Director of Public Prosecutions v Scibilia
[2023] SASC 87
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
DIRECTOR OF PUBLIC PROSECUTIONS v SCIBILIA
[2023] SASC 87
Judgment of the Honourable Justice McDonald
30 May 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
This is an appeal against the decision of a Magistrate pursuant to s 42(1) of the Magistrates Court Act 1991 (SA), acquitting the respondent of three counts of aggravated assault pursuant to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The complainant was arrested on 23 September 2019 at about 3:20pm on a warrant for Contravening an Intervention Order, Breaching Bail, and Damaging Property. He was taken to the Port Adelaide Police Cells Complex, where respondent was on duty in the cells performing the role of a cell guard. The prosecution alleged that the respondent committed three acts of assault on the complainant whilst he was being detained. These were characterised as “the slap” (Count 1); “the throw” (Count 2); and “the shove” (Count 3). The circumstance of aggravation in relation to each of the offences was that the respondent abused a position of authority or trust in committing the offences by virtue of his role as a police officer.
On 29 April 2022 the Magistrate acquitted the respondent of all three counts, ultimately finding that the respondent was immune from criminal liability by virtue of s 65(1) of the Police Act. The Director of Public Prosecutions (SA) (“the appellant”) seeks to appeal that decision on three grounds;
1. The Magistrate erred in finding that the immunity from criminal liability in s 65(1) of the Police Act 1998 (SA) applied to the conduct of the defendant which was the subject of the charges. In particular, his Honour erred in finding that the charged acts of the defendant were done pursuant to a “power, function or duty” which the defendant was exercising or discharging (or purporting to exercise or discharge); and erred in finding that the charged acts of the defendant were “honest acts”;
2. The Magistrate erred in the application of s 65(1) of the Police Act in that, having identified the “power, function or duty” the defendant was exercising or discharging (or purporting to exercise or discharge), his Honour failed to properly consider, or make adequate findings as to, whether the acts which were the subject of the charges were done “in the exercise or discharge, or purported exercise or discharge” of that “power, function, or duty”;
3. The Magistrate failed to provide adequate reasons for finding that the immunity from criminal liability in s 65(1) of the Police Act applied to the conduct of the defendant which was the subject of the charges.
Held, the appeal is dismissed on Grounds 1 and 3. Ground 2 amounted to an error of law, insofar as the Magistrate’s reasons do not adequately disclose the basis for the decision nor express the specific findings critical to determination of each count.
In circumstances where I have found that it was open for the Magistrate to be so satisfied, I place considerable weight on the fact that the respondent has already been tried and acquitted. Given that it is so highly likely that the respondent would again be acquitted I exercise my discretion and the appeal is dismissed.
Criminal Law Consolidation Act 1935 (SA) S 15, S 20; Correctional Services Act 1982 (SA) S 86; Police Act 1998 (SA) S 65; Magistrates Court Act 1991 (SA) S 42, referred to.
AK v Western Australia (2008) 232 CLR 438; Allison v Police [2005] SASC 447; Boyle (A Pseudonym) v The Queen [2022] SASCA 50 ; Dempsey v Coombe Northern Territory Supreme Court unreported judgment No 8273 delivered 26 June 1985.; Director of Public Prosecutions (NSW) v Wilio [2012] NSWSC 713; DL v The Queen (2018) 266 CLR 1; Donges v Ratcliffe [1975] 1 NSWLR 501; Douglass v The Queen (2012) 86 ALJR; DPP v Scibilia [2022] SAMC 54; Fleming v The Queen (1998) 197 CLR 250; Lumsden v Police (2019) 135 SASR 265; Macks v Visacriello (2017) 130 SASR 1; O'Malley v Singh (2019) 133 SASR 291; R v Keyte (2000) 78 SASR 68; R v Ricciardi (2017) 128 SASR 571; R v Rolfe [2021] HCA 38; Rowland v Police (2001) 79 SASR 569; Thorogood v Warren (1979) 20 SASR 156, applied.
DIRECTOR OF PUBLIC PROSECUTIONS v SCIBILIA
[2023] SASC 87Magistrates Appeal: Criminal
McDONALD J.
This is an appeal against the decision of a Magistrate pursuant to s 42(1) of the Magistrates Court Act 1991 (SA). The respondent, a sworn police officer, was charged with three counts of aggravated assault,[1] of a prisoner whilst in police custody. On 29 April 2022 the Magistrate acquitted the respondent of all three counts. The Director of Public Prosecutions (SA) (“the appellant”) seeks to appeal that decision on the following grounds:
1.The Magistrate erred in finding that the immunity from criminal liability in s 65(1) of the Police Act 1998 (SA) applied to the conduct of the defendant which was the subject of the charges. In particular, his Honour:
1.1erred in finding that the charged acts of the defendant were done pursuant to a “power, function or duty” which the defendant was exercising or discharging (or purporting to exercise or discharge); and
1.2erred in finding that the charged acts of the defendant were “honest acts”;
2.The Magistrate erred in the application of s 65(1) of the Police Act in that, having identified the “power, function or duty” the defendant was exercising or discharging (or purporting to exercise or discharge), his Honour failed to properly consider, or make adequate findings as to, whether the acts which were the subject of the charges were done “in the exercises or discharge, or purported exercise or discharge” of that “power, function, or duty”;
3.The Magistrate failed to provide adequate reasons for finding that the immunity from criminal liability in s 65(1) of the Police Act applied to the conduct of the defendant which was the subject of the charges.
[1] s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The appellant seeks an order that the appeal be allowed, the decision of the Magistrate be set aside, and the matter be referred back to the Magistrates Court for a re-trial.
The events of 23 September 2019
On 23 September 2019, the complainant was arrested at 3.20 pm on a warrant for Contravening an Intervention Order, Breaching Bail, and Damaging Property. He was taken to the Port Adelaide Police Cells Complex (‘the Cells’) at 3.29 pm. The respondent was on duty in the cells performing the role of a cell guard.
The prosecution alleged that the respondent committed three acts of assault on the complainant, whilst he was being detained. These were identified as:
Slapping the complainant at 10.52.59 pm (Count 1 – “the slap”);
Throwing the complainant at 10.53.34 pm (Count 2 – “the throw”); and
Shoving the complainant at 10.54.07 pm (Count 3 – “the shove”).
As a result of the conduct alleged, the respondent was charged with three counts of aggravated assault. The circumstance of aggravation in relation to each of the offences was that the respondent abused a position of authority, or trust, in committing the offences by virtue of his role as a police officer.
The evidence at trial
At trial, the prosecution led evidence from three police witnesses as well as the complainant. The prosecution also relied on CCTV obtained from the cells which captured the events, together with data entries made by the cells staff in the SAPOL custody records. The respondent also gave evidence.
The material facts in the matter were essentially unchallenged, with the dispute focused on the characterisation of the respondent’s actions and his state of mind at the time of the incidents.
The primary legal issue at trial related to the application of force, and whether it was unlawful. The evidence focused on the respondent’s state of mind at the time of committing the acts which formed the subject of the charges, and whether such acts were directed at removing a risk of self-harm posed by the complainant or were carried out in self‑defence or in the defence of another.
At trial, the following defences were raised:
1.The actions of the respondent amounted to the use of reasonable force for the purposes of s 86 of the Correctional Services Act 1982 (SA).
2.That the respondent’s actions were covered by the immunity created by s 65 of the Police Act.
3.The actions of the respondent amounted to self-defence in accordance with s 15 of the Criminal Law Consolidation Act 1935 (SA).
Ultimately, issues of self-defence or other lawful excuse were not resolved at trial, on the basis that the Magistrate found that the respondent was immune from criminal liability by virtue of s 65(1) of the Police Act.
As mentioned, CCTV footage capturing the events from the interior of a padded cell was tendered. The footage was taken from above and recorded the relevant events. Whilst the quality of the footage is reasonable, it has its limitations. Much of the footage was captured by an infrared lens, as the cell lights were turned off by the police officers as a means of attempting to prevent the complainant from harming himself. These portions are in black and white and have a grainy appearance. Parts of the vision are in colour when the cell becomes illuminated. The recording is not in real time creating the appearance of actions and reactions having occurred more quickly than in real life. This is problematic in that it makes it difficult to assess the speed at which events occurred and the extent of the force employed in the various actions undertaken by both the complainant and the respondent. There is no sound to the recording. The combination of these factors results in a degree of ambiguity in the CCTV footage.
The complainant’s conduct leading up to the charged acts
When the complainant first arrived at the police station he was placed in a standard cell before being removed to a padded cell just prior to 6.50 pm. The reason for his removal to a padded cell was for his own protection, as there were concerns that his behaviour might result in self-harm. The conduct that gave rise to such concerns included the complainant punching the cell wall and door and, non-complainant and attention seeking behaviour. The complainant himself had requested to be moved to a padded cell.
The evidence was that although the padded cell was safer than a regular cell, there were still risks attached for a prisoner who wished to harm themselves. The walls of the padded cell were made of hard foam, such that whilst they were comparatively softer than a concrete wall, it was still possible for a person to injure themselves. Additionally, there was evidence that there was a peephole located on the cell door and a drain in the centre of the floor of the cell which were recognised as posing a risk to self‑harming prisoners. There had been previous incidents of prisoners lacerating their heads and hands from hitting and headbutting the peephole.
Once the complainant was placed in a padded cell, the actions of the complainant continued to concern cell guards about the possibility that he may injure himself. For the period from 6.42 pm to 10.44 pm the Police Custody Record notes the complainant’s actions as including cartwheeling across the cell, banging on the door, headbutting the door near the peephole, and headbutting the peephole. After 10.44 pm the CCTV captures the complainant with his arms inside his shirt doing somersaults head-first near the grate, approaching the peephole, prancing around the cell with his arms inside his shirt, aggressively shadow‑boxing in the direction of the cell door, three successive forceful headbutting actions towards the door in the vicinity of the peephole, kicking backwards at the door and repeatedly attempting to look through the peephole. The complainant himself gave evidence that he was “erratic, screaming, whistling, slapping the padded walls”.[2] Further he admitted to hitting his head in the area of the peephole in order to get a reaction from the police.[3]
[2] TT 87.
[3] TT 91.
It was the respondent’s evidence that he repeatedly directed the complainant to stay away from the door.
The culmination of the complainant’s actions resulted in the respondent entering the cell, where he was met with confronting and non‑compliant behaviour. The respondent can be seen to repeatedly indicate to the complainant that he should move to the corner of the cell furthest away from the door. After an initial period of unresponsiveness, the complainant moved to that corner and the respondent forced him to the ground. The respondent then removed the complainant’s top and positioned him on his stomach with his hands behind his back. With the assistance of a female police officer Constable West, the respondent handcuffed the complainant behind his back. Constable West left the cell and a male police officer Senior Constable Heath entered.[4] The respondent, with the assistance of Senior Constable Heath, removed the complainant’s jeans. Senior Constable Heath left the cell taking the complainant’s jeans with him. Immediately after Senior Constable Heath left, the complainant can be seen to get back to his feet. The respondent again forced the complainant to the ground.
[4] Although there was no evidence on the topic it would appear to be a logical inference that the two police officers swapped over because the complaint’s jeans were to be removed.
It is accepted by the appellant that up until this point in time all of the respondent’s conduct was lawful and in accordance with standard police procedures.
The charged acts
At 10:52:59 pm the respondent can be seen restraining the complainant with his left hand and moving his right hand to connect with the back of the complainant’s head. However, due to the angle of the CCTV footage and the speed of the vision, it is difficult to discern the force of the action. At the point of contact the complainant’s head does not appear to move in the manner that might be expected if any significant force had been used. The respondent then left the cell, whilst Senior Constable Heath was standing at the cell door, which was then closed. This action forms the subject of count 1 – the slap.
The complainant then stood up, faced the door and kneed it twice. The respondent re-entered the cell, and it appears that he placed his left hand behind the complainant’s neck and pushed him down, whilst the complainant was resisting. At 10:53:34 pm the respondent can be seen throwing the complainant in a manner that caused his feet to come off the ground. He then pushed him into the far corner of the cell. The respondent then left the cell at which time the complainant was laying on his side in the corner. This action forms the subject of count 2 – the throw.
The complainant then got up and again approached the door. The door opened and the respondent entered the cell. At 10:54:07 pm the respondent pushed the complainant toward the rear wall and then into the far corner with his right hand. This action forms the subject of count 3 – the shove. The respondent can then be seen to leave the cell with the complainant seated in the corner.
The events that are the subject of the charges all occurred over about one minute and 10 seconds. At no stage did the complainant display any signs of having been physically hurt or injured by the actions of the respondent.
Prosecution Witnesses
The prosecution called three police witnesses – Constable West, Brevet Sergeant Morgan and Senior Constable Heath, who were all on duty in the cells with the respondent.
The combined effect of their evidence was that the respondent was an experienced cell guard and a well respected police officer. They described the complainant as behaving poorly during the time that he was in the cells. He was at times screaming, he was belligerent and offensive, and was making derogatory comments. At one stage he urinated through the cell door.
Each of the police witnesses described the complainant as exhibiting self‑harming behaviour and refusing to follow directions. It was their evidence that in response to the complainant’s conduct there had been a progression of attempts to bring him under control in order to avoid the risk of self-harm. This included his removal from a standard cell to a padded cell; multiple directions to move away from the door and to remain on the ground; the application of handcuffs; the use of a leglock to prevent him kicking and thrashing and the removal of his clothing.
None of the police witnesses describe the respondent as behaving in anyway inappropriately during this shift. They described that the various efforts that they observed or were aware of being employed were in accordance with their training and standard police procedures, in order to reduce the risk of the complainant self‑harming.
It was the appellant’s case however that no other police officer was present when the offences were alleged to have occurred.
The complainant’s evidence
The prosecution also called the complainant to give evidence. It was his evidence that he was no stranger to the Port Adelaide Police Cell complex, having been detained there on multiple occasions both before and after these events.
There was little dispute between the accounts of the prosecution police witnesses and the complainant. He freely admitted to the behaviour that he engaged in. It was the complainant’s evidence that he was not happy about being detained in a cell overnight so he was deliberately “battling authority”,[5] “being a delinquent”[6] and was doing all that he could to annoy and get a reaction from the police officers. The complainant admitted he went as far as picking his nose to cause it to bleed so that he could smear his blood across the cell walls to create the appearance that he had been assaulted by police.[7]
[5] TT 87.
[6] TT 87.
[7] This conduct occurred after the respondent had finished his shift.
The complainant’s evidence did not particularly add to the prosecution case other than to confirm that “the slap” had occurred.
The legislative regime – The Police Act
There are a number of sections in the Police Act which are relevant to the scope and application of the s 65 immunity.
Section 65 of the Police Act creates a protection for police officers from civil or criminal liability which might arise from their conduct during the exercise or purported exercise of their power, duty or function as police officers.
It reads:
65—Protection from liability for members of SA Police and police security officers
(1)A member of SA Police or a police security officer does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.
(2)A liability that would, but for subsection (1), lie against a member of SA Police or a police security officer lies instead against the Crown.
(3)A person (the injured person) who suffers injury, loss or damage as a result of the act or omission of a member of SA Police or a police security officer may not sue the member or officer personally unless—
(a) it is clear from the circumstances of the case that the immunity conferred by subsection (1) does not extend to the case; or
(b) the injured person brings an action in the first instance against the Crown but the Crown then disputes, in a defence filed to the action, that it is liable for the act or omission of the member or officer.
(4)Where a question arises as to whether the immunity conferred by subsection (1) extends to the case and the member of SA Police or the police security officer claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member or officer.
(5)If a member of SA Police or a police security officer is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law—
(a) unless the Crown is alleging that the member or officer is personally liable for the act or omission—the Crown must represent the member or officer; or
(b) if the Crown does not represent the member or officer and the member or officer is found by the court not to have acted dishonestly—the Crown must indemnify the member or officer for legal costs properly incurred by the member or officer (but not exceeding 80% of the Supreme Court scale of costs applying at the time the case is determined).
In O’Malley v Singh,[8] Stanley J had occasion to consider the purpose and the legislative history of s 65 of the Police Act and in particular the introduction of the current form of the section in 2013. In that context his Honour made observations about the debate that accompanied it when the amendment was moved in the Legislative Council: [9]
The amendment was supported by the Government and the Opposition. In the course of the committee stage of the debate, Mr Brokenshire said that the amendment would provide the protection that he believed police officers needed to be able to act fearlessly in the performance of their duties without concern about potential litigation or prosecution for what they believe is the lawful exercise of their duties.
[8] O’Malley v Singh (2019) 133 SASR 291 (‘O’Malley v Singh’).
[9] Ibid [27].
Stanley J went on to summarise the purpose of s 65: [10]
The purpose of conferring this protection is to prevent police officers from being inhibited or distracted in the course of the performance of their duties by a concern that in performing those duties they might be exposed to civil or, for that matter, criminal liability, where they have undertaken those duties honestly. The risk is that a police officer might hesitate or be inhibited in the performance of his or her duties by such a concern. That would give rise to a conflict which is contrary to the public interest.
[10] O’Malley v Singh [29].
The purpose of the SA Police is contained in s 5 of the Police Act.
5—Purpose of police
The purpose of SA Police is to reassure and protect the community in relation to crime and disorder by the provision of services to—
(a) uphold the law; and
(b) preserve the peace; and
(c) prevent crime; and
(d) assist the public in emergency situations; and
(e) co-ordinate and manage responses to emergencies; and
(f) regulate road use and prevent vehicle collisions.
Section 11 creates the power for the Police Commissioner to make General Orders for the control and management of the police force.
11—Orders
(1)The Commissioner may make or give general or special orders, not inconsistent with this Act, for the control and management of SA Police, police cadets, police medical officers and police security officers.
(2)The orders may make provision concerning—
(a) the various duties to be performed; and
(b) the manner in which and the time and place at which the various duties are to be performed and any other matters relating to their performance; and
(c) the requirements or qualifications for appointment or promotion; and
(d) other matters that the Commissioner considers relevant to the control and management of SA Police, police cadets, police medical officers and police security officers.
(3)The general or special orders of the Commissioner—
(a) may be varied or revoked by the Commissioner; and
(b) will not be taken to be a form of subordinate legislation to which the Subordinate Legislation Act 1978 applies.
(4)The power of the Commissioner to give binding orders or directions is not restricted by the provision for the making of general or special orders or the contents of any general or special orders.
During the course of the trial counsel for the respondent tendered a relevant police general order – “Custody management” made pursuant to s 11. At the outset of the general order the purpose of that order is set out.
1. GENERAL ORDER STATEMENT
South Australia Police (SAPOL) is responsible for safely and securely managing all persons in police custody from the time of their arrest until they are released or transferred to an external agency.
To ensure a professional and consistent approach to detainee management, it is essential that each member understands their roles and responsibilities. This General Order provides instructions to members involved in the management of persons detained or take into custody, charged and placed in cells.
This General Order applies to employees of SAPOL.
Grounds of appeal
As previously set out the appellant relies on three grounds of appeal.
Although there are three separate grounds, Ms Cairney, who appeared for the appellant, made it plain in her submissions that the primary complaint is that the Magistrate erred at law in finding the respondent was immune from criminal liability by virtue of s 65(1) of the Police Act. Ms Cairney referred to grounds two and three as secondary appeal grounds, relating to the adequacy of the reasons provided by the Magistrate.
Ground 1
Did the Magistrate err in finding that the immunity from criminal liability in s 65(1) of the Police Act applied?
The appellant addressed this ground in two parts – first that the Magistrate erred in finding that the charged acts were done in the exercise or discharge (or purporting to be done in the exercise or discharge) of a power, function or duty conferred or imposed upon the respondent under the Police Act or any other Act or the common law (Ground 1.1), and second, by finding that the charged acts were ‘honest acts’ (Ground 1.2). I propose to adopt the same approach.
Ground 1.1
Erroneous characterisation of “power, function or duty”
It was the appellant’s contention that in considering the application of s 65 of the Police Act it was incumbent on the Magistrate to identify first, the relevant power, function or duty that was exercised, or purported to be exercised by the respondent. It was submitted that whilst the Magistrate alluded in a summary way to the general orders as well as s 5 of the Police Act he failed to identify how the charged conduct fell within the scope of a power, function or duty of a cell guard derived from either of those sources.
It was submitted that instead the Magistrate conflated the finding that the respondent was on duty as a police officer when committing the charged acts with a finding that the acts were committed in the exercise or discharge of a power, function or duty as an on duty cells guard, pursuant to the general orders and s 5 of the Police Act.
In his judgment the Magistrate acknowledged the need to determine which power, function or duty imposed by or under the Police Act or another Act or common law that the respondent was exercising or purporting to exercise.[11] In considering that question the Magistrate referred to the custody management general order[12] and s 5 of the Police Act. After setting out the detail of that section the Magistrate arrived at the view that the only reason that the respondent was interacting with the complainant was in the course of carrying out this duty as a cell guard and in particular to prevent the complainant from self-harming. On that basis the Magistrate concluded:[13]
I am satisfied that throughout his dealings with Canella the evidence supports a finding that the defendant honestly and genuinely believed that he was exercising or purporting to exercise the power or function to manage a prisoner in custody under the General Order Custody Management consistent with the discharge of the core functions imposed on him as a police officer under s 5 of the Police Act 1995.
[11] DPP v Scibilia [2022] SAMC 54 (‘DPP v Scibilia’) [123].
[12] DPP v Scibilia [124].
[13] DPP v Scibilia [127].
It is apparent from this passage that the Magistrate was relying on the combined effect of the general order with s 5 of the Police Act as creating the power, function or duty necessary to enliven s 65 of the Police Act.
In R v Rolfe (“Rolfe”),[14] the High Court were required to consider comparable Northern Territory legislation. It was determined that although such a provision as s 5 of the Police Act identifies the principal functions of the police force it does not confer any particular power, function or duty on its members.
[14] [2021] HCA 38 (‘Rolfe’).
It follows that it is likely that the Magistrate was in error in identifying s 5 of the Police Act conferring the power to the respondent that he was acting under or purporting to act under at the time that he was dealing with the complainant.
Neither counsel however has suggested that this is an error that is determinative of the outcome of this appeal. It is the respondent’s position that whether or not s 5 of the Police Act was a positive source of such power, function or duty, or whether instead it was the combined effect of the common law, coupled with the existence of a relevant general order made under the authority of the Police Act and read together with s 86 of the Correctional Services Act[15] is not pertinent here. It was submitted by the respondent that there is no dispute (nor had there been at trial)[16] that there is a power, function or duty which might entail or require physical force by a police officer in a particular circumstance to reduce the risk of self‑harm by a prisoner. The dispute at trial and on appeal was not whether there could ever be a lawful use of force to reduce the risk of self‑harm, but whether the prosecution had negatived the reasonable possibility that the respondent acted for the reasons he gave in evidence.
[15] Section 86 of the Correctional Services Act reads:
86—Prison officers may use reasonable force in certain cases
Subject to this Act, an officer or employee of the Department or a police officer employed in a correctional institution may, for the purposes of exercising powers or discharging duties under this Act, use such force against any person as is reasonably necessary in the circumstances of the particular case.
[16] Respondent’s Outline of Submissions at [39].
The appellant accepts that the respondent, by virtue of his role as a police officer, was conferred with the power to use reasonable force to detain, arrest and/or search persons when exercising specific powers as a police officer both at common law and under relevant legislation, including the Correctional Services Act. It was also accepted that immunity from criminal liability arising from s 65(1) will in some circumstances extend to assaults committed by police officers in the honest exercise of such powers. It is inevitable that the detention of arrested persons will often require the use of reasonable force by police officers.
The issue raised by the appellant by this ground of appeal is in one sense quite simple. That is whether the three courses of action that are the subject of the three counts were gratuitous assaults and if so there is no power, function or duty conferred or imposed by any Act or the common law that would require, permit or justify a police officer engaging in that conduct.
Was it open to the Magistrate to find that the respondent was exercising or discharging a “power, function or duty?”
Both at trial and on appeal the Director relied heavily on the CCTV footage from inside the cell. I have already dealt with the limitations to that footage, in particular that there are issues with lighting, the fact that it does not run in real time and there is no audio. It follows that care must be taken before relying on the video and its limitations must at all times be factored in.
It was the appellant’s submission that given what can be seen on the video, it was not open to the Magistrate to find that the charged acts were undertaken pursuant to a power, function or duty which the respondent was exercising or discharging (or purporting to exercise or discharge). These were simply gratuitous assaults borne out of frustration.
The Respondent’s evidence
The respondent gave evidence that throughout the entirety of his dealings with the complainant, his main focus was in preventing him from self‑harming and to a lesser extent, protecting himself and his colleagues.
As mentioned previously, the evidence was that the respondent was an experienced cell guard. He told the Court that in this role his primary concern is ensuring the welfare of the detainees[17] and that all of the conduct engaged in by him captured on CCTV footage was in furtherance of that outcome. He explained that he had acted decisively and swiftly, and throughout these events his actions were directed at keeping the complainant away from the peephole in the doorway as that posed the greatest risk of self-harm.
[17] TT 122.
The respondent explained why he engaged in the conduct that is the subject of each count.
Count 1—the slap
It was the respondent’s evidence that prior to seeing the CCTV footage he had no independent recollection of the slap. He gave the following account of the events surrounding the conduct that is the subject of Count 1[18]
So he was being controlled as his clothing was removed. After that had happened where Senior Constable Heath and I got up to leave the cell Mr Canella stood up straight away so I was concerned that he’d either attack me or try and run from the cell. So he was pushed back down and then started to get up again. I used the balance on that so I had to turn him around and take him down back in that corner.
[18] TT 153.
When asked if there was any further interaction with the complainant he said:[19]
So just before I got off him I gave him a clip around the ears where he was saying that he wanted to fight me and I told him to stay on the ground and stop being stupid, or words to that effect.
[19] TT 153.
When asked why he had done that the respondent said that he did not know because he could not recall this part of the interaction until he saw the footage.
The topic was revisited in cross‑examination. The respondent elaborated on the answer that he had previously given.
As I said earlier, I don’t remember doing it. I can suggest that due to his demeanour and the threats that he was making at the time, the clip over the ears was to prevent him from continuing in that behaviour, being threatening and getting up as he had just done then.
When it was suggested to the respondent that the complainant wasn’t at risk of self‑harming at that point he said:
He attempted to get up just prior to that so the possibility of him self‑harming was still there.[20]
[20] TT 159.
He further explained: [21]
In that situation there was a risk of not only him self‑harming but of his [sic] assaulting me or the other officers that are at the door. There’s a threat that he may try to escape from the cell and he’d shown that previously he head‑butted walls etc., which if he stood up he had the risk of doing again.
Count 2 – the throw
[21] TT 159.
There were 39 seconds between the conduct that is the subject of Count 1 and the conduct that is the subject of Count 2. In the intervening period Constable West can be seen at the doorway of the cell. After the events the subject of Count 1, the respondent left the cell closing the door behind him. It was his evidence that there was a screen outside of the cell that afforded him an opportunity to see what was going on inside. He saw that the complainant had again approached the door area and was observed kneeing the door with some force.
The respondent gave an account of what happened next: [22]
…Because of his proximity to the door I needed to move in quickly. With the lights off in the padded cell once you crack the door open there’s a little second where the detainee’s eyesight is adjusting to the light, so it gives you a window to be able to grab a hold of them before they can do anything. So I took a hold of him. I pushed his head down and then turned him around and took him to the ground in the corner.
[22] TT 154.
When asked why he did that the respondent explained:
As his hands were behind his back I didn’t have any other methods to take him down safely. Controlling the head is one of the easiest ways to control a person’s body and that was the option that I had available to me at the time. He was turned around so he’d fall on his back and on his face and I believe that was the safest and quickest way to take him to the ground.
It was the respondent’s evidence that he had concerns that because the complainant had moved close to the door again, had repeatedly struck it with his knee and was continuing to fail to follow directions, that his next step would be to headbutt the peephole.
The respondent described this as a manoeuvre that whilst not part of his training, was one he had utilised over the years and it was similar to a judo technique that he was familiar with.[23] In his view this was a safe manoeuvre to undertake in a padded cell when the detainee was handcuffed. It was the respondent’s evidence that he would not utilise this technique in a standard cell,[24] as different considerations applied.
Count 3 – the shove
[23] It was the respondent’s evidence that he was well-versed in martial arts, namely judo.
[24] TT 155.
The shove occurred 33 seconds after the throw. The respondent had left the cell again closing the door, when he became aware that the complainant was back at the door in the vicinity of the peephole. He said that he thought that the complainant was going to strike the door or headbutt near the peephole causing himself injury, so he opened the door. He pushed the complainant backwards away from the door to prevent any chance of the complainant kicking out or trying to knee him. The respondent then pushed the complainant down into the far corner where he had asked him to sit earlier and told him to stay there.
The respondent gave evidence that the reason that he shoved the complainant in the manner that he did was because he wasn’t following directions and kept coming back to the door area. It was an escalation of efforts to ensure that the complainant remained in the area of the cell furthest away from the door and peephole.
Consideration of the Magistrates finding
Based on the respondent’s evidence (and presumably insofar as it was supported by the other police witnesses) the Magistrate found that the respondent was exercising or purporting to exercise the power or function to manage a prisoner in custody.[25]
[25] In those circumstances it may have been a more logical approach to consider whether the respondent’s actions amounted to the use of reasonable force under the terms of s 86 of the Correctional Services Act. In the event the answer to that question was yes, then there would be no requirement to consider the s 65(1) immunity as no criminal liability would have been incurred.
It was the appellant’s submission that in the circumstances of this case the slap, the slam and the shove individually and collectively cannot be said to be acts done in the exercise of any power or belief of such a power and the Magistrate erred in so finding.
Counsel for the appellant focussed in particular on the slap on the basis that it was submitted it is difficult to envisage how a slap could ever be said to be sufficiently connected to the exercise or discharge of a power, function or duty conferred or imposed by the relevant legislation, the common law or general orders. It was submitted that even had a temporal connection been found between the initial lawful takedown and restraints it nevertheless does not follow that the slap was therefore done pursuant to that same power. That was said to be on the basis that the slap is itself a distinct act capable of being carried out concurrently during the course of another act. Counsel for the appellant made a similar submission albeit with less conviction in relation to the throw and the shove.
Counsel for the respondent submitted that there was a fundamental flaw in the approach adopted by the appellant on this ground of appeal in that it inverts the correct approach by starting with an assumption that there was a gratuitous act of violence, rather than by considering the conduct in the broader context of the nature of the duties that were being undertaken over this period.
It was suggested that the starting point for consideration should instead be that the respondent had powers, functions and duties that involved taking steps to prevent the complainant from self-harm, and had legal authority to use reasonable force for that purpose. Any physical conduct so characterised would constitute a “lawful excuse” and therefore would not amount to an assault.
It is correct that if the respondent used reasonable force in an effort to reduce or avoid risk of Canella’s self‑harm, his conduct was authorised and lawful without more. The respondent had powers, functions and duties that involved taking steps to prevent the complainant from self‑harm and had legal authority to use reasonable force for that purpose. Any physical conduct so characterised would constitute a “lawful excuse”[26] and therefore would not amount to an assault. Had the Magistrate commenced with consideration of that question and found that the respondent had used reasonable force, he would have needed to go no further.
[26] Section 86 Correctional Services Act 1982 (SA).
Section 65 confers an additional layer of protection from personal liability, available even where a different view is taken as to the degree of force employed, or the proportionality or appropriateness of the steps undertaken. The evidence of the respondent could not have been clearer in that he at all times was acting pursuant to his duties as a cell guard to ensure the safety of the complainant.
The Magistrate had the natural advantage over this Court conducting a review of the record in that he had the opportunity to observe the respondent in the witness box. He found the respondent’s evidence compelling. Significantly the Magistrate also found that the respondent did not seek to minimise his actions; rather he maintained that they were driven by his belief that the safety of the complainant was at risk. This led to a positive finding that the respondent’s actions were singularly taken to reduce the risk of self-harm to the complainant whilst in lawful custody.
As I have said the appellant relies on the CCTV footage to make the submission that it was not open to the Magistrate to arrive at that finding.
I do not accept that submission.
Whilst the conduct that is the basis of the three charges appears forceful, the respondent’s conduct is not of a such a nature that it can necessarily be said to amount to a gratuitous assault. The throw and the shove are not of a dissimilar nature to the manoeuvres captured earlier in the footage which the appellant accepts were lawfully engaged in to bring the respondent to the ground. Whilst of course it must be said that every action has to be considered in the context of the events that were occurring at the relevant point in time care must be taken to avoid the benefit of hindsight and also an artificial second by second analysis of the video footage. That is particularly so in the circumstances in which the footage is taken from a different angle from that which could be seen by the respondent and with no audio recording of what was being said between the parties.
A real issue arises with the ability to pause, replay and reconsider the footage in the calm light of day looking for an assault, finding one and holding the respondent to an unreasonably high standard. By characterising the conduct as a “slap”, “throw” and “shove” from the outset creates a risk of adopting an approach that involves looking to find conduct of that nature rather than objectively considering the respondent’s conduct as seen in the CCTV in the context of the other evidence that was given and the challenges that the respondent was facing at that point in time.
One of the very purposes of s 65 is to avoid the risk that a police officer will be distracted or dissuaded from their duty by inadvertently overstepping the mark particularly in the heat of the moment.
The fact that other police officers may have adopted a different approach is not to the point, it is the respondent’s state of mind that is the focus of the relevant test.
There will always be a degree of imprecision in efforts made by a police officer to physically restrain an individual who is behaving in a defiant manner. It is significant that there is no objective limb to the test set out in the section other than that the conduct occurred in the exercise or discharge or the purported exercise or discharge of a power duty or function.
In my view it cannot be said that it was not open for the Magistrate to conclude that the conduct that is subject of the three counts was undertaken at least in the purported exercise or discharge, of a power, duty or function of the respondent. Even though the force utilised may have been beyond what which was “reasonably necessary”[27] to deal with the situation confronting the respondent it does not deprive him of the protection arising under s 65 from criminal liability. Had the degree of force been reasonably necessary the respondent would not have been required to fall back on s 65.
[27] Section 86 Corrections Services Act.
This limb of ground 1 has not been made out.
Ground 1.2
Was it open to the Magistrate to find that the charged acts were “honest acts?”
The question that arises for consideration under the second limb of Ground 1 is whether it was open to the Magistrate to find that the respondent honestly believed that he undertook the relevant conduct in the exercise or discharge of his duties.
The Magistrate found the respondent to be a witness of truth. He had no cause to doubt his motive, sincerity, professionalism and credibility. The Magistrate also made the observation that the respondent gave his evidence in a frank and measured manner, his responses were plausible whilst under cross examination and he remained firm in his denials of wrongdoing.
It was for the appellant to prove that it was not a reasonable possibility that the respondent held an honest belief that his conduct was carried out in the exercise or discharge or purported exercises or discharge of a power etc.
The phrases “honest act or omission” is not defined by the Police Act. It must therefore be given its plain and ordinary meaning having regard to the context in which it appears and should be construed in a manner that best achieves the purposes of the act. The purpose of the Police Act provides no reason to depart from the ordinary and natural meaning of the words.
In relation to this ground the appellant’s submissions focussed on various criticisms that could be made of the respondent’s account. These included matters such as an admission by the respondent that the slap was not an authorised police manoeuvre, at the critical times the complainant was handcuffed and there were periods of time during which the complainant was not demonstrating self-harming behaviour.
Whilst these are all legitimate observations neither individually or in combination were these matters of such significance that it was incumbent for the Magistrate to reject the respondent’s account as to his state of mind beyond reasonable doubt. It certainly is not the case that these matters were of such importance that they demonstrated a manifest error on the part of the Magistrate in accepting that the respondent held an honest belief.
The appellant was particularly critical of the respondent’s evidence about his emotional state and his feelings towards the complainant leading up to and during the alleged assaults. The respondent gave evidence that at the relevant time it was possible that he was feeling frustrated with the complainant. He said: [28]
I would say that there is a good chance at that stage I was frustrated that he continued to pose a threat to himself and kept ignoring my directions
[28] TT 161.
In cross examination it was put to the respondent that he was “excessively rough” with the complainant because of his frustrations. The respondent replied:
I dealt with Mr Canella as I deal with all detainees. There was nothing special or different about this case and I used the force that I thought was reasonable and proportionate [sic] in that time. [29]
[29] TT 165.
The respondent went on to provide a further explanation:[30]
I wasn’t upset with him. I’m used to people doing that. It is frustrating to deal with that but I wasn’t upset.
[30] TT 168.
On numerous occasions in cross examination the respondent continued to accept that the situation had become frustrating particularly towards the end of the evening. When it was put to the respondent that he applied excessive amounts of force because he was angry at the complainant for behaving obnoxiously, he responded:[31]
“I disagree. To me it was a standard night in the cells. He was not different to any other person that I dealt with. I wasn’t angry. I did what I thought was necessary, reasonable and safe for him”
[31] TT 179.
The appellant submitted that the Magistrates positive finding that it was an honest act which was “singularly taken to reduce the self-harm to Canella while in custody and nothing more…” overlooked in a material way “the evidence of the respondent’s frustration, the level and method of force applied, inconsistencies within the respondent’s evidence and the obvious interferences that flow from the CCTV”.[32]
[32] Appellant’s written submissions at [31].
Effectively it was the appellant’s contention that the respondent’s sworn evidence should have been disbelieved on the basis that the risk of self-harm had abated at the time of the alleged assaults and consequently it must follow that the respondent was purely motivated by anger and frustration.
There are two difficulties with this submission. The first is that whilst this was an argument that was open to be made, that is very different to a submission that it was not open to the Magistrate to find that even as a reasonable possibility the respondent’s primary motivation was to protect the complainant from self-harm. The Magistrate was in the ideal position to make such an assessment having heard and observed the evidence of not only the respondent but of the other witness. As Olsson J observed in Dempsey v Coombe:[33]
It must always be borne in mind that, in a case such as that at bar the ultimate conclusions of fact arrived at are necessarily the product of an evaluation and weighting of the net impact which the conflicting testimony of a series of witnesses made upon the learned magistrate at the close of the hearing. It is this intangible aspect constituting the ‘atmosphere’ of the case which is extremely important in the fact finding process and is denied an appellate court.
[33] Dempsey v Coombe (Northern Territory Supreme Court unreported judgment No 8273 delivered 26 June 1985).
An appellant court necessarily finds itself in a position of disadvantage as against the Magistrate at first instance, and, unless it can be shown that he or she has failed to use or notably misused their advantage, the appellant court ought not to take on the responsibility of revisiting conclusions so arrived at, merely on the basis of its own comparisons and criticisms of the witnesses and its own view of the probabilities of the case based upon an analysis of the printed transcript.
The second difficulty with this submission is that it involves a very black and white approach. At its genesis is an assumption that actions undertaken whilst experiencing a degree of frustration, cannot have been undertaken as a consequence of an honest belief that the conduct was necessary. That clearly cannot be so. In my view the various concessions made by the respondent about his frustrations in dealing with the complainant do not undermine his firm denials that this was the primary or motivating factor in the manner in which he dealt with him.
It was well open to the Magistrate to come to the view that the respondent held an honest belief that the conduct that he engaged in was pursuant to the exercise or discharge of his power, function or duty. This is not a case in which a manifest error has been demonstrated, nor can it be said that the findings of the Magistrate were plainly wrong on any reasonable interpretation of the evidence and any inferences which arise from it.
This ground of appeal has not been established.
Grounds 2 and 3
Adequacy of Reasons – Legal Principles
The remaining two grounds of appeal relate to the adequacy of the reasons provided by the Magistrate for arriving at his verdicts.
A “Judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”.[34] This applies equally to a magistrate presiding over a trial. This judicial obligation to provide reasons for a decision is important, both for facilitating a party’s right to appeal,[35] and as a matter of public accountability. The parties and public are entitled to know how and why the court made a particular decision.[36] A failure to provide adequate reasons amounts to an error of law.
[34] Douglass v The Queen (2012) 86 ALJR 1086 at [8].
[35] Fleming v The Queen (1998) 197 CLR 250 at [22].
[36] R v Keyte (2000) 78 SASR 68 at [43].
If a Judge or Magistrate was not required to give reasons, then an appellate court would not be able to identify whether the judge or magistrate correctly applied the principles of law.[37] In a paper titled “The Judicial Method: Essentials and Inessentials”[38] the Hon AM Gleeson AC identified the function of the provision of judicial reasons.
Reasons serve a number of purposes. They promote good decision-making by requiring a decision-maker to explain and justify an outcome. They inform a losing party of the reasons for failure. They allow an appellate court to identify possible error and correct possible injustice. They inform the public of the way judicial power is exercised. The adequacy of a statement of reasons for a decision is judged by reference to these purposes.
[37] Ibid at [38].
[38] (2019) 9 The Judicial Review 377 at 384.
The adequacy of reasons should be considered on a case-by-case basis because the content and detail of reasons will vary,[39] however an appellate court should not have to speculate as to what a Judge or Magistrate might have meant, especially on an important issue.[40] The adequacy of reasons will depend upon the forensic contest between the parties and an assessment of the issues in the case—including the extent to which they were relied upon by the parties, their bearing upon the elements of the offence, and their significance to the course of the trial.
[39] DL v The Queen (2018) 266 CLR 1 at [32].
[40] Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [119].
Reasons for a decision are to be read as whole and a Judge or Magistrate does not need to provide lengthy or elaborate decisions.[41] However, that reasoning cannot be satisfied by a bare statement of both of the principles of law applied by a judge or a magistrate, and the finding of fact made,[42] and reasons will not always be adequate simply because they reveal a chain of reasoning that leads to a conclusion.[43] What is required is a “careful assessment of all the relevant facts, and where necessary, an explanation as to how the “inconvenient” facts can be put to one side or given little weight”.[44]
[41] R v Ricciardi (2017) 128 SASR 571 at [25].
[42] Fleming v The Queen (1998) 197 CLR 250 at [28].
[43] Macks v Visacriello (2017) 130 SASR 1 at [523].
[44] Ibid.
It is however important to remain cognisant that the Magistrates Court is a court of summary jurisdiction. In almost all cases a short succinct statement of the essential process by which a Magistrate has reached his or her decision will be enough.[45] It does however remain an important part of the Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purposes of reaching a verdict.[46]
[45] Rowland v Police (2001) 79 SASR 569 at 573; see also Allison v Police [2005] SASC 447 at [59].
[46] Donges v Ratcliffe [1975] 1 NSWLR 501 at 507.
Ground 2
The Magistrate erred in the application of section 65(1) of the Police Act (SA) in that having identified the “power function or duty” the defendant was exercising or discharging (or purporting to exercise or discharge), his Honour failed to properly consider or make adequate findings as to whether the acts which were the subject of the charges were done in the exercise or discharge of that “power, function or duty.”
It was the appellant’s submission that the reasons of the Magistrate go no further than essentially identifying “the power” conferred on police officers exercising powers or functions to manage prisoners in custody, consistent with the general purposes or core functions of a police officer as provided by s 5 of the Police Act and pursuant to General Orders made under s 11 of the Police Act. Further that there was an inadequate interrogation of how the charged acts, and the context in which they occurred, fell within the scope of the powers and functions conferred upon police pursuant to their core functions and purposes under the Police Act, the Correctional Services Act or more specifically, under the relevant general order for managing prisoners in custody.
It was the respondent’s submission that although the Magistrate did not deal with this issue separately in relation to each count it is plain from the reasons that the Magistrate was satisfied that at all times the respondent was acting with a view to reducing the risk to the complainant whilst he was in custody.[47] That in turn identified a duty together with the correct powers, functions and duties that was the basis for the s 65 immunity.
[47] DPP v Scibilia [138].
There is some force in the argument made by the appellant. Whilst the Magistrate’s judgment is relatively lengthy the vast majority comprises of a history of the proceedings and a summary of the evidence. The Magistrate’s analysis of the “power, function or duty” that the respondent exercised or purported to exercise is contained in paragraphs [124]–[127] of the judgment.
In those paragraphs the Magistrate sets out the following:
·It was agreed that the respondent was on duty as a police officer exercising or purporting to exercise the responsibilities of a cell guard.
·Section 5 sets out the core functions of SA Police and refers to the General Order for Custody Management.
·It was clear from the evidence that the only reason that the respondent was interacting with the complainant was in the course of his duties as a cell guard and that on the evidence it was clear that the complainant failed to follow directions to prevent the ongoing risk of harm to himself.
·That was the basis upon which the respondent interacted with the complainant and the basis upon which the respondent held the belief “that what was done was to stop the ongoing attempts at self-harm and/or failure to follow directions to that end.”
The Magistrate concluded that:
…throughout his dealings with Canella, the evidence supports a finding that the defendant honestly and genuinely believed that he was exercising or purporting to exercise the power or function to manage a prisoner in custody under the General Order Custody Management consistent with the discharge of the core functions reposed in him as a police officer under s 5 of the Police Act 1988.
There was no further attempt by the Magistrate to apply these broader general findings to the critical facts in issue. There was no attempt to explain the link between the charged conduct and the power, function or duty exercised or purported to be exercised.
This was an important part of the Magistrate’s reasoning given that although close in time, there were three counts that involved three separate entries into the cell. On each occasion the complainant was presenting a particular challenge to the police which may or may not have resulted in the respondent holding a belief about the nature of the conduct that it was necessary that he employ to meet circumstances at that point in time.
Of particular significance was the failure of the Magistrate to consider each count separately. It is a fundamental principle in the criminal law that each charged offence should be the subject of separate consideration. This case is illustrative of why that is so. Each count involved different conduct undertaken by the respondent that on his evidence he had engaged in to prevent the complainant from self-harming. It was a critical step in the Magistrate’s reasoning to identify the relevant conduct of the respondent and the basis upon which he found that it was undertaken in the exercise or discharge (or purported exercise or discharge) of a power, function or duty. It was open to him, for example, to find that the immunity applied to one of the counts but not the others.
Despite detailed submissions by trial counsel for the appellant, dealing with each count separately there is nothing in the Magistrate’s reasons that indicates that individual consideration was given to the unique factors at play at the time of each of the charged acts. The reasons do not adequately reveal the basis for the Magistrate’s decision or express the specific findings that were critical to the determination of these charges. The Magistrate failed to explain his conclusions on what were significant factual and evidential disputes that were necessary steps to his final conclusion. The failure to do so amounted to an error of law.
Ground 3
The Magistrate failed to provide adequate reasons for finding that the immunity from criminal liability in section 65(1) of the Police Act 1988 (SA) applied to the conduct of the defendant that was the subject of the charges.
The focus of the submissions on this ground of appeal was the Magistrate’s finding that the respondent held an “honest belief” that he was acting in the exercise of relevant power. It was submitted by the appellant that the Magistrate failed to provide adequate reasons for arriving at the view that the respondent held in good faith a state of mind wherein he was acting pursuant to any authority.
The Magistrate correctly identified that for the claim to fail it was for the prosecution to establish that the respondent did not at the time have a genuine belief that what he was doing warranted the exercise of his powers, functions, or duties. The Magistrate identified that this question had to be determined by a consideration of not only the respondent’s evidence but also all of the surrounding circumstances. The Magistrate commenced consideration of this issue by canvassing the evidence that established that the respondent was highly experienced, professional and well regarded and further that none of the police witnesses had been critical of his conduct during the evening in question. Against that backdrop the Magistrate considered the respondent’s evidence in cross‑examination that he had no other motive for his actions, he did what he thought was necessary and safe for the complainant, he was “just doing [his] job”.[48]
[48] DPP v Scibilia [97].
The Magistrate found that during the conduct that was the subject of the charges the evidence supported that the respondent’s focus was on the welfare of the complainant and on managing him to reduce the risk of self-harm. The Magistrate identified and set out the evidence of the respondent’s conduct which he had relied upon to arrive at that finding. That evidence was:
·Encouraging the complainant to remain seated on the floor away from the door.
·Encouraging the complainant to remain still and thereby discouraging his self-harming behaviour.
·Placing the complainant in a monitored padded cell for his own protection and at the complainant’s request due to self-harming behaviour.
·Offering to return the complainant to a standard cell and give him food if he improved his behaviour.
·Facilitating a phone call to try and find a bail address in order to have the complainant released.
·Repeatedly warning the complainant to stay away from the door, which was a known area of risk.
·Engaging the complainant in conversation through the door to build rapport.
·Entering the monitored padded cell aware that the CCTV would capture all of his actions.
·Leaving the monitored padded cell door ajar when entering the cell.
·Placing the complainant in handcuffs behind his back to avoid him seeking out of the peephole to self-harm.
·Physically interacting with and subduing the complainant to discourage him from wandering around the monitored padded cell undertaking self‑harming maneuverers.
Based on these aspects of the evidence the Magistrate made the following finding:[49]
Each of these actions, together with the cumulative effect of these actions, had clear success and I am satisfied that the defendant’s continuing actions reflect his only focus of keeping Canella safe on his watch.
[49] DPP v Scibilia [135].
The Magistrate accepted that the complainants conduct towards the end of and after the conclusion of the respondent’s shift, in moving his handcuffs to the front, scratching his nose to make it bleed and the smearing the blood on the cell walls was a manifestation of his intent to self-harm. Consequently, the Magistrate found that this evidence lent support to the conclusion that the respondent’s beliefs and actions were well founded.[50]
[50] DPP v Scibilia [136]-[137].
Having set out the evidence upon which he relied the Magistrate expressed findings about whether the respondent held an “honest belief” in the following terms: [51]
Undertaking an assessment of the defendant’s state of mind, having regard to all of the evidence, I find that the defendant’s actions were singularly taken to reduce the risk of self‑harm to Canella while in lawful custody and nothing more and that the defendant honestly believed that he had lawful authority to do so. Whether or not he was mistaken in that belief I find that he honestly held that belief and acted in good faith at all times.
[51] DPP v Scibilia [138].
The appellant identified a number of matters that had been raised in submissions that suggested against the respondent holding the belief that the use of force was necessary to meet the risk that presented.
The prosecution relied on a number of pieces of evidence in support of the contention that the respondent’s conduct was borne out of frustration, or “a feeling of irritation towards the prisoner” rather than acting with a lawful exercise.
It was submitted by the appellant that the Magistrate did not sufficiently disclose how he arrived at the conclusion that the prosecution did not prove that the respondent was acting dishonestly or how he arrived at the conclusion that the charged acts were carried out in good faith. In particular the Magistrate made no reference to the following matters raised by the prosecution:
·That the respondent had acted by using force at the end of the shift (close to 11.00 pm) against the background of experiencing ongoing frustrating behaviours on the part of the complainant.
·The nature of the physical acts underpinning the assaults reflected a degree of emotional excitement and frustration in the face of ongoing disruptive behaviour.
·The circumstances in which the assaults were alleged to have occurred, namely after the complainant had been restrained in a padded cell made it unlikely that the respondent felt that it was necessary for him to respond in the manner that he did.
·The three alleged assaults were committed within in a short period of time with the respondent immediately leaving the cell, after the relevant act. It was submitted that the quick succession of assaults was consistent with someone acting in circumstances of emotional excitement or frustration rather than acting in a manner that reflected necessary preventative conduct.
·In the lead up to the three assaults the complaint was not acting in a manner that would cause concern about his risk of self-harm. His behaviour reflected a lack of respect for the respondent’s authority and was attention seeking.
·The respondent’s entries on the custody log reflected a degree of focus on the complainant’s lack of respect for his authority and travelled beyond observations necessary to record any risks that the complainant presented. The records give rise to an inference that the respondent had become focussed on the complainant’s attitude to him, and he was emotionally responding to the complainant’s inflammatory behaviour.
·The respondent’s level of experience as a cell guard was tied to the level of trust he held in the cells. He could act with confidence that his conduct would not be met with reproach by his senior officer. By inference, this level of trust meant that the respondent was emboldened to apply force to the complainant, knowing that he would not be met with by reproach for his behaviour.
It was the appellant’s submission that the evidence proved that the respondent assaulted the complainant out of frustration and was sufficient to rebut any claim of honest belief beyond reasonable doubt. It was submitted that it followed that the Magistrate was required to directly deal with those matters raised by the appellant in support for the finding that the respondent did not hold the requisite honest belief.
Whilst it is correct that the Magistrate did not individually address each of the points raised by the appellant in my view given the nature of the issues it was not necessary for him to do so. By arriving at the positive findings that he made it was necessarily implicit that those matters relied upon by the appellant were not capable of negating that it was reasonably possible that the respondent honestly held the requisite belief.
Given the nature of the matters raised by the appellant it was not necessary for the Magistrate to positively reject them in arriving at the finding that he accepted that the respondent held the belief. It comes back to the fact that fatigue and frustration do not necessarily mean that the respondent’s conduct was some form of retribution or payback for the complainant’s bad behaviour.
In all of the circumstances I am of the view that the Magistrate’s reasons adequately disclosed the basis upon which he arrived at the conclusion that the respondent held an honest belief that he was acting in the exercise of a relevant power, function or duty.
This ground of appeal is dismissed.
Disposition of the appeal
I am satisfied that an error has been identified in relation to Ground 2. The question that then follows is whether the appeal should be allowed.
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA). This section provides that:
(1) “A party to a criminal action may, subject to the section and in accordance with the rules of the appellate court, appeal against any judgment given in the action, (including a judgment dismissing a charge of summary or minor indicatable offence but not any judgment arising from committal proceedings).”
In the case of the prosecution appeal against an acquittal based upon a Magistrate’s finding of a reasonable doubt, the Court in recognition of the principle against exposing a defendant to double jeopardy acts with restraint. In particular, an appeal against an acquittal which involves issues of fact, or which the conclusions at first instance depend upon the Magistrate’s assessment of conflicting testimony, requires appellate restraint. The position was succinctly summarised by Zelling J in Thorogood v Warren:[52]
The fact is that appellate courts have rightly been very reluctant to interfere with a verdict of acquittal based on a reasonable doubt. A finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance, and neither of those things are readily susceptible to review by an appeal court.
[52] Thorogood v Warren (1979) 20 SASR 156 at 159.
It must be kept firmly in mind is that the respondent has already been in jeopardy before the Magistrate, who found him not guilty on the basis of his assessment of the evidence of all of the witnesses but particularly that of the respondent. On that basis the Magistrate was prepared to entertain a reasonable doubt.
In my view the Magistrate failed to provide adequate reasons as to how he came to the finding that the subject acts were done in the exercise or discharge or purported exercise or discharge of a power, function or duty of a police officer. In circumstances in which I have found that it was open for the Magistrate to be so satisfied I place considerable weight on the fact that the respondent has been tried and acquitted. Further the applicant has not established that there has been a miscarriage of justice. In my view this is an appropriate case for the exercise of significant judicial restraint, albeit that an error has occurred. Whilst it may be said that a conviction on a retrial is not inevitable given the nature of the error identified it is so highly likely that the respondent would again be acquitted that I exercise my discretion to dismiss the appeal.
The appeal is dismissed.
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