Cruise v The King; R v Cruise
[2025] SASCA 59
•2 June 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CRUISE v THE KING; R v CRUISE
[2025] SASCA 59
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice S Doyle)
2 June 2025
CRIMINAL LAW - PROCEDURE - VERDICT - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is an appeal against conviction by the appellant heard concurrently with an appeal against sentence by the Director of Public Prosecutions (‘Director’).
Shortly after midnight on 17 October 2021, Constables Spiniello and Beck were on duty and were tasked to attend a disturbance at the Exeter Hotel on Rundle Street. At that time, COVID-19 regulations mandated the wearing of face masks in public places. When the constables arrived, two security guards, informed them that a woman and her two male companions were asked to leave the Exeter because they were pulling down the face masks worn by other patrons. The security guards informed the constables that in the course of removing them they were assaulted by a woman and that, upon leaving the hotel, the group had walked westward along Rundle Street. After a short while they saw three persons walking towards them on Rundle Street who matched the descriptions they had been given. Those persons were later identified to be Ms Cruise and her male companions, Mr Priest and Mr Cross.
As the group approached, Constable Spiniello asked them to stop, saying that he needed to talk to them about what had happened at the Exeter. Constable Spiniello described their responses as verbally aggressive. Constable Beck gave a similar account of the events up to that point and testified that Ms Cruise and her companions appeared to be intoxicated and that they were immediately aggressive. Multiple exchanges ensued, recorded by bodycam footage of Constable Beck and Spiniello, which ended in a physical altercation between the appellant and Constable Beck.
The appellant was charged with the offence of intentionally causing harm to a prescribed emergency worker and charged with two counts of aggravated assault of the security officers contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation on each count was that as a security officer in a licensed premises the victims were in a position of particular vulnerability because of the nature of their employment. The Judge sentenced the appellant for those offences together with the offence of intentionally causing harm to Constable Beck. Finally, the Judge sentenced the appellant for earlier, unrelated offences on which she had been convicted by a Magistrate but released on a bond which she breached by committing the assaults.
The Judge imposed a single sentence of imprisonment for three years and eight months on all three offences pursuant to s 26 of the Sentencing Act 2017 (SA) (‘Sentencing Act’). The Judge then suspended the sentence upon the appellant entering into a bond to be of good behaviour for a period of three years.
The relevant question is not whether it was proved that the offence of failing to produce identification had been committed prior to the purported arrest. Rather, the question is whether or not Constable Beck was acting in the course of her duty when she requested the identification of the appellant and attempted to give Ms Cruise notice of the arrest. The answer to that question depends on whether Constable Beck reasonably suspected that that, or another, offence had been committed.
The appellant appeals against her conviction on the following grounds:
1.The verdict was unsafe and unsatisfactory in that it was not open to the learned Trial Judge to find that Constable Beck was acting in the course of her lawful duty when:
i. Constable Beck threatened to arrest the appellant for failing to produce her identification (an offence which could not possibly have been committed) immediately prior to the purported arrest; and
ii. Constable Beck failed to inform the appellant of both the fact of, and reason for the purported arrest.
2.The Director appeals against the sentence on the grounds that:
a. the sentence was manifestly inadequate;
b. the Judge erred in imposing a sentence, pursuant to s 26 of the Sentencing Act, which was less than the notional sentence that her Honour indicated would have been imposed in respect of the offence against Constable Beck alone; and
c. the Judge erred in determining not to impose any penalty on the offences the subject of the good behaviour bond, which was extant at the time of the assaults.
Held, by Kourakis CJ (Livesey P and S Doyle JA agreeing):
1.Permission to appeal against conviction is granted, but the appeal is dismissed.
2.Permission to appeal against sentence is granted, the appeal is allowed and the sentence set aside.
i. There was no valid basis on which a sentence for all three assaults could be imposed which was less than the sentence the Judge would have imposed if sentencing for the offence of intentionally harming Constable Beck alone.
ii. It is necessary to allow the appeal in order to maintain a proper level of sentencing for the offence of intentionally causing harm to prescribed emergency workers. Though the term of imprisonment imposed for intentionally causing harming was longer than the Court would have imposed, the appeal against sentence is allowed because the suspension of the sentence was so grossly disproportionate to the seriousness of the offending that it requires correction in the public interest.
3.In place of the sentences of the District Court, the following sentences are imposed:
i. Three years and three months for the offence of intentionally causing harm to Constable Beck.
ii. Nine months and two weeks in respect of each of the assaults against the security officers (each reduced by five percent by reason of the appellants guilty pleas from a sentence of ten months). Those terms of imprisonment be served concurrently as between themselves but commence three months before the expiry of the sentence of three years and three months for intentionally harming Constable Beck.
iii. The resulting head sentence is three years, nine months and two weeks. A non-parole period of two years is fixed.
iv. On the offences of disorderly behaviour and resist police, upon which the appellant had been released on a bond, a fine of $500 is imposed.
Criminal Law Consolidation Act 1935 (SA) ss 20AA(1), 20(3), 5AA(1)(k); Criminal Procedure Act 1921 (SA) ss 157(1)(a)(iii), 158(1)(a); Police Offences Act 1953 (SA) s 75; Sentencing Act 2017 (SA) ss 5, 23(1)(a), 26, 96, 97, 97(1)(c), 114; Summary Offences Act 1953 (SA) ss 74A, 74A(1), 74A(5), 75, referred to.
Christie v Leachinsky [1947] AC 573; The Queen v Stafford (1976) 13 SASR 392; The State of South Australia v Crossley [2020] SASCFC 128, applied.
Director of Public Prosecutions (Vic) v Arvantidis (2008) 202 A Crim R 300; R v Cruise [2024] SADC 40; The Queen v Greengrass (2009) 104 SASR 262; The Queen v Stafford (1976) 13 SASR 392, discussed.Birch v Fitzgerald (1975) 11 SASR 114; Donaldson v Broomby (1982) 60 FLR 124; Edmonds (a pseudonym) v The Queen [2022] SASCA 11; Harrison v The Queen [2022] SASCA 35; Hull v Nuske (1974) 8 SASR 587; Johnson v Northern Territory [2016] NTSC 49; Munda v Western Australia (2013) 249 CLR 600; R v Khem [2005] SASC 178; R v Tipping (2019) 133 SASR 58; R v Yandle [2024] SASCA 111; Slaveski v State of Victoria [2010] VSC 441; Tipping v The King (2023) 142 SASR 379, considered.
CRUISE v THE KING; R v CRUISE
[2025] SASCA 59Court of Appeal – Criminal: Kourakis CJ, Livesey P and Doyle JA
KOURAKIS CJ: This is an appeal by Ms Cruise against her conviction by a Judge of the District Court, sitting without a jury, for intentionally causing harm to a prescribed emergency worker, Constable Beck, acting in her capacity as a police officer, contrary to s 20AA(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The maximum penalty for that offence is 15 years imprisonment. Ms Cruise’s appeal was heard concurrently with an appeal brought by the Director of Public Prosecutions (‘Director’) against the sentence imposed on Ms Cruise.
Ms Cruise appeals against her conviction on the following grounds:
1The verdict was unsafe and unsatisfactory in that it was not open to the learned Trial Judge to find that Constable Beck was acting in the course of her lawful duty when:
i.Beck threatened to arrest the appellant for failing to produce her identification (an offence which could not possibly have been committed) immediately prior to the purported arrest, and;
ii.Beck failed to inform the appellant of both the fact of, and reason for the purported arrest.
I would grant Ms Cruise’s permission to appeal against her conviction but would dismiss the appeal against conviction.
The relevant question is not whether it was proved that the offence of failing to produce identification had been committed prior to the purported arrest. Rather, the question is whether or not Constable Beck was acting in the course of her duty when she requested the identification of Ms Cruise and attempted to give Ms Cruise notice of the arrest. The answer to that question depends on whether Constable Beck reasonably suspected that that, or another, offence had been committed. Constable Beck gave evidence, correctly accepted by the Judge, that she suspected Ms Cruise of having assaulted the security guards and of having committed the offence of failing to provide her personal details, and that she arrested her for those offences. Accordingly, it was proved beyond reasonable doubt that Constable Beck was empowered to arrest Ms Cruise when she did and was acting in the course of her official duties as a police officer.
Constable Beck accepted that she did not inform Ms Cruise of the fact of, and reasons for, the arrest. However, Constable Beck testified that she had intended to do so but that, before she could, Ms Cruise violently attacked her in such a way as to prevent her from doing so. Again, on an independent review of the evidence, the Judge was correct to accept Constable Beck’s evidence. It follows that the arrest of Ms Cruise was not invalidated by the circumstance that she was not informed of the reasons for her arrest.
The offence of intentionally causing harm to a prescribed emergency worker was committed shortly after Ms Cruise had been evicted by two security guards from the Exeter Hotel (the ‘Exeter’) for pulling down the COVID‑19 mandated face masks of other hotel patrons. Ms Cruise assaulted the two security officers whilst they were evicting her by punching and grabbing them. Ms Cruise was charged with two counts of aggravated assault of the security officers contrary to s 20(3) of the CLCA. The circumstance of aggravation on each count was that as a security officer in a licensed premises the victim was in a position of particular vulnerability because of the nature of his employment. The maximum penalty for that offence is three years. The Judge sentenced Ms Cruise for those offences together with the offence of intentionally causing harm to Constable Beck. Finally, the Judge sentenced Ms Cruise for earlier, unrelated offences on which she had been convicted by a Magistrate, but released on a bond which she breached by committing the assaults.
The Judge indicated that, if she had sentenced for each offence separately, she would have imposed a sentence of four years imprisonment in respect of the offence of intentionally harming Constable Beck and 11 months, one week and six days imprisonment for each of the assaults on the security guards.
Contrary to that intimation, the Judge imposed a single sentence of imprisonment for three years and eight months on all three offences (‘the sentence’) pursuant to s 26 of the Sentencing Act 2017 (SA) (‘Sentencing Act’). The Judge then suspended the sentence upon Ms Cruise entering into a bond to be of good behaviour for a period of three years.
The Director appeals against the sentence on the grounds that:
·the sentence was manifestly inadequate;
·the Judge erred in imposing a sentence, pursuant to s 26 of the Sentencing Act, which was less than the notional sentence that her Honour indicated would have been imposed in respect of the offence against Constable Beck alone;
·the Judge erred in determining not to impose any penalty on the offences the subject of the good behaviour bond, which was extant at the time of the assaults.
I would give permission to the Director to appeal against sentence because there was no valid basis on which a sentence for all three assaults could be imposed which was less than the sentence the Judge would have imposed if sentencing for the offence of intentionally harming Constable Beck alone. It would seriously undermine confidence in the administration of the criminal law if such a fundamental error were not corrected. In addition, I would grant the Director permission because it is necessary to do so in order to maintain a proper level of sentencing for the offence of intentionally causing harm to prescribed emergency workers. The suspension of the term of imprisonment resulted in an egregiously inadequate sentence. Even though the term of imprisonment imposed for intentionally harming Constable Beck was a little longer than I would have imposed, I would allow the appeal against sentence because the suspension of the sentence was so grossly disproportionate to the seriousness of the offending that it requires correction in the public interest.
I would allow the Director’s appeal. I would set aside the sentence and impose instead a sentence of three years and three months for the offence of intentionally causing harm to Constable Beck. I would impose a sentence of nine months and two weeks in respect of each of the assaults against the security officers (each reduced by five percent by reason of her guilty pleas from a sentence of ten months). I would order those terms of imprisonment be served concurrently as between themselves but commence three months before the expiry of the sentence of three years and three months. The resulting head sentence is three years, nine months and two weeks. I would fix a non-parole period of two years.
On the offences of disorderly behaviour and resist police, upon which Ms Cruise had been released on a bond, I would impose a fine of $500.
I elaborate on my reasons below.
The evidence
Shortly after midnight on 17 October 2021, Constables Spiniello and Beck were on duty, stationed at the Hindley Street Police Station, when they were tasked to attend a disturbance at the Exeter on Rundle Street.
At that time, COVID-19 regulations mandated the wearing of face masks in public places. When the constables arrived, two security guards, Mr Tarawneh and Mr Wearn, informed them that a woman and her two male companions were asked to leave the Exeter because they were pulling down the face masks worn by other patrons. The security guards informed the constables that in the course of removing them they were assaulted by the woman and that, upon leaving the hotel, the group had walked westward along Rundle Street. Constables Spiniello and Beck left the Exeter and walked in the same westward direction along Rundle Street. After a short while they saw three persons walking towards them on Rundle Street who matched the descriptions they had been given. Those persons were later identified to be Ms Cruise and her male companions, Mr Priest and Mr Cross.
As the group approached, Constable Spiniello asked them to stop, saying that he needed to talk to them about what had happened at the Exeter. Constable Spiniello described their responses as verbally aggressive. Constable Beck gave a similar account of the events up to that point and testified that Ms Cruise and her companions appeared to be intoxicated and that they were immediately aggressive. Constable Beck gave evidence that she strategically positioned herself alongside Constable Spiniello so that they were well placed to protect themselves from the group’s aggressive behaviour and to engage with them, for the purpose of obtaining their personal details.
Constable Spiniello’s bodycam footage was received into evidence. It showed Constable Spiniello asking Mr Cross for his personal details whilst Constable Beck is standing nearby. Both Constable Spiniello and Constable Beck are wearing masks.
The exchange between Constable Spiniello and the group proceeded in this way:[1]
[1] A transcript of the exchange was provided as an agreed aide memoire (MFIP2) to facilitate a viewing of the video footage. The account in these reasons is taken from that transcript. All alphanumeric numbers which appear in the transcript in these reasons are from my perusal of the video evidence, being Exhibits P1 and P4.
6.SPINIELLO Hey guys, I’m just gonna have a chat what’s happened at the Exeter
7.CROSS Yeah
8.SPINIELLO Yeah
9.CRUISE Yeah what’s happened?
10.CROSS Don’t touch me, yeah
11.SPINIELLO Yeah
12.CROSS Don’t touch me
13.SPINIELLO Well you’re trying to walk past me
14.CROSS I’m not, I’m not
15.PRIEST One point five, one point five, please stand back
16.ALL Inaudible
The bodycam footage from Constable Beck’s camera shows that during that exchange Constable Spiniello raised his hand and placed it between himself and Mr Cross whilst Mr Cross continued to approach him. At about that time, Mr Cross said ‘don’t touch me’ as his jacket brushed against Constable Spiniello’s raised hand.
The inaudible conversation noted at line 16 of the transcript from Constable Spiniello’s bodycam included an exchange which was recorded on Constable Beck’s bodycam, between her and Ms Cruise.
At about the same time, Ms Cruise moved in closer to Constable Spiniello but was stopped by Constable Beck who, while asking the group to ‘step back’, placed her hands on either side of Ms Cruise’s arms and turned her around, prompting Ms Cruise to exclaim ‘excuse me, don’t touch me’. Constable Beck then pushed Mr Cross away from Constable Spiniello by placing her hand on his chest before moving to a position alongside Constable Spiniello to his left. Constable Beck accepted that at that point she was standing in the way of Mr Cross and touched Ms Cruise.
The transcript of the exchange which followed, taken from Constable Spiniello’s bodycam, records:
17.PRIEST I’ll break your fucking nose, you step back
18.SPINIELLO Step back
19.PRIEST Step the fuck back
20.CRUISE You’re being rude to us
21.SPINIELLO Do not, do not I just want to have a chat with you about it
22.CRUISE She’s being really rude
23.PRIEST You guys have some fucken serious issues
23A.CRUISE Excuse me darling… don’t be so rude to us
24.ALL (Inaudible)
25.SPINIELLO One five can we have another patrol here please
26.PRIEST Don’t fucken touch me, don’t fucken touch me
26ABECK You’re staying
27.CRUISE We will sit and listen to these dictators for a little while
28.SPINIELLO Alright well you are causing dramas at the Exeter alright
29.CRUISE No, we didn’t
30.BECK Yes you are
31.SPINIELLO You did, you are pulling everyone’s masks down and causing, you’ve had a punch up with security
32.CRUISE No they have not
33.PRIEST Have a look at the camera footage please mate, have a look at the camera footage please
I interrupt the transcript at this point to make five observations.
First, when Constable Beck was cross-examined, she accepted that Mr Priest’s exclamation at line 26 was in response to her standing in this way and pushing him back:[2]
[2] Transcript of Proceedings, R v Raine Jane Cruise (District Court of South Australia, DCCRM-22-937, Deuter J, 17 October 2023) 64 (‘T’).
QNow, do you agree with me that just before the point we paused the footage, Priest tries to walk around you on the footpath.
AHe does.
QYou step to the side, step in front of him and push him back.
AYes.
QSo you had to step to the side to put your body between him and where he wanted to go.
AHe was to trying to walk through us. He was aggressive.
QHe wasn’t trying to walk through, was he, he was trying to walk around you.
AHe was aggressive. He would have walked in - he was trying to get away from us, didn’t want to talk to us.
QI agree with you that he was trying to walk away, but he wasn’t trying to walk through you as in walk over the top of you, was he.
AHe would have knocked into us, but yes, I understand what you’re saying.
QDidn’t you have to you step to the side to block his path.
ASlightly.
QYou extended your arms and pushed him back.
AYes.
When Constable Beck was asked in cross-examination by what authority she had stood in the way of and touched Mr Priest she answered:
AWe were investigating an offence. I required him to provide his details. I suspected him of committing an offence and I require his personal particulars.
Secondly, it is plain that Ms Cruise and her companions became agitated when questioned by the constables and challenged their authority to engage them in conversation.
Thirdly, even though the constables stood in the path of Ms Cruise and her companions as they walked east and down Rundle Street, it does not necessarily follow that they were assaulted or that the constables detained them. Constables Spiniello and Beck may have had a lawful excuse for engaging in that conduct to the extent that it was reasonably necessary to ensure that the group understood that the constables were discharging their duties, and exercising powers, as police officers investigating suspected offending.
I address this issue in greater detail below in the context of the power conferred on police officers pursuant to s 74A of the Summary Offences Act 1953 (SA) (the ‘SO Act’).
Fourthly, during that exercise Constables Spiniello and Beck appear to be addressing Ms Cruise and her companions. Ms Cruise and Mr Priest purported to deny the allegations on behalf of all of them.
Returning to the interaction on Rundle Street, Constable Spiniello next attempted to exercise the power conferred by s 74A of the SO Act by speaking directly to Mr Priest:
34.SPINIELLO Sir, I want your personal particulars do you have any ID on you please?
35.PRIEST No
36.CRUISE Who are you?
37.SPINIELLO What’s your, what’s your name?
38.PRIEST I don’t have to give that to you legally
39.SPINIELLO You’ve committed an offence of fighting in public…
39A.CRUISE What is the offence
39B.SPINIELLO …I now require you to give your personal particulars
40.CRUISE Wow…you guys are so amusing
ALL(Inaudible)
41.SPINIELLO If you do not you are committing an offence
41A. BECK Grab your ID out guys.
41B.CRUISE You’re so funny
42.PRIEST I understand what you are saying but I don’t have to
42A. CRUISE I don’t have my ID darling
43.SPINIELLO I’m going to give you the opportunity to give me your name please
44.PRIEST I understand what you think you are saying but that’s not the law, so I don’t have to give you anything I’ve done nothing wrong
45.SPINIELLO Well I’m telling you I’m a police officer I’m telling you that under the law… (inaudible)
46.CRUISE Aww aww aww fucking fucking obey
47.SPINIELLO Yeah that’s right
48.CRUISE Oh well …(inaudible)
49.PRIEST So you tell me what you are going to do
50.SPINIELLO You have committed an offence
51.ALL (Inaudible)
52.SPINIELLO Of fighting in public
53.BECK If you don’t get your IDs out
54.SPINIELLO I believe, I believe that you have committed an offence
55.BECK You are gonna be arrested for failing to give us your ID
56.SPINIELLO I now require you to tell me your personal particulars
56ABECK So grab your ID out
57.CRUISE Are you like Nazi Germany don’t touch me
Again, I pause to make the following observations. First, it is of no significance that Constable Spiniello used the word ‘particulars’ instead of the word ‘details’ as it appears in s 74A of the SO Act. The term ‘personal details’ is defined by s 74A(5) of the SO Act to mean, among other things, the persons full name, date of birth and address. That is how both the word ‘particulars’ and the word ‘details’ would ordinarily be understood.
Secondly, I acknowledge that, at that point, it appears that Constable Spiniello is addressing Mr Priest. However, Ms Cruise was actively intervening in the conversation. Moreover, at line 51, the group as a whole interrupted Constable Spiniello. From Constable Beck’s perspective it might well have appeared that the personal details had been requested from all three members of the group. Indeed, Constable Beck’s statements at lines 41A, 53 and 55 manifest exactly that understanding because she uses the term ‘ID’in the plural. Constable Beck’s evidence-in-chief was also to that effect:[3]
AWell, we’ve said ‘Hey guys, we need to talk’, or Spiniello say ‘Hey, guys, we need to talk about what’s gone on at the Exeter’ and they are like argumentative. They’ve actually stepped around - they kind of, in the first 15 seconds they kind of ignored me and they’ve actually sort of stepped around Spiniello right up in his person. We’ve tried to ask them some questions and at that point Mr Priest is actually trying to walk like I would say through us, away from us. I tell him that he has to stop. We need to - ‘I need some ID. We need to talk about what’s happened at the Exeter. There’s been reports of dramas at the Exeter’.
….
ASo we’re – Spiniello has asked them for their name and details, asked the group for particulars. They’re refusing. They’re rambling. Ms Cruise especially is sort of rambling about Nazi Germany and making ‘Obey, obey’, making all these like gestures. They’re walking towards us and every time we try and speak especially me I felt, I was cut off immediately with them shouting in my face…
[3] T 43-46.
Constable Beck disagreed with the proposition put to her in cross‑examination that Constable Spiniello was only speaking to Mr Priest. She agreed that video footage taken from Mr Priest’s phone did not show Constable Spiniello addressing the others.[4] However, she maintained that Constable Spiniello did ask all three persons for their personal details.[5]
[4] T 72, line 17.
[5] T 73.
Thirdly, at line 54 Constable Spiniello informs all three members of the group that he believed that they had committed the offence of fighting in public.
Constable Beck’s account of the movement and conduct of Ms Cruise and her companions at this time was as follows:[6]
AAt that point of the incident Mr Priest has got his phone out and he’s actually - and I’ve now got my colleague with his back to me and he’s dealing with the quite extreme behaviour of Mr Priest and I’ve got Mr Cross and Ms Raina Cruise in my face. I step backwards, they step forward. I’ve moved to the side. They follow me and they’re shouting at me. I’m trying to say things like ‘We are trying to investigate an offence’ or ‘There’s been fighting in public, like please get your ID out’. I’m like ‘Please get your ID out’. I’m like ‘Please get your ID out’. You know, they’re not following any sort of instructions. They’re not really responding to anything I’m saying. They’re just sort of spewing a verbal tirade over me.
…
AYes. I’m sorry, he [Mr Cross] has his ID in his hand and he’s offering it and then pulling it back like and I’m reaching for it and (INDICATES) at that point I reach for it. I sort of nearly touch it and then Ms Cruise starts screaming at me that I’m stealing.
QAt this point in the interaction, how were you feeling.
AI’m very, very concerned. I’m aware on my radio that the Security 100 are like, have put a call out on the radio that we needed assistance. I’m concerned the behaviour of these people. I’m expecting that I’m about to be assaulted and I’m hoping that back-up is on its way.
[6] T 44-45.
Constable Spiniello then warned that it was an offence not to provide their personal particulars:
58.SPINIELLO If you don’t, you are committing an offence of failing to supply your personal particulars
…
75.PRIEST And we have done nothing wrong and now you are trying to tell me I have done something wrong
76.SPINIELLO You have
77.PRIEST When I haven’t
78.SPINIELLO You have
79.PRIEST I haven’t
80.SPINIELLO I believe you have
81.PRIEST No mate I’m not going to give you any ID to incriminate myself or help you incriminate me
82.SPINIELLO You are required by law to supply.
83.PRIEST You are not going to incriminate me
84.SPINIELLO Your personal particulars
85.PRIEST I am not going to incriminate myself
86.SPINIELLO If you do not you are committing an offence
87.PRIEST I understand …(inaudible)
88.SPINIELLO You will be arrested do you understand that?
89.PRIEST What I do
90.CROSS Oi, oi
91.PRIEST Don’t fucking touch me
92.PRIEST What exactly
93.CROSS Do not
94.CROSS AND PRIEST (Inaudible)
95.SPINIELLO Get the fuck back
96.CRUISE Let him fucking go mate
97.SPINIELLO Get off, off her
98.UNKNOWN MALE You filming
…
Constable Spiniello’s command to ‘Get off, off her’ was directed to Ms Cruise who at this time was in a struggle with Constable Beck. The footage from Constable Beck’s bodycam more clearly shows and records her exchanges with Ms Cruise leading up to that point. A transcript of that exchange was provided as an aide memoire (MFIP8). I set out those parts of the transcript which takes up from about line 33 of the transcript from Constable Spiniello’s bodycam:[7]
[7] MFI P8.
71.SPINIELLO You, You did, you were pulling everyone’s mask down and you’ve had a punch up
72.CROSS Have a look at the camera footage.
73.BECK We have looked at the camera footage
74.SPINIELLO Sir I want your personal particulars do you have any ID on you please
75.PRIEST No
76.CRUISE Who are you
77.SPINIELLO What’s your name?
78.PRIEST I don’t have to give that to you legally
79.SPINIELLO You committed an offence
80.PRIEST I wasn’t fighting in public
80ACRUISE What is the offence
81.ALL (Inaudible)
82.SPINIELLO I now require you to give your personal particulars
83.CRUISE Wow how how
84.SPINIELLO Now if you do not (inaudible)
85.CRUISE You guys are so amusing
86.PRIEST I understand what you are saying
87.CRUISE You’re so funny
88.PRIEST I don’t have to give my ID
89.CRUISE I don’t have my ID darling
90.BECK Yeah you do
I make these points about the exchange so far. First, at line 76, Ms Cruise interjected herself into the request made of Mr Priest. Secondly, from the responses at lines 83, 85, 87 and 89, it appears that Ms Cruise understood that request made at line 82 applied to her. Thirdly, Constable Spiniello’s statements at line 71 again objectively communicated to Ms Cruise and her companions that they were suspected of committing an offence or offences at the Exeter.
The exchange between Constable Beck and Ms Cruise continued as follows:
100.BECK If you don’t get your IDs out, you are going to be arrested for failing to produce your IDs
101.ALL (Inaudible)
102.BECK So grab your IDs out
…
107.CROSS Wait, if I produce my ID,
108.BECK Further investigation may happen and if you’ve been and we decide
…
117.BECK Can you grab your ID out please
118.CRUISE Seriously why do I have…
119.BECK Because you’ve been suspected of committing offences
120.CRUISE What offence
121.BECK Someone said a woman, this person (*while pointing at Cross)
122.CROSS So what if I suspect someone else of committing an offence
122ACROSS Don’t steal my ID
123.CRUISE Don’t touch us, get your fucking hands off of us
124.CRUISE AND CROSS (Inaudible)
125.CRUISE Get your filthy hands away from us
126.BECK Grab your ID out
127.CRUISE Get your filthy hands away from us
127A. CROSS My ID is out
128.BECK Grab your ID out
129.CRUISE You are disgusting
129ACROSS Mine’s out
130.BECK You have been fighting in public
131.CRUISE Get your filthy hands
132.BECK Alright
Constable Beck’s statements at lines 108, 119 and 130 show that she told Ms Cruise that she was suspected of committing the offence of fighting in public. Ms Cruise’s abuse at lines 123, 125, 127, 129 and 131 reveal her escalating hostility to Constable Beck.
Constable Beck testified that immediately after telling Ms Cruise that she has been ‘fighting in public’ (line 130), and saying ‘alright’ (line 132), she placed her hand on Ms Cruise.
Constable Beck gave the following account of Ms Cruise’s reaction:[8]
AWell, it all happens - this is a very fast altercation. Ms Cruise is in my face. She sort of gestures her hand towards me and at that point I say ‘All right’ and I take my hand on her shoulder effecting an arrest which - do you want me to continue?
QYes, continue.
AI put my hand on her shoulder and she hits me across my face, cutting my face with her rings, knocking my hat off. I then tried to push against the wall attempting to try to control her. From that point she grabs a handful from the top of my head like this (INDICATES) and she drops her weight.
[8] T 45-46.
It will be observed that Constable Beck readily volunteered that she attempted to push Ms Cruise up against a store front after putting a hand on her shoulder but explains that she did so in an attempt to control Ms Cruise who was first ‘in her face’ and then subsequently hit her across the face.
In cross-examination, Constable Beck described her conduct in effecting Ms Cruise’s arrest as follows:[9]
AI touched her on the shoulder, she raised an arm at me, I then took hold of part of her arm and attempted to push us to the front storefront, it all happened in very quick succession, it was all right, and then it was trying - she raised her hand, so I was trying to take control of her hands or her arms as she raised them towards me.
[9] T 88.
Constable Beck testified that she intended to inform Ms Cruise that she was being arrested for failing to provide her details, for disorderly behaviour, assault, and fighting in public in respect of the Exeter incident:[10]
[10] T 48.
QAt the start you mentioned that you were trying to effect an arrest when you put your hands on her, what were the crimes you were arresting her for.
AAt that point disorderly behaviour. I was investigating behavioural crimes so in my mind behavioural crimes being was it an assault, was it a fight in public?
QDoes that relate to the -
ATo the incident up there and then of course for the assault on myself.
QWhat about in relation to your questions for ID.
AThat’s true. I also arrest her for failing to state, as I had warned - I did say a few times ‘If you don’t produce your ID, you will be arrested’. That as well was in my mind when I arrested her.
…
In the course of her cross-examination, Constable Beck gave the following reasons for deciding to arrest Ms Cruise:[11]
[11] T 60.25 - 61.14.
AI decided to arrest her because she was disorderly. She was in my face. She was getting closer and closer to me and I imminently thought I was going to be assaulted by her. She was getting closer and closer. I was aware that she had not provided her details to verify her, but there was a lot of things going on in these seconds.
QIsn’t it the case that you arrested her for failing to produce her identification.
AI arrested her for assault, disorderly behaviour, fail to state personal details, fighting in public, assault emergency service worker, behavioural offences.
QWhen you first made contact with her shoulder, it wasn’t your intention to arrest her for assaulting a prescribed emergency worker, was it.
ANo, it was for assaulting security staff.
QYou didn’t warn her that she was going to be arrested for assaulting security staff, did you.
AI warned her about fighting in public. I was trying to talk to her. Every time I opened my mouth, someone yelled over me so I do warn her about a variety of things.
QWasn’t it the case that the only thing you warned her about was the fact that she’d be arrested if she failed to produce her identification.
AThat’s the first full sentence, but I said ‘We’re here investigating offences including a fight at the -’. I said ‘We’re here investigating offences. You’ve been fighting in public’.
…
It can be accepted that immediately before the arrest Constable Beck was asking Ms Cruise to produce evidence of identification. It does not follow that she had it in mind to arrest her for that offence alone. That offence is only committed where a person fails to produce evidence, upon request by a police officer, that their personal details are correct and the requesting police officer reasonably suspects that the details provided are false. Constable Beck could not have had that belief because no personal details had been provided by Ms Cruise. Constable Beck may have asked about evidence of identification because she mistakenly believed she had the legal power to do so or because, exasperated by the repeated failure to provide them, she thought that the production of the identification might achieve the same result. As we shall see, Constable Beck was within the scope of her duty in arresting Ms Cruise for the offences she identified.
Constable Beck was challenged in cross-examination as to why she did not tell Ms Cruise that she was under arrest before making physical contact:[12]
[12] T 58.
QConstable Beck, when you said ‘All right’ and then made physical contact with Ms Cruise, why didn’t you say these words ‘You’re under arrest’.
AI said ‘All right’ and made physical contact with the accused and as I did that, she swung up and punched me in the face and then grabbed my hair and dropped me to the ground and beat me. So unfortunately her reaction to my touching her was so sudden and immediate and violent that I didn’t have the opportunity.
QWhy didn’t you say ‘You’re under arrest’ before you made physical contact with her.
ABecause I had - I started the sentence with ‘All right’ and I got two syllables out and it was fighting.
QIsn’t it the case that you said ‘All right’ because you were frustrated with Ms Cruise.
ANo.
QYou said that in a tone of frustration.
AI think I said that in the tone of intimidation.
QYou didn’t put your hand on her shoulder, what you did is you grabbed hold of her arm, isn’t that correct.
AI put my hand on her shoulder.
QYou didn’t grab hold of her forearm.
AI did grab her forearm. After she hit me in the face, I grabbed hold of her forearm and tried to take it to the wall.
QI put it to you that you grabbed her forearm and attempted to walk her to the wall and that was your initial contact with Ms Cruise.
AI appreciate that that’s what I wrote in my first statement, but I have since clarified.
QSo you’ve obviously read your statements before you came to court today.
AI did.
QRe-watched your body-worn footage.
AI have.
QAnd watched the PSSB footage.
AI have.
I interpolate here that there is no requirement that the words which ordinarily must accompany the physical act of arrest be uttered before the physical detention of a suspect. The precise order of the communication of the fact of an arrest, and its grounds, will be dictated by operational contingencies. As we shall see, save for exceptional circumstances, the words of arrest must be uttered at a time when there is a sufficient temporal connection for arrested persons to understand the grounds for their detention. The purpose of the rule is to guard against the arbitrary exercise of the power of arrest and against the appearance that it has been so exercised. The purpose served by the requirement is to allow the arrested person, and the public generally, to make informed judgments on the propriety of the exercise of the power. The law does not demand any stricter sequence than that.
The Judge’s findings
The Judge found that Ms Cruise was asked for her personal details:[13]
In the circumstances, I find that the accused must have reasonably understood the general nature of the offence as it related to a failure to provide particulars. She knew that her conduct was being investigated, and a request was made for her to provide her ‘personal particulars’. It is reasonable to infer that when she was told that, she was being asked to provide her ID, and that a request was being made for her name.
[13] [2024] SADC 40, 19 [100].
The Judge’s factual finding is not attended by any error. It is consistent with the observations made on the evidence in [32] above.
The following findings of the Judge made on her viewing of the CCTV footage describes the events immediately before and after the arrest:[14]
[14] [2024] SADC 40, 26 [124].
12:27:25.5AM · The accused moves towards Beck 12:27:26.02AM · Beck moves towards the accused (view is slightly obscured) 12:27:26.14AM · Both the accused and Beck move together slightly backwards towards the shopfront 12:27:26.82AM · The accused swings her arm at Beck’s head, knocking her police cap off her head 12:27:27AM · Beck has a hold of accused’s arm as they move closer to the shop front 12:27:28AM · Camera pans and Spiniello, who was speaking with Mr Cross and Mr Priest, moves over to assist Beck 12:27:29AM · Spiniello pushes Mr Cross away from Beck and the accused 12:27:30AM · Spiniello grabs and pushes Mr Cross again as Mr Priest approaches the group 12:27:30.42AM · Camera pans over as the altercation between Beck and the accused commences
· They are moving left across the screen, the accused’s open hand is pushing against Beck’s face pushing her away from her
12:27:3.14AM · The accused grabs a fistful of Beck’s hair, near the top of her head, with her right hand 12:27:32AM · The accused yanks Beck to the ground by her hair, they fall to the ground together
The Judge found that Constables Beck and Spiniello acted reasonably and proportionately in addressing the conduct of Ms Cruise and her companions:[15]
[15] [2024] SADC 40 at [128]-[135].
All the evidence supports a finding that the accused, who had already been involved in assaulting security guards at the Exeter Hotel, was aggressive and then violent towards Beck as soon as she was approached by police.
I am satisfied upon all the evidence that Beck acted lawfully in her interactions with the accused as she attempted to interact with her … Upon confronting the accused, Mr Priest and Mr Cross, the accused immediately became aggressive and confrontational.
I am satisfied on the evidence of Beck, Spiniello and as shown on the CCTV footage that the accused immediately moved forward in a confrontational manner. She began shouting and abusing the police officers. In making this finding, I pause to note that I found both Spiniello and Beck to be witnesses who were credible and reliable. They impressed as young police officers who were doing their best to control an explosive situation involving persons who were not responding to their requests for their personal particulars. Beck in particular gave evidence in a calm manner without trying to embellish her version of events. She also made appropriate concessions.
When Spiniello left to deal with Mr Priest and Mr Cross, Beck was faced with the aggression and violence of the accused. I accept her evidence that she was concerned for her safety. Again, the CCTV footage supports Beck’s evidence regarding the threats of the accused.
I reject the defence’s submission that Beck’s actions were not reasonably proportionate to the threat posed by the accused. This is simply not borne out by the CCTV footage or the body‑worn footage.
I find that the evidence establishes that the accused, by her actions and verbal threats, made it impossible for Beck to fully inform of the reason for her arrest. The delay in Beck obtaining the accused’s details was justified as a result of the accused’s violent and aggressive response to being approached by police. The accused would have been well aware of what had happened at the Exeter Hotel and why police would want to speak to her. Her aggressive and challenging response then quickly became violent as she grabbed Beck’s hair and pulled her to the ground. These actions were consistent with the earlier threats to ‘smash’ Beck.
I am satisfied that Beck attempted to inform the accused why she was being arrested (for failing to provide her personal particulars/ID), but that her aggressive response meant that Beck immediately encountered a situation where she had to physically manage the accused’s attack upon her…
Upon a review of all the evidence, including the extensive video and CCTV footage, I am satisfied that the actions of Beck were not unlawful. As a result, I find that the actions of the accused in response to Beck’s approach was unlawful.
(Footnotes omitted)
Again, the findings are not attended by any material error. They are consistent with the observations I have made on the evidence. Views may differ as to whether or not Ms Cruise, Mr Priest and Mr Cross were immediately aggressive and confrontational. However, the evidence shows that they acted in that way so very soon after Constables Beck and Spiniello attempted to engage with them. The precise timing is of no legal significance.
The Enlivening and Limits of Police Powers
It remains to consider the law which is to be applied to the Judge’s properly made findings of fact.
Section 74A of the SO Act provides:
74A—Power to require statement of name and other personal details
(1)Where a police officer has reasonable cause to suspect—
(a) that a person has committed, is committing, or is about to commit, an offence; or
…
the officer may require that person to state all or any of the person’s personal details.
(2)Where a police officer has reasonable cause to suspect that a personal detail as stated in response to a requirement under subsection (1) is false, the officer may require the person making the statement to produce evidence of the correctness of the personal detail as stated.
(3)A person who—
(a) refuses or fails, without reasonable excuse, to comply with a requirement under subsection (1) or (2); or
(b) in response to a requirement under subsection (1) or (2)—
(i)states a personal detail that is false; or
(ii)produces false evidence of a personal detail,
is guilty of an offence.
Maximum penalty: $1 250 or imprisonment for 3 months.
…
(5)In this section—
personal details, in relation to a person, means—
(a) the person’s full name; and
(b) the person’s date of birth; and
(c) the address of where the person is living; and
(d) the address of where the person usually lives; and
(e) the person’s business address; and
…
Section 74A(1) is expressed in terms of empowering police officers to require persons to furnish their personal details if they entertain either of the enlivening suspicions. Of course, any person can ask another for his or her personal details. The legal significance of s 74A(1) of the SO Act is that on the making of a request which is authorised by that section, a person who refuses or fails without reasonable excuse to comply with the requirement commits an offence. The statutory power conferred is, therefore, a legal capacity to bring about a circumstance which constitutes an element of the offence constituted by s 74A(3) of the SO Act.
However, the terms of sub-s (1) have a broader practical legal effect which extends beyond defining the factum on which the offence provision operates. Obtaining the personal details of a person suspected of committing an offence serves the important public purpose of facilitating the investigation of suspected offences and, potentially, the apprehension of those suspected of committing the offences. By vesting the request of a police officer with the authority explained in the last paragraph, it implicitly gives a police officer a lawful excuse to engage in conduct which is reasonably appropriate and proportionate to effecting the request. The kind of conduct I have in mind is, for example, touching a person on the shoulder if they are walking away from the officer in order to bring the person’s attention to the making of the request. Equally, an officer may have a lawful excuse for stepping in a person’s way, if reasonably necessary to do so, to maintain the person’s attention long enough to make the request.
If conduct of that kind by a police officer were not protected, police officers would lack the capacity to fully effectuate the request. A defence, or reasonable excuse, for failing to provide personal details could easily be established by ignoring and walking away from a police officer before the question could be fully asked. The public interest in the investigation of offences would thereby be undermined. Conduct by the police officers of the kind I have described therefore falls within the class of social and public interactions which are accepted as necessary parts of living in a civil and ordered society. They are akin to the jostling which occurs in a crowded public place, the touching of a person to bring their attention to a matter of mutual concern or interest, or to avert a risk to personal or public safety.
However, in the absence of the conferral of any express power by s 74A of the SO Act, a police officer is not authorised to detain persons, or to engage in conduct which harms them, for the purpose of obtaining their personal details. Conduct of that kind is not part of the socially acceptable interaction between the public and investigating police officers.
Applying that principle, the conduct of Constable Spiniello in standing in the way of Mr Cross and raising his hand, creating a reasonable buffer zone between himself and Mr Cross during the initial exchange, appears to be reasonably proportionate to the exercise of the power conferred by s 74A of the SO Act. Constable Beck’s later conduct in moving slightly to stand in Mr Priest’s way and to push him back approaches the limits of what can be done to lawfully effectuate the request. Accepting, as the Judge did, Constable Beck’s testimony as to her belief and motivation for acting in that way, a finding can be properly made that she did not assault Mr Priest. More importantly, her conduct in respect of Mr Priest does not leave any doubt over whether she was acting in the course of her duty when arresting Ms Cruise.
Accepting, as the Judge did, Constable Beck’s evidence explaining why she placed her hands around Ms Cruise’s arms and pushed Mr Cross backwards soon after they first met on Rundle Street, a finding can properly be made that her actions were a proportionate defensive action in the circumstances as she reasonably perceived them to be.
Those acts did not render the requests for the personal details of Ms Cruise and her companions unlawful. On the contrary, Constables Spiniello and Beck were acting in the course of their respective duties in doing so. Certainly, the conduct was not such as to take Constable Beck out of the course of her duty when she later arrested Ms Cruise.
The evidence shows, and the Judge found, that Ms Cruise and her companions chose to stay and engage in a heated exchange with Constable Spiniello and Constable Beck. They did not, for example, turn on their heels and walk westward back along Rundle Street or walk across the road. If they had done so, the constables would have had to do their best to keep up with them whilst making the request, and, if they were not given the personal details they requested, to then decide whether or not to arrest them for that offence. Having stayed and engaged the Constables in a challenge to their authority, the conduct of Constables Spiniello and Beck was either proportionate as defensive action or conduct which was necessary to effectuate their requests for personal details. It was, therefore, lawful.
Section 75 of the SO Act provides:
75—Power of arrest
A police officer, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the officer finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence.
The enlivening conditions of the power to arrest is ‘reasonable cause to suspect’ the commission of an offence. A police officer exercises the power to arrest whenever the police officer reasonably suspects an offence was committed by the person detained. The arrest is therefore not invalidated because the police officer purports to arrest a person for other offences in respect of which his or her suspicions were not reasonably based. That, it seems to me, follows from the undoubted proposition that there is only one physical act of detention, and that detention is lawful if the power to arrest has been enlivened. No authority to the contrary was cited. It could not be otherwise. It would have a chilling effect on police officers attempting to maintain public order if it were so. For sound legal policy reasons therefore, such a rule should not be accepted.
It is also bad in legal theory. As a general rule, and absent a contrary statutory stipulation, the exercise of a power is valid if it is supported on any ground even if the officer exercising the power did not have that ground in mind. I acknowledge that the arrest may not be lawful if the grounds given for the arrest do not include the offence of which the person is reasonably suspected. I acknowledge too that in an exceptional case, an improper purpose may invalidate an arrest or at least take the officer outside of the performance of his or her duty.
However, that is not this case. Constable Beck had a reasonable suspicion that Ms Cruise committed all of the offences which she had in mind, and of which she would have informed Ms Cruise if given the chance. The arrest of Ms Cruise was, therefore, lawful. In addition, because Constable Beck did not announce that a ground for Ms Cruise’s arrest was the failure to provide her personal details or identification, any deficiency as to that ground of arrest must be immaterial.
Next it will be observed that the section does not prescribe any conditions precedent or subsequent on the power of arrest other than that the police officer has reasonable cause to suspect a person of having committed or being about to commit an offence. In particular, there is no express stipulation that the police officer must state the fact of arrest or the reasons for the arrest and, in particular, the offences the officer suspects.
In Hull v Nuske,[16] Walters J doubted, but ultimately did not decide, that the rule in Christie v Leachinsky[17] (the ‘arrest announcement rule’) applied to s 75 of the SO Act because of the absence of any express condition of that kind in the statutory conferral of power.In that respect, it should be emphasised that Christie concerned the exercise of the common law power to arrest without warrant, a case in which it was accepted that the pre-conditions to the exercise of another, otherwise applicable, statutory power, were not satisfied.
[16] (1974) 8 SASR 587.
[17] [1947] AC 573 (‘Christie’).
However, in The Queen v Stafford,[18] Bray CJ held that for an arrest made pursuant to the power conferred by s 75 of the then Police Offences Act 1953 (SA) to be lawful, it was necessary that the police officer inform the person apprehended of the fact and the grounds of the arrest. Bray CJ explained his conclusion in this way:[19]
I think that the principles laid down in Christie v Leachinsky apply in South Australia. I see no reason why they should not. In other words, s 75 enlarges the common law power of arrest without warrant, but does not detract from the conditions laid down by the common law for the exercise of that power.
[18] (1976) 13 SASR 392.
[19] Ibid 400.
It is now well accepted in South Australia that the arrest announcement rule is a precondition to a valid exercise of the power conferred by s 75 of the SO Act.[20] However, and with respect, I find the conception of s 75 of the SO Act as a statutory enlargement of a common law power problematic. On its face, s 75 of the SO Act is complete without any reference to the common law power. Indeed, it is, in my opinion, a clear and unequivocal statutory conferral of a power which necessarily abrogates the common law power to arrest without warrant. My preferred explanation for the applicability of the arrest announcement rule is that the principle of legality requires the implication of a term to that effect as a safeguard against the unwarranted deprivation of liberty.
[20] The State of South Australia v Crossley [2020] SASCFC 128,[19]-[20] (Peek J).
The justification for that implication was persuasively explained by Deane J in Donaldson v Broomby:[21]
Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable …
[21] (1982) 60 FLR 124, 126.
A construction of the power conferred by s 75 of the SO Act, which subjects it to the arrest announcement rule, is further supported by the imputed knowledge of Parliament of the common law rule.
In The State of South Australia v Crossley,[22] I explained the rationale for the rule in these terms:
On ground 2, I wish to draw attention to an important aspect of the obligation to announce the charge on which a person is arrested. Advising a person that he or she is under arrest, and the reason for it, allows the arrested person to make an informed decision about his or her response to the foreshadowed loss of liberty. It also allows the arresting officer to assess that response for the purpose of determining the degree of force which is reasonably required to effect the arrest. In this case, on any view of the evidence, Mr Crossley was not told he was under arrest until after the capsicum spray was first used.
[22] [2020] SASCFC 128, 2 [2] (‘Crossley’).
However, the underlying purpose for the requirement should not be conflated with the content of the implied term. Nor should the implied term be expanded indefinitely to more completely meet the mischief which might be identified. No greater limit can be implied into s 75 of the SO Act than the incorporation of the arrest announcement rule. That rule is that the person arrested must ordinarily be informed of the true ground, or grounds, for arrest.
LIVESEY P: For the reasons given by Kourakis CJ, I agree that Ms Cruise (the appellant) should be granted permission to appeal against her conviction for the offence of intentionally causing harm to a prescribed emergency worker (a police officer) but that her appeal should be dismissed.
The verdict was not unreasonable or unsupported by the evidence within s 158(1)(a) of the Criminal Procedure Act 1921 (SA) (the CPA). As Kourakis CJ has explained, Constable Beck was acting in the course of her duties when she requested the appellant’s personal details under s 74A(1) of the Summary Offences Act 1953 (SA) (the Summary Offences Act) because she had reasonable cause to suspect that the appellant had committed the various offences she described in her evidence.
In addition, and for the reasons given by Kourakis CJ, Constable Beck attempted to inform the appellant of the reasons for her arrest, but she was unable to do so because of the conduct of the appellant. Respectfully, it is not necessary to decide whether s 75 of the Summary Offences Act represents a statutory conferral of power which abrogates the common law power or whether, as was held in The Queen v Stafford,[30] that provision enlarges the common law power of arrest without warrant without detracting from the conditions laid down by the common law for the exercise of that power, including the need for police to announce the reason for an arrest.[31]
[30] The Queen v Stafford (1976) 13 SASR 392, 400 (Bray CJ, with whom Hogarth J agreed); See also R v Tipping (2019) 133 SASR 58, [144] (Peek J), [163] (Blue J); Tipping v The King (2023) 142 SASR 379, [42] (Livesey P, Bleby and David JJA).
[31] The State of South Australia v Crossley [2020] SASCFC 128, [19]-[20] (Peek J, with whom Kourakis CJ agreed).
As for the Director’s application for permission to appeal against sentence pursuant to s 157(1)(a)(iii) of the CPA, I agree that permission should be granted and the appeal allowed.
The sentence imposed was affected by the error that the sentencing judge imposed an overall sentence which was less than the highest of the notional, individual sentences contemplated in this case. Ordering concurrency or applying s 26 of the Sentencing Act 2017 (SA) (the Sentencing Act) cannot result in a sentence which is less than the highest of the notional sentences of imprisonment. That vitiated the exercise of the sentencing discretion because it resulted in a sentence which was not authorised by law.[32] That is an important factor in favour of granting permission to appeal against sentence.
[32] R v Yandle [2024] SASCA 111, [87] (Livesey P, S Doyle and David JJA).
In connection with sentencing for the offence of intentionally causing harm to a prescribed emergency worker, contrary to s 20AA(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty is 15 years’ imprisonment, a sentence of imprisonment will often be appropriate in order to “impress on the community at large that such behaviour will not be tolerated”.[33]
[33] Birch v Fitzgerald (1975) 11 SASR 114, 117 (Bray CJ); See Harrison v The Queen [2022] SASCA 35, [19] (Livesey P and David JA).
Quite apart from the appellant’s prior record, this offending was preceded by the two counts of aggravated assault of the security officers, contrary to s 20(3) of the CLCA, for which the maximum penalty is three years’ imprisonment. The circumstance of aggravation was the fact of their vulnerability as security officers (see s 5AA(1)(k) of the CLCA).[34]
[34] That is, “the victim was, to the knowledge of the offender, in a position of particular vulnerability at the time of the offence because of the nature of his or her occupation or employment”.
The appellant’s history of alcohol fuelled violence and prior offending, despite her tragic personal circumstances, represented a very serious impediment to suspension. Having regard to the circumstances of the offending and the circumstances of the offender, the suspension of the term of imprisonment resulted in a sentence which was manifestly inadequate.
Apart from the imposition of a sentence that was contrary to law, the overall sentence was so manifestly inadequate as to warrant a grant of permission to appeal. There is the need for this Court’s principled intervention so as to maintain proper sentencing standards concerning sentencing for assaults on police officers and security officers. The need for this Court’s intervention overcomes considerations of double jeopardy and the apparent harshness of requiring that the appellant be incarcerated. As the High Court said in Munda v Western Australia, “to decline to intervene would have been to perpetuate a manifest injustice”.[35]
[35] Munda v Western Australia (2013) 249 CLR 600, [76] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ), albeit in connection with the residual discretion.
On re-sentence, this is a proper case in which to order a degree of concurrence.[36] I agree with the sentences proposed by Kourakis CJ.
[36] Edmonds (a pseudonym) v The Queen [2022] SASCA 11, [78] (Livesey P, Doyle & David JJA).
I also agree, for the reasons given by Kourakis CJ, that the powers conferred by s 23(1) of the Sentencing Act were not available in connection with the prior offending which was subject to a bond. Section 114 of the Sentencing Act required that, having breached her bond, the appellant had to be sentenced for that offending unless there was a finding that the failure of the appellant to comply with the conditions of the bond was trivial or that there were proper grounds on which the failure to comply should be excused, and no finding of that kind could be made. I agree that the problematic use of the word “sentence” in s 114 warrants Parliamentary attention.
Whilst permission to appeal should be granted and the appellant re-sentenced in respect of the breach of bond, I agree that the conduct of the prosecution before the sentencing judge is relevant on re-sentence and that a fine of $500 should be imposed pursuant to s 114(1)(c)(i) of the Sentencing Act.
I agree with the orders proposed by Kourakis CJ.
S DOYLE JA: I agree with the reasons of the Chief Justice, and with the orders and resentencing he has proposed.
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