Traffic officer trespassing when hit by iron bar

Press, 17 April 1980, Page 4

Traffic officer trespassing when hit by iron bar

Striking a traffic officer across the buttocks with an iron bar when evicting him from a property where he was trespassing was not a justifiable use of force in the circumstances, Mr Justice Somers has ruled in a reserved decision given in the High Court. His Honour dismissed an appeal' by David Matthew Holden Tipple against a conviction on a charge of assault. On April 24, 1979, Mr Tipple was convicted in the Magistrate’s Court on a charge of assault under the Summary Proceedings Act after a defended hearing andl

r was fined $l5O by Mr K. W. i Frampton, S.M. i At the hearing of the apj peal Mr R. L. Kerr appeared i for Mr Tipple, and Mr B. M. i Stanaway for the police. Giving his decision his i Honour said that at 7 a.m. i on February 21 Traffic Officers L. B. Channings and . J. B. Bland called at Mi • Tipple’s home to speak to ■him about an alleged minor breach of the traffic regulations the previous day. When he spoke to the traffic officers at the door Mr Tipple was in his night attire and he denied being : involved ip the alleged of.l fence. He admitted he had a

Holden car in the garage but said that it was driven bj other persons as well as himself. Mr Tipple decided that he did not wish to speak aboul the matter any further and three times told the traffic officers to leave. On tlie third occasion he told them that if they did not go he would throw them off his property. , The officers did not move and'Mr Tipple grabbed the tunic of Officer Channings and they fell to the ground. A ensued. Officer Bland restrained Mr Tipple and . told him he had better get dressed. While Mr Tipple went inside Traffic Officer Channings, went.to the patrol car to obtain police assistance. Officer Bland remained on the property. After telephoning his solicitor, Mr Tipple, now dressed, went outside and said that his solicitor had told him that he could use force to remove the traffic officers. Going into the garage Mr

Tipple picked up an iron bar and moved towards the officers who were standing part way down the drive. The bar was waved at them and they backed out of the way. Mr Tipple struck Officer Channings across the buttocks. It was not clear from the evidence whether at that point the officers were actually leaving the property. The evidence indicated that they were not leaving the property but merely backed away from :he weapon wielded by Mr ripple, his Honour said. Mr Frampton preferred the evidence of the traffic officers to that of Mr Tipple and

t found that the first IncidI ent when Mr Tipple grabbed > the tunic was an assault. He also found that the wield- ; ing of the iron bar constitut ted the use of unreasonable J force and the battery was ; also an assault. J Mr Kerr had submitted that ! although Mr Tipple faced only : one charge of assault Mr ’ Frampton’s decision incorporated two assaults and that, J accordingly, the conviction ■ was bad "for the reason of . duplicity. That submission : was not upheld by his Hon- ; our. : The implied licence which permitted the officers to ent- • er Mr Tipple’s property had been unquestionably revoked when he told them to leave and they were obiliged to go, although they were permitted a reasonable time to do so. The officers made no attempt to go and instead stood their ground. In those circumstances Mr Tipple was entitled to use reasonable force to remove them. That view was readily con-

ceded by Mr Stanaway. Once they were asked to go the officers entirely misconceived their rights, and the incident involving the grabbing of Officer Channing’s tunic did not constitute an assault in law. Mr Frampton was wrong in his determination on that point and in his finding of two assaults.

However, his Honour held that the striking of Officef Channings with the iron bar was more force than was necessary to remove the trespasser and therefore Mr Tipple was properly convicted of ah assault arising from the use of the bar.