Fitzgerald v Police No. Scciv-02-430

SA POLICE v FITZGERALD
[2002] SASC 202
Magistrates Appeal
GRAY J This is an appeal against conviction.
Background

The appellant, Peter Fitzgerald, was found guilty by a learned magistrate (“the magistrate”) of two counts of assault and one count of resisting members of the police force in the execution of their duty[1]. He pleaded guilty to the further charge of failing to provide his full name and address.
[1] The information was in the following terms:
The magistrate outlined the general circumstances of the incident:
“The charges arose out of an incident at Albert Street, Clarence Gardens, in the vicinity of the Hell's Angels motorcycle clubrooms. The defendant was a rear-seat passenger in a small, Datsun sedan which at about 11 p.m. on the evening in question, was being driven by Mrs Arwen Foote, a friend of the defendant, out of a hotel car park, situated directly opposite the clubrooms, and onto Albert Street in an easterly direction. The occupants of the Datsun were; Mrs Foote (the driver); Diane Morgan (the defendant's partner) seated in the left, front passenger seat; Stephen Joseph Foote (Mrs Foote's husband) in the left, rear passenger seat and the defendant was seated in the right, rear passenger seat. All four occupants were of substantial weight and size, with both males exceeding 100 kilograms each and the Datsun sedan was a small, 1976 four cylinder Datsun 120Y. All occupants were friends for many years through their involvement in the transport industry. The Footes and the defendant were interstate truck drivers.
On the day in question, the Footes, the defendant and Morgan, had attended a funeral of a mutual friend in the trucking industry, which was proceeded with a wake at the Hell's Angels motorcycle clubrooms, where alcohol was consumed by the defendant and Morgan and they therefore decided not to drive home. It was arranged that Mr and Mrs Foote would pick them up from the club and drive them home. On the day in question, because of the involvement of the Hell's Angels motorcycle club, there was a heavy police presence in the area, including members of the police Star Force division.
As the Datsun travelled out the car park and onto Albert Street, the occupants were aware of the presence of police in the general vicinity. The Datsun had travelled only a short distance along Albert Street over some speed humps, when it was pulled over by a police patrol. Mrs Foote pulled up in the entrance or apron of a disused service station, just off Albert Street. The police officers informed the occupants of the Datsun that they wished to examine the vehicle for possible defects and wanted the occupants to alight from the car to facilitate that. Mr and Mrs Foote complied with the request and alighted, however the defendant and Morgan refused to get out. Senior Constable Thomas then proceeded to examine the car. In the meantime, another police patrol car had also pulled up at the scene.
Thomas said that he had asked the defendant several times to alight from the vehicle, but he categorically refused and became abusive. So he decided to leave him there and he leaned into the car, through the open, left rear door to continue with his inspection and work around the defendant. He asked the defendant to move across to the left, so that he could proceed with the examination and it was then, he alleges, that the defendant punched him several times to the head and upper part of his body. The defendant was then advised that he was, 'Under arrest for assault police' and he was dragged out of the car. The defendant denies punching Thomas and says that when he refused to get out, he was forcibly removed from the car.”
The magistrate accepted the evidence of the police officers and rejected the evidence of the appellant and the occupants of the car. He found the appellant guilty of all three charges.
Issues on Appeal
Counsel for the appellant’s primary complaint was that the magistrate erred in his approach to the acceptance and rejection of the witnesses’ evidence. The magistrate reasoned:
“[Counsel for the Defendant] also made much of the fact that there were inconsistencies in the evidence of the police about the defendant using a jacket to cover his face when he was sprayed with capsicum spray on exiting the vehicle. The evidence clearly indicated that there was no jacket, however, it became clear that the defendant did cover his face with his shirt, when sprayed.
...
[Counsel] also contends that there was conflicting testimony from police officers, as to the manner in which the defendant was restrained with handcuffs. Some conceded that apart from his hands being handcuffed behind his back, his ankles were also restrained with flexi cuffs and that he was bodily lifted off the ground and slid, head first, into the caged car. Other officers were either not sure of this or denied that he was restrained by his ankles, some suggesting that he may have walked to the caged car. I accept that there were these discrepancies or inconsistencies in the evidence of the police officers, however, I am not convinced that these inconsistencies in any way affect the veracity of the officers' testimony, with respect to the behaviour and actions of the defendant. In fact, it shows that the officers had not put their heads together before giving evidence in court and come up with a consistent version.
I accept the officers’ version of the incident involving the two assaults and the resist arrest, whereas on the other hand, the evidence of the defendant and his witnesses suffered from reconstruction and embellishment and exaggeration, in an attempt to portray the police in the worst possible light. However, I do not wish to convey the impression that the police conduct during the course of restraining the defendant and his subsequent conveyance to the Sturt Police Station is totally beyond reproach, but it is not an issue for this court’s determination.”
The critical issue for the magistrate to decide was whether the Crown had proved beyond reasonable doubt that the incident occurred in the manner described by the police officers. The defence case was such that an incident did not occur or there was at least a reasonable possibility that the incident did not occur in the way described.
The magistrate was faced with significantly different versions of the events. He accepted that there were inconsistencies and discrepancies in the police evidence but concluded that they did not affect the “veracity” of their “testimony”.
By approaching his assessment of the police officers’ evidence in this way, the magistrate limited his consideration to whether the inconsistencies had an effect on the veracity of the police witnesses. He failed to consider whether the inconsistencies were relevant to an assessment of the police officers’ reliability. He failed to ask himself whether, despite the inconsistencies, the police were honest but mistaken or unreliable for some other reason.
A finding that a witness is a truthful witness does not mean that the witness’s evidence is necessarily reliable. Unreliability may lead to reasonable doubt. In Harris v Mill[2] von Doussa J discussed the risk of misapplying the onus of proof arising from a magistrate’s observation that the, “key issue is who to believe”:
“In a sense the key issue in many trials is credibility, but to pose the question as ‘who to believe’ is apt to be misleading and to cause a tribunal in a criminal trial to fall into error of the kind exposed in R v Calides (1983) 34 SASR 355. There is a very real risk that the enquiry will become:
‘Which of the parties giving the competing stories is to be preferred’.
The preference of the victim’s evidence to that of the defendant, even where the defendant’s evidence is in consequence rejected, leaves unanswered the essential question whether the tribunal is satisfied that every element of the charge is proved beyond reasonable doubt. Generally speaking, the rejection of the defendant’s evidence does not provide positive proof of guilt. The preference of the victim’s evidence does not lead inevitably to a conclusion that his or her evidence should be accepted as proof beyond reasonable doubt.
Even a finding that the victim was a truthful witness does not mean that the victim’s evidence is necessarily reliable. The victim might be patently honest yet mistaken, or through faulty memory unreliable in respects which leave open a reasonable doubt about the defendant’s guilt.”
[2] Unreported, SASC 7 April 1988 S 592 per von Doussa J - approved and applied in Selig v Hayes (1989) 52 SASR 169; Burlinson v Police (1994) 75 A Crim R 258; Khammash v Police (2000-01) 212 LSJS 416
The credibility and reliability of each of the witnesses to the incident was critical to the determination of the ultimate issue in the case – the guilt of the appellant. Proof beyond reasonable doubt could not be established without a consideration of the question of reliability. In this case the magistrate considered only the issue of truthfulness and in doing so spoke of not being convinced that the police officers were untruthful.
The magistrate’s use of the phrase “not convinced” was inappropriate. He appears to have required the defence to convince him that the police had lied or in effect prove that the appellant’s version was the correct version. The defendant was not required to prove anything. The Crown carried the burden of proof. The Crown had to prove that the appellant acted in the manner alleged sufficient to prove each element of the crime alleged. The approach of the magistrate involved a reversal of the onus of proof.
Further the magistrate was incorrect to conclude that the inconsistencies in the police evidence demonstrated that they did not put their heads together prior to giving evidence. This may be the case, however the magistrate failed to consider the possibility that the police officers could have done so but were unable to maintain a consistent story when giving evidence.
A further complaint related to the magistrate’s finding about the reason for the police stopping the vehicle:
“[Counsel] for the defendant, suggested that there was a more sinister motive in stopping the car and that it had nothing to do with a roadworthiness check. I totally disagree with these assertions because there is no evidence at all to support them. I am wholly satisfied with the testimony of Thomas and Epps on this issue and on that evidence I conclude that the officers were lawfully exercising their power under s 160 of the Road Traffic Act in stopping the vehicle and carrying out an examination of the vehicle.”
Counsel for the Crown conceded that there was evidence capable of supporting defence counsel’s submission that there were other motives for stopping the vehicle. However it was submitted that the magistrate intended to say that there was no evidence that he found acceptable to support the assertions. This was an important issue in the case. Its resolution had a relevance to the wider issue of the credibility and reliability of the police officers. The magistrate did not take into account relevant evidence in making this finding.
Counsel for the Crown accepted that the magistrate had erred. However it was said that the errors did not lead to the conclusion in this case that there had been a miscarriage of justice. It was submitted that this court should not be overly critical or analytical when looking at the wording used by the magistrate.
I reject this submission. The magistrate has engaged in inappropriate reasoning. His analysis of the evidence was unsatisfactory. He failed to have regard to relevant facts. His reasons demonstrate that he has not properly weighed all the relevant considerations[3]. Error has been demonstrated. There was a risk of a miscarriage of justice.
[3] State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
It was also complained that the magistrate failed to give adequate reasons for rejecting the appellant’s evidence and that of the occupants of the car. It was said that this led to particular confusion about the evidence of Mr Foote. He was one of the occupants of the car. Mr Foote was a Crown witness but it appears that the magistrate believed that the appellant had called him as part of the defence case.
The need for adequate reasons was discussed in Papps v The Police[4]. The magistrate’s reasons disclose the basis for his rejection of the evidence of the appellant and the occupants of the car. However there is no analysis to support his conclusion that the defence witnesses had reconstructed, embellished and exaggerated their evidence. This case could be described as a borderline case. Sufficient reasons were given to allow the appellant to understand the basis of the magistrate’s findings and for counsel to fairly argue the appeal[5]. However ideally, a more detailed explanation should have been provided.
[4] (2000) 77 SASR 210
[5] Counsel for the appellant did not seemingly encounter difficulty when seeking to identify error.
For these reasons this appeal must be allowed. The convictions and the consequential orders of`the magistrate are set aside. The matter must be remitted for re-hearing before another magistrate.
LIST OF JUDGMENT CITATIONS AS THEY APPEAR
1 The information was in the following terms:
“ On the 14^th day of February 2001 at Clarence Gardens in the said State [Peter Fitzgerald] assaulted Peter Brett Thomas as a member of the police force in the execution of his duty.
Section 6(1) of the Summary Offences Act 1953.
On the 14^th day of February 2001 at Clarence Gardens in the said State [Peter Fitzgerald] assaulted Steven Ronald Norman a member of the police force in the execution of his duty.
Section 6(1) of the Summary Offences Act 1953.
On the 14^th day of February 2001 at Clarence Gardens in the said State [Peter Fitzgerald] resisted Peter Brett Thomas, Steven Ronald Norman and Richard James Miller members of the police force in the execution of their duty.
Section 6(2) of the Summary Offences Act 1953.
On the 14^th day of February 2001 at Bedford Park in the said State [Peter Fitzgerald] being a person reasonably suspected by Peter Brett Thomas a member of the police force of having committed an offence namely Assault Police and Resist Police and having been required by such a member of the police force to state his full name and address refused or failed without reasonable excuse to comply with that requirement.
Section 74a(3)(a) of the Summary Offences Act 1953.”
2 Unreported, SASC 7 April 1988 S 592 per von Doussa J - approved and applied in Selig v Hayes (1989) 52 SASR 169; Burlinson v Police (1994) 75 A Crim R 258; Khammash v Police (2000-01) 212 LSJS 416
3 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306
4 (2000) 77 SASR 210
5 Counsel for the appellant did not seemingly encounter difficulty when seeking to identify error.

“ On the 14^th day of February 2001 at Clarence Gardens in the said State [Peter Fitzgerald] assaulted Peter Brett Thomas as a member of the police force in the execution of his duty.
Section 6(1) of the Summary Offences Act 1953.

On the 14^th day of February 2001 at Clarence Gardens in the said State [Peter Fitzgerald] assaulted Steven Ronald Norman a member of the police force in the execution of his duty.
Section 6(1) of the Summary Offences Act 1953.

On the 14^th day of February 2001 at Clarence Gardens in the said State [Peter Fitzgerald] resisted Peter Brett Thomas, Steven Ronald Norman and Richard James Miller members of the police force in the execution of their duty.
Section 6(2) of the Summary Offences Act 1953.

On the 14^th day of February 2001 at Bedford Park in the said State [Peter Fitzgerald] being a person reasonably suspected by Peter Brett Thomas a member of the police force of having committed an offence namely Assault Police and Resist Police and having been required by such a member of the police force to state his full name and address refused or failed without reasonable excuse to comply with that requirement.
Section 74a(3)(a) of the Summary Offences Act 1953.”

[2002] SASC 202

28 June 2002