Clint Jason Gaston v Robert Victor Kraft No. SCRG 92 1937 Judgment No. 3840 Number of Pages 7 Appeal and New Trial

[1993] SASC 3840

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT ELIZABETH BOLLEN J

CWDS
Appeal and new trial - appeal - general principles - interference with Judge's findings of fact - Resisting arrest - assaulting police - question of whether arrest lawful - random spot check by patrol car of appellant whilst out walking did not amount to unlawful detention - reasonable suspicion aroused that appellant may have committed an offence when radio base confirmed that CIB wanted to speak to him - appellant flees - pursuit and arrest of appellant lawful - appeal dismissed
Summary Offences Act, 1953 (SA) s6, s75. Williams v R (1986) 161 CLR 278; Trobridge v Hardy (1955) 94 CLR 147; R v Armstrong (1989) 53 SASR 25; Todd v O'Sullivan (1985) 122 LSJS 403 and R v O'Neill (1988) 48 SASR 51, applied. Christie v Leachnisky (1947) AC 573 and Hull v Nuske (1974) 8 SASR 587, discussed.

HRNG ADELAIDE, 18 February 1993 #DATE 10:3:1993
Counsel for appellant:         Mr W P Boucat
Solicitors for appellant:     Stuart Hamilton Lindsay
Counsel for respondent:        Miss M Clements
Solicitors for respondent:     Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J The respondent is a sergeant of police. He charged the appellant on complaint dated 28th August 1989 with three offences said to have happened at Salisbury North on 27th August 1989. They were (expressed in abbreviated form) -
    (i) Unlawful damage to a fence
    (ii) Assaulting a police officer in the execution of his duty.
    Section 6 of the Summary Offences Act 1953.
    (iii) Resisting members of the police force in the execution of
    their duty. Section 6 of the Summary Offences Act 1953. 2. The complainant did not proceed with count 1. 3. The appellant denied counts (ii) and (iii). He denied that he performed acts of assault or acts of resisting. He gave an entirely different version of events than that offered by the police officers. The magistrate did not believe him. He found that the evidence given by police officers was true beyond reasonable doubt. No complaint is now made about the magistrate's acceptance of the "prosecution evidence". 4. Both before the magistrate and on appeal the appellant contended that the evidence accepted by the magistrate did not prove beyond reasonable doubt that the officers, or in particular Constable Reinhardt, were or was acting in the execution of duty. 5. It all began on a quiet Sunday afternoon in Rollison Road, Salisbury North. Constables Reinhardt and Alexander were on duty in a police car travelling along Rollison Road. The appellant and a friend were walking on the side of the road. The appellant had his dog on a lead. He was carrying an open bottle of beer. 6. Reinhardt said in evidence:-
    "A. We were travelling down the road when we saw two males
    walking at the side of the road. We called both of them over,
    obtained their details and spoke with them, basically doing bona
    fides, and then commenced doing checks, warrant checks, over the
    radio.
    Q. What happened then.
    A. Immediately after I had given the details of both the males
    over the radio to Police Communications, a CIB patrol came up on
    the radio and informed us that one of the males whose details
    that we had given over the radio was wanted by them.
    Q. What happened then.
    A. At that time I was seated in the driver's side with the
    driver's door open. The defendant in the matter was actually
    standing basically over the doorway, driver's side doorway,
    and he could hear the transmission on the radio and as soon as he
    heard the CIB calling he ran away from the car. I think he said
    something like 'Oh, shit'. He had been carrying a beer bottle at
    the time. He threw it into the air and said something like 'See
    you mate' to the other male and then ran away from the car.
    Q. In which direction.
    A. He ran east, basically behind the police vehicle and towards
    the house on the southern side of Rollison Road. If I recall, I
    think he ran down the driveway of number 42.
    Q. What did you do at this stage.
    A. As soon as I realized that he was running away I commenced to
    chase him and follow him down the driveway of number 42.
    Q. What happened then.
    A. As the defendant reached the end of the driveway - the front
    yard was separated from the rear yard by about a 6 foot
    galvanized fence which he attempted to jump over. As he was on
    top of the fence a portion of the fence collapsed causing the
    defendant to fall to the ground on the rear yard side of the
    fence. I then followed him through a gap that he had made in the
    fence and as I came through that gap I saw the defendant lying on
    his back on the other side of the fence. As I came through the
    gap his feet were basically towards me. As I approached him he
    kicked out with his feet at my stomach.
    Q. What happened then.
    A. I attempted to grab the defendant. I believe it was at that
    time I told him he was under arrest. I attempted to grab him and
    a struggle ensued where I was attempting to grab him and he was
    trying to get up and he broke my hold, and in that struggle he
    punched me several times to my head and the upper part of my
    body. We then fell to the ground and he grabbed out with one of
    his hands at my pistol. I released my grip off him with my right
    hand and forced the hand he was trying to grab the pistol with
    away from the holster.
    Q. At this stage I take it the pistol was still in the holster.
    A. Yes it was.
    Q. Do you recall how many times he had hit you up to this stage.
    A. Without going to my notes, I think it was twice to the head
    and several times to the top part of my body." And -
    "Q. Just going back to the stage you had fallen to the ground
    and the defendant reached out for your holster, tell the court
    what occurred.
    A. From there I basically forced his hand off my holster and at
    that time he was still trying to get to his feet and I was trying
    to keep hold of him and basically trying to get a more firm hold
    of him. At one stage there my right hand went around his top of
    the shoulder from behind with my hand or fingers of my hand
    coming on to his chin. It was at that stage the defendant I
    could see trying to bite one of my fingers that was on his chin
    which I then moved. We were still struggling on the ground again
    with the defendant trying to get up and I was just trying to hold
    my grip on him when for the second time he grabbed at my pistol
    and again I forced his hand off my holster and his hand off my
    pistol. After that we were still both on the ground basically.
    He was trying to get up. We were near a garden shed and there
    was a shovel leaning against the garden shed. The defendant then
    grabbed the shovel and pulled it towards him and was trying to
    swing it at me. I saw him grab the shovel and I also placed a
    hand on the shovel preventing him from doing that. It was about
    this time that Constable Alexander came to the rear yard.
    Q. Can you see this person in court today.
    A. Yes I can. He's the person behind me (INDICATES).
    Q. What were your thoughts when the defendant initially
    attempted to grab hold of your gun.
    A. Both times I had no doubt he was trying to withdraw my pistol
    from the holster and for both times I have no doubt if he had
    withdrawn the pistol from the holster that he would have used it
    against me.
    Q. Was anything being said by you or the defendant during this
    scuffle you have described to the court.
    A. The only basic conversation we had is me telling him towards
    the start of the struggle he was under arrest and then it just
    turned into a full on struggle with him. I had been yelling
    during the struggle with the defendant as loudly as I could for
    Constable Alexander to come to assist me.
    Q. During this time did you notice anyone else present.
    A. Yes, I believe the owner of the premises came out towards the
    end of the struggle from the rear door and saw the struggle and I
    think went back inside the house.
    Q. What occurred once Constable Alexander arrived.
    A. He assisted in removing the shovel from the defendant's
    hands. We then forced him on to his stomach and then had to pull
    his arms from underneath him to enable us to handcuff him. He
    was then placed in the police vehicle where I briefly spoke to
    him in the rear and gave him his rights and explained the fact
    that he was arrested and what he was to be charged with.
    Q. How long did it take you to place the handcuffs on him once
    Alexander came to assist.
    A. Approximately a minute. He still resisted our efforts to
    place those handcuffs on him. Basically he was lying on both
    arms and keeping his weight on his arms, so that we couldn't get
    hold of his arms." 7. Alexander gave some supporting evidence especially about the shovel. 8. Mr Boucaut submitted that the acts of the police in calling the appellant over to the car and asking him to give his name and address was unlawful and, therefore, all that followed was tainted by that illegality and could not amount to "acting in the course of duty". The police had no right to "stop" the appellant. The appellant was entitled to run away. The police had no right to pursue and seize the appellant. These, in essence, were the submissions offered by Mr Boucaut. In discussion he was rather compelled to acknowledge that there was nothing unlawful in the pursuit. It was the seizing of the appellant at or near the collapsed fence which was unlawful. The appellant was, said Mr Boucaut, entitled to resist and defend himself there. 9. Had Reinhardt chased the appellant to (say) his house and kept watch outside whilst the defendant was inside he would not have acted unlawfully. 10. But we must go back to Rollison Road. Mr Boucaut said that the officers were not entitled to stop and detain the appellant. He said: "It is the appellant's contention that that initial stopping and detaining whilst these checks were going on was not lawful in that there is no justification at law to empower the police officers to do this". If there was a "stopping" and "detaining" I would agree. But it is not clear that there was a "stopping" and "detaining". The appellant responded to the call by the police. He gave his name and address without protest. Had he chosen to ignore the police the officers would not have been entitled to stop and detain him (Williams v R
(1986) 161 CLR 278 at 292: Trobridge v Hardy (1955) 94 CLR 147 at 154: R v Armstrong (1989) 53 SASR 25 at 27-28 per King CJ: Todd v O'Sullivan (1985) 122 LSJS 403 at 410: R v O'Neill (1988) 48 SASR 51 at 56-57 per King CJ). 11. The magistrate said:-
    "The Defendant did not take any point as to the legality of their
    actions at the time. He co-operated. He answered any questions
    put to him and waited around until, as he said, he heard over the
    police car radio that the CIB wanted to talk to him. He agrees
    that this caused him to abandon his companion, his dog, his beer
    and run quickly away." 12. The appellant ran away because he heard that the CIB wanted to speak to him. Reinhardt pursued him. The magistrate held that the calling of the appellant over to the police car and speaking to him was unlawful conduct by Reinhardt. I cannot agree. It does not follow that Reinhardt's lack of authority to do what he did meant that he was acting unlawfully. Anyone can call anyone else towards him and ask his name. If the person summoned refuses to come or moves away the caller can do nothing about it. 13. But I need not stay to pursue the question of legality of calling over and asking for name and address. The magistrate found that after he had heard the messages on the radio Reinhardt was justified in pursuing the fleeing appellant. He found that Reinhardt was then acting in the course of his duty. The magistrate said:-
    "Even though F.C. Constable Reinhardt's actions were originally
    unlawful I would find that the action of the Defendant in
    absconding and the circumstances at that time, in particular the
    police officer's state of mind concerning information available
    to him, justified F.C. Constable Reinhardt then pursuing the
    Defendant. In particular I would find that the Police Officer
    was then acting in the course of his duty. The Police Officer
    said that he told the Defendant that he was under arrest for
    'damaging the fence and assaulting me'. The Defendant
    acknowledges that he was told that he was under arrest however he
    said no reason was given at the particular time. This leads me
    to the Defence contention that the Defendant was entitled to
    resist any attempts, by the Police Officer, to take hold of him
    for the purposes of arrest, because of the failure of the Police
    Officer to state the particular offences that the Defendant was
    alleged to have committed.
    The law is, generally speaking, set out in the well known case of
Christie v Leachinsky (1947) AC 573. It must be noted that
    Viscount Simon, at pages 587-588 whilst stating that although in
    ordinary circumstances a 'Police Officer must inform the person
    arrested of the ground of arrest...the requirement that the
    person arrested should be informed of the reason why he is seized
    naturally does not exist if the circumstances are such that he
    must know the general nature of the alleged offence for which he
    is detained' and '...the person arrested cannot complain that he
    has not been supplied with the...information as and when he
    should be, if he himself produces the situation which makes it
    practically impossible to inform him eg by immediate counter
    attack or by running away'. It must be remembered that the
    learned Law Lord was indicating general propositions and that he
    was not seeking to formulate a formal or complete code. In my
    opinion one argument available to the Prosecution is that the
    Defendant well knew he was being pursued by a Police Officer and
    being pursued for the purpose of being detained so that he could
    be 'questioned', with respect to an offence, by the CIB. Mr
    Gaston frankly stated that all he wanted to do was 'get away'.
    Although Mr Gaston also frankly concedes that he had been
    involved in previous criminal investigations as to offences,
    including being arrested on other occasions. I doubt whether it
    could be imputed that he had sufficient legal expertise and
    knowledge to be aware, for example, that he could not be
    detained simply for questioning under s78 of the Summary Offences
    Act. His behaviour, in my view, indicates that he feared being
detained and envisaged being arrested." 14. I agree that after hearing that the CIB wanted the appellant for questioning and seeing the appellant start to run away Reinhardt was, in pursuing and seizing the appellant, acting in the course of his duty. I think that it was his duty then to pursue the appellant and to seize him. I do not think that the fact that Reinhardt did not then have any belief about what offence the appellant might have committed matters. I do not think that his saying to the appellant at the scene of the collapsed offence that he was under arrest for "damaging the fence and assaulting me" is very important. Perhaps there was no wilful act causing the damage. Perhaps it was an accident. But the assault was an offence justifying arrest. I halt in deference to the argument on this point about the kick towards Reinhardt's stomach. This was an assault whether or not it landed. Reinhardt was then acting in the course of his duty. The kick was not lawfully justified. The appellant kicked at the officer who was lawfully seeking to hold the appellant. True it is that the assault came after the pursuit. It was not what caused the pursuit. I do not think that matters. 15. I agree with the magistrate's comment about "informing the appellant of the ground of arrest" and the appellant's producing the impossibility of informing him by running away (see Christie v Leachnisky (supra at 587-588) and Hull v Nuske (1974) 8 SASR 587 at 595). 16. Mr Boucaut said it was difficult to see what the particulars of the offence of the assault were. What was the assault, asked Mr Boucaut? Mr Boucaut referred to the sentencing remarks to reinforce this submission. I cannot agree. I think that the assault was all the violence found by the magistrate. The fact that he convicted without penalty on the "resist arrest" is irrelevant. Reinhardt was acting in the course of his duty. He was entitled to seize the appellant. The appellant responded by assaulting Reinhardt with a kick, blows, attempts to bite, a bite, attempts to hit with a shovel and attempt to get Reinhardt's pistol from him. All this adds up both to an assault and to resisting arrest. It was right to impose only one penalty. But there was no fault in the magistrate's imposing that on the assault charge as he did. 17. Section 75 of the Summary Offences Act is:- "A member of the police force, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the member finds committing, or has reasonable cause to suspect to having committed, or being about to commit, an offence." When he heard the message over the radio that the CIB wanted the appellant and when he saw the appellant run away, Reinhardt had reasonable cause to suspect the appellant of having committed an offence. As I say I do not think it matters that he did not have any knowledge about the nature of the offence. True it is that a message that the CIB wishes to speak to someone may mean that they wish to speak to him as a witness or as an informant or for some other reason. But the reasonable inference is that the CIB wishes to speak to him because detectives have a reasonable suspicion that he has committed an offenc. Reinhardt heard the message and saw the appellant take to his heels. Reinhardt then had a reasonable suspicion that the appellant had committed an offence. A "reasonable submission" does not need to turn out to be correct. Reinhardt acted in the course or execution of his duty. The appeal against conviction fails. 18. The magistrate ordered imprisonment for eight months on the charge of "assault police". He ordered a conviction without penalty on the "resist arrest". The appellant was then serving a term of imprisonment for an offence which term was imposed by the District Court. The magistrate made the eight months cumulative upon the sentence for that offence. He extended the non-parole period by four months from twelve to sixteen months as from the 16th April 1992. The appellant appeals against the severity of the sentence, the making of it cumulative, of its length and of the length of the non-parole period. The magistrate said:-
    "In my opinion this was a more serious example of what is a very
    prevalent offence, not only in this area but also no doubt in
    other areas. The Supreme Court has indicated that police
    officers are to be supported and protected by the courts when
    they are carrying out their duties. In this case, despite my
    criticisms of certain police actions, I do not consider those
    actions significantly contributed to Mr Gaston's behaviour. It
    appears to me that when you Mr Gaston have an aversion to
    authority and more than a degree of a violent and aggressive
    personality, your previous offending in my opinion supports that
    assessment. I also take into account the episode occurred
    apparently when other members of the public were in the vicinity.
    I do not know precisely what they saw but it was an example of
    disobedience and physical confrontation to the police which other
    persons had the opportunity to observe. I cannot of course
    sentence you for your previous offending. However I note that

    you have barely responded to previous sanctions against you and I
    consider any penalty today should emphasize punishment and
    deterrence and if possible personal deterrence to the defendant.
    Hopefully general deterrence is also a factor. I acknowledge you
    also at this time are serving a term of imprisonment which is of
    some duration and I therefore have to look at the situation
    overall. I think both charges today, assault police and resist
    arrest, are all part of the same proceedings." 19. I agree. The sentence in every respect was perfectly proportionate to the offences. The appellant had a bad record and could have expected no substantial leniency. 20. I dismiss the appeal.