Butt v the Police No. Scciv-03-1293

BUTT v THE POLICE
[2003] SASC 373
Magistrates Appeal
BLEBY J

The appellant was charged with a number of offences alleged to have occurred on 21 February 2003. They were driving under the influence, assaulting a member of the police force in the execution of his duty, resisting a member of the police force in the execution of his duty and driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol. The concentration alleged was .208 grams per 100 mililitres of blood. The defendant pleaded guilty to the prescribed concentration of alcohol charge, whereupon the charge of driving under the influence was withdrawn. He pleaded not guilty to the other two charges. After hearing evidence and submissions a Magistrate found him not guilty of assaulting a police officer but guilty of resisting a police officer. The appellant now appeals against that conviction on three grounds and appeals against the refusal of the Magistrate to award him the costs of the successful defence of the charge of assaulting police.
I summarise briefly the facts which were not in dispute and the relevant findings of the Magistrate. At about 9.20 pm on 21 February 2003 Constable Clifton and Constable Cromb were on mobile patrol and were directed to the Caltex Service Station on Panalatinga Road, Woodcroft in relation to a possible drink driving offence. The appellant was inside the service station when they arrived. He appeared to be under the influence of liquor, and Constable Clifton considered that his faculties were impaired. The appellant was requested to submit to a breath analysis test, a request which he appeared not to understand. It was explained to him that whilst he was not under arrest, he would have to attend the Christies Beach police station to submit to a breath analysis test.
Section 47E of the Road Traffic Act 1961 provides that, where a member of the police force “believes on reasonable grounds that a person, while driving a motor vehicle ….. has committed an offence of a prescribed class of which the driving of a vehicle is an element, or, has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired ….”, the member of the police force may require the person to submit to a breath analysis. Sub-section (3) of the same section provides that a person “must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement”.
It was not suggested in this case that Constable Clifton did not have the requisite belief to justify requiring the appellant to submit to breath analysis, nor was it suggested that the requirement that the appellant go to the Christies Beach police station for the purpose of submitting to the test was an unreasonable direction. The appellant appears initially to have acquiesced, albeit reluctantly, in the direction.
There was a temporary but irrelevant interruption by a friend of the appellant, a Mr Burns, who Constable Clifton also believed to be affected by alcohol. Constable Clifton assisted the appellant to the police vehicle. He then removed some bags from the back seat and placed them in the boot of the vehicle. The appellant was still unsteady, placing his hands on the police car to retain his balance, and then sat in the rear seat on the passenger’s side, with his legs outside the vehicle and his feet on the ground.
The appellant attempted to use his mobile phone. The evidence as to what then happened was disputed, but the Magistrate accepted the evidence of Constable Clifton to the effect that the appellant kept dropping the phone into the foot well of the police vehicle. Clifton then suggested that he place it on the front seat of the car for safe keeping. He was concerned that if it dropped onto the road it would have broken, and that if it was damaged there would have been a complaint. He leant across the appellant’s legs to pick up the phone from the foot well. As soon as he picked it up the appellant “snapped” and “all hell broke loose”.
The appellant and Burns both accused Clifton of larceny, although there was a dispute about the actual language used. At the same time the appellant was trying to get out of the car. Constable Clifton described him as becoming aggressive. Constable Clifton attempted to hold him in the car by placing his right hand on the appellant’s chest whilst still holding the appellant’s mobile phone in his left hand. He said he was bracing himself against the gutter when he was kicked by the appellant in the groin. He described being grabbed by the appellant in the area of his waist and being pulled towards the appellant, who then attempted to bite his stomach area. He said that he feared the consequences of that conduct and punched the appellant in the face. Constable Clifton believed that Burns was nearby and was trying to grab his OC spray. He feared for his own safety and pulled the appellant out of the car by his shoulders in order to try and handcuff him. He pulled the appellant to the rear of the car and was on the ground with him. The appellant was writhing on the ground.
Constable Clifton told the appellant that he was under arrest for driving under the influence and assaulting police, and requested a civilian to summon Constable Cromb’s assistance. He had decided to arrest the appellant after he was kicked in the groin.
Even with the assistance of Constable Cromb, he was unable to handcuff the appellant. The appellant rolled onto his back and Clifton alleged that he was again kicked in the groin by the appellant. He fell in a heap in pain onto the appellant. It was after this that the appellant yelled and went limp and was eventually handcuffed.
After the close of the prosecution case the Magistrate required the prosecution to elect as to which evidence it relied upon to establish the single count of assaulting the police officer. As the evidence stood there were two possible assaults constituted by kicking. The prosecutor elected to rely on the second alleged kick.
Whilst the Magistrate generally regarded the police officers as witnesses of truth, he expressed concern at some aspects of Constable Clifton’s evidence. The Magistrate considered that he was keen to justify his behaviour and exaggerated the extent of the appellant’s conduct with respect to the events which took place before the appellant was placed on the ground at the rear of the vehicle. He considered that Constable Clifton had exaggerated the effect that the appellant’s conduct had on him.
The Magistrate accepted that there was a physical altercation involving attempts by the appellant to get out of the police vehicle and to regain possession of the telephone. He said:
“I am satisfied that those attempts and the defendant’s conduct as Clifton perceived it to be, amounted to sufficient cause for Clifton to pursue his power of arrest for the reasons I accept that he, Clifton, stated at the time. However, I do not make any specific findings beyond what I have just said about the first alleged kick or the attempted bite. In view of the election of the prosecution, it is my view that I am not obliged to do so.
Quite clearly the defendant resisted Clifton, and in my view did so at a time when the officer in question was in the execution of his duty, and I am accordingly satisfied that each element of that offence has been proved beyond reasonable doubt, and I find the defendant guilty of resisting Constable Clifton in the execution of his duty.”
Because he had difficulty in accepting some aspects of Clifton’s evidence, and after weighing up the various descriptions of events surrounding the alleged second kick, the Magistrate considered that it had not been proved beyond reasonable doubt. He therefore found the appellant not guilty of the charge of assault.
The first ground of appeal is that the Magistrate erred in finding that the actions of Constable Clifton in removing the appellant’s mobile telephone from him was not conduct which was contrary to the exercise of the police officer’s duty. The significance of the submission would appear to be that, because the violence which followed was sparked by the removal of the telephone, it was the unlawful act of the police officer which caused the conduct said to constitute the offence of resisting police, of which he was convicted.
It is conceded that at the time the officer seized the appellant’s telephone from his possession or custody, the appellant was not under arrest, and the taking possession of the telephone was not incidental to the exercise of any power of search. It was not suggested that the telephone was an object which afforded evidence of the commission of an offence.
If the police officer’s power to take possession of personal property was limited to property the subject of lawful search procedures or property seized for investigatory or evidentiary purposes, then the taking of the telephone was unlawful. The respondent concedes as much.
However, there is no suggestion in the evidence that the police officer intended permanently to deprive the appellant of his own personal property. The interpretation accepted by the Magistrate appears to have been that he took possession of the telephone purely for the purpose of temporary safe keeping in order to avoid it being lost or damaged while the appellant was in intended transit in the police vehicle to the police station.
Constable Clifton had given what, for present purposes, must be taken to have been a lawful direction under s 47E of the Road Traffic Act. He was acting in the execution of his duty in so doing. To the point of commencement of the altercation, the appellant was complying with the requirement. Constable Clifton was exercising a degree of lawful control over the appellant, although not the same degree of control that he would have had over a person under arrest. Without arresting him, the police officer had no right to exercise a degree of physical control over the appellant, notwithstanding that, by not complying with the officer’s reasonable direction, the appellant might have been committing an offence under s 47E(3).
Constable Clifton also had good reason to believe that the appellant was significantly affected by alcohol. His movements were unsteady, his actions clumsy, his faculties impaired. In those circumstances there was a greater risk than normal of the appellant damaging property or suffering some personal harm.
In all those circumstances Constable Clifton had a duty of care towards the appellant and his property in the course of exercising what control he did have while the appellant was complying with his directions. That included a duty to take any reasonable steps to protect the appellant’s property from possible loss or damage whilst the appellant was complying with his directions.
On the Magistrate’s findings, the police officer was doing no more than that. There are many situations where a police officer will take possession of personal property for temporary safe-keeping, although not authorised by any Act or regulation to do so. This happens on many occasions, for example at the scene of a motor vehicle accident or upon a person being taken into custody.
I would hold that there was nothing unlawful about Constable Clifton’s attempts to gain temporary custody of the telephone for that purpose. It was not contrary to and was consistent with his duty at the time.
The second ground is that the Magistrate erred in failing to find that the actions of the police officer in removing the appellant’s mobile telephone gave rise to a right to the defence of his property by the appellant.
Section 15A of the Criminal Law Consolidation Act relevantly provides:
“(1)   It is a defence to a charge of an offence if –
(a)     the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable –
(i)to protect property from unlawful appropriation, destruction, damage or interference; …
(b)     ……; and
(c)    the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.”
On the Magistrate’s findings, the appellant was intoxicated and disoriented. There was evidence that he believed that his own vehicle had been stolen, whereas in fact it was merely parked around the corner. There was no evidence that the officer intended permanently to deprive the appellant of the telephone or to destroy it or damage it in any way. The police officer, whose evidence the Magistrate preferred, said he suggested putting it on the front seat for safe-keeping. The appellant could not have held a genuine belief that the officer was acting unlawfully in permanently depriving him of possession of the telephone or that the telephone would be destroyed, damaged or interfered with.
That would be sufficient to dispose of that ground. However, it was the appellant’s case before the Magistrate that he did not use any force against the officer at all. That was the basis of his denial of the charge of resisting the police officer. The appellant’s own evidence was that, after accusing the police officer of theft of the telephone, the police officer assaulted him, grabbed him and pulled him out of the vehicle. All he did was not to resist the police but to endeavour to protect himself. There was therefore no issue of self defence raised on the evidence.
The third ground of appeal is that the Magistrate’s conclusion that the conduct of the appellant amounted to sufficient cause for the police officer to pursue his power of arrest was speculation.
According to the evidence which the Magistrate preferred, when Constable Clifton picked up the telephone there immediately followed the series of abuse by the appellant and his friend and the violent attempt by the appellant to get out of the car. Constable Clifton either advanced or acquiesced in the suggestion that there were two possible reasons for that. One was that the appellant wanted to escape. The other was that he was attempting to recover the telephone being held by Clifton. The Magistrate made no finding as to the reason. Given the violent nature of the eruption it probably does not matter what the appellant’s reason was.
The question is whether Constable Clifton was justified then in trying to confine the appellant to the rear seat of the police car. At that stage the appellant had not been arrested. Nevertheless, Constable Clifton was faced with a sudden explosion of violence. It was not an unreasonable reaction of Constable Clifton to seek to confine the appellant to the rear seat of the police car for the appellant’s own safety, for his (Clifton’s) own protection from attack and to protect the appellant’s mobile phone, which Clifton was then holding, from damage. According to the Magistrate’s findings, it was Clifton who was being attacked. It was in the course of Clifton’s attempts to subdue the appellant and confine him to the seat of the car that Clifton alleged that he was kicked in the groin by the appellant. That was not the event on which the prosecution elected to proceed with the charge of assaulting the police officer.
It appears to have been for that reason that the Magistrate said that he made no specific findings “beyond what (he had) just said about the first alleged kick or the attempted bite”. What the Magistrate had just said was that the attempts by the appellant to escape from the police vehicle and regain possession of the telephone and the appellant’s conduct as Clifton perceived it to be amounted to sufficient cause for Clifton to pursue his power of arrest. The charges for which he was arrested were driving under the influence and assaulting police. The attempt to arrest the appellant took place before the second alleged kick which became the subject of the assaulting police charge.
There was never a finding by the Magistrate that the first kick did not occur. According to the evidence of Clifton he clearly believed that it did. Section 75 of the Summary Offences Act 1953 confers a power of arrest on a member of the police force in respect of “any person whom the member finds committing, or has reasonable cause to suspect of having committed ….. an offence”.
It would appear that Constable Clifton had reasonable cause to suspect that the appellant had committed the offence of driving under the influence. According to the Magistrate’s finding, it would also appear that the Magistrate was satisfied that Constable Clifton had reason to suspect that the appellant had committed the offence of assaulting a police officer. That could only be by reason of Constable Clifton’s belief that the appellant had kicked him. Had the Magistrate gone on to find that the first kick did not occur and that Constable Clifton was fabricating his evidence in that respect, there would have been no justification for the arrest on that ground. But the Magistrate made no such finding. He merely found that Constable Clifton had exaggerated the extent of the appellant’s conduct and had exaggerated the effect that that conduct had on him. There was, nevertheless, evidence of Clifton, which the Magistrate apparently accepted, which justified the arrest at the point at which it was made and for the reason that it was made.
The charge was that of resisting Constable Clifton, a member of the police force, in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953. The Magistrate did not identify precisely the conduct which was said to constitute the offence. However, the finding that the appellant was guilty follows immediately upon the finding that the arrest was justified. There was certainly evidence which was accepted by the Magistrate on which he could find that the appellant was resisting his arrest. That is sufficient to justify the conviction. It is not necessary to express any view as to whether Constable Clifton’s conduct prior to the arrest was conduct “in the execution of (his) duty” for the purpose of that sub-section.
It follows that the appeal against the convictions be dismissed.
Finally, the appellant complains of the failure to award costs in his favour on the successful defence of the charge of assaulting police.
Section 189 of the Summary Procedure Act 1921 provides that the Court may award “such costs for or against a party to proceedings as the Court thinks fit”.
The conduct said to constitute the alleged assault against the police officer arose out of two incidents of alleged kicking by the appellant of the police officer punctuated, as the Magistrate found, by the conduct constituting the charge of resisting arrest. When asked to allege which conduct the prosecution relied on, the prosecutor elected to rely upon the evidence of the second alleged kick. However, the charges arose out of what might be clearly considered to be a continuous course of conduct. The prosecution failed to prove one particular aspect of that course of conduct but succeeded in proving the charge of resisting arrest. The Magistrate appeared to adopt, as part of the justification for his decision, the fact that he had found that the prosecution had not proved its case, rather than that the prosecution evidence had been fabricated. That may be a tenuous distinction.
Nevertheless, I consider that it was within the proper exercise of the Magistrate’s discretion not to award costs in favour of the appellant, even though the charge which was dismissed might be regarded as the more serious. There is a difference between a defendant who is totally successful in securing an acquittal and one who is partially successful in relation to one charge which is alleged to have arisen out of one discreet physical action during a course of conduct relevant to another charge upon which the defendant was convicted. The evidence was required to be led on the charge on which the appellant was convicted in any event. While I do not agree with the Magistrate’s reasons, there was adequate justification for the decision to make no award of costs.

It follows that the appeal is dismissed.

[2003] SASC 373

4 November 2003