Cremer v Police - [2005] SASC 453

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CREMER v POLICE
Judgment of The Honourable Justice Perry
5 December 2005
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES
Appeal against finding of guilt in the Magistrates Court following the trial of the appellant on a charge of assault - the trial magistrate preferred the evidence of the complainant over that of the appellant - discussion of the role of an appeal court in dealing with issues of credit - held that no ground had been made out which would justify interference on appeal - appeal dismissed.
Criminal Law Consolidation Act 1935 s 39(1), s 15 and s 15A, referred to.
Taylor v Hayes (1990) 53 SASR 282; Rowland v Police (2001) 79 SASR 569; Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; Dyers v The Queen (2002) 210 CLR 285, considered.

CREMER v POLICE
[2005] SASC 453
Magistrates Appeal: Criminal

PERRY J. The appellant appeals against the finding of guilt recorded against him following a trial in the Magistrates Court sitting at Elizabeth on a charge that on 10 September 2003 at Salisbury he assaulted Shannon Renee Doyle contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (“the CLCA”).
After finding the offence proved and without entering a conviction, the magistrate released the appellant on a bond in the sum of $200 to be of good behaviour for a period of 6 months and to come up for conviction and sentence if called upon.
At the trial, the appellant was represented by counsel. At the hearing of the appeal, he represented himself.
The prosecution called two witnesses: the alleged victim Ms Doyle and Warwick Gaetjens.
The appellant gave evidence, but no other witness was called for the defence.
The assault is alleged to have occurred after Ms Doyle boarded an Adelaide-bound train at the Elizabeth station at about 9.15 am on the day in question. Her evidence was that she was accompanied by two teenage boys and a younger boy. The four of them were travelling together, intending to alight at Salisbury, and from there to catch a bus to Parafield Gardens.
Her evidence was that on boarding, she was rummaging in her handbag to find some change to buy a ticket for the youngest of her three companions, and was about to validate her own ticket, when the appellant approached her in the company of Mr Gaetjens.
The appellant’s occupation is described as passenger service assistant employed by TransAdelaide. Mr Gaetjens was employed by an entity known as Group 4 Securitas. His role was to provide security assistance for Mr Cremer.
When he approached Ms Doyle, her evidence was that the appellant asked her for her ticket and her student ID card. The ticket was a valid concession ticket, although as I said, she had not had an opportunity to validate it for the particular trip. The student identification card was current and contained her name, her photograph and the name of the school she attended.
The appellant returned to her the multi-trip ticket, but when Ms Doyle asked the appellant to return her student card, he refused, despite several requests.
On his failure to return the student card, she became agitated and angry, but she denied, as was alleged by the appellant in his evidence, swearing at him, at least at that stage.
She said that she kept repeating to the appellant, “What have I done wrong?”, and that he replied “You haven’t done anything wrong yet”. He persisted in refusing to hand back her student ID card, and he gave her a yellow slip which she said had written on it “Confiscated ticket advice”.
The appellant gave her the impression that he was intending to impose a fine on her, and asked her for her address. She responded by saying, “You have to tell me what the fine is before I give you my address”. The appellant then said something on his walkie-talkie.
As the situation developed, and just before reaching Salisbury station, Ms Doyle reached over with the intention of retrieving her student ID card, intending to remove it from the hand in which the appellant was holding it and some other papers. As she put her hand forward to do so, on her account of the matter, the appellant grabbed her hand and started squeezing it and turned it back. Her evidence was that she was shocked. Mr Gaetjens tried to calm the situation down, and told her to stay calm.
When the appellant still refused to return her card, Ms Doyle said that she would remain on the train and travel back to Adelaide, where she would speak to the authorities there.
When she arrived back in Adelaide, the card was returned to her, and an STA employee drove her to her home at Parafield Gardens.
Ms Doyle said that she subsequently saw her doctor, and that there was some swelling and bruising of the hand, and that it was sore for about three weeks.
Mr Gaetjens witnessed the whole incident at close quarters. He remembered Ms Doyle handing a card to the appellant. Although he described Ms Doyle as “very talkative”, he maintained that he did not hear her using any offensive language at that time, and he did not remember the appellant cautioning her about her language. He remembers that Ms Doyle was asked by the appellant for her address, and that she responded by asking why he wanted it. He remembered that as they were approaching Salisbury railway station she reached at the appellant, apparently trying to retrieve the ID card – he was then standing about three or four feet away – in response to which he witnessed the appellant grab her wrist.
Under cross-examination, Mr Gaetjens maintained his evidence that he did not hear Ms Doyle swear at the appellant.
The appellant’s evidence was that he observed Ms Doyle and her three male companions board the train, and he thought that they had failed to validate their tickets immediately upon boarding. He proceeded briskly through the rail car, stopped the train, and as he approached Ms Doyle and her companions, she or her companions, or one of them, abused him. It appears that he was attributing the abuse to be coming from Ms Doyle. On his evidence, the abuse continued, and he warned her that that would be a serious matter, more serious than what he described as a “simple ticket issue”.
After she produced her ticket, he said that she validated it. He then asked her for her student identification card, which she produced, still abusing him. He described it as “a barrage of abuse”. When he questioned her as to whether the card was hers, on his evidence, she said, “Fuck you, I’m not telling you anything else”. He then said that he would give her a receipt and she would have to retrieve the card from the Passenger Transport Board at a later date by producing the receipt. He then said he gave her the ticket back. Then he said:
At some point, without warning, without provocation, unexpectedly in my mind, she has launched at me, made at a grab at my hands in so doing contact was made with my index finger. It caused me some surprise, you know. She has launched an attack on me of some sort and it was just an instinct, as a momentary action, its just to repel by her same hand that grabbed me and it’s just an instinct as a momentary action it’s just to repel by her same hand that grabbed at me.
Q.So you are saying that she made contact with you.
A.Yes, absolutely.
Q.Yes, what you do when she made contact with you.
A.Where did I go.
Q.So you told the court that she made contact with you. What did you do upon contact.
A.I repelled her contact with what I considered in my mind was an appropriate reasonable level of force, didn’t throw her back of any sort it just basically pushed the hand away, that I had made contact with my hands. … It was just an instinctive action, a sort of defence mechanism, I guess. … The abuse just continued unchecked.
In her reasons for judgment, after summarising the evidence, the magistrate referred to various statutory provisions relating to the powers which it was open for the appellant to exercise.
She referred to reg 6 of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 made pursuant to the Passenger Transport Act 1994, which allow an authorised person (in this case the appellant) to access a passenger’s ticket, student identification card, travel concession card or pass for inspection or validation when requested. She held that Ms Doyle had complied with this request.
She noted that the regulation did not provide for confiscation.
She noted, however, that regulation 9 did allow for immediate surrender of a ticket or card to an authorised person who:
… suspects on reasonable grounds-
(a)that a person has presented an invalid ticket, student identification card or travel concession card for inspection …
She held, in my view correctly, that on the evidence the appellant did not hold a reasonable suspicion such as to justify the surrender of Ms Doyle’s card at the time.
She held further that there was no evidence that the appellant could reasonably have suspected Ms Doyle “to be committing or to have committed an offence” within the meaning of s 57 of the Passenger Transport Act 1994, with the result that no situation had arisen in which he was entitled to ask her to state her full name and usual place of residence, and to produce evidence of her identity.
The magistrate reminded herself of the onus of proof, and dealt with the appellant’s evidence on the footing that he claimed to have been acting in self-defence.
She found Ms Doyle “to be an articulate and impressive witness”. She said that she considered her “to be a witness of truth”.
She noted in particular Mr Gaetjens’ evidence that he was adamant that he had not heard Ms Doyle abusing the appellant. She considered that this evidence contradicted the appellant’s account of her behaviour.
She found specifically that the appellant was an unimpressive witness, and that some aspects of his evidence in cross-examination bordered on the bizarre. She concluded:
I consider his claim of self-defence against an unprovoked attack by Ms Doyle to be unbelievable. He was a man three times the size of Ms Doyle; he had confiscated her identification card without explanation. He had, in my view, behaved in a brusque and high-handed manner. His evidence regarding her offensive behaviour and abuse of him was contradicted completely by the security guard who was present with him and who one would have expected to be particularly concerned about the behaviour described by the defendant – exactly the type of behaviour which was the reason for his [the security guard’s] presence on the train with the defendant. He too seemed to be nonplussed as to the reasons for the confiscation of the card, once again contradicting Cremer’s evidence that he had explained to Ms Doyle why he was confiscating the card.
I find that Cremer grabbed her hand as described and twisted it, thereby causing her some discomfort. I am satisfied that the prosecution evidence negates any issue of self-defence on the part of the defendant.
She went on to find that she was satisfied beyond reasonable doubt that the incident had occurred in the manner outlined by the two prosecution witnesses and proceeded to find the appellant guilty as charged.
Much of the argument advanced by the appellant criticised the trial magistrate for having placed too much weight on the evidence of Mr Gaetjens. The appellant submitted that, properly understood, Mr Gaetjens’ evidence contradicted Ms Doyle’s evidence and supported his own testimony.
I have re-read Mr Gaetjens’ evidence and the trial magistrate’s treatment of it in her reasons. It is true that in some of his evidence Mr Gaetjens was not prepared to be dogmatic. For example, part of his evidence in chief was:
Q.Did you hear her [Ms Doyle] using any offensive language at the time.
A.As far as I can recall, no.
Q.Do you remember the accused cautioning Ms Doyle about her language.
A.I can’t recall anything of that nature.
It was very much a matter for the magistrate to make what she wished of evidence given in that vein. Mr Gaetjens was in a good position to see and hear the confrontation as it unfolded. Furthermore, it is unlikely that he would have sided with Ms Doyle as opposed to his fellow officer.
On one matter he clearly was at odds with her evidence.
He said that the appellant had a hold of Ms Doyle’s hand for “a second or two and that would be it”. In cross-examination Ms Doyle estimated the period during which the appellant had hold of her hand as “five seconds or longer”. Later she said, “I would say maybe ten seconds”.
As I noted during the course of argument, estimates by witnesses of short intervals of time, particularly when they are experienced by the witness at a time of emotional stress, are notoriously unreliable.
Again it was for the magistrate to make what allowance she thought for discrepancies of that kind in the course of making her findings as to credit.
The appellant contended that the magistrate erred in failing to accept his plea of self-defence under s 15 of the CLCA, or defence of property under s 15A.
In her reasons, the magistrate referred to self-defence but not to defence of property. I have quoted earlier the passage in her reasons where she made findings as to the appellant’s credit, and his claim to have acted in self-defence.
I have re-assessed the evidence for myself, and while giving due weight to the advantage held by the magistrate in seeing and hearing the witnesses, I have independently addressed the question whether the evidence can properly sustain the conviction: see Taylor v Hayes[1] and Rowland v Police.[2] As to findings by the trial magistrate as to credibility of witnesses, see also Devries and Anor v Australian National Railways Commission and Anor[3] and Fox v Percy.[4]
[1] (1990) 53 SASR 282 at 291.
[2] (2001) 79 SASR 569 at 574.
[3] (1992-1993) 177 CLR 472 at 479.
[4] (2003) 214 CLR 118.
In my view, it could not be said that the evidence justified a finding of either self-defence or defence of property.
The appellant criticised the magistrate for failing to have regard to the fact that none of Ms Doyle’s companions was called as a witness for the prosecution.
As I understand from Mr Jacobi, who appeared for the respondent, the point was not taken at first instance.
In any event, as a general rule, it is not proper to criticise the prosecution or devalue the prosecution case by reason of a failure by the prosecution to call persons who might have been called as witnesses: see Dyers v The Queen[5] per Gaudron and Hayne JJ:
[6]… [A]s a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution.
[5] (2002) 210 CLR 285 at 291.
In view of the fact that the appellant was unrepresented before me, I have carefully reviewed the evidence and the magistrate’s reasons for decision without limiting myself to the points taken by the appellant.
I am unable to identify any ground upon which it would be right to interfere with the conclusion which the magistrate reached.
The appeal is dismissed.