Cooper v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COOPER v POLICE
[2006] SASC 339
Judgment of The Honourable Justice Gray
17 November 2006
STATUTES - BY-LAWS AND REGULATIONS - CONSTRUCTION
Appeal against conviction - appellant convicted in Magistrates Court of failing to comply with a reasonable direction given by an authorised officer pursuant to Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 and of resisting police - appellant had been directed by a police officer that, due to his state of intoxication, he was required to leave the concourse area of the Adelaide Railway Station and was not permitted travel - the appellant refused to do as directed and resisted police when they attempted to forcibly remove him from - whether charge brought pursuant to correct regulation - whether preconditions prescribed by regulations to the exercise of power to direct appellant to leave the concourse area had been satisfied - Held: complaint pursuant to regulation 32 misconceived - charge ought to have properly been laid pursuant to regulation 38 - in any event, preconditions for exercise of power to issue direction not satisfied - appeal against this conviction on this count allowed - conviction set aside.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
Whether conviction on resist police charge can be maintained notwithstanding the fact that the conviction for the initial offence has been set aside - Held: evidence established that police officer had reasonable cause to suspect that an offence had been committed - appeal dismissed.
Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 r 32, r 38; Public Intoxication Act 1984 (SA) s 7; Summary Offences Act 1953 (SA) s 6(2), referred to.
Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Saraswati v The Queen (1991) 172 CLR 1 ; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; Haifawi v Police [2000] SASC 19 ; Normandale v Rankine (1972) 4 SASR 205; Barnard v Gorman [1941] AC 378, considered.

COOPER v POLICE
[2006] SASC 339
Magistrates Appeal
GRAY J:
Introduction

Prior to 1984, it was an offence to be drunk in a public place. In that year, Parliament enacted the Public Intoxication Act 1984 (SA) which decriminalised public drunkenness.[1] However, section 7 empowers police officers to apprehend persons found drunk and unable to take proper care of themselves in public places. Regulations have also been passed which address the conduct of persons who travel on public transport. Initially the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 restricted persons who were intoxicated from using public transport. In 2004, these regulations were amended to limit that restriction to circumstances where a person’s intoxication would materially affect others.
[1] The Act took effect on 3 September 1984.
This is an appeal against conviction recorded by a Magistrate of the offences of failing to comply with a reasonable direction given by an authorised person (namely, a police officer) and of resisting police. The Magistrate discharged the appellant, Warren Lindsay Cooper, without penalty.
On the afternoon of 24 November 2004, the appellant, on the uncontested evidence, was affected by alcohol and was on the concourse of the Adelaide Railway Station apparently wishing to catch a train. Acting on information received, police officers attended at the concourse. One of the officers formed the opinion that the appellant was moderately affected by alcohol. He was observed to have blood shot eyes, his breath smelt of liquor and he was swaying slightly from side to side. These impairments did not lead the officer to conclude that the appellant was unable to take proper care of himself in a public place. These impairments would not have themselves suggested that the appellant would have been offensive to other train passengers.
One of the police officers gave the appellant a direction to leave the concourse. He refused to do so and resisted the officers’ attempts to remove him. This conduct led to the charges before the court of refusing to obey a reasonable direction and of resisting a police officer in the execution of his duty.
This appeal raises the question as to whether there was sufficient basis to allow authorised personnel to in effect “move the appellant on”.
Background
The appellant was charged with failing to comply with a reasonable direction of an authorised person whilst on prescribed premises, pursuant to regulation 32(1)(a) of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994. Regulation 32 provides:
(1)     A person who is in a passenger vehicle or at prescribed premises must—
(a)     comply with a reasonable direction of an authorised person; and
(b)     obey any sign displayed in the vehicle or in or on the premises.
Maximum penalty: $750.
Expiation fee: $105.
(2)In proceedings for an offence against subregulation (1), it is a defence to prove that the defendant was unaware of the direction or sign, or unable to comply with the direction or sign, because of a disability.
The appellant was also charged with resisting members of the police force in the execution of their duty, pursuant to section 6(2) of the Summary Offences Act 1953 (SA).
The charges were defended. They proceeded to trial in the Magistrates Court. The prosecution called one witness, Senior Constable David Reynolds. It was not in issue that Constable Reynolds was an authorised person within the meaning of the regulations.[2] It was also not in issue that the concourse area of the Adelaide Railway Station was “prescribed premises” within the meaning of the regulations.[3]
[2] Regulation 3 of the Passenger Transport(Regular Passenger Services; Conduct of Passengers) Regulations defines “authorised person” to mean, inter alia, a member of the police force.
[3] Regulation 3 of the Passenger Transport(Regular Passenger Services; Conduct of Passengers) Regulations defines “prescribed premises” to mean “land or premises used or provided by the Crown or the Minister, or by an operator, for a purpose associated with a passenger transport service, and includes a passenger station”.
In his reasons for judgment, the Magistrate summarised the evidence of Constable Reynolds in the following terms:
[Officer Reynolds’] evidence is that he was on duty at the Transit Services Branch, Adelaide Railway Station on the 24^th of November 2004. It is alleged that officer Reynolds is an authorised person. That, on my understanding, is not an issue. I am so satisfied beyond reasonable doubt.
At about 2.55pm on that day, officer Reynolds says that he received a phone call indicating a problem on the concourse. Information received by the officer was that a member of the public was inebriated and refusing to leave. Officer Reynolds attended the concourse area with Senior Constable Crowley and spoke to the person in relation to whom concern was expressed. Officer Crowley was in uniform.
Officer Reynolds says that he approached the male person and asked him to leave the concourse area due to his state of intoxication. He says the male person refused to do so.
Officer Reynolds states that on arrival at this location he spoke with a male person. Officer Reynolds indicated to that male person that he had made observations as to his demeanour. He formed the impression that the male person was intoxicated and not able to travel. Officer Reynolds indicated this opinion to the male person. Officer Reynolds indicated that at this point the male person became upset. Officer Reynolds made a request that the male person leave the area and the male person is alleged to have refused. Officer Reynolds identified that male person as the defendant. ... officer Reynolds stated that he informed the defendant that because of his sobriety he wasn’t able to travel that day and that he had been refused travel and therefore needed to leave the paved concourse area. Officer Reynolds says the defendant responded “something about being a good bloke”. Officer Reynolds observed the defendant has some shopping bags, which the defendant dropped to the ground upon being requested to leave. Officer Reynolds says the defendant at this point adopted a boxing type stance.
Officer Reynolds gave evidence that he had been in the police force 27 years. Officer Reynolds says that he is familiar with symptoms of excess alcohol and or drugs. Officer Reynolds’s evidence is that he made an assessment of the defendant’s sobriety. He formed the view that the defendant was “moderately affected” by alcohol. Officer Reynolds particularised and says that he could smell liquor on the defendant’s breath, that his eyes were glassy and bloodshot. He concluded that the defendant was moderately affected by alcohol.
Constable Reynolds requested the defendant to leave the concourse area. Officer Reynolds’s evidence is that the defendant was refused travel. Officer Reynolds says the defendant refused to leave the area.
…
It is alleged that as a result of the defendant’s refusal to leave that officer Reynolds reiterated his direction. He says that two shopping bags being carried by the defendant fell straight to the ground. He says the defendant then turned and took up a boxing type stance, but without raising his fists, so he was just standing side on. …
It is alleged that the defendant was then escorted from the concourse area and that as he went, he was resisting. The evidence is the defendant was then escorted to a rear car park where he was placed in a cage car and taken to the City Watch-house.
Counsel for the appellant did not cross-examine Constable Reynolds. The Magistrate accepted the evidence of Constable Reynolds as to his observations of the appellant. The defence called no evidence.
It was the prosecution case that Constable Reynolds’ direction to the appellant was “reasonable” within the meaning of regulation 32 by virtue of the power conferred upon him, as an authorised person, pursuant to regulation 38(1)(b) of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations. Regulation 38(1)(b) provides:
(1)An authorised person may direct a person not to board or enter a passenger vehicle or prescribed premises, or to leave a passenger vehicle or prescribed premises—
…
(b) if the person appears to be intoxicated or under the influence of a drug and the authorised person believes that, because of this condition, the person is likely to be offensive or to cause discomfort or embarrassment to another person; or
Regulation 38(3) provides:
(3)A person who fails to comply immediately with a direction under this regulation is guilty of an offence.
Maximum penalty: $1 250.
Expiation fee: $160.
On 17 May 2006 the Magistrate concluded that he was satisfied that both counts had been proved beyond reasonable doubt and convicted the appellant.
The Appeal
The appellant appealed on the ground that the Magistrate erred in finding that the direction given to the appellant by Constable Reynolds was reasonable. At the hearing of the appeal, two further issues arose that had not previously been advanced by counsel for the appellant. The first concerned a challenge to the complaint and, in particular, whether the appellant had been charged pursuant to the correct regulation. The second went to whether, if the appeal against the conviction for failure to comply with a reasonable direction of an authorised person is successful, the conviction for resist police can stand. Counsel for the appellant subsequently sought and obtained leave to amend the grounds of appeal so as to formally raise these additional issues as questions to be determined on this appeal.
The charge
On the prosecution case, the appellant could have been charged alternatively pursuant either to regulation 32 or to regulation 38(3) of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations. The evident purpose of regulation 38 is to empower an authorised person to direct an apparently intoxicated person to leave the concourse of a railway station. However the authorised person can only do so when a particular belief is held – that the person was likely to be offensive to or cause discomfort or embarrassment to another person. This is a specific provision designed to allow a person to be “moved on”. Regulation 32 is general in its terms and it is not directed to the situation envisaged by regulation 38.
In Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia,[4] Gavan Duffy CJ and Dixon J observed:[5]
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
Dixon J reiterated this principle in R v Wallis; Ex parte Employers Association of Wool Selling Brokers:[6]
[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
[4] Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1.
[5] Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.
[6] R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550.
This approach to statutory interpretation has been subsequently followed expressly in numerous decisions of the High Court.[7] In one such decision, Leon Fink Holdings Pty Ltd v Australian Film Commission,[8] Mason J observed:[9]
It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.
[7] See for example Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Saraswati v The Queen (1991) 172 CLR 1 at 23-24 (McHugh J); Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 at 171-172 (Mason CJ, Deane, Gaurdron and McHugh JJ), 180-182 (Dawson J); David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 275-276 (Gummow J).
[8] Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672.
[9] Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678.
The basis of this principle is legislative intention: if the legislature had intended regulation 32 to cover the type of situation here under consideration, then the enactment of regulation 38 would have been superfluous. Courts will as a general rule endeavour to adopt a construction that would give effect to the words of a statute and to avoid an interpretation of a statute that renders its words redundant or tautologous.[10] The regulations here under consideration are to be construed so as to ensure that regulation 38 has some work to do.
[10] Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 (Mason J).
Accordingly, the complaint pursuant to regulation 32 was misconceived.
The requisite belief
In seeking to prove the charge pursuant to regulation 32 beyond reasonable doubt, the prosecution sought to rely on the power conferred upon authorised persons by regulation 38(1)(b). The prosecution did this in order to establish the reasonableness of Constable Reynolds’ direction to the appellant, requiring him to leave the concourse area of the Adelaide Railway Station.
The Magistrate summarised the arguments put by both counsel in relation to the application of regulation 38:
[Defence counsel] asserts that before any direction is given pursuant to that regulation, a certain condition precedent must exist. The pre-condition as [defence counsel] put it is dependent upon the specific authority contained in the relevant sub-section. [Defence counsel] submitted in this case there was no condition precedent and therefore no legal basis for the direct, i.e. a belief that because of his condition person likely to be offence etc. [Defence counsel] submits that more than “appeared to be intoxicated” is required before a direction can be given. In his submission there was no evidence that the defendant was threatening or abusive etc. [Defence counsel] submits that evidence that the defendant was not sober is not sufficient.
[The prosecutor] on the other hand submits that if a person appears to be intoxicated or under the influence of a drug and the authorised person believes that because of this condition the person is likely to be offensive or cause discomfort or embarrassment to another person, then there is sufficient authority for a direction to be given.
The Magistrate then went on to conclude:
Although officer Reynolds does not precisely say so, it is clear that having assessed the defendant’s state of intoxication as being “moderately affected” he was of the view that in that condition the defendant was likely to be offensive or to cause discomfort or embarrassment to another person. I am satisfied that officer Reynolds had that belief and I am so satisfied beyond reasonable doubt. In the circumstances it is my view that such a conclusion on the part of officer Reynolds was reasonable given the defendant’s state of intoxication.
In these circumstances I am satisfied beyond reasonable doubt that officer Reynolds had cause to make a direction namely that the defendant leave the prescribed premises. I am satisfied beyond reasonable doubt that the defendant failed to comply with that reasonable direction of an authorised person. I find count 1 proved beyond a reasonable doubt.
Regulation 38 had been amended on 12 August 2004. Prior to that date, sub-regulation 38(1)(b) provided:
An authorised person may direct a person not to board or enter a passenger vehicle or prescribed premises, or to leave a passenger vehicle or prescribed premises –
…
(b) if the person appears to be intoxicated or under the influence of a drug.
The amendment, which had taken effect by the date of the subject offending, was to confine the power of authorised persons to direct an apparently intoxicated person to leave premises to circumstances where the authorised person held the belief that “the person is likely to be offensive or to cause discomfort or embarrassment to another person”. In the absence of such a belief, a direction to leave the prescribed premises would not be supported by regulation 38 as amended.
It was not enough, therefore, for the appellant to appear to Constable Reynolds to be intoxicated whilst within a prescribed premises. Regulation 38(1)(b) stipulates that the authorised person must also believe that the person is likely to be offensive or to cause discomfort or embarrassment to another person. There was no direct evidence to suggest that Constable Reynolds had such a belief.

With respect to his observations of the appellant just prior to issuing the direction to leave the concourse area, Constable Reynolds gave the following evidence:
Q.At about 2.55pm on that day, on Wednesday, 24 November 2004, can you just tell the court what happened.
A.I received a phone call from the front office area or public contact ard to say there was a problem on the concourse. The staff that were allocated duties in that area were all tied up, busy with other matters, and asked if I could assist.
…
Q.    Can you just tell the court what that phone call was all about.
A.It was in relation to a disturbance on the concourse area, a gentleman that was inebriated and refusing to leave, or refused travel.
…
Q.And you mentioned again that concourse area, can you just describe what a concourse area is, can you define it.
A.The paid concourse area – when you enter the railway station, you can come down a set of stairs or down a ramp from North Terrace. There’s a public concourse area and then there’s what they call the paid concourse area, which is through a set of barrier gates on to the platforms where the trains leave from.
…
Q.    Can you remember the gist of the conversation on the phone.
A.Not a hundred per cent accurately, but it was along the lines of there was a problem on the paid concourse area with a person that was refused travel due to his sobriety. Would I be able to assist because the staff that were allocated duties for that area for the day were tied up with another matter.
Q.    Do you know the identity of that person who rang you.
A.    No, I don’t recall it.
Q.    Did you ever have a conversation with that person other than on the phone.
A.    I don’t recall, no.
Q.    So as a result of that conversation, were you given any sort of description.
A.    Yes.
Q.    Can you remember what that was.
A.Not a hundred per cent. It was a male. I recall they described him with shopping bags and I think it was platform 5 from memory.
Q.    Nothing more specific than that.
A.    No, not that I recall.
Q.    As a result of that conversation, what did you do.
A.    I attended with Senior Constable Crowley and spoke to that person.
Q.    How was Crowley dressed.
A.    Crowley was in uniform at the time.
Q.Can you just quickly explain to the court what’s happened to Senior Constable Crowley.
A.Senior Constable Crowley’s been on extended sick leave for about seven months, I think it is, now.
Q.    So what did you do then.
A.I approached the male and asked him to leave the concourse area due to his sobriety and he refused to do so.
Q.Just describe to the court, when you say you approached a male, where was he exactly.
A.As I say, it was around platform 5 area, in the paid area and walked up to him and had a conversation.
…
Q.Were you given specific directions about where this alleged person was.
A.We were directed to that area, yes.
Q.You were directed to that area how.
A.People at the barrier gates, TransAdelaide employees.
Q.So you had a conversation with someone there.
A.Very briefly. That’s standard. Whenever there’s a problem on the paid concourse area, generally all of the TransAdelaide staff are aware of it. They have radio contact and they’re aware the police are coming.
Q.So you had a conversation with TransAdelaide staff.
A.Yes.
Q.You can’t identify that person.
A.No.
Q.The gist of that conversation was what.
A.Basically pointed to the area near platform 5 and said ‘We’ve got problems down there’.
Q.So there was no direct indication, it was just a generalised direction.
A.Yes.
Q.And what did you do.
A.Attended that area, identified the male and spoke to him.
…
Q.And what happened then.
A.We had a conversation with the defendant. I indicated to him that after making observations that because of his sobriety he wasn’t able to travel that day. He became upset with that and when told he needed to leave the area, he refused.
Constable Reynolds was then asked to identify the male of whom he was speaking. Having pointed to the appellant, he then continued to give the following evidence:
Q.    Who had a conversation with him.
A.    I did.
Q.    Did anyone else have a conversation with him.
A.    Not that I’m aware of.
Q.    So you’re saying that virtually he and you were the only two that talked.
A.    Yes.
It is to be observed that a number of other persons, who were potentially authorised persons within the meaning of the regulations, also observed the appellant on the concourse – for example, the TransAdelaide staff member who had initially refused the appellant travel, the staff member at the barrier gate who directed Constable Reynolds to the appellant and the person from what Constable Reynolds described as the “contact area” who telephoned Constable Reynolds to request assistance.
The prosecution did not call any of these other persons to give evidence. It is possible that these persons may have been able to testify as to the nature of the appellant’s behaviour whilst on the concourse area.
Constable Reynolds did not depose to holding any belief that the appellant was likely to be offensive or to cause discomfort or embarrassment to another person. The evidence established that Constable Reynolds had been informed that there was a “gentleman what [sic] was inebriated on the concourse area and that there had been a disturbance”. The evidence did not disclose who provided this information. It came by telephone from a member of staff at the front office; and it may have been second- or third-hand hearsay. This evidence, coupled with the Constable’s later observations, would support a finding that the Constable had a suspicion that the appellant was intoxicated and may cause a disturbance. However, regulation 38(1)(b) required more than a suspicion – a belief in the likelihood that the appellant would behave in a particular manner.
The evidence led by the prosecution was incapable of proving beyond reasonable doubt that Constable Reynolds believed that the appellant, due to intoxication, was likely to be offensive or to cause discomfort or embarrassment to another person. Accordingly, even if it was appropriate to lay a complaint pursuant to regulation 32, the conviction should be set aside. The prosecution relied solely upon regulation 38(1)(b), which for the foregoing reasons has not been satisfied. The prosecution asserted no other basis for establishing the reasonableness of Constable Reynolds’ direction. The Magistrate erred in concluding that the prosecution had established that the appellant had failed to comply with a “reasonable” direction of an authorised person.
Resist police
Resisting police is an offence pursuant to section 6(2) of the Summary Offences Act, which provides:
A person who hinders or resists a police officer in the execution of the officer's duty is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
In relation to the charge of resist police, the Magistrate concluded:
As to count 2, I again indicate that I am prepared to accept the evidence of officer Reynolds as to the defendant’s resist. I find the evidence of officer Reynolds in that regard to be plausible and I am satisfied that it represents an accurate statement of what in fact occurred. In these circumstances, particularly noting my finding that the request to leave was a reasonable direction of an authorised person, I find that count 2 is proved beyond reasonable doubt.
It is well established that a charge of resist police may be maintained even in circumstances where the charge relating to the incident giving rise to the arrest is not proved. In Haifawi v Police, Duggan J observed:[11]
The fact that a charge of assaulting a police officer in the execution of his duty is dismissed in a case in which the charges of assaulting police and resisting a police officer are charged in respect of the same incident does not necessarily bar a conviction on the charge of resisting arrest. (Police v Walsgott (31 March 1994, unreported) and cf Normandale v Rankine (1972) 4 SASR 205 at 209). Whether or not the charge for the alleged offence which led to the arrest can be proved or has been proved is strictly irrelevant. It is sufficient if the police officer had reasonable cause to suspect that an offence had been committed. (Summary Offences Act 1953 s75). If he did, then the arrest is lawful and the police officer is acting in the execution of his duty.
[11] Haifawi v Police [2000] SASC 19 at [13].
In order to establish that a police officer conducting an arrest acted in the exercise of his or her duty, it is only necessary that the officer had reasonable cause to suspect subjectively that an offence had been committed, even though this suspicion was not objectively correct. If the situation were otherwise, police would be hampered in the exercise of their duty to enforce the law and protect the public. This concern was addressed in Normandale v Rankine,[12] where Walters J observed:[13]
The power given to a member of the police force by s.75 of the Police Offences Act to arrest without warrant may be exercised where there is cause to suspect, on reasonable grounds, that an offence has been, or is about to be, committed by the person who is apprehended. The power to arrest for drunkenness, without any warrant other than the Act, may be justified if a constable reasonably suspects a man is drunk, even though eventually a magistrate dismisses the charge (cf Barnard v Gorman, per Lord Wright at pp.394-395). … it seems to me that if the reasoning of the Special Magistrate were correct, a constable could justify, under s.75 of the Act, his arrest of a person whom he had reasonable cause to suspect of being drunk in a public place and he could also justify, under the same section, his requirement that that person give his name and address, yet because a court of summary jurisdiction, either on fresh materials altogether or on the same materials as gave rise to the constable’s reasonable suspicion, was not satisfied that the person apprehended was drunk at the relevant time, dismissal of charges of resisting arrest and of refusing to give a full name and address would inevitably follow. If the opinion entertained by the Special Magistrate were right, I venture to suggest that a constable would hesitate to arrest a drunken person, or to require him to state his full name and address, unless he first wholly satisfied himself that the man was drunk. I therefore do not think it correct to construe s.75 of the Act in such a way as to warrant the conclusion reached by the Special Magistrate, namely, that the second and third counts fell with the dismissal of the first count.
[12] Normandale v Rankine (1972) 4 SASR 205.
[13] Normandale v Rankine (1972) 4 SASR 205 at 210 (footnotes omitted).
In forming his view, Walters J had obvious regard to the following remarks of Lord Wright in Barnard v Gorman:[14]
The power to arrest depended on the particular acts done or conduct exhibited. It was a power (inter alia) to arrest without a warrant every person found drunk while in charge of any carriage on a highway. While I do not wish to express any final opinion on a case not now before me, I am not prepared to dissent from the actual decision of the Court of Appeal that the arrest was justified if the constable reasonably believed that the man was drunk, even though eventually the magistrates dismissed the charge. As at present advised, I think that “drunk” in that context means “apparently drunk.” The constable must act on what he sees at the moment, and should be held to be justified if the man’s appearance and behaviour are those of a drunken man. Instant action is demanded by the needs of public safety which would be endangered if an intoxicated person were left in charge of a vehicle on the road. Swinfen Eady LJ said that the nature of the offences specified required the construction that the authority to apprehend applied where the circumstances were such as to enable an honest belief on reasonable grounds to exist that the offence was being committed by the person being apprehended.
[14] Barnard v Gorman [1941] AC 378 at 394-395 (footnotes omitted)
These remarks are apposite to the present case. Constable Reynolds’ evidence establishes clearly that, having issued the appellant with what he believed to be a reasonable direction to leave the concourse of the railway station, and the appellant having refused, Constable Reynolds had reasonable cause to suspect that an offence had been committed. This offence was the appellant’s failure to comply with a reasonable direction of an authorised person. The appellant’s persistent refusal to comply with Constable Reynolds’ direction to leave the concourse resulted in the police escorting him physically from the premises as the appellant continued to resist. As Duggan J observed in Haifawi, whether or not the breach of regulation 32 is proved is strictly irrelevant.
Accordingly, notwithstanding my conclusion that the conviction pursuant to regulation 32 is to be set aside, the conviction on the charge of resist police should stand.
Conclusion
This appeal is allowed for the purpose of setting aside the conviction in relation to count one, failure to comply with a reasonable direction of an authorised person, contrary to regulation 32 of the Passenger Transport (Regular Passenger Services, Conduct of Passengers) Regulations. Otherwise, the decision of the Magistrate – the conviction for resist police – is undisturbed.
Given that no penalty was imposed by the Magistrate, it is unnecessary to consider this topic further.

[2006] SASC 339

17 November 2006

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Mens Rea & Intention

Statutory Construction