences and as to the test to be applied in determining whether the police were acting in the execution of their duties. 5 Before dealing with the several assertions of error it is convenient to state in somewhat greater detail the facts which the evidence was capable of establishing. There has been put before this Court a transcript of the evidence taken and of the reasons for the decisions appealed against. 6 At 10:35pmon 24 October 2003 Senior Constable Duffey and Senior Constable Suitor were driving eastwards in Oxford street Woollahra. Oxford Street is a very busy street. There are three eastbound lanes. As they rounded a bend in the road just before the commencement of Syd Einfeld Drive senior Constable Duffey saw the defendant, dressed in black clothes standing in the middle of the road. He braked heavily and stopped the car about four or five metres in front of the defendant. The two officers were in plain clothes. The car was unmarked but had red and blue strobe lights. Senior Constable Duffey activated the lights, wound down his window, told the defendant that he and his colleague were the police and directed him to get off the road. The defendant swore at them and refused to move. Senior Constable Duffey tried to open the door to get out of the car but the defendant stopped him by pushing against the door with his arms. Senior Constable Suitor got out of the front passenger door of the car, walked round to the defendant, pushed him away from the driver's door and took him to the front of the vehicle, which was still stationary. Senior Constable Duffey got out of the car and joined Senior Constable Suitor and the defendant in front of the car. 7 Senior Constable Duffey again told the defendant to get off the road and he refused a second time. The officers took hold of him, intending to remove him from the roadway, and a struggle ensued. The three men fell onto the roadway after bouncing off the side of a slow-moving passing taxi. Eventually the officers managed to get the defendant onto the footpath. They concluded that he was affected by some form of intoxicating substance and that his intention was to return to the roadway. They decided to call for a caged truck. They were not intending to arrest him but to take him home. The defendant said "you're not going to stop me" and lunged at Senior Constable Duffey, punching him in the head and knocking him to the ground. Senior Constable Duffey lost consciousness for a moment. The defendant continued to punch him while he was on the ground. Senior Constable Suitor came to Senior Constable Duffey's assistance and the defendant attacked him as well. 8 Senior Constable Duffey, having regained consciousness, produced a can of capsicum spray and told the defendant to stay where he was. The defendant lunged at the officers and Senior Constable Duffey sprayed him. The defendant ran away, but was apprehended a few minutes later and arrested. 9 This statement of facts comes principally from written submissions filed by Counsel for the plaintiff and based on the transcript of evidence to which I have referred. Defence counsel agrees with its accuracy except insofar as it asserts that the officers told the defendant a second time to get off the road and that he refused a second time. Defence counsel relies on the finding of the Magistrate. 10 Her Honour dealt with the topic three times during the course of her judgment. She said - Constable Duffey then got out of the vehicle and repeated the direction to move on but before he could do that both Constables grabbed an arm… … At that point in time Senior Constable Suitor approaches the defendant and pushed the defendant away and Senior Constable Duffey got out of the police vehicle and gives the defendant a direction to move. But before the defendant can comply , both police officers grabbed the defendant by an arm and forcibly removed him… … Now if one looks at that you can ascertain that having been told to move from the road now, before he was given the opportunity to do so , Constable Duffey says that the defendant was grabbed and in effect forcibly removed from the roadway. 11 The Magistrate was hearing a no-case submission and was bound to take the prosecution case at it highest. She had heard evidence from Senior Constable Suitor to this effect - A …I can't remember exactly but it was words to the effect of "what are you doing in the middle of the roadway? Get off the road way before you get hit". He replied something similar to "fuck off, I am having a good night, I'm not hurting anybody". Senior Constable Duffey said "get off the roadway before you get killed…" … Q What was said after that? A He then gave us the finger, then Senior Constable Duffey went to get out of the vehicle by opening the driver's door. The defendant's pushed on the driver's door basically not allowing Senior Constable Duffey to get out. … Q What happened next? A Senior Constable Duffey said something like "I have given you a direction to move from the roadway, get off the road way now". Something like that. He again refused. Q What happened next? A We then grabbed the defendant … 12 A statement of Senior Constable Duffey dated 27 October 2003 was adduced in evidence before the Magistrate and before this Court. Dealing with the exchange at the front of the car after the first direction to get off the road and the refusal, Senior Constable Duffey says this in the statement - I got out of the vehicle and I said "you've been given a direction to move off the road way. Move from the road now." I grabbed the defendant… 13 In cross-examination on his statement Senior Constable Duffey said this about the second direction - Q Do you say that when you said that that my client the refused that direction? A That's correct, yes. 14 The Magistrate appears, in coming to her repeated conclusion that the defendant was never given an opportunity to respond to the second direction to leave the road, to have relied only on the statement of Senior Constable Duffey and to have overlooked the evidence to the contrary of that officer and of Senior Constable Suitor. This was a no prima facie case submission and her Honour was bound to take at its highest all the evidence in the prosecution case. In my opinion her Honour erred in finding that the defendant was not given an opportunity to leave the road voluntarily after the second direction before the police took hold of him and removed him.