District Court New South Wales Medium Neutral Citation: R v Attalah [2019] NSWDC 381 Hearing dates: 2 April 2019, 12 April 2019 Date of orders: 12 April 2019 Decision date: 12 April 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: (1) Appeal against conviction for assault law enforcement officer in execution of duty dismissed. (2) Appeal against conviction for resist officer in execution of duty allowed. (3) Appellant acquitted of offence of resist officer in execution of duty. (4) Sentenced to a term of imprisonment of 10 months commencing 9 July 2019 and expiring 8 May 2020 with a non-parole period of 5 months expiring 8 December 2019. Catchwords: CRIME — Violent offences — Assault law enforcement officer in the execution of duty — lawful execution of duty CRIME — Violent offences — Resist corrective services officer in the execution of duty — excessive use of force SENTENCE — sentence of full-time imprisonment — Finding of special circumstances — length of time in custody Legislation Cited: Crimes (Administration of Sentences) Regulation Crimes (Sentencing Procedure) Act Cases Cited: Dyason v Butterworth [2015] NSWCA 52 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) Joseph Attalah (Offender) Representation: Solicitors: S Knox (Crown) E Rowe (Offender) File Number(s): 2018/80560 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 7 February 2019 Before: Beattie LCM File Number(s): 2018/80560 decision Conviction appeal 1. HIS HONOUR: The appellant appeals his conviction by a Magistrate of two offences both alleged to have occurred on 5 December 2017. The first offence is assault a law enforcement officer in the execution of duty. The court attendance notice particularised the assault as being a "punch to the head, eye gouge, pull hair". The second offence of which the appellant was convicted is one of resisting two Correctional officers in the execution of their duty. Prior to discussing the Magistrate's decision and the evidence, it is appropriate that I say something about the nature of a conviction appeal to this Court. 2. I am to form my own judgment of the facts so far as I am able to do so. The appeal is not a re-hearing. I am to recognise the advantage enjoyed by the Magistrate who heard and saw the witnesses in the lower court. While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot property take place. 3. While the appellant does not have to demonstrate a legal error it is necessary for me to consider whether or not the offences have been established beyond reasonable doubt. I have essentially approached the matter in accordance with the principles in the case Dyason v Butterworth [2015] NSWCA 52. The Magistrate's decision 1. I will commence with a consideration of the Magistrate's decision. The Magistrate outlined the nature of the prosecution case. It was an allegation generally brought through the evidence of Correctional Officer Cotter, that Cotter had seen the appellant raise his fist towards another Correctional officer named Reiter; that Officer Cotter called the appellant over to where she was and told him he needed to go inside and that the appellant said, "Okay miss" and walked to where Cotter was near the gate; that as she opened the gate the appellant became aggressive and when he came to the gate he said, "I'll fucking punch you in the head too"; that Officer Cotter thought the appellant was going to hit her and she tried to close the gate to create a barrier and push the appellant back into yard 5; that the appellant grabbed her and she took him to the ground in a swinging motion; that the appellant landed on top of Officer Cotter, grabbed a handful of her hair, punched the top of her head and raked his hands up her face; that Officer Cotter said she could feel another person and on the evidence that person was Officer Martin; that Officer Cotter could feel the appellant's arm being struck and that he let go of her hair; that she got up and secured the gate between yards 4 and 5 and then returned to assist Martin with the appellant. The resist offence was then said to have occurred. 2. The appellant's position at the hearing was that he denied any physical or verbal violence directed to the Corrective Officers and that he was in fact the victim in the matter. 3. The Magistrate in her reasons reviewed the CCTV footage of the incident that was before her. Her assessment of that footage was as follows: "The appellant comes to the gate where Ms Cotter is, I see evidence consistent with Ms Cotter opening the gate partway, motioning Mr Attallah towards the circle area from the yard. Mr Attallah's right hand raises, the gate opens with sufficient force to bounce off a wall and Ms Cotter pulls Mr Attallah towards the circle and Mr Attallah's right arm swings as they go down to the ground. When on the ground Mr Attallah's right arm moves at Ms Cotter and her legs come up immediately after as if a response to that action." 1. The Magistrate then says that Officer Martin strikes Mr Attallah a number of times with his right hand to what she says is the upper body of Mr Attallah. The Magistrate says that the appellant is still on top of Officer Cotter whom the Magistrate describes as getting out of the situation by getting up and closing the gate at which point Officer Martin is still hitting the appellant. Ms Cotter, according to the Magistrate, is seen in the CCTV to return to assist Martin to restrain the appellant. The Magistrate accepted the evidence of Cotter and considered her evidence was clear and detailed. 2. The Magistrate considered that the CCTV supports Officer Cotter's evidence about why the encounter occurred. The Magistrate considered that her evidence was "honest, credible and reliable". In reviewing Officer Martin's evidence the Magistrate noted that he had given evidence that "Ms Cotter tried to push Mr Attallah back through the gate, that Mr Attallah swung a punch, grabbed her by the hair and they both fell to the ground". 1. The Magistrate said in relation to that aspect of Martin's evidence: "that is not consistent with the CCTV and Ms Cotter's evidence in terms of sequencing". 1. In relation to Officer Martin's evidence about what happened when the appellant was on the ground, being that "I hit him a few times on the upper arm and shoulders". The Magistrate said she said "some concerns" about Martin's account as the CCTV showed "it was more than a few times and that the hitting continued". The Magistrate was of the view that Martin minimised his conduct towards the appellant and considered that adversely affected his reliability. 2. The Magistrate considered that Officer Cotter's evidence about what occurred at the gate was consistent with the CCTV footage and did not accept Martin's evidence noting that he was some distance away at that point. 3. The Magistrate reviewed the appellant's record of interview with the police and considered that aspects of what he said in his interview were not consistent with the CCTV footage. She noted that at answer 109 the appellant denied pushing the gate in anger which her Honour considered was inconsistent with the footage. 4. The appellant's account in the record of interview was rejected by the Magistrate and she considered it did not cause her to doubt the evidence of Officer Cotter. 5. The Magistrate concluded that the assault occurred after Cotter had taken the appellant to the ground and that Cotter acted within her duty having regard to clause 131 of the Crimes (Administration of Sentences) Regulation. The Magistrate considered that Martin's actions while the appellant was on the ground, were still actions in the execution of his duty and found that the appellant was resisting both officers in the execution of duty. Review of CCTV footage 1. I turn then to my review of the CCTV footage. I have carried out my own review of the CCTV footage and have watched it a number of times, making use of the ability to enlarge aspects of it and to watch it at various speeds. It is of reasonable quality but there is no sound. In my opinion, the following can be seen in the CCTV footage of the incident from which the charges arose. 2. The CCTV footage shows from 10.06 onwards, the appellant approaches the gate at which Corrective Officer Cotter stands. The appellant approaches the gate and Cotter opens the gate to her right with her right hand. The appellant approaches Cotter and stands in the opening of the gate. Cotter motions with her left hand to her left-hand side, in an apparent direction to the appellant to go through the gate into what was referred to in the evidence as the circle area. 3. The appellant pushes the gate to his left-hand side being in a direction away from Cotter. Cotter is still holding the gate with her right hand at that time and is in effect pulled in the same direction as the swinging gate. The pushing of the gate appears to be an aggressive act by the appellant and is certainly forceful. The appellant appears to push Cotter in the area of her upper arm or chest shortly after that. Both the appellant and Cotter take a small step back from the gate. The gate then swings back in the direction of Cotter. 4. At about 10.06.58 as the gate swings back, Cotter reaches out to grab the appellant with her left hand followed by her right hand. As Cotter does this, the appellant grabs her with his left and then his right hand. The appellant and Cotter stumble through the gate towards Cotter but it is not clear from the CCTV if the appellant pushes Cotter or vice versa or both. Both of them fall to the ground. 5. As this occurs, another person identified as Officer Martin approaches the two of them and kneels on the ground. It appears that Martin puts his left knee on the appellant. Between 10.07.05 and 10.07.16 it appears from the footage that Martin strikes the appellant in the head about 11 times with his right fist. 6. As this is occurring, Cotter gets up from the ground and closes the gate before returning to where the appellant and Martin are on the ground. It appears that Cotter pushes Martin away from the appellant. At one point at 10.07.16 while the appellant is being struck to the face by Martin, Cotter appears to forcefully drop her knee into the area of the appellant's neck or upper back. Officer Cotter's evidence 1. I now review Cotter's evidence. Cotter gave evidence that she has been a Correctional Officer for some 18 years and as at the date of the incident she had been a senior Correctional Officer for three years. As at the date of the incident she was responsible for inmate movements. Cotter gave evidence that the appellant was in yard 5 and she observed him to approach the gate to yard 4 and talk to an inmate, something which inmates are, according to her, not permitted to do. 2. The CCTV appears to show the appellant shake hands with an inmate through a gate. Cotter's evidence was that another officer, an Officer Reiter, said something to the appellant and he went back towards his yard. Cotter's evidence was that she saw the appellant raise his fist towards Reiter but was not close enough to actually punch him. The CCTV footage shows some type of interaction between the appellant and Reiter, in my view, but I do not detect the appellant raising a fist towards Reiter. 3. Cotter gave evidence that she instructed Reiter to write out a charge sheet for internal misconduct by the appellant. Reiter was called in evidence in the Local Court and in effect corroborated Cotter's evidence in that regard. There was little by way of challenge to Reiter's evidence and he maintained that the appellant had raised his fist towards him. 4. Cotter's evidence was that she called the appellant over to the front of yard 5 as she was going to require him to speak with an assistant superintendent of the wing. She described the appellant as being calm at that point and that she said words to the effect that he would probably be locked up pending the misconduct charge. Her evidence was the appellant said, "Okay miss" and started to walk towards her. Her evidence was she opened the gate to the area of the prison where the appellant was and as he came out of the gate he said, "I'll fucking punch you in the head too". 5. Her evidence was that she thought the appellant was going to hit her, so she tried to shut the gate and the appellant pushed the gate and flung it against the wall. Her evidence was that she thought he was going to attack her, and tried to push him back into the yard from which he came so she could shut the gate. 6. Her evidence was that the appellant tried to grab her and in accordance with some recent training she had received, she decided to take the appellant to the ground; that she took the appellant to the ground but he landed on top of her. Whilst on the ground, according to Cotter, the appellant grabbed a handful of her hair, punched the top of her head, and raked his hands up her face. It is that conduct on the ground which is relied upon for the assault. 7. There were some photographs taken of Cotter which became exhibits which tend to support the evidence she gave as to what occurred while she was on the ground. 8. Her evidence was that the appellant was on top of her and that she couldn't really see what was then happening, that she could hear inmates yelling and that she could feel someone was on top of her and the appellant and that later she found out that was Officer Martin. Her evidence was that she thought Martin was striking at that point the appellant on the arm. She then said the appellant let go of her hair but she got up and secured the gate and at that point Martin was on the ground with the appellant. Her evidence was that she heard Martin tell the appellant to get his hands behind his back and the appellant appeared to be struggling with Martin. She said that Martin had at one point got one of the appellant's hands behind his back, that she could not pull the appellant's other hand which Martin then struck. She then gave the appellant what she described as "a couple of knee strikes to the hip area." At that point Cotter said she was telling the appellant to stop resisting. Cotter gave evidence she was eventually able to get a handcuff on one of the appellant's hands and then other officers arrived to assist. 9. In cross-examination it was suggested to her that the appellant never raised his fist towards Reiter, a suggestion Cotter denied. Cotter also denied in cross-examination that the appellant had not said words to the effect of, 'going to fucking punch you too' and did not accept that she had made no attempt to push the appellant back into the yard. In terms of taking the appellant to the ground, Cotter gave evidence that she considered that was an appropriate action because she felt under immediate threat from the appellant. Her evidence was that she had attempted to close the gate when the appellant pushed it. Cotter agreed in cross-examination she gave no warnings to the appellant, that she was going to use force towards him, but said that was because there was no time to do so. Perhaps the most significant thing to emerge in Cotter's cross‑examination is that in a report she made of the incident, she has described Martin as having struck the appellant several times to the head while he was on the ground. 10. In her evidence before the Magistrate she claimed the striking was to the arm, but she appeared to agree that she had only changed her position in relation to where she said Martin struck the appellant after speaking with Martin. The CCTV footage clearly shows, in my opinion, Martin striking the appellant several times to the head while the appellant was on the ground. The change in Cotter's evidence is a matter which impacts adversely on my assessment of her credibility. It suggests an attitude of deliberately downplaying the level of violence directed towards the appellant that day. Officer Martin's evidence 1. I turn then to my assessment of Corrective Officer Martin's evidence. His evidence was that he was working in the area known as 'the circle' that day and made observations of Cotter and that at some point he observed the appellant to be acting in an aggressive and intimidating manner towards Cotter. His evidence was that he saw Cotter try to push the appellant back through the gate, that the appellant then swung a punch at Cotter and grabbed her by the hair and they fell to the ground. His evidence about the actions by the appellant prior to the appellant and Cotter ending up on the ground are not only inconsistent with Cotter's evidence but inconsistent with the CCTV footage. It is clear from that footage that prior to being on the ground the appellant did not throw a punch at Cotter or pull her hair. 2. Officer Martin gave evidence that by the time he arrived at where Cotter and the appellant were, they were on the ground and the appellant appeared to be lying on top of Cotter. Martin gave evidence that he saw the appellant throw a punch at Cotter while on the ground. Martin gave evidence that he then 'put weight on' the appellant and tried to help Cotter restrain him. His evidence was that he struck the appellant 'a few times on the upper arm' and told the appellant to give him his arm. Martin denied striking the appellant to the head at all, even when the relevant part of the CCTV footage was played to him. In my opinion, the CCTV evidence is clear that he struck the appellant a number of times to the head. Martin denied any prior conversation with Cotter before giving evidence about where it was that he struck the appellant. Martin's evidence, in my view, is not reliable or indeed truthful evidence. It is clearly inconsistent with the CCTV footage and with Cotter's evidence. I have no doubt he attempted to downplay the level of force used on the appellant that day. His evidence at the end of the day did not, in my view, assist the prosecution case. Appellant's interview with police 1. I turn then to consider the appellant's interview. The appellant gave a record of interview to the police, essentially denying the actions attributed to him that day and asserting that he was in fact the victim. He claimed in particular in the interview that he never pushed the gate and never touched Cotter. Those two assertions, in my opinion, are inconsistent with what can be seen in the CCTV footage prior to the appellant and Cotter ending up on the ground. Of course the appellant is under no obligation to prove his version in the record of interview is true. At all times the prosecution must prove the two charges beyond reasonable doubt. Decision 1. I come now to my decision. I have of course had regard to the Magistrate's assessment of the witnesses she heard from and I noted earlier she was of the opinion that Cotter was in the main, truthful and reliable. The only real reservation I have about Cotter's evidence is the change in her evidence as to where Martin struck the appellant and I have had regard to that in my assessment of her overall evidence. In my opinion, the CCTV footage is particularly important in this case and I have set out what I can derive from it earlier. In my opinion, Cotter should be accepted as to how the incident began. She is supported by Reiter as to her evidence about the appellant's conduct towards him that day and what Cotter told Reiter to do, that is lay a misconduct charge against the appellant. It is clear from the CCTV footage that the appellant aggressively pushed the gate away while Cotter's arm was on the gate. There is evidence as to why he was acting aggressively towards Cotter, that being that he knew she had told Reiter to lay a misconduct charge against him. Shortly after that he aggressively pushes the gate which Cotter is holding. In my opinion, the appellant can be seen on the CCTV to push Cotter to the upper arm or chest. It is at that point Cotter makes the decision to seek to take the appellant to the ground. In considering the lawfulness of that action by Cotter, it is important to consider the context in which this incident occurred, that is, it occurred in a gaol setting and on my findings, the appellant was acting in an aggressive manner towards the Correctional Officer concerned and had physically touched that officer. The officer, an experienced one, gave evidence that she believed she was under a significant threat and she took the action she did as a preventative and protective action. 2. It is important to understand and have regard to the context of such an incident when calmly sitting back in a court room and over several hours, reviewing an action that took a matter of seconds. I am satisfied that Cotter was lawfully entitled to take the action she did in the circumstances in which she found herself, having regard to clauses 131(1), (2), and (4) of the Crimes (Administration of Sentences) Regulation. 3. Therefore I am satisfied beyond reasonable doubt that at that point Officer Cotter was acting in the lawful execution of her duty. Precisely what occurred when she and the appellant were on the ground is difficult to determine, especially given a reservation I have about the aspect of Cotter's evidence I have referred to and the quick intervention by Martin. I am satisfied beyond reasonable doubt that the appellant, while on the ground, pulled Cotter's hair and punched the top of her head. I am not satisfied that he raked her face beyond reasonable doubt. The injury to the face may well have occurred when she fell to the ground and I cannot exclude the possibility that it was not caused by a deliberate act of the appellant. In my opinion, the assault officer in the execution of duty was proved beyond reasonable doubt. 4. In relation to the resist officers in execution of duty, where the officers are both Cotter and Martin, from the moment Martin joined the incident and began to strike the appellant, the level of force applied to restrain the appellant was more than was reasonably necessary to restrain him in the circumstances and was excessive in my opinion. Indeed, I am satisfied that Martin, in particular, knew when giving evidence that the force he applied that day was excessive, hence his reluctance to accept what is obvious from the CCTV footage. I also consider that Cotter's change in her evidence about what area of the appellant's body Martin was striking was because she had had conversations with Martin and was aware that the level of force used in the restraint of the appellant was excessive. In my opinion, as the level of force used to restrain the appellant, once Martin arrived on the scene was excessive, any resisting of the two officers did not occur in the execution of their duty and for that reason, I consider that a verdict of not guilty should be entered in relation to the resist officers charge. Remarks on sentence appeal 1. I found the assault correctional officer offence proved beyond reasonable doubt in this conviction appeal. I entered a verdict of acquittal on the resist officer in the execution of duty. I will not go over the reasons why they will be reflected in the transcript if it ever needs to be considered. 2. I am of the view that the way in which the appellant was dealt with in terms of the level of force administered to him was outside the officers' execution of duty for the reasons I gave. I consider that he in effect suffered extra-curial punishment at their hands that day and that is a factor I take into account in my approach to sentence. I also take account of the fact that I was not satisfied beyond reasonable doubt that he raked the officer's face. Although I was satisfied beyond reasonable doubt that he assaulted the officer and that clearly on my findings, he was the aggressor in terms of what he did with the gate, and that he did in fact push the officer before she made the decision to take him to the ground. 3. Of course correctional officers have a very difficult task, a very difficult job indeed dealing with serious criminals and the appellant has a very serious criminal record and is serving a very serious and lengthy term of imprisonment for a serious drug supply count. He has on his record from 2011, a not dissimilar matter where there was in fact infliction of actual bodily harm. That was clearly within the custodial environment. Then there was another matter which occurred in August which pre-dates this incident. He has a sentence of three months which he is currently serving for that. 4. I do have some regard to his age, which is 66 and of course in terms of totality, the length of time that he has been in custody, but I have to weigh up the need for specific and general deterrence. The view I have come to given that I acquitted him of the resist and the slight difference in the nature of the assault that I found beyond reasonable doubt and the extra curial punishment, that there can be some alleviation of the sentence. 5. I make a finding of special circumstances principally because of the length of time he has been in custody. The sentence I have arrived at is one with a non-parole period of five months and a balance of parole of five months. It is a total sentence of ten months. Section 56 of the Crimes (Sentencing Procedure) Act in my view means that the sentence should commence on 9 July this year, because that is the date that the existing sentence expires and that results, and can you just check these dates, ten months from that date. The end of the sentence will be 8 May 2020 and he is eligible to be released to parole or should be released to parole on 8 December 2019. Orders 1. The following orders are made: 1. Appeal against conviction for assault law enforcement officer in execution of duty dismissed. 2. Appeal against conviction for resist officer in execution of duty allowed. 3. Appellant acquitted of offence of resist officer in execution of duty. 4. Sentenced to a term of imprisonment of 10 months commencing 9 July 2019 and expiring 8 May 2020 with a non-parole period of 5 months expiring 8 December 2019. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2019