Ali v SA Police No. SCGRG 95/792 Judgment No. 5160 Number of Pages 4 Criminal Law and Procedure - [1995] SASC 5160

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences - offences against the person - Assaulting police officer in execution of his duty - domestic dispute - wife, who had decided to leave matrimonial home owned by husband and his sister, wished to recover her possessions inside house - whether constable justified in attempting to enter house to make a path for her against expressed will of occupants - whether constable had reasonable cause to apprehend breach of peace and so acting in execution of duty when entering house.

HRNG ADELAIDE, 24 May 1995 #DATE 13:7:1995 #ADD 7:9:1995

Counsel for appellant: Mr M Agar

Solicitors for appellant: Michael Agar

Counsel for respondent: Mr K Soetratma

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 COX J The appellant was convicted in the Elizabeth Magistrates Court on a complaint that alleged that on 9 October 1994 at Parafield Gardens he assaulted Michael Paul Klose, a member of the police force in the execution of his duty: contrary to s6 of the Summary Offences Act 1953. He now appeals against that conviction.

2. The charge arose out of a domestic dispute at a house at 74 Morgan Street, Parafield Gardens. The evidence of the witnesses was confusing and at times contradictory, but fortunately it is not necessary to go into it in detail for the purpose of this appeal.

3. The house at 74 Morgan Street was, at least until the day of these events, the matrimonial home of Shaheed Ali and his wife Sharina (Mr and Mrs Ali). The registered proprietors of the house were Shaheed Ali and his sister Farida Jezierski. The appellant was their brother. They had another sister, Abida Dajani, and another brother Naushad Ali. Naushad Ali had been living at 74 Morgan Street but on October 9 he was in the process of moving out. It appears that the appellant and his sisters Abida and Farida lived elsewhere. Mr and Mrs Ali had two children. The younger was born only a few days before October 9.

4. On the morning of October 9 Mr and Mrs Ali had an argument over the attitude and behaviour of Mr Ali's sisters and his brother Naushad. Mrs Ali said that Naushad was violent and that she was in fear of him. She left the house and took refuge with friends at 50 Morgan Street. Someone at no.74 told the police that Mrs Ali had a knife. The police went to 50 Morgan Street and spoke with her. After the police had left, Mr Ali visited his wife at 50 Morgan Street and they had another argument. Mr Ali took one of the children away. The police were called again and they went to 74 Morgan Street and spoke to Mr Ali. Later that day Mrs Ali went back to no.74 in order to collect her baby's clothes. She was refused admission. The police were called again. One of them was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ali v SA Police No. SCGRG 95/792 Judgment No. 5160 Number of Pages 4 Criminal Law and Procedure [1995] SASC 5160
Case: [1995] SASC 5160
Decision Date: 13 July 1995

CaseChat Overview and Summary

The Supreme Court of South Australia presided over by Cox J heard an appeal from the conviction of the appellant, Shaheed Ali, who was found guilty of assaulting a police officer in the execution of his duty. The conviction arose from a domestic dispute at a property in Parafield Gardens, where Shaheed Ali and his wife had recently separated. The appellant was charged with assaulting Constable Klose, a police officer, when he attempted to enter the house to assist Mrs Ali in retrieving her belongings.

The key legal issues for the court to decide were whether the constable was justified in attempting to enter the house to prevent a breach of the peace and whether the constable had reasonable grounds to believe that such action was necessary. The court examined the evidence and the circumstances surrounding the events, including the conflicting accounts of the witnesses, the rights of Mrs Ali to enter the property, and the actions of the police officer.

The court found that while the situation was distressing and the police had a difficult task in managing domestic disputes, the evidence did not support the conclusion that Constable Klose had reasonable grounds to believe that entering the house was necessary to prevent a breach of the peace. The court held that the constable's actions were not in the execution of his duty as he could not create a situation of breach of peace by his own actions. Therefore, the appellant's resistance to the constable's entry was not an offence.

Consequently, the appeal was allowed, and the conviction was set aside. The court's decision highlights the importance of ensuring that police actions in domestic disputes are justified and based on reasonable grounds to prevent a breach of the peace.

Orders