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 own affidavit that it may have been a fine of $200 without convictions being recorded.
The appellant appeals against the guilty verdicts.
The Prosecution Case
The prosecution case comprised only the evidence of the arresting officer, Constable Hutchins.
Both offences were alleged to have been committed on 5 December 2010 outside the Commercial Hotel in Cowell. Constable Hutchins went to the hotel at about 1.30 am. He saw approximately 25 people standing outside, either on the footpath or on the street itself. One, a Mr Walsh, was bleeding from the head. The appellant was another. Constable Hutchins described loud and aggressive conduct by the appellant (“he was tensed up, had his fist clenched, and he was stating how he was going to smash some of the locals”). He said to the appellant words to the following effect:
Offences have been committed. I require you to cease loiter from the area. If you do not leave you may be arrested.
However, the appellant did not leave, even after Constable Hutchins repeated the direction several times. His failure to do so was said to constitute the offence of failing to cease loitering.
Constable Hutchins then told the appellant that he was under arrest, took him by the arm and endeavoured to escort him to the police vehicle. The appellant pulled his arm away. Constable Hutchins then positioned him against a tree in the median strip in order to handcuff him. The appellant pushed away from the tree whereupon Constable Hutchins took him to the ground using “a straight arm take down”. On the ground, the appellant continued to resist by thrashing his body and tensing his arms. Constable Hutchins warned him that if he did not stop resisting, he would be sprayed with capsicum spray. The appellant responded by saying, “I don’t care. I have been sprayed in the army plenty of times before”.
Constable Hutchins then used his capsicum spray which had the effect of subduing the appellant. He handcuffed the appellant and took him in the police vehicle to the Cowell Police Station.
The Defence Case
The appellant gave evidence in his own defence and also led evidence from his father. However, his father had not been present outside the Commercial Hotel at the time of the alleged offences. Accordingly, the only evidence which the Magistrate had of the incidents came from Constable Hutchins and the appellant.
In the early hours of 5 December 2010, the appellant was at the Commercial Hotel with four others, including a Mr Edwards. At about 1.30 am an altercation developed in which he was struck by Mr Walsh, once inside the hotel and four or five times outside. He did not retaliate but sought to defend himself. Mr Edwards called the police, using his mobile phone. The appellant’s intention was to report Mr Walsh’s conduct.
When Constable Hutchins arrived, he spoke first to Mr Walsh and his female friend. He permitted the latter to take Mr Walsh to hospital. Constable Hutchins then turned to the appellant and Mr Edwards. The appellant gave him his personal details and informed Constable Hutchins that he had been assaulted. However, Constable Hutchins did not acknowledge this complaint. Instead he repeatedly asked the appellant to move away from the area. The appellant did not do so and over a period of 10-15 minutes repeated his attempts to report the assault. Constable Hutchins repeated his requests that he leave the area. Some, but not all, of the group of 25 bystanders remained nearby. The appellant acknowledged that he had been “worked up” but said that he was not aggressive.
Constable Hutchins told the appellant that he was not going to give him another warning and that he would be arrested. The appellant said that he then started to walk away. However, Constable Hutchins grabbed him from behind and told him that he was under arrest. He pushed him against a tree in the median strip whereupon the appellant told Constable Hutchins that he had previously strained a ligament in his right knee. Constable Hutchins made no reply but instead forced him to the ground and a struggle occurred. The appellant said that he attempted to avoid falling awkwardly and “struggled to lessen the chance of further injury to [him]self … but [he] was not struggling against Constable Hutchins per se”. He acknowledged, however, that while on the ground he had held his arms under his chest while Constable Hutchins was attempting to gain access to them. He was then sprayed with the capsicum (he thought three times) and handcuffed.
The Magistrate’s Reasons
The Magistrate was critical of aspects of the conduct of Constable Hutchins, saying that if he had told the appellant to come to the police station the following morning to report the incident there may have been no further trouble.
The Magistrate also regarded aspects of Constable Hutchins’ evidence as unreliable. These included his claim that he could not recall the appellant, when first spoken to, making a complaint about an assault by Mr Walsh; that he had not seen injuries to the appellant’s face (which were apparent in the photographs he took of the appellant at the police station on the following morning); and that the appellant had not mentioned on the following morning his desire for charges to be pursued against Mr Walsh.
The Magistrate found that when first spoken to at about 1.30 am, the appellant had told Constable Hutchins that he had been assaulted and wished to press charges; that Constable Hutchins had made no note of the conversation at that time; and that he had made no enquiry of Mr Walsh as to the circumstances of his injuries. He went on to find that Constable Hutchins had given a “cease loiter” direction to the appellant because he was concerned that a fight may occur; that the appellant had ignored the request and persisted in his attempt to have Constable Hutchins do something about the assault; and that Constable Hutchins had given that direction about 10 times.
The Magistrate’s conclusions appear in the following paragraphs:
[38]Notwithstanding the unsatisfactory manner in which this incident was dealt with, I accept that Hutchins had legitimate reason to ask the defendant to move on. He was on solo patrol and was in fact the only police officer in the township. He had good reason to attend at the hotel regardless of whether he was tasked by radio or had made observations of his own that suggested a disturbance had taken place. The fact is, there had been an incident and approximately 25 people were standing about in front of the hotel. One person had blood on his face and another was tense and appeared angry. It was not unreasonable to assume that the continued presence of this group of people may give rise to a further incident.
[39]It is arguable that when Hutchins first approached the defendant he was not loitering. He may well have had a good reason to be standing in front of the hotel acting on the basis of his own knowledge that a telephone call had been made to the police by his friend Edwards. He was certainly entitled to request the officer to make enquiries into his allegations. I am satisfied that he asked Hutchins to take action to investigate his complaint. For some reason Hutchins decided not to take any action at that time. It may be that he was concerned to disperse the crowd. There may be other reasons and Hutchins was of little assistance in that regard. Notwithstanding, the decision was his to make and in my opinion, after he gave the second direction to the defendant and he failed to obey, he was loitering for the purposes of the section. His failure thereafter, notwithstanding his good reason for requesting assistance from Hutchins, constituted a failure to cease loiter.
[40]Having been arrested, the defendant struggled with Hutchins. He gave evidence that he was simply trying to avoid falling on his injured leg. However, it is clear in my opinion that he resisted quite forcibly and the need for Hutchins to take him to the ground could have been avoided had he simply agreed to go with Hutchins when he was arrested. I am satisfied that the defendant did resist arrest. I find both charges proved.
It can be seen that the Magistrate found that the appellant’s loitering occurred because he had remained in the area after being requested by Constable Hutchins to leave. It can also be seen that the Magistrate relied on the appellant’s conduct before being taken to ground for the offence of resisting arrest.
Was the Appellant Loitering?
Section 18 of the SOA provides as follows:
(1)Where a person is loitering in a public place or a group of persons is assembled in a public place and a police officer believes or apprehends on reasonable grounds—
(a)     that an offence has been, or is about to be, committed by that person or by one or more of the persons in the group or by another in the vicinity; or
(b)     that a breach of the peace has occurred, is occurring, or is about to occur, in the vicinity of that person or group; or
(c)     that the movement of pedestrians or vehicular traffic is obstructed, or is about to be obstructed, by the presence of that person or group or of others in the vicinity; or
(d)     that the safety of a person in the vicinity is in danger,
the officer may request that person to cease loitering, or request the persons in that group to disperse, as the case may require.
(2)A person of whom a request is made under subsection (1) must leave the place and the area in the vicinity of the place in which he or she was loitering or assembled in the group.
Maximum penalty: $1 250 or imprisonment for 3 months.
(3)If a police officer has reasonable grounds to suspect that a person who is loitering in a public place is of a prescribed class, the officer may request that the person state the reason why he or she is in that place.
Section 18 was considered by the High Court in Samuels v Stokes[1] and subsequently by the Full Court in Power v Huffa.[2] At the time of those decisions, s 18 created two offences, whereas the present s 18 creates only one. The offence under s 18(1) and (2) of which the appellant was found guilty is in material respects the same offence established by the former s 18(2) and (3). It was not suggested on this appeal that the repeal of the offence created by the former subs (1) (failing, on request, to give a satisfactory reason for lying or loitering in a public place) has had the effect of diminishing the authority of these decisions.
[1] (1973) 130 CLR 490.
[2] (1976) 14 SASR 337.
In Samuels v Stokes,[3] the High Court held that unlawfulness is not an element of the offence of loitering.[4] That is to say, a person may loiter by “remaining stationary for some reason which [is] in no way unlawful”.[5] Gibbs J said of the offence:
[A] person may be loitering although he is standing about with a perfectly lawful purpose. The words of the section make it clear that a person may be requested to leave the area, notwithstanding that he is loitering there and that there is no suggestion that he has done or will do anything wrong. He may be asked to leave in the interests of his own safety, or to enable the police to deal more effectively with the illegal conduct of others, or simply as part of the process of dispersing a crowd.[6]
Menzies J (with whom Barwick CJ agreed) said:
In this setting it seems to me that the word “loiter” means no more than “tarrying”, or, to use a phrase that has received judicial recognition, “hanging about”. A person may loiter who has a reason, lawful or unlawful for standing, sitting or sauntering in a public place. It is to be observed that merely to loiter in a public place is not made an offence and there is, therefore, no compelling reason for reading the word in a narrow sense. … Furthermore, s 18(2), by reason of the strict limitation of the power of a member of the police force to request that a person should cease loitering, is consonant with attributing to the word “loiters” a meaning which would cover remaining stationary for some reason which was in no way unlawful. The conditions stipulated for the making of a request are consistent with obliging a person to move on, notwithstanding that otherwise he is committing no offence in remaining where he is.
I consider that, without any context, the word “loiters” does ordinarily carry the meaning lingering idly or aimlessly, and not merely lingering, but the context to which reference has been made suggests that here a person who merely lingers is a person who loiters, regardless of his reason for so lingering. Moreover, it does not seem to me oppressive, and therefore unlikely, that authority should be given to a member of the police force to ask a person lingering in a public place why he is doing so, or to authorise a member of the police force to request a person so lingering to stop doing so in any of the circumstances stated in s 18(2)(a), (b), (c) and (d).[7]
[3] (1973) 130 CLR 490.
[4] Ibid at 492 (Barwick CJ).
[5] Ibid at 499 (Menzies J).
[6] Ibid at 503-4.
[7] Ibid at 498-9.
In concluding that a person may be loitering even though present for a lawful purpose, the High Court overruled the construction previously adopted by this Court that loitering consisted of lingering or remaining in the area in question without apparent reason or for an unlawful purpose.[8] On that construction, it was necessary for the prosecution to prove, as an element of the offence, either apparent aimlessness or unlawful purpose.
[8] Stokes v Samuels (1973) 5 SASR 18; Johns v Berry [1934] SASR 111.
In Samuels v Stokes Gibbs J stated the elements of the offence of failing to cease loitering as these:
1. That the defendant was loitering in a public place;
2.A police officer has the relevant belief or apprehension on reasonable grounds;
3.The officer has requested the defendant to cease loitering; and
4.The defendant did not leave the place in which he was loitering and the area in the vicinity of that place.[9]
As I have indicated, the present appellant did not submit that the amendments to s 18 since 1973 mean that this understanding of the section is no longer applicable, or that it can be distinguished.
[9] Samuels v Stokes (1973) 130 CLR 490 at 502.
There remains, however, the question of whether any remaining or tarrying in a public place amounts to loitering for the purposes of s 18. This was one of the issues considered in Power v Huffa[10] on the referral of certain questions of law to the Full Court. Bray CJ concluded that Samuels v Stokes did not preclude the possibility that a person may remain or linger in a public place in pursuance of a duty or obligation (legal, contractual, moral or social) without being a loiterer.[11] Because Power v Huffa was a decision on questions of law in a case stated, it was not appropriate for the Court to consider factual matters in detail, and the members of the Court refrained from doing so. Bray CJ did, however, give some examples of the kind of duty or obligation which he had in mind: a sentry or policeman on duty outside a public building; a worker working in the street; a commissionaire standing outside a hotel; a parent waiting to meet a child at a bus stop; and a doctor or priest standing by to render medical or spiritual assistance to those who might be injured,[12] and continued:
I think all I can say is that, in my view, a duty or obligation to remain in a public place may be of such gravity as to prevent those who act in obedience to it from loitering in that public place.[13]
[10] (1976) 14 SASR 337.
[11] Ibid at 342-3.
[12] Ibid at 343.
[13] Ibid.
Zelling J considered that there was a relevant distinction between being present for a lawful “reason”, on the one hand, and being present with a lawful “justification”, on the other.[14] His Honour referred to the examples given by Bray CJ and gave the further example of an electricity worker attempting to restore disconnected power.[15]
[14] Ibid at 354.
[15] Ibid.
Jacobs J considered the question of whether a person’s justification for remaining in a public place may prevent that person’s conduct from amounting to loitering to be “difficult”, and inappropriate to address in the context of a case stated.
The present appellant’s first submission was that he was not loitering in the sense of “tarrying” or “hanging about”[16] or being “unnecessarily slow in leaving or … staying around without real necessity”.[17] He was instead present as a victim of crime wishing to report an offence. The proposition in short was that he had a proper purpose or justification for staying in the area.
[16] Samuels v Stokes (1973) 130 CLR 490 at 498 (Menzies J).
[17] Ibid at 493 (McTiernan J).

This Court cannot reach a concluded view as to whether the appellant was a victim of crime. Apart from the evidence of the appellant, the Magistrate did not hear evidence concerning the circumstances of the incident involving him and Mr Walsh. For the purposes of considering the appellant’s present submission, I will assume in the appellant’s favour that his characterisation of himself as a victim of an assault by Mr Walsh is correct. I emphasise that that is an assumption made for the purposes of determining the present appeal, and not a conclusion of fact.
The appellant’s claim that he was not loitering because he was waiting to report a crime was, in effect, a resort to the possibilities referred to in Power v Huffa. Although not expressed quite in that way, the appellant’s contention was that he had an entitlement and, indeed, a duty to report the offence which he believed had occurred and Constable Hutchins a corresponding duty to receive his report.[18]
[18] The appellant’s submissions did not distinguish between legal and moral duties, and did not include any reference to authority concerning the source of the duty.
The appellant referred to the desirability of crimes being reported promptly and emphasised his position as a victim of crime. He drew attention to a number of provisions in the Victims of Crime Act 2001 (SA) and, in particular, to his entitlement to be treated by Constable Hutchins with courtesy, respect and sympathy (s 6). The appellant also referred to a number of provisions in the Police Regulations 1999, including Constable Hutchins’ duty to uphold the law, preserve the peace and to prevent crime (reg 10); to act with honesty and integrity (reg 12); to act in a way which is impartial and respectful (reg 17(c)); and to avoid acting in a way which is oppressive or offensive (reg 17(b)).
In my opinion, these provisions in the Victims of Crime Act and the Police Regulations do not assist the appellant in the present context. They do inform the manner in which Constable Hutchins was to deal with the appellant, but it cannot reasonably be said that they gave rise to some legal, moral or social duty entitling the appellant to remain in the area even after he had been told to leave.
One may readily accept that the appellant had an interest in reporting promptly the offence which he believed had occurred. One may also accept, in a general sense, that Constable Hutchins had an interest and duty in receiving from the appellant the report of the offence. By themselves these matters indicate that the appellant had some justification for remaining in the area of the Commercial Hotel until Constable Hutchins arrived, especially as it was his friend, Mr Edwards, who had made the call for police assistance.
The appellant’s submissions, however, involve an assumption that he was entitled to make his report of the offence as soon as Constable Hutchins arrived at the hotel, or at least soon after Constable Hutchins had dealt with Mr Walsh. They assume that Constable Hutchins had not been entitled to defer taking his report and to require him to leave the area in the meantime. That assumption is not well‑founded.
Police officers have a discretion, sometimes described as a “broad discretion”, as to the manner in which they choose to fulfil the responsibilities of their office: Hinchcliffe v Commissioner of Australian Federal Police.[19] Accordingly, it was open to Constable Hutchins to decide not to take the report of the offence alleged by the appellant then and there and, in the interests of public peace and safety, to have both of the apparent protagonists leave the area. It would of course have been sensible for Constable Hutchins to have explained his decision to this effect to the appellant, and the Magistrate was critical of his failure to do so. Nevertheless, that failure did not alter the fact that it was open to Constable Hutchins to make that assessment of the situation.
[19] [2001] FCA 1747 at [35]; (2001) 118 FCR 308 at 320.
That being so, the appellant was not entitled to insist, over a period of some 10-15 minutes and in the face of the repeated requests that he leave the area, that Constable Hutchins take his report then and there. It follows that, after being directed to leave, the appellant did not have a legal, contractual, moral or social obligation of the kind to which Bray CJ referred in Power v Huffa. This means in turn that his remaining in the area after he had been requested to leave did amount to loitering for the purposes of s 18.
Although the Magistrate was critical of Constable Hutchins’ failure to explain his decision to the appellant, he accepted that the constable had legitimate reason to ask the appellant to leave. He was the only police officer in Cowell at the time and was attending at a disturbance outside a hotel in the early hours of the morning. Some 25 or so people were present and it was obvious that some form of altercation had taken place. It was reasonable for him to assume that some of those present may have been affected by alcohol, if not intoxicated. There were indications that some further disturbance was possible. It was reasonable for Constable Hutchins to decide that the peace could be best preserved by having the apparent principal protagonists dispersed. I refer in this respect to the observations of Gibbs J in Samuels v Stokes;[20] and by Wells J in Farquhar v Laffin.[21]
[20] (1973) 130 CLR 490 at 504.
[21] (1975) 12 SASR 363 at 366.
Accordingly, I consider that this aspect of the appeal fails.
Interrelationship between the Loitering and the Direction to Cease Loitering
The appellant submitted it was necessary for him to have been loitering before any direction that he cease loitering could be given. The structure of s 18 supports that contention. The appellant submitted that the Magistrate had erred by failing to make any finding that he was in fact loitering before Constable Hutchins gave him the direction to cease loitering. He relied on the following passage from the judgment of Bright J in Del Col v Urie:[22]
The present conviction must in my opinion stand or fall according to my view as to whether the appellant, when directed by either of the two constables to cease loitering and to move on, was in fact loitering. If he was not loitering when given the direction he could not cease loitering, nor could he be given a valid direction to cease loitering.[23]
Those remarks were made in the context of a police officer requesting the defendant to come outside a hotel and then shortly afterwards requiring him to cease loitering.
[22] (1978) 19 SASR 399.
[23] Ibid at 402.
The present appellant’s submission overlooks the basis for the Magistrate’s decision. Paragraph [39] of the Magistrate’s reasons quoted earlier indicates that the Magistrate did not base his finding that the appellant was loitering on his remaining in the area outside the hotel while waiting to make his report to Constable Hutchins. Instead, it was the appellant’s failure to comply with the second direction given by Constable Hutchins that he leave the area which constituted the loitering and, as the Magistrate found, it was his failure thereafter to comply with Constable Hutchins’ requests which constituted his failure to cease loitering.
Adequacy of Magistrate’s Reasons
The appellant submitted that the Magistrate’s reasons were inadequate. It was not entirely easy to follow the appellant’s submissions in this respect but it seemed to be a complaint that the Magistrate should have recorded separate and discrete findings concerning those aspects of Constable Hutchins’ evidence which he accepted and rejected, and likewise with the appellant’s own evidence.
That is of course one way in which the Magistrate could have proceeded, but it was not necessary for him to do so. It is an accepted, and indeed desirable, technique in judgment writing for the findings of fact to be directed to the particular issues arising in the case, rather than fact‑finding of a generalised and undifferentiated form. The Magistrate’s reasons conform with this style.

The appellant made a separate submission in relation to the Magistrate’s reasons concerning the offence of resisting arrest. He submitted that the Magistrate should have made an explicit finding of the conduct which constituted the resistance. I accept that the Magistrate’s reasons in [40] quoted above could have been a little more detailed, but it is clear that he regarded the appellant’s conduct up to the point at which Constable Hutchins took him to the ground as, at the least, comprising resistance to the arrest.

This ground of appeal fails.
Self‑defence
The appellant submitted that the Magistrate erred by failing to consider, in relation to the offence of resisting arrest, the possibility that he had been acting in self‑defence. The submission, as I understood it, was that the evidence raised a reasonable basis for concluding that the conduct relied upon by the prosecution for the offence of resisting arrest was attributable to his attempts to safeguard himself from further injury to his right knee.
There is no suggestion that the issue of self‑defence was raised at all in the proceedings before the Magistrate. That being so, it is quite understandable that the Magistrate did not address the issue.
In any event, on my assessment, the possibility that the appellant’s conduct prior to being taken to the ground could be attributed to acts in reasonable self‑defence appears fanciful. His conduct in pulling his arm away from Constable Hutchins cannot sensibly be attributed to a desire to protect his right knee. Nor can his conduct in pushing himself away from the tree while Constable Hutchins was endeavouring to handcuff him. If the appellant had been concerned to protect his right knee, it is reasonable to suppose that he may have chosen instead to facilitate the arrest and to accompany Constable Hutchins to the police vehicle.
The appellant’s submission may possibly have had some force if the Magistrate had relied on his conduct while he was on the ground as comprising the resistance. However, that is not the case.
This ground of appeal fails.
Competence of Trial Counsel
The appellant contended that a miscarriage of justice had occurred because his trial counsel had not conducted his defence competently. He gave some 12 particulars of this complaint to which I will return shortly.
Claims of a miscarriage of justice arising from the alleged incompetence of counsel should not be made lightly and certainly not as matter of routine when a defendant is disappointed with the result of a trial. An appellant making such an assertion carries a heavy burden.[24] As Gleeson CJ observed in Nudd v The Queen:[25]
A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise.[26]
The Court of Appeal in Victoria made a similar observation in R v Miletic:[27]
[I]n our system of law a criminal trial is adversarial in its nature and counsel is entitled, on behalf of the accused, to contest such issues as he believes ought to be contested and to do so in such manner as he believes the circumstances warrant. No doubt there will be many decisions made by counsel which, in retrospect, might appear to have been ill advised. However the mere fact that such decisions have been made and appear in retrospect to have been unwise will not, of itself, lead a court of criminal appeal to quash a conviction, for the simple reason that the making of those decisions is part and parcel of the process of a fair trial.[28]
[24] TKWJ v The Queen [2002] HCA 46 at [74]; (2002) 212 CLR 124 at 147.
[25] [2006] HCA 9; (2006) 162 A Crim R 301.
[26] Ibid at [9]; 306. See also R v Birks (1990) 19 NSWLR 677 at 684; Re Ratten [1974] VR 201 at 214; R v Miletic [1997] 1 VR 593.
[27] [1997] 1 VR 593.
[28] Ibid at 598. See also TKWJ v The Queen [2002] HCA 46 at [8], [24], [74]; (2002) 212 CLR 124 at 128, 132-3, 147-8.
When questions concerning the manner of counsel’s conduct of a trial are raised on appeal, the critical issue for the court is whether the accused was deprived of a fair trial according to law. As McHugh J observed in TKWJ v The Queen:
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, "whether counsel has been negligent or otherwise remiss … remains relevant as an intermediate or subsidiary issue". That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, "it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence". The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel's conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice.[29]
(Citations omitted)
[29] TKWJ v The Queen [2002] HCA 46 at [79]-[80]; (2002) 212 CLR 124 at 149-50.
It is against that background that the particular matters relied upon by the present appellant are to be considered.
I make one further preliminary observation. It seemed to me, with respect, that a number of the matters raised by counsel for the appellant had very little relationship to the legal issues in the trial, and little regard to the factual findings made by the Magistrate, many of which were favourable to the appellant.
Failure to Call Defence Witnesses
The appellant submitted that his trial counsel should have called two witnesses who were present outside the hotel at the time of the incident (Mr Edwards and Ms Kerslake) and had erred by not seeking an adjournment for them to attend. The appellant’s solicitors had arranged for each to attend at an earlier trial listing and had in fact issued subpoenas for that purpose. However, no subpoenas were issued in respect of the trial which took place on 13 January 2012. The file of the appellant’s previous solicitor indicates that this was because the appellant himself had taken on the responsibility of notifying Mr Edwards and Ms Kerslake of the trial and of arranging their attendance. It seems, however, that Mr Edwards was interstate at the time of the trial.
A letter from the appellant’s former solicitor indicates that trial counsel discussed specifically with the appellant and his father the unavailability of Mr Edwards and his view that Mr Edwards’ attendance was not necessary bearing in mind the nature of the proposed defence. The solicitor indicates that both the appellant and his father agreed to the course proposed by trial counsel.
The reason for Ms Kerslake not attending at the trial is not clear, but the appellant has not established that she could have given evidence which would have made any difference in the trial.
Many of the submissions made on the appellant’s behalf tended to overlook that the prosecution and defence evidence concerning the offence of failing to cease loitering was not markedly different. Further, as already noted, the Magistrate rejected aspects of Constable Hutchins’ evidence and preferred that of the appellant. This was not a case in which the appellant was disbelieved on critical aspects on which additional evidence could have been adduced. The appellant’s own evidence indicated a basis for Constable Hutchins having a reasonable belief that an offence had been committed outside the Commercial Hotel, that he had been requested to leave, and that he had remained in the area after being requested to do so. The appellant’s belief that, despite those requests, he was entitled to remain in order to report the offence committed by Mr Walsh was erroneous. It is not easy to see that additional evidence from either Mr Edwards or Ms Kerslake could have had any material effect on the Magistrate’s conclusion on that topic.
Evidence of the Appellant’s Injuries
The appellant contended that his trial counsel had erred by not adducing evidence from him about the injuries caused to him by Constable Hutchins and about his existing right knee injury. He referred to a letter from his physiotherapist dated 16 August 2011 to his former solicitor and a post‑operative treatment note of an orthopaedic surgeon who had carried out an arthroscopy and partial medial meniscectomy on his right knee on 23 December 2010. The letter from the physiotherapist included opinions of doubtful admissibility. The note from the orthopaedic surgeon made no reference to the incident of 5 December 2010 at all.
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
Even if all the above matters are considered in combination, I consider that this ground of appeal fails. Many, if not all, of the matters upon which the appellant relied in relation to the alleged incompetence of his trial counsel are without foundation. A review of the transcript of the trial suggests that counsel discharged his responsibilities with competence.
Refusal of Adjournment
At the commencement of the hearing of the appeal on 16 May 2012, the appellant’s counsel sought an adjournment. The purpose of the adjournment was so that he could serve subpoenas on the Commissioner of Police requiring the production to the Court of the police protocols and regulations concerning the use of capsicum spray and of documents relating to any complaints which had been made against Constable Hutchins.
As I understood it, counsel sought these documents in relation to the ground of appeal concerning the alleged incompetence of trial counsel. It was said that if these documents had been available at trial they would have “laid the foundation for a very particular line of cross‑examination about [Constable Hutchins’] credibility and reliability across a host of matters” including whether or not the appellant was loitering and whether or not he was given a proper or lawful direction to cease loitering.
I refused the adjournment and said that I would give reasons later. I now set out those reasons.
In the first place, the application for the adjournment came very late and after the Court had already allowed the appellant adjournments in order to prepare for the appeal. On any reasonable view, there were shortcomings in the appellant’s preparation for the appeal. I make no observation as to whether those shortcomings are attributable to the appellant or his legal representatives or both.
After the appellant filed his notice of appeal on 6 March, the Court wrote to his legal representatives informing them that the appeal would be heard in the sittings commencing on Monday 7 May 2012 and may take place at any time during that month. On 16 April 2012, the Court informed his representatives that the appeal would be heard on 8 May. It seems that before receiving that listing little had been done by way of preparation for the appeal hearing. The appellant then sought a later listing and the Court accommodated that by providing a listing on 10 May. The appellant sought yet a further adjournment which the Court allowed, but only on the basis that the appeal would proceed on 16 May 2012. Thus, the appellant had more than two months in which to prepare for the appeal and to take any preparatory steps. His delays in doing so counted against any further adjournment.
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.