Dickson v Irwin
[2018] ACTSC 315
•22 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dickson v Irwin |
Citation: | [2018] ACTSC 315 |
Hearing Date(s): | 29 April 2016 |
DecisionDate: | 22 November 2018 |
Before: | Penfold J |
Decision: | 1. The appeal will be allowed. 2. The Magistrate’s finding that the charge was proved, and the good behaviour order made in the Magistrates Court, will be set aside. 3. The parties will be heard about the costs of: (a) the appeal; (b) the proceedings in the Magistrates Court; and (c) the respondent’s application for a declaration that the appeal was incompetent. |
Catchwords: | APPEAL AND NEW SENTENCE – APPEAL – Criminal law – appeal against conviction – unlawful arrest – failure to produce identification – breach of the peace – appeal allowed |
Legislation Cited: | Crime Prevention Powers Act 1988 (ACT) s 4 Crimes Act 1900 (ACT) ss 211, 222 Magistrates Court Act 1930 (ACT) div 3.10.2 |
Cases Cited: | Albert v Lavin [1982] AC 546 M v The Queen (1994) 181 CLR 487 R v Howell [1982] 1 QBR 416 |
Texts Cited: | Halsbury’s Laws of England, 4th ed., vol 11 (1976) |
Parties: | Glenn David Dickson (Appellant) Scott Andrew Irwin (Respondent) |
Representation: | Counsel Mr J Pappas (Appellant) Ms S Gul (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 72 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Hunter Date of Decision: 7 August 2015 Case Title: Irwin v Dickson Court File Number(s): CC 5801/2014 |
Introduction
Glenn Dickson appeared in the Magistrates Court in 2015 to face four charges arising out of an incident in a McDonald’s restaurant in June 2014. Three of the charges were dismissed, but the Magistrate found one charge proven. Her Honour declined to record a conviction on that charge, but made a six-month good behaviour order.
Preliminary application
Mr Dickson appealed from her Honour’s finding that one charge was proven. The original notice of appeal did not include any challenge to the good behaviour order.
The respondent initially resisted the appeal by challenging its competence, on the basis that the relevant provisions of the Magistrates Court Act 1930 (ACT) did not permit an appeal against a finding, as distinct from an appeal against the recording of a conviction or against a sentence order. An equivalent challenge to another appeal from a decision of a Magistrate was determined in April 2016 by a Full Bench of the ACT Supreme Court, which held that such appeals were competent (Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190).
On 4 November 2015, however, the day after Parkinson v Alexander had been heard by the Full Court, that court dismissed the competence application in this matter and gave Mr Dickson leave to appeal also from the good behaviour order.
The Full Court reserved the issue of the costs of the competence application for determination by the judge determining the appeal, but indicated its view that the parties should bear their own costs of that application.
Appeal grounds and orders sought
The appeal grounds were extensive, and they were not amended after the notice of appeal was amended to include an appeal against the good behaviour order. The grounds were as follows:
(a)Her Honour erred in finding there was evidence capable of proving the charge beyond reasonable doubt;
(b)Her Honour erred in finding the arrest of the appellant was lawful;
(c)Her Honour erred in that she either failed to consider or fail to adequately consider the presumption of innocence;
(d)Her Honour erred in that she either failed to consider or fail to adequately consider the burden and standard of proof;
(e)Her Honour erred in that she failed to consider or failed to adequately consider the evidence of a number of independent civilian witnesses;
(f)Her Honour erred in that she unreasonably and without proper foundation preferred the evidence of police witnesses over other witnesses;
(g)Her Honour erred in that she failed to consider or failed to adequately consider evidence of the appellant’s repeated denials of wrongdoing;
(h)Her Honour erred in that she made a number of findings of fact that were not open to her on the evidence, namely:
i.that the appellant’s behaviour was such as to amount to a breach of the peace or to give rise to a reasonable apprehension of an imminent breach of the peace;
ii.that both Constable Liam Armstrong and Constable Scott Irwin heard the appellant say the words “let’s fight cunt” whilst pointing to his chin and “I’ll beat the shit out of you”;
(i)Her Honour erred in finding against the evidence and the weight of the evidence that the appellant had offered to fight Mr Thomas Hawkins;
(j)Her Honour unreasonably and without explanation rejected the evidence of Mr Hawkins to the effect that the appellant had not offered to fight him and had made no aggressive move to do so;
(k)Her Honour fell into error in failing to regard the evidence of Mr Hawkins as raising a reasonable doubt about the lawfulness of the purported arrest of the appellant by Constable Liam Armstrong;
(l)Her Honour erred as a matter of law imposing for herself a wrong test in relation to the purported arrest of the appellant by Constable Armstrong, asking herself whether the arrest was reasonable rather than whether it was lawful;
(m)Her Honour fell into error in regarding the evidence of Constable Armstrong that Mr Hawkins spoke the words “I want to get out of here. I don’t want to get hurt” is corroborative of police evidence to the effect that the appellant was aggressive when Mr Hawkins gave no such evidence himself;
(n)Her Honour fell into error in regarding the evidence of Constable Scott Irwin that Mr Hawkins [sic] spoke the words “You poor cunt. Do you need my shrapnel?” as corroborative of police evidence to the effect that the appellant was aggressive when Mr Hawkins gave no such evidence himself;
(o)Her Honour erred in failing to take into account the failure of police to issue the appellant with a Move on Direction pursuant to the provisions of the Crime Prevention Powers Act 1988 (ACT) in relation to both the supposed breach of the peace and the lawfulness of the purported arrest of the appellant;
(p)Her Honour fell into error by confusing the concepts of credibility and reliability when assessing the evidence of the police witnesses;
(q)Her Honour found against the evidence and the weight of the evidence that Constable Armstrong told the appellant why he was under arrest;
(r)Her Honour failed to take into account adequately or at all the disparate accounts by police of the appellant’s alleged offers of violence towards Mr Hawkins in the context of Mr Hawkins giving no such evidence.
At the appeal hearing, a number of grounds were not pressed, being grounds (a), (b), (c), (d), (o) and (p). Ground (f) was pressed only in relation to the evidence of Mr Hawkins.
The appellant sought the setting aside of the finding of guilt, and the good behaviour order, and also sought the costs of the appeal and of the proceedings in the Magistrates Court.
Background
The charges against Mr Dickson arose from an incident in McDonald’s at Braddon some time after 1.00 am on Sunday, 8 June 2014. At its simplest, the incident began when Mr Dickson made some offensive comments to Thomas Hawkins, who was in front of him in the queue to order food. Police who happened to be present interpreted this as an attempt to start a fight, and spoke to Mr Hawkins briefly. Police then asked Mr Dickson to produce identification (ID). He refused to do so, and was arrested. As he was being removed from McDonald’s, he struggled; one of the police officers was hit in the nose and a pane of glass in the exit door was broken.
Mr Dickson was charged with damage property, assault, and two offences of resisting a public official in the exercise of his function as such, those offences relating respectively to Constables Liam Armstrong and Scott Irwin, both of whom were involved in his arrest.
Applicable law
It is useful at this stage to set out the applicable law in relation to when an arrest would be lawful by reference to an actual or anticipated breach of the peace.
It is agreed by the parties that the relevant law is as set out in R v Howell [1982] 1 QBR 416 (Howell) at 426 – 427 where the English Court of Appeal said:
We entertain no doubt that a constable has power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace, so for that matter has the ordinary citizen. … We hold that there is power of arrest for breach of the peace where: (1) a breach of the peace is committed in the presence of the person making the arrest or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.
The public expects a police officer not only to apprehend the criminal but to do his best to prevent the commission of crime, to keep the peace, in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we believe, whilst recognising that a wrongful arrest is a serious invasion of a person’s liberty, provides the police with this power in the public interest.
In those instances of the exercise of this power which depend upon a belief that a breach of the peace is imminent it must, we think we should emphasise, be established that it is not only an honest albeit mistaken belief but a belief which is founded on reasonable grounds.
…
In Halsbury’s Laws of England, 4th ed., vol. 11 (1976), para. 108, it is stated:
“for the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement caused by a person’s wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.”
…
The statement in Halsbury is in parts, we think, inaccurate because of its failure to relate all kinds of behaviour there mentioned to violence. Furthermore, we think, the word “disturbance” when used in isolation cannot constitute a breach of the peace.
We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.
Also relevant to other aspects of this appeal are the following provisions of the Crimes Act 1900 (ACT):
211Requirement to provide name etc
(1) If—
(a) a police officer has reason to believe that an offence has been or may have been committed; and
(b) believes on reasonable grounds that a person may be able to assist him or her in inquiries in relation to that offence; and
(c) the name or address (or both) of that person is unknown to the officer;
the officer—
(d) may request the person to provide his or her name or address (or both) to the officer; and
(e) if making such a request—shall inform the person of the reason for the request.
(2) If a police officer—
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) complies with subsection (3) if the person makes a request under that subsection;
the person shall not, without reasonable excuse—
(d) fail to comply with the request; or
(e) give a name or address that is false in a material particular.
…
Maximum penalty: $500.
222Persons to be informed of grounds of arrest
(1) A person who arrests another person for an offence shall inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
(2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the other person if—
(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or
(b) the other person's actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
Magistrates Court proceedings
Mr Dickson pleaded not guilty to all four charges, and the matter was heard over two days (29 January 2015 and 23 March 2015) nearly two months apart. Judgment was given several months later, on 7 August 2015. Three of the charges were dismissed, but her Honour found proven the charge of resisting a public official, namely Liam Armstrong, in the exercise of his function as a public official. For convenience I shall in this judgment refer to this charge as a charge of resisting arrest.
Evidence
In the Magistrates Court, evidence was given by 10 witnesses.
Four police witnesses gave evidence:
(a)Constable Liam Armstrong and Constable Scott Irwin were involved in the incident from the beginning. They gave detailed evidence and were cross-examined at length. Constable Armstrong’s evidence in chief was not finished when the hearing was adjourned at the end of the first day, and he gave further evidence in chief at the second day of the hearing some two months later.
(b)Constable Clint Gordon and Constable Victor Yanes became involved only after Mr Dickson had been told he was under arrest; their statements were tendered, and they gave very brief oral evidence.
There were six civilian witnesses.
(a)Thomas Hawkins, who had red hair, was the person with whom, the police witnesses said, Mr Dickson had sought to fight; he had been at McDonald’s with a number of friends, but none of those friends was called to give evidence.
(b)The other witnesses, Jack Kelly, George Giannitsios; Conor Nolan; and two cousins both named Panayioti Apostolopoulos (one of whom used the name Peter), were all part of a different group who happened to be eating at McDonald’s at the relevant time.
No staff member of McDonald’s was called to give evidence.
The prosecutor did not make any application under s 38 of the Evidence Act 2011 (ACT) to cross-examine any prosecution witness.
Mr Dickson did not give evidence, and no other evidence was tendered by the defence.
Defence submissions
Before the Magistrate, counsel for Mr Dickson made the following submissions:
(a)That the arrest of Mr Dickson was said to have been for a breach of the peace, but that apart from the alleged offer to fight Mr Hawkins, there had been no breach of the peace, although Mr Dickson had displayed bad manners.
(b)That Mr Hawkins’ evidence was that he didn’t think Mr Dickson was trying to engage in violence, and that when Constable Armstrong asked whether Mr Dickson was bothering him, he said “I’m fine, don’t worry about it”.
(c)That the other civilian witnesses were barely aware of any incident before police took hold of Mr Dickson.
(d)That Constable Irwin could not recall Mr Dickson saying anything relevant to the counter staff.
(e)That Constable Armstrong’s evidence had improved between the first and second hearing days.
(f)That Constable Irwin had no power to demand that Mr Dickson produce his ID, so Mr Dickson was entitled to resist the demand, and therefore there was no breach of the peace.
(g)That the ultimate issue was whether there was any basis for a reasonable apprehension of violence on the day, and whether the evidence showed a risk of violence or merely a disturbance or a risk of a disturbance (relying on an extract from Howell (at [12] above)) as follows:
In Halsbury’s Laws of England, 4th ed., vol. 11 (1976), para. 108, it is stated:
“for the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement caused by a person’s wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.”
…
The statement in Halsbury is in parts, we think, inaccurate because of its failure to relate all kinds of behaviour there mentioned to violence. Furthermore, we think, the word “disturbance” when used in isolation cannot constitute a breach of the peace.
Crown submissions
The prosecutor made the following submissions:
(a)That there was no dispute that Mr Dickson had resisted the police officers, knowing that they were public officials attempting to exercise an official function, and the only issue was whether that attempt was lawful having regard to the evidence.
(b)That arrest for a breach of the peace is available to prevent conduct that is, or is likely to be, a breach of the peace, and that reasonable steps may be taken, including detaining a person if necessary, to prevent such a breach, relying on Albert v Lavin [1982] AC 546, in which the House of Lords said at 565:
every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed, has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation.
(c)That it was open to the Magistrate, as the trier of fact, to determine whether the conduct of the person arrested was a reasonable basis for the person undertaking the arrest to have formed the necessary belief in an imminent breach of the peace.
(d)That the fact that Mr Hawkins was “fairly blasé” about the incident was not determinative of whether there was an imminent breach of the peace, noting also that he didn’t initially recall one of his companions being called a “slut”.
(e)That the evidence that the Magistrate could rely on was:
(i)evidence of Mr Dickson offering to fight Mr Hawkins and pointing at his own chin;
(ii)evidence of Mr Dickson’s swearing;
(iii)evidence of Mr Dickson’s reference to his “shrapnel”; and
(iv)evidence of Mr Dickson directing recurring taunts against a person who was not reacting to them.
(f)That the evidence of this conduct by Mr Dickson was sufficient to found an honest belief on reasonable grounds that a breach of the peace was imminent, that Mr Dickson’s arrest was accordingly lawful, and that his resistance to that arrest was accordingly unlawful.
Judgment
The Magistrate delivered oral reasons, apparently working in large part directly from notes made during the hearing. This may explain a certain degree of confusion that is apparent in the judgment about some of the evidence.
Her Honour began by identifying the key issue as whether police had power to arrest Mr Dickson when they purported to do so, noting that if the arrest was unlawful, that would raise a further question, being whether resistance was reasonable.
It is not clear to me whether this second question is in fact correctly stated or relevant. Having found that the arrest was lawful, her Honour did not need to return to the question whether Mr Dickson’s resistance was reasonable, and it was not addressed by either of the parties in appeal submissions. Rather, both counsel seemed to assume that if the arrest was not lawful then the offence of resisting arrest should not have been found proven.
It is unnecessary to repeat her Honour’s detailed summary of the evidence, but it is worth noting that a simple chronological summary of the evidence as it was given does not, at least in a case of this kind, provide an adequate opportunity to assess the overall import of the evidence.
Having set out the evidence, her Honour began by considering the first resisting arrest charge, as follows (the paragraphs of her Honour’s remarks have been numbered, and parts have been italicised, for ease of reference: see [115] to [119] below):
(1)… Having crystallised the evidence in relation to the witnesses, it seems to me that the questions I need to satisfy myself with was, first of all, as I’ve indicated, was the arrest reasonable. Now, the evidence is, from the witnesses, that the defendant was acting in an aggressive way, particularly towards Mr Hawkins, and there’s independent evidence, in my view, that the defendant was indeed aggressive towards staff at McDonald’s.
(2)In terms of Constable Irwin’s evidence, in my view he appeared to be very honest in his answers, particularly in relation to accepting that he had no power to ask or request the identification and that he was not allowed to do so. However, he said that it was the offer to fight whilst in the company of the police, toward Mr Hawkins, and, again, the aggressive behaviour, and that he wanted to defuse the situation but the situation did not defuse, that he arrested him for an anticipated breach of the peace. The words used by the defendant can only be described as highly abusive and it appears to me and I find that he did ask for a fight.
(3)I find that that evidence was consistent with a number of witnesses and also the police officers. I have no doubt that he pointed to his chin when he was offering to fight, but I also note that Mr Hawkins walked away and he also said that he accepted that the defendant must have been affected to some degree by alcohol. Mr Hawkins said to police that he didn’t want to do anything about it, but I note that he said to police, and I accept this, that he said, “I want to get out of here. I don’t want to get hurt.” In my view, that’s telling, because he must have feared that there was going to be a fight between himself and the defendant.
(4)Now, was that sufficient for the police to consider it to be a breach of the peace. I was referred to some decisions, and one particular decision I think is appropriate in this case in R v Howell [1982] QB 416. It dealt with the power to arrest for a threatened or actual breach of the peace. Ultimately it held that a constable or a private citizen had the power in those circumstances. I must say, if I am satisfied the defendant said the words about fighting and pointing to his chin, which I’ve indicated I did, and the fact that he continued to be aggressive throughout this period of time, that a threat of violence such as that is likely to make a person fear reasonably and honestly that a breach of the peace was imminent, or at least would be committed in the future.
(5)The evidence in relation to this aspect comes from two police officers, both of whom stated they heard the words wanting a fight, “cunt” and the like and pointing to the chin. As I said, Mr Hawkins, I note, did not give that evidence, but, importantly, told Constable Armstrong that even though he was okay that he just wanted to get out of there because he didn’t want to get hurt, so in my view, that’s clearly indicative of his fear. Now, what constitutes a breach of the peace. Disorderly conduct, noise and insulting behaviour do not of themselves amount to a breach of the peace. That was established in R v Howell.
(6)And the critical matter, in my view, is illustrated in R v Howell at 419 in relation to police constable’s powers. The officer must apprehend either a breach of the peace has occurred in his or her presence or, where a breach having been committed, there is a reasonable ground to believe it may be continued or renewed. A breach must have been committed and is likely on reasonable assessment to be renewed. The gravamen is what is reasonably expected to happen in the situation, and that was also authority in R v Light, another decision referred to in Howell.
(7)The question for me is was there a reasonable apprehension of a breach of the peace. Was it imminent? The evidence of Constable Irwin, who I found to be a witness of truth; in my view, he did not embellish his evidence, accepting that he, as I said, misapprehended his power in relation to identification and the like. Based on the evidence of Irwin, particularly that the defendant said “Let’s fight, cunt. I’ll beat the shit out of you,” and then said, “Better be dead than red” and then pointed to his chin, and then about the remarks of the shrapnel when Mr Hawkins was getting his food, in my view, that would give the officer reasonable grounds for a belief that a breach of the peace was imminent.
(8)It seems, from Constable Irwin’s evidence that he was going to send him home. There was no evidence as to why a move-on direction was not issued; however, it seems to me that the evidence of police officers, together with the evidence of Peter Apostolopoulos, who said he saw the defendant arguing with the McDonald’s staff – that was at page 24.40 of the transcript – he said he heard the defendant verbally abusing the worker, leaning over the counter – that was confirmed, as I said, by the police officers, and I am satisfied the defendant was abusive in that manner at that stage. Both officers clearly state, and if the evidence formed their view that they had reasonable grounds to believe that there would be an imminent breach of the peace, then they would be justified in arresting the defendant.
(9)However, it must be a belief based on reasonable ground. The two police officer witnesses don’t have any better or worse credibility than any of the other witnesses, and should be assessed objectively as to the giving of their evidence. However, I note both police constables Irwin and Armstrong were on duty and they had not been drinking alcohol. I also note that the police are in a different category of witnesses in that they are trained to observe and to either, or both, physically and mentally note what occurs in a certain situation, unlike civilian witnesses, who may have been affected to varying degrees by alcohol and certainly may not have taken specific note of every detail of what had occurred.
(10)They were asked to tell the truth, and they took an oath, and in my view, none of the witnesses appeared to do anything other than recall what they had seen and heard on that night. There were, of course, other people in the vicinity. Many of them may have consumed alcohol. However, the continued aggression and abusive actions of the defendant, in my view, posed a reasonable belief that a breach of the peace was imminent or likely, and if the conduct had continued, the fact that Mr Hawkins appeared blasé is not the test. He also told police, as I said, that he wanted to get away from the situation because he did not want to get hurt.
(11)In my view, that clearly establishes that he feared violence towards himself by the defendant, and the fact that the defendant displayed that toward him and the police and then the McDonald’s staff, in my view, would lead me to the conclusion that the arrest was lawful insofar as the evidence of the police suggests that the defendant had breached the peace. The behaviour said to characterise their belief was an imminent [b]reach of the peace, and would occur on the following: the[y] had observed the defendant for some minutes, they did not jump in but waited to see if it would subside or defuse, their observations revealed that the defendant engaged in abusive and aggressive behaviour towards a red-headed male in the queue waiting to be served at the McDonald’s.
(12)Mr Hawkins indicated that he did not know the defendant at all. Both police officers said that they heard words to the effect “Let’s fight, cunt. I’ll beat the shit out of you,” “I’d rather be dead than red,” and pointing to his chin when he said the words about the fight. There was further aggressive behaviour when Mr Hawkins, the subject of the abuse by the defendant, was collecting his food. This was established when he said “You poor cunt. Do you need my shrapnel?” He also said words to the effect of “You’re a slut” to a girlfriend or friend of Mr Hawkins, a female friend.
(13)As I’ve indicated, Peter Apostolopoulos also recalls the defendant was abusive to the McDonald’s staff. This is supported by the evidence of the police officer, to some extent, as to the defendant’s demeanour. In my view, there is ample evidence from Constables Armstrong and Irwin, together with the evidence of Hawkins and Apostolopoulos, to satisfy me that there was reasonable grounds for the police to suspect that there was an imminent breach of the peace or that it would occur. I am also satisfied that Constable Armstrong told the defendant the reasons for his arrest was that he was in breach of the peace and that the arrest was lawful.
(14)... So having found that the arrest was lawful, I now turn to whether the resist of Constable Armstrong, who was the first officer to – and that’s charge 2014/5801, having found that the arrest was lawful, I find the evidence proves beyond a reasonable doubt that the defendant resisted Constable Armstrong, and I find that offence proved.
Appeal hearing
Appellant’s submissions
In submissions, counsel for Mr Dickson relied on the following matters:
(a)that Mr Dickson had been threatened with arrest, and might in fact have been arrested, for refusing an unauthorised demand to produce ID;
(b)that Mr Dickson wasn’t told until the case came to court that he had been arrested for a breach of the peace; … and that a failure to tell him why he was arrested would make the arrest unlawful under s 222 of the Crimes Act;
(c)that Mr Dickson’s arrest was unlawful unless there was a genuine apprehension of an imminent breach of the peace;
(d)that no proceedings had ever been taken against Mr Dickson in respect of the alleged apprehended breach of the peace;
(e)the discrepancy between the evidence of Constable Armstrong and that of Mr Hawkins, in particular about what Mr Hawkins had said to Constable Armstrong about what Mr Dickson had said to him (Mr Hawkins) and whether he (Mr Hawkins) had been worried by it;
(f)the fact that there had been no application by the prosecutor for leave to treat Mr Hawkins as an unfavourable witness and cross-examine him under s 38 of the Evidence Act;
(g)the assertion that her Honour had used evidence given by Constable Armstrong of what Mr Hawkins had said to him (some of which evidence was only given in cross-examination) to bolster other police evidence as if it were evidence independent of police;
(h)that although Constable Armstrong reported Mr Hawkins as wanting to get out of the restaurant, Mr Hawkins had instead, shortly afterwards, sat down at a table to eat his food;
(i)an alleged “improvement” in Constable Armstrong’s evidence between the first and second hearing days; and
(j)her Honour’s reference to Peter Apostolopoulos’ evidence that he had heard Mr Dickson abusing counter staff, which she identified at one point as consistent with police evidence (that evidence having been given only by Constable Armstrong), but later referred to as Peter Apostolopoulos “also” recalling, as if his evidence, being supported by police evidence, could in turn add weight to the police evidence;
(k)that Constable Armstrong gave two slightly different versions of what he heard Mr Dickson say to the counter staff member, and that her Honour, as well as treating Constable Armstrong’s evidence as evidence of Mr Dickson’s aggression, also used it to bolster Constable Armstrong’s evidence of what Mr Hawkins had said to him;
(l)that her Honour’s explanation for generally placing more weight on the police evidence than that of other witnesses, being in particular that the police were on duty and were not affected by alcohol use, overlooked Mr Hawkins’ evidence that he was unaffected by alcohol, and that the police evidence of Mr Hawkins’ intoxication was unreliable;
(m)that in this case, there was a black and white dispute about whether there was any violence or offer of violence, the alleged victim of the violence had “positively disavowed it”, and none of the other civilian witnesses had mentioned it, but her Honour did not explain why, in effect, she found that there had been a display of violence by Mr Dickson.
Respondent’s submissions
Counsel for the respondent made the following submissions:
(a)that, while “idiotic insults” as such are not likely to amount to an imminent breach of the peace, in this case the reasons for Mr Dickson’s arrest were found in:
the high level of aggression shown by Mr Dickson towards Mr Hawkins;
(i)the level of aggression shown by Mr Dickson towards police; and
(ii)Mr Dickson’s abuse of the McDonald’s staff member.
(b)that her Honour did not entirely reject Mr Hawkins’ evidence : rather, she undertook the proper task of hearing all the testimony of the witnesses, weighing the evidence, explaining her approach to the evidence of the various witnesses, and reaching a conclusion;
(c)that in particular her Honour accepted Mr Hawkins’ evidence that Mr Dickson had insulted him about his red hair and had called one of his companions a “slut”;
(d)that it was open to the Magistrate to accept:
the police evidence that they had not taken a statement from Mr Hawkins on the night of the incident because he was intoxicated; and
(i)Constable Armstrong’s contemporaneous diary note of Mr Dickson behaving in a “highly aggressive fashion” towards Mr Hawkins.
The complaint on appeal
The appellant’s complaint was, in summary, that Mr Dickson should not have been found guilty of resisting a public official because his arrest was unlawful. The assertion that the arrest was unlawful relies on several different criticisms of her Honour’s approach to the evidence before her and the law that she was obliged to apply, most of which are referable to specified appeal grounds.
(a)There is a suggestion that her Honour misdirected herself in referring at certain points of her judgment to whether the arrest was reasonable rather than to whether it was lawful (appeal ground (l)).
(b)There is confusion in the evidence given by the two police officers about the real basis on which the arrest was made:
at the time of the arrest there was a suggestion that Mr Dickson had been arrested because he refused to produce ID, but it is agreed that the police had no right to make such a demand, and a resulting arrest would not have been lawful;
(i)the alternative ground for arrest was that police apprehended an imminent breach of the peace: however, it is said on behalf of Mr Dickson that this could not have been established beyond reasonable doubt by the evidence before her Honour.
(c)There is a claim that Mr Dickson was never told the reason for his arrest (appeal ground (q)).
(d)The asserted ground for the arrest relied on by the prosecution was explained in the evidence given by the two police officers, but was not supported by the evidence of the civilian witnesses except in some minor respects; in particular, the person who, police alleged, was being threatened with violence gave no such evidence (appeal grounds (e), (f) in relation to Mr Hawkins’ evidence, (h), (i), (j), (k), (m), (n), (q) and (r)).
Most of the remaining appeal grounds were formally not pressed (at [7] above), and no submissions were made about appeal ground (g).
In the light of my conclusions about her Honour’s findings, it is unnecessary to respond specifically to each appeal ground. It will be necessary, however, to examine parts of the evidence in some detail.
Consideration – preliminary matters
Misdirection of law
Ground (l) asserts that her Honour misdirected herself about the law by suggesting that she needed to determine whether the arrest was reasonable rather than lawful. Having summarised the evidence, her Honour said;
it seems to me that the questions I need to satisfy myself with was [sic], first of all, as I’ve indicated, was the arrest reasonable.
I do not understand the respondent to assert that Her Honour’s comment correctly reflected the relevant law. If this were the only thing Her Honour had said about the law she was applying then she would clearly have fallen into error. However, given that at the beginning of her judgment, her Honour made it clear that the fundamental question was whether the arrest was lawful (at [24] above), and that her conclusion was also expressed in terms that “the arrest was lawful”, I am satisfied that the comment relied on by the appellant, while not a correct statement of the relevant issue, was not in fact a description of her Honour’s state of mind, and does not reflect a relevant error on her Honour’s part.
Lawfulness of arrest – procedures
Who arrested Mr Dickson?
Constable Irwin said that, when he and Constable Armstrong each grabbed one of Mr Dickson’s arms, he (Constable Irwin) had told Mr Dickson that he was under arrest, and then, when Mr Dickson tensed his body, had told Mr Dickson to stop resisting because he was under arrest.
Constable Armstrong said that he had arrested Mr Dickson for a breach of the peace, after hearing him speak abusively to the McDonald’s staff member.
It is not clear which of the two police officers formally arrested Mr Dickson, and it may be that each of them believed that he had effected the arrest.
Was Mr Dickson told why he was arrested?
Constable Irwin said that Mr Dickson had been arrested for a breach of the peace, that he couldn’t recall what he or Constable Armstrong had said to Mr Dickson when arresting him, and that if he had recalled telling Mr Dickson that he had been arrested for breach of the peace he would have put it into his statement. He agreed that he had never explained to Mr Dickson what the breach of the peace was.
However, he said that when he asked Mr Dickson to get out his ID, and threatened him with arrest if he did not, he had also explained to Mr Dickson that he had watched Mr Dickson “for about five minutes actively attempt to fight Mr Hawkins”.
Constable Armstrong said that he had told Mr Dickson that he was under arrest for breach of the peace. He said that he had spoken loudly enough at this point for Mr Dickson to hear him, but did not know whether Constable Irwin had heard him. Nor had he heard Constable Irwin telling Mr Dickson that he was under arrest.
No other witness gave evidence of hearing Constable Armstrong tell Mr Dickson that he was being arrested for breach of the peace, but nor did any witness contradict his claim. There is nothing inherently unlikely in the proposition that a police officer who decides, in possibly volatile circumstances, that he needs to remove a person from premises would add a reference to breach of the peace to his announcement that the person is under arrest.
There is no reason why her Honour should not have accepted that Constable Armstrong told Mr Dickson he was being arrested, and that he was being arrested for a breach of the peace. I can see no error in her Honour’s failure to find that the arrest was rendered unlawful by a procedural failure.
Why was Mr Dickson arrested?
Constable Irwin gave evidence that he had asked Mr Dickson to produce his ID, and had threatened him with arrest if he failed to do so, but denied that this was the reason why he had been arrested. The evidence of Constables Armstrong and Irwin was that they relied on their power in connection with breaches of the peace to arrest Mr Dickson.
There was no basis on which her Honour should have found that Mr Dickson was arrested for refusing to provide ID as such. I note, however, that his response to being asked to produce ID might have contributed to the context in which the two police officers were concerned about how the situation might develop.
Consideration – were there grounds for the arrest?
The remaining, and most significant, question is whether the Magistrate could have been satisfied beyond reasonable doubt that the police officers did in the circumstances have power to arrest Mr Dickson in reliance on a breach of the peace. If there was no such power, and if Mr Dickson’s arrest was therefore unlawful, the offence of resisting a police officer who sought to effect that arrest could not be made out.
The matters relied on to explain the arrest of Mr Dickson in reliance on a breach of the peace were:
(a)the claim that Mr Dickson had attempted to start a fight with Mr Hawkins;
(b)Mr Dickson’s level of aggression towards the police; and
(c)the claim that Mr Dickson had abused a McDonald’s staff member.
The difficulty facing the Magistrate was that some of the police evidence was consistent with the evidence from civilian witnesses, but that none of the civilian witnesses gave evidence consistent with those parts of the police evidence that were most significant in justifying the claim that they were concerned about a breach of the peace, and some of the civilian witnesses gave evidence that was inconsistent with the police evidence.
Furthermore, even if all the evidence given by the two police officers about the circumstances in which they sought to arrest Mr Dickson is accepted (as her Honour did, and as was in my view open to her for the reasons she gave), that evidence, coupled with the evidence from other witnesses which her Honour also accepted, might still have fallen short of establishing grounds for the lawful arrest of Mr Dickson.
The question before the Magistrate was whether the police officers had an honest apprehension based on reasonable grounds that a breach of the peace was imminent. Determining whether her Honour’s answer was available on the evidence before her requires a more detailed consideration of some parts of the evidence.
Constable Armstrong
Constable Armstrong’s evidence was the basis of the claim that Mr Dickson had been arrested for a breach of the peace. The two key elements were that Mr Dickson had tried to start a fight with Mr Hawkins, and that he had been abusive to a McDonald’s staff member.
Constable Armstrong said that at around 1.40 am, while he was standing in line to get food at McDonald’s, he had observed Mr Dickson, who was in another queue, “become verbally abusive and aggressive towards a member of the public”. This person was Mr Hawkins who, with three friends, was in the queue in front of Mr Dickson. These comments were words to the effect of “Come on, you cunt, let’s fight, I’d rather be dead than red”. Mr Hawkins did not respond, but as he reached the counter and moved forward to pay, Mr Dickson again approached him and said words to the effect of “Do you need my shrapnel, you poor red-headed cunt?”.
Constable Armstrong said that Mr Dickson’s demeanour was aggressive and violent, and it appeared to him that Mr Dickson was trying to engage Mr Hawkins in a fight. When Mr Dickson invited Mr Hawkins to fight, he pointed at his own chin.
Mr Dickson then moved away from the counter, and Constable Armstrong and Constable Irwin had approached him. Constable Irwin asked him about ID, and Mr Dickson responded by saying words to the effect of “I haven’t done anything fucking wrong”.
Constable Armstrong then went to speak to Mr Hawkins, who was still in the line, about two metres away from where Constable Irwin was with Mr Dickson, to see if he was OK. He had asked Mr Hawkins if he was OK, or if everything was all right. Constable Armstrong said that Mr Hawkins said that he just wanted to get out of there. Armstrong said that after talking to him, he came away with the view that Hawkins wasn’t concerned about what was going on. He then returned to where Constable Irwin was still with Mr Dickson. In cross-examination, Constable Armstrong said that as well as saying he just wanted to get out of there, Mr Hawkins had also said “I just don’t want to get hurt”. When asked about this, he initially seemed surprised that he hadn’t given that evidence earlier, but then said he believed he’d been told he “couldn’t speak about that conversation”. He said he did not recall that Mr Hawkins had said words to the effect of “I’m fine don’t worry about it”.
Constable Irwin and Mr Dickson had a conversation, and Mr Dickson said to the staff member at the counter “Have I done anything wrong? No I fucking haven’t, have I”. He conceded that the asking of a rhetorical question to the staff about whether they agreed with him was not abusive, but explained that what was abusive was “the way it was directed at staff members”, and that it was “spoken in an aggressive manner”.
Constable Armstrong told Mr Dickson he was under arrest for breach of the peace, and Mr Dickson repeated that he hadn’t done anything wrong. Constable Armstrong asked him to put down the cup of orange juice he was holding. Instead, Mr Dickson crushed the cup, and orange juice went everywhere. The two police officers seized Mr Dickson, each grabbing one of his arms, and moved him away from the counter.
Constable Armstrong said that his reason for arresting Mr Dickson was a breach of the peace, and the breach was constituted by “his high level of aggression, in relation to Mr Hawkins, his threats of violence towards him. His continued level of aggression towards us and then his abuse towards staff at McDonalds. … All of those matters in combination.”
Asked whether, if Mr Dickson had not invited Mr Hawkins to fight, Constable Armstrong would still have arrested him, he said that if there had been no such invitation, “I may or may not have arrested him. Honestly I don’t know.” Pressed about whether Mr Dickson would have been arrested if he had not invited a fight and pointed at his chin, and if Mr Hawkins had told Constable Armstrong that he was fine instead of saying he didn’t want to get hurt, the police officer said:
If you were to remove all those from the occasion we wouldn’t have had an incident at all because I wouldn’t have observed the defendant speaking to Mr Hawkins I assume.
Constable Irwin
Constable Irwin said that he was standing near the line at McDonald’s when he observed Mr Dickson yell at a red-haired male standing in front of him, saying “Let’s fight, cunt. I’ll beat the shit out of you” and then, twice, “I’d rather be dead than red.” Mr Hawkins appeared to “make an active attempt to ignore” Mr Dickson. When Mr Dickson invited Mr Hawkins to fight him, Mr Hawkins was facing Mr Dickson, but after that, Mr Hawkins turned around. In cross-examination, Constable Irwin remembered that, when Mr Dickson had first invited Mr Hawkins to fight him, he had also pointed at his own chin. Given that Mr Hawkins’ response to what Constable Irwin had heard Mr Dickson say was to turn away, Constable Irwin believed that Mr Hawkins must have heard Mr Dickson’s words.
When they were both at the cash registers, Mr Dickson turned to Mr Hawkins and said “Are you a poor cunt do you need my shrapnel”, and the way he said it was “quite aggressive”. Constable Irwin said that Mr Hawkins ought to have heard what was said, and again he turned away, or “shied away” from Mr Dickson in a frightened fashion.
Constable Irwin then asked Mr Dickson to get out his ID, and Mr Dickson told him to “get fucked”. Constable Irwin said he told Mr Dickson they were going to send him home, and when Mr Dickson said that he hadn’t done anything wrong, he told Mr Dickson that they had been watching him for five minutes “actively attempt to fight Mr Hawkins”. When Mr Dickson repeated that he hadn’t done anything wrong, and asked whether he was under arrest, Constable Irwin again referred to watching him trying to fight Mr Hawkins.
In cross-examination, Constable Irwin said he had not heard Mr Dickson say anything to any McDonald’s staff member about whether he had done anything wrong, and could not recall Mr Dickson saying anything to any staff member.
Constable Irwin said he had asked Mr Dickson for his ID because he and Constable Armstrong believed Mr Dickson had committed an offence, and in his evidence in the Magistrates Court he said that the offence was a breach of the peace. Her Honour summarised this evidence as that Constable Irwin told Mr Dickson he was under arrest for breach of the peace, but the evidence was possibly ambiguous. In evidence in chief Constable Irwin described himself and Constable Armstrong respectively grabbing Mr Dickson’s left and right arms, and telling Mr Dickson that he was under arrest. He then gave the following evidence:
What was he under arrest for?---The breach of - - -
[Objection]
Why did you say he was under arrest?---For the breach of the peace.
That is, the second question quoted above could have been interpreted by Constable Irwin as referring to his earlier evidence rather than to what he had said to Mr Dickson at the time of the arrest. Certainly the two questions as transcribed and set out above do not obviously address the same issue.
In cross-examination, Constable Irwin asserted that Mr Dickson had been arrested for the breach of the peace, but that he had not told Mr Dickson that before arresting him and did not recall telling Mr Dickson that reason at the time of the arrest or otherwise that night. This evidence suggests that her Honour was mistaken in summarising Constable Irwin’s evidence quoted at [63] above as a claim to have told Mr Dickson that he was under arrest for breach of the peace.
Constable Irwin did not approach Mr Dickson until the discussion at the counter, because until then he had been waiting to see if the situation would “diffuse itself” (as his words are recorded in transcript – he may in fact have used the word “defuse”).
Constable Irwin conceded that, if he believed an offence had been committed, he had a right to ask Mr Dickson for his details, but no right to ask him to produce ID; he further conceded that Mr Dickson was entitled to resist doing something that Constable Irwin wasn’t entitled as a matter of law to demand.
Constable Irwin said that after Mr Dickson had refused his request to produce his ID and asked whether he was under arrest, Constable Irwin had told him not only that he had done something wrong, namely trying to fight someone, but also that if he didn’t produce his ID, he would be under arrest.
Constable Irwin agreed that it was not his habit simply to send people home if he saw them breaking the law. He conceded that if Mr Dickson had not offered to fight Mr Hawkins there wouldn’t have been a breach of the peace. He had never heard from Constable Armstrong what Mr Hawkins had said to Constable Armstrong before the arrest. He had not talked to Mr Hawkins at all on that evening. He had never taken steps to proceed against Mr Dickson for a breach of the peace, or become aware of any relevant proceedings.
Thomas Hawkins
Mr Hawkins had been out drinking with friends on the night concerned, in a group of eight people. They had been drinking from 8.00pm to 10.30pm “as a pre-drinks”, and he had probably had two drinks while “out”. He said that at McDonald’s he was feeling fine and was not feeling the effects of the drinks. At McDonald’s he was in the line with three of his companions.
Mr Hawkins gave the following evidence:
What happened when you were in the line?---So I was just getting ready to order my food when someone just started like shouting out “I’d rather be dead than red,” quite loudly. He said it a couple of times but I didn’t really respond. Then I can’t really remember what else he said but he just mainly - that stood out, that he was saying that. After he said it three times, I think I said, “Piss off.” Then two police officers came up to me and said, “Is this guy bothering you?” and I said, “It’s fine. Don’t worry about it.” Then they went and spoke to him. Then I ordered my food, got my food, went and sat down and like I wasn’t facing like where he was getting talked to but then I heard like a scuffle and then when I turned around he was on the ground, getting held down.
…
What, if anything, was he doing, other than standing in line?---That’s pretty much all he was doing. Like we hadn’t contacted - talked to him at all before that.
Mr Hawkins agreed that Mr Dickson had seemed to be affected by alcohol. In cross-examination he gave evidence as follows:
He didn’t offer to fight you or anything like that, did he?---No.
I suppose if he’d done something like that, if he was egging you on for a fight or something, you might have said to the police, “Well, yeah, deal with him.” Would that be a fair proposition?---Yeah.
…
It never occurred to you, I imagine, that there was about to be a fight or something like that? No.
He said that in McDonald’s the “general chatter was loud but like [Mr Dickson’s] voice was very loud.” He had not heard any conversation between Mr Dickson and the police before he heard the “commotion” (of Mr Dickson being arrested).
Later in his evidence Mr Hawkins remembered that during his interaction with Mr Dickson, Mr Dickson had also called one of the girls with Mr Hawkins a “slut”.
Mr Hawkins said he had had some discussion with police that night, and then spoke to them by phone, and then made a statement about 11 days after the incident.
The question of Mr Hawkins’ level of intoxication on the night of Mr Dickson’s arrest was pursued with Constable Armstrong during cross-examination. He said that he didn’t remember whether Mr Hawkins struck him as sober on the night, but that he believed that Mr Hawkins had not made a statement on the night because, from what he understood, Mr Hawkins was intoxicated. He also believed that a decision had been made not to take a statement from him that night because of his intoxication, but he could not recall who had made that decision.
Pressed on the basis on which he understood Mr Hawkins had been intoxicated, he explained that the basis was that Mr Hawkins had not made a statement that night. Constable Armstrong’s evidence amounted to: “Mr Hawkins didn’t make a statement on the night, from what I understand, because he was intoxicated, but my reason for understanding that he was intoxicated was that he didn’t make a statement on that night.” In the absence of evidence that intoxication was the only possible reason why a person in Mr Hawkins’ position would have been permitted to defer making a statement, this evidence should not have been accepted as establishing that Mr Hawkins was intoxicated at the relevant time.
Other civilian witnesses
Panayioti (Peter) Apostolopoulos, another customer of McDonald’s, said he had had not been drinking alcohol at all during the night. He had first noticed an encounter between Mr Dickson (“the person who got arrested”), also referred to as “a customer” and a McDonald’s staff member, which he described as “arguing”, involving “just loud voices”. He could not describe the customer in any further detail, or what he was saying.
In cross-examination it emerged that Peter Apostolopoulos had made a statement on the night of the events. He had not mentioned the verbal abuse in his statement; he said that this was because he couldn’t recall if Mr Dickson had said anything because he could not hear him. He conceded that the first time he noticed anything was when the cup of orange juice was spilled.
Peter Apostolopoulos then gave evidence of the police taking hold of Mr Dickson and propelling him towards the door. When Mr Dickson was on the ground on his stomach, Peter Apostolopoulos said, he saw that Mr Dickson had a pepper spray canister in his hand, which police had removed. Then, said Peter Apostolopoulos, two back-up officers arrived and pepper-sprayed Mr Dickson while he was on the ground.
George Giannitsios became aware of the situation only when the drink was spilled.
The other Panayioti Apostolopoulos had been in the same group as his cousin of the same name. He had been drinking during the night. Before hearing “a drink hit the ground”, he was only aware of some talking in the background.
Conor Nolan also only noticed the situation when the cup hit the floor.
Apart from Peter Apostolopoulos, none of those other civilian witnesses had anything useful to say about the development of the incident before Mr Dickson was arrested.
It seems to be accepted that there was no use of pepper-spray. When this was put to Peter Apostolopoulos he pointed out that the incident had happened eight months previously, and that, in effect, much had happened in that period and he had “very, very, very other memories that have happened”. Clearly, Peter Apostolopoulos’ evidence as a whole needed to be treated with some circumspection, despite the fact that he was the only civilian witness who claimed not to have drunk alcohol that night.
In short, Mr Hawkins was the only civilian witness who could give any useful evidence about the events that culminated in the arrest of Mr Dickson.
The effect of the evidence
In summary, the evidence before her Honour of the matters relied on to establish an apprehended breach of the peace was as follows.
Aggression towards Mr Hawkins
Both police officers said that they had heard Mr Dickson offer to fight Mr Hawkins.
(a)Constable Armstrong had observed Mr Dickson twice inviting Mr Hawkins to fight him (by words and by pointing to his own chin), and displaying an aggressive and violent demeanour. He had observed Mr Hawkins responding to this with words along the lines of “fuck off”. He had also seen Mr Dickson ask Mr Hawkins if he needed Mr Dickson’s “shrapnel” (or loose change).
(b)Constable Irwin also heard words that could have been an invitation to a fight, and saw Mr Hawkins actively trying to ignore Mr Dickson. He also heard Mr Dickson ask Mr Hawkins if he needed his (Mr Dickson’s) shrapnel, and observed that Mr Hawkins “shied away” from Mr Dickson “in a frightened fashion”.
Constable Armstrong’s evidence was that when he spoke to Mr Hawkins, he said that he “just wanted to get out of there”, and “didn’t want to get hurt”. Constable Irwin did not hear this conversation, and did not hear about it from Constable Armstrong later.
Mr Hawkins’ evidence was that he had heard the words “I’d rather be dead than red”, that he had not responded to Mr Dickson’s words except with words along the lines of “piss off”, and that when the police officers spoke to him about whether Mr Dickson was bothering him, he had said “It’s fine. Don’t worry about it”.
In cross-examination, Mr Hawkins denied that Mr Dickson had offered to fight him and said that it hadn’t occurred to him that there was likely to be a fight.
Aggression towards police
The evidence of Mr Dickson’s aggression towards police before the point at which they arrested him seemed to consist almost entirely of him telling Constable Irwin to “get fucked” when Constable Irwin made the inappropriate request for Mr Dickson to produce ID. Mr Dickson asking whether he was under arrest may also have been seen as an example of aggression towards the police officers, and it might well have been asked in a discourteous way. However, it was not an unreasonable question to ask, and asking it less than politely does not amount to asking it in a way that threatens violence.
Aggression towards McDonald’s staff member
Constable Armstrong had also heard Mr Dickson put to a McDonald’s staff member that he, Mr Dickson, hadn’t done anything wrong, and answer his own rhetorical question with “No I fucking haven’t, have I”; Constable Armstrong said that the question as such was not abusive, but it was spoken “in an aggressive manner” and was abusive in “the way it was directed at staff members”.
Constable Irwin could not recall Mr Dickson saying anything to any staff member. Mr Hawkins did not give evidence of any interaction between Mr Dickson and McDonald’s staff. Peter Apostolopoulos said that he had noticed a customer verbally abusing a McDonald’s staff member, but when pressed was unable to describe the customer or the words used, although he did say that it was the person whom police then asked to leave. I have already noted that, despite his claimed sobriety on the night, Peter Apostolopoulos’ evidence needed to be considered with care (at [85] above).
The apprehended breach of the peace
That is, there is no dispute among the witnesses that Mr Dickson made stupidly offensive remarks to Mr Hawkins about his red hair, and that Mr Hawkins mostly ignored him, except that he told him to “piss off” (or perhaps “fuck off”, as reported by Constable Armstrong). Both police officers said they heard the remark about shrapnel, but no other witness including Mr Hawkins mentioned it.
Constable Irwin said that Mr Dickson told him to “get fucked” when he asked Mr Dickson to produce ID, and that Mr Dickson then asked whether he was under arrest.
Constable Armstrong described words that Mr Dickson spoke to McDonald’s staff (about whether he had done anything wrong) as not abusive as such, but abusive in “the way it was directed at staff members”, and that it was “spoken in an aggressive manner”. [T109. 11 – 31] Constable Irwin could not recall Mr Dickson saying anything to any staff member, [P147] and nor did Mr Hawkins mention any such interaction.
In Howell, the Court of Appeal said at p 427 that:
there is a breach of the peace whenever harm is actually done or is likely to be done to a person … or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.
I note first that the Court of Appeal in Howell seems to be saying that a breach of the peace may provide grounds for arrest if police apprehend that there will be a breach, and that a breach may be constituted not just by harming a person but by putting a person in fear of harm. That is, if a police officer (or indeed any individual) reasonably apprehends that a person may be put in fear of suffering harm, that reasonable apprehension of fear of harm is sufficient to empower the police officer or individual to arrest the person.
However, in applying this approach, one must also keep in mind the comment set out in Halsbury’s Laws of England, 4th ed., vol. 11 (1976), para. 108 and quoted by the Court of Appeal that:
a breach of the peace arises where there is an actual assault, or where public alarm and excitement [is] caused by a person’s wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.”
The Court of Appeal goes on to adopt this proposition, except to note the failure in this formulation “to relate all kinds of behaviour there mentioned to violence” and to note its view that “the word ‘disturbance’ when used in isolation cannot constitute a breach of the peace.”
The real question then is whether her Honour could have been satisfied beyond reasonable doubt that either of the police officers had reasonable grounds for apprehending a breach of the peace.
I do not doubt that in certain circumstances an intention to fight or a threat to fight, without an actual fight, could constitute a breach of the peace such as to justify an arrest. I am not, however, convinced that an invitation to fight, however offensively framed, could amount to a breach of the peace sufficient to justify arrest if there is no indication that the invitee, or anyone else, is likely to take up the invitation, or that the inviter is about to attack the invitee or anyone else, and no basis for believing that the invitee, or anyone else, is alarmed or in fear of being harmed.
With one exception, neither the police officers’ observations of Mr Dickson and Mr Hawkins, nor Mr Hawkins’ own evidence, provided a basis for a conclusion that Mr Dickson’s words to Mr Hawkins (and his gesture towards his chin) had put Mr Hawkins in fear of violence.
The only exception is that Mr Hawkins’ alleged statement to Constable Armstrong that he “just didn’t want to get hurt” could suggest alarm or a fear of getting harmed. However, even accepting Constable Armstrong’s evidence that shortly after being challenged by Mr Dickson, Mr Hawkins had said that he didn’t want to get hurt, the evidence of Mr Hawkins’ reaction to Mr Dickson’s invitation, and his conduct after speaking to Constable Armstrong (that is, taking his food and sitting down in the restaurant to eat it), did not suggest a man suffering any kind of fear or alarm.
Constable Armstrong mentioned Mr Dickson’s words to the McDonald’s staff member as the other thing that made him concerned about an imminent breach of the peace. Constable Armstrong and Peter Apostolopoulos were the only witnesses who gave evidence of this incident, and as noted at [78] above, Peter Apostolopoulos’ evidence is of “arguing” in “loud voices” and does not suggest any apprehension of any kind of violence. Constable Armstrong’s description of Mr Dickson’s comments as not abusive as such, but abusive in “the way it was directed at staff members”, and “spoken in an aggressive manner”, in my view falls far short of describing something that could found a reasonable apprehension of any kind of breach of the peace.
There was no evidence that any of the civilian witnesses other than Mr Hawkins suggested that they had been at all alarmed, either by Mr Dickson’s invitation to fight (which none of them claimed to have been aware of), or by the exchange between Mr Dickson and the McDonald’s staff member (which only Peter Apostolopoulos referred to at all).
The evidence before her Honour, even taken at its highest (that is, including the evidence that was only given by Constable Armstrong, being that Mr Dickson invited Mr Hawkins to fight, and that Mr Hawkins told Constable Armstrong that he didn’t want to get hurt), did not establish any actual assault, any ongoing fear of personal violence, or any public alarm or excitement. The evidence was of “mere annoyance and disturbance or insult to a person or abusive language”; it probably did not even rise to the level of “great heat and fury without personal violence”.
It is possible that Constable Irwin’s inappropriate demand that Mr Dickson produce his ID raised the general temperature of the encounter between Mr Dickson and the two police officers sufficiently for them to become concerned about the potential for violence in the restaurant. There may be circumstances in which an imminent breach of the peace provoked by inappropriate conduct (however innocent) of a police officer would nevertheless justify an arrest in reliance on that imminent breach in the interests of protecting other members of the public.
However, in the current case:
(a)there was no evidence before her Honour of any concern among members of the public about the possibility of violence; and
(b)there was evidence that if Mr Hawkins had at any point been concerned at being hurt, that concern had been allayed (possibly, in fact, by the presence of the police officers) (at [104] and [105] above).
Nor did it seem that either of the police officers had any concern about any violence (as distinct from offensive words) being directed towards himself.
Her Honour could not have been satisfied beyond reasonable doubt that, when Constable Armstrong approached Mr Dickson at the counter, there were any reasonable grounds for him (or indeed for Constable Irwin) to apprehend an imminent breach of the peace.
Accordingly, it seems to me that appeal ground (h).i has been made out. It follows, then, that the arrest of Mr Dickson was not lawful by reference to the breach of the peace relied on, and therefore it was not open to her Honour to find that the charge of resisting arrest was proven beyond reasonable doubt.
In those circumstances there is no point in considering any other appeal grounds, many of which, even if established, would at best have required the finding of guilt to be set aside and the charge remitted to the Magistrates Court for further hearing, probably before a different Magistrate.
However, I note that the emphasised parts of her Honour’s consideration of this charge, quoted at [27] above, which identify areas in which her Honour seems to have become confused about the details of the evidence actually before her, may go some way to explaining how she came to a finding that I consider was not available to her.
At (3) and (5) of her remarks, her Honour gives Constable Armstrong’s evidence of what Mr Hawkins said to him the same status as Mr Hawkins’ evidence of what he said to Constable Armstrong (which did not include the comments reported by Constable Armstrong that her Honour relied on);
At (8), her Honour probably only means that the police evidence and Peter Apostolopoulos’ evidence are consistent, but in saying this she overlooks the facts that the “police evidence” of this matter was only given by Constable Armstrong, while Constable Irwin said he could not recall observing Mr Dickson saying anything to a McDonald’s staff member (at [62] above), and that Peter Apostolopoulos’ evidence cannot be considered absolutely reliable given his evidence about the pepper-spraying of Mr Dickson (at [85] above); there is also a hint of a bootstraps argument in her Honour’s reference to Peter Apostolopoulos’ evidence confirming the police evidence and in turn being confirmed by the police evidence.
At (10) and (11), her Honour does not advert to, or deal with, the facts that although Constable Armstrong said that Mr Hawkins told him that he did not want to get hurt, he (Constable Armstrong) had not mentioned this to Constable Irwin, that Mr Hawkins had given no such evidence, and that Mr Hawkins’ asserted fear did not appear to have been borne out by his subsequent actions.
At (13), her Honour identifies the evidence on which she relies for the conclusion that there were reasonable grounds for apprehending an imminent breach of the peace, but the weight and adequacy of that evidence is undermined by the errors and oversights identified above.
Conclusions
Appeal ground (h).i was not framed as a claim that her Honour’s conclusion was “unsafe and unsatisfactory”, as explained in M v The Queen (1994) 181 CLR 487 at 494-495 by Mason CJ and Deane, Dawson and Toohey JJ as follows:
9. ... In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
(citations omitted)
However, since the appeal ground, and my conclusion, have something in common with an “unsafe and unsatisfactory” claim and its resolution, it is appropriate to note that the problems with the evidence before her Honour did not relate to the way in which the evidence was given, such that seeing and hearing the evidence might have been capable of resolving my doubt that the evidence before her Honour could have established the charge against Mr Dickson. The problems relate to the content of the evidence that was given and the capacity for that evidence, however convincingly given, to satisfy a significant element of the offence with which Mr Dickson was charged.
Orders
Accordingly, the appeal must be allowed, and the finding that Mr Dickson resisted arrest and the good behaviour order made by her Honour must be set aside. Given the grounds on which I concluded that the appeal must be allowed, it seems to me that it would also be appropriate to dismiss the charge of resisting arrest.
The parties will be heard about the costs of the appeal and of the proceedings in the Magistrates Court, and also about the costs of the respondent’s application for a declaration that the appeal was incompetent (see [5] above).
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 22 November 2018 |
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