Cross v Police - [2012] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CROSS v POLICE
[2012] SASC 108
Judgment of The Honourable Justice White
29 June 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - VAGRANCY, PROSTITUTION AND KINDRED OFFENCES - LOITERING - WHAT CONSTITUTES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE
Appellant convicted by Magistrate of failing to cease loitering and of resisting a police officer in execution of his duty - appellant appeals against both convictions.
Whether appellant loitering - whether appellant had proper justification to remain in the area despite police officer's directions - whether Magistrate erred in failing to make finding that appellant had been loitering before direction to cease had been given - whether Magistrate's reasons inadequate by failing to record separate discrete findings concerning each aspect of witness' evidence - whether Magistrate's reasons inadequate by failing to make explicit finding as to conduct which constituted the resist charge - whether Magistrate erred in failing to consider self-defence - whether miscarriage of justice due to incompetence of trial counsel.
Held: appeal dismissed - appellant not entitled to remain once police officer directed him to leave - Magistrate correctly identified the relevant conduct amounting to loitering and its interrelationship with the direction to cease loitering - Magistrate's reasons adequate in directing findings to particular issues arising - Magistrate's reasons adequate in identifying the conduct amounting to the resist charge - self defence not open given Magistrate's findings of fact - no miscarriage of justice as trial counsel discharged his responsibilities with competence.
Summary Offences Act 1953 (SA) s 6, s 18; Victims of Crime Act 2001 (SA) s 6; Police Regulations 1999 (SA) reg 10, reg 12, reg 17, referred to.
Del Col v Urie (1978) 19 SASR 399; Farquhar v Laffin (1975) 12 SASR 363; Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308; Johns v Berry [1934] SASR 111; Nudd v The Queen (2006) 162 A Crim R 301; Power v Huffa (1976) 14 SASR 337; R v Birks (1990) 19 NSWLR 677; R v Miletic [1997] 1 VR 593; Re Ratten [1974] VR 201; Samuels v Stokes (1973) 130 CLR 490; Stokes v Samuels (1973) 5 SASR 18; TKWJ v The Queen (2002) 212 CLR 124, considered.

CROSS v POLICE
[2012] SASC 108
Magistrates Appeal

WHITE J. A Magistrate sitting at Whyalla convicted the appellant of two summary offences. The first was that of failing to cease loitering, contrary to s 18(2) of the Summary Offences Act 1953 (SA) (SOA); and the second that of resisting a police officer in the execution of his duty, contrary to s 6(2) of the SOA.
The file of the Magistrates Court does not indicate the sentence imposed on the appellant. It appears from his…

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.

Continue reading Cross v Police

Details

AGLC: Cross v Police [2012] SASC 108
Case: [2012] SASC 108
Decision Date: 29 June 2012

CaseChat Overview and Summary

In Cross v Police, the appellant appealed against his conviction and sentence on two counts of failing to cease loitering and resisting arrest. The Supreme Court of South Australia heard the appeal and dismissed it. The appellant argued that the trial had been unfair due to several reasons, including the exclusion of certain evidence, ineffective legal representation, and procedural errors by the police.

The court had to decide whether the appellant's appeal was valid, considering the grounds raised, such as the exclusion of evidence of the appellant's injured leg, the failure to present evidence of his good character, the ineffectiveness of trial counsel in handling certain matters, and the absence of police records. The court also needed to determine if these issues constituted a miscarriage of justice.

The Supreme Court found that the excluded evidence had little relevance to the appellant's conduct at the time of the offences, and the absence of evidence of good character did not produce a miscarriage of justice. The court held that the other issues raised, such as the use of capsicum spray and the failure to cross-examine certain witnesses, were either immaterial or did not affect the outcome of the trial. The court concluded that the appellant had not demonstrated any miscarriage of justice or incompetence on the part of his trial counsel.

The Supreme Court dismissed the appeal, affirming the appellant's conviction and sentence. The court held that the trial was fair, and the appellant's claims of ineffective assistance of counsel and procedural errors did not justify a new trial. The appellant's appeal was unsuccessful, and the original conviction and sentence stood.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Plainly, these two documents had no relevance to the offence of failing to cease loitering. They could possibly have had some relevance to the offence of resisting arrest if it had been the appellant’s conduct on the ground which had comprised his resistance. However, the Magistrate found that the appellant had been resisting arrest even before being taken to the ground by Constable Hutchins. The proposed medical material had little or no relevance to his conduct at that time. I note that the Magistrate accepted in any event that the appellant did have an injured leg. The appellant has not established that the absence of this evidence has given rise to a miscarriage of justice.Evidence of Good Character The appellant referred to evidence of his own good character which could have been led from him and his father but which was not led at trial. The absence of this evidence did not produce a miscarriage of justice. The fact of the matter is that, even on the evidence of the appellant which was accepted by the Magistrate, he had committed the offence of failing to cease loitering. It is not reasonable to suppose that the absence of the evidence of the appellant’s good character has produced a miscarriage of justice in relation to the charge of resisting arrest. Use of Capsicum Spray The appellant contended that trial counsel should have required production from the South Australian Police of the regulations and protocols concerning the use of capsicum spray, both generally and by Constable Hutchins, and should have cross‑examined Constable Hutchins concerning his compliance with those regulations and protocols. This is an example of the appellant raising a matter which is immaterial. Constable Hutchins applied the capsicum spray only after both offences had been committed. At best, cross‑examination on the topic may have had some tenuous link to the assessment of Constable Hutchins’ credibility.Defence Disclosure in Correspondence from the Appellant’s Former Solicitors The appellant contended in his notice of appeal that trial counsel should have cross‑examined Constable Hutchins about the defence disclosure in certain correspondence from his former solicitors. However, this complaint was not developed on the appeal.Production of Police Records Regarding the Arrest and Detention of the Appellant The police provided to the appellant in connection with the appeal copies of the records made by Constable Hutchins at the time of the arrest of the appellant and subsequently. The appellant submitted that trial counsel should have sought these documents at the time of the trial and used them in some way to cross‑examine Constable Hutchins. In my opinion, the absence of cross‑examination by reference to those documents does not give rise to any miscarriage of justice having regard to the limited nature of the issues arising for determination.Self‑Defence The appellant raised in this context trial counsel’s failure to raise the issue of self‑defence. For the reasons given earlier, there is no substance in this complaint.Conclusion on Alleged Incompetence

Decision

Reasons for decision

WHITE J

In any event and for the reasons given above, the documents which the appellant sought to have produced on subpoena could not have had any material bearing on the outcome of the appeal. I repeat my view that many of the submissions made on the appellant’s behalf did not pay sufficient regard to the real issues in the trial and to the appellant’s own evidence bearing on those issues.Conclusion on Appeal For the reasons given above, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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