A Sydney anti-lockdown protester accused of punching a police horse has been granted bail after video footage of the incident emerged.
Kristian Pulkownik was forced to spend three weeks in custody before a Magistrate released him on strict bail conditions.
The 33-year-old has vowed to fight some of the charges which include animal cruelty and affray.
Bail Application at Central Local Court
In making the bail application at Central Local Court, the Magistrate was told that Mr Pulkownik was a "caring animal lover" who was defending himself from the horse.
The 33-year-old, who was photographed and filmed at the protest, has been charged with committing an act of animal cruelty, affray, joining an unlawful assembly and not complying with a direction from police.
On a previous occasion, magistrate Mark Richardson had refused to hear a release application as Mr Pulkownik was being kept in isolation and could not be appear in Court from his jail cell. This was because he had refused to undergo a COVID-19 test since his arrest at the anti-lockdown protest.
His lawyer at the time complained that this had made it "impossible" speak to the client.
However, magistrate Richardson said he didn't have the authority to direct Corrective Services to provide access.
Accused Refuses COVID Test in Custody
Mr Pulkownik refused to take a COVID-19 test in prison on medical grounds.
His bail application lawyer said, "My instructions are because of his asthma condition, he would have an adverse reaction to the nasal swab test. There's a medical reason for his refusal, which he's very firm about."
The Court heard that Mr Pulkownik had developed a chest infection after being denied his asthma medication. They suggested this was a matter in favour of bail being granted as his ability to obtain legal advice would be affected by being isolated.
However, Magistrate Clare Farnan pushed back against this, stating, that it was a matter "within your client's own hands...The authorities have a duty of care in relation to the health of others."
Speaking to the media, his criminal lawyer raised concerns about how Mr Pulkownik was treated in custody, saying, "They actually said that if you do the test we'll give you your medication."
Before his first court date, his lawyers had only been able to speak to him once.
"I had one quick five-minute call yesterday but that's not enough to take instructions and prepare for a case ... five, seven minutes isn't enough time...I'm sure we've got the technology out there these days to get a telephone, even if it's in a plastic bag."
They also expressed concern that justice was being compromised because of the pandemic.
"Essentially, they're giving a 14-day pass to lock people up and put them in isolation in circumstances where perhaps they don't even have a criminal history that would warrant such conduct...It's a sad day that we need to do this in Australia."
Strict Bail Conditions
Magistrate Farnan was provided with five character references on the bail application. She noted that some of the material tendered suggested the defendant as a "caring animal lover".
Mr Pulkownik's bail conditions include that he is to live with his mother, he is not to enter the CBD unless for approved reasons and he must comply with health orders.
"These are difficult times in Sydney for everybody. I would urge you to understand the health orders, comply with the health orders, they're in everybody's interest and they're in your interest as well."
Accused Pleads Not Guilty to Criminal Charges
The court was played two videos of the incident before Mr Pulkownik's criminal lawyers argued that he was defending himself from the police horse which was "ridden towards him".
"A very consistent interpretation of what we see is the accused, rather than punching the horse, was fending it off in a manner of self-defence," he said.
His criminal defence lawyer told the court that the 33-year-old would plead not guilty to three of the four charges.
In relation to the animal cruelty charge, Mr Pulkownik said, "I don't abuse animals...I've rescued animals from the RSPCA my whole life."
Anti-Lockdown Protestor Speaks to Media
Upon his release from Parklea Correctional Centre, Mr Pulkownik told media outlets that he wished the incident never happened. However, he maintained that the photograph did not tell the full story.
"I'd rather everyone look at the full CCTV, all the footage ... and make their own assumptions. It's very regretful that it happened and my sincere apologies."
His lawyer also told reporters that, "He doesn't have a significant history of violence. He's actually an animal lover; he's a very soft, gentle guy. I was just amazed as to how we got to this stage."
Section 93C of the Crimes Act 1900 (NSW) defines Affray as a person using or threatening to use unlawful violence towards another person which causes a person of "reasonable firmness" present at the scene to fear for his or her personal safety.
Affray is a 'Table 1' offence under the Criminal Procedure Act 1986 (NSW). As such, it is finalised in the Local Court unless yourself or the prosecution elects to deal with it in the District Court.
It is rare for an Affray charge to be heard in the District Court unless there are associated serious charges being heard in the District Court.
Affray is a type of assault charge which carries a maximum sentence of 10 years jail if your case is heard in the District Court. In the Local Court, the maximum sentence for a single offence is 2 years imprisonment.
While it is impossible to predict the exact affray sentence you will receive, we can provide a range of likely sentences. Analysing 4,044 cases in the Local Court from the last 5 years, only 12% of cases received no conviction for Affray. The remaining offenders all received convictions and 13% of offenders were sentenced to full-time imprisonment.
Clearly, an Affray charge is extremely serious. More people are sentenced to jail than receive Section 10 dismissals. That is why it is important that you speak to one of our highly experienced criminal defence lawyers for affray charges to obtain the best possible outcome.
The following defence to affray charges can apply:
- Self defence: In this case you will be arguing that any violence you used was not 'unlawful'. This defence includes if you were defending another person
- Accident: your actions were accidental. You had no intention of assaulting anyone and you could not have foreseen that your actions would constitute unlawful violence
- Identification: Police cannot identify you as the perpetrator of the Affray
- Duress: That you were forced to commit the offence
- Necessity: your actions were necessary in the circumstances
It is important to speak to experienced Affray lawyers about any potential defences you have available to you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.