Fitzgerald v Police No. Scciv-02-430 - [2002] SASC 202

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fitzgerald v Police No. Scciv-02-430

Details

AGLC: Fitzgerald v Police No. Scciv-02-430 [2002] SASC 202
Case: [2002] SASC 202
Decision Date: 28 June 2002

CaseChat Overview and Summary

The matter before the court was an appeal against the convictions and orders made by a magistrate against Peter Fitzgerald, who was charged with assaulting police officers and resisting arrest. The case was heard in the Supreme Court of South Australia, where the appeal was ultimately allowed. The appeal centred on the legality of the process through which the convictions were obtained and the subsequent orders made by the magistrate. The appellant argued that there were procedural errors in the handling of his arrest and charges, which in turn rendered the convictions and orders unlawful.

The primary legal issues that the court had to address included whether the appellant's rights were properly respected during his arrest and whether the magistrate had jurisdiction to make the orders in question. The court also examined whether the evidence presented was sufficient to support the convictions and orders, and if the process complied with statutory requirements. The appellant's counsel argued that there were significant procedural breaches, including an unlawful arrest and a failure to comply with statutory requirements regarding the recording of interviews. The court needed to determine if these alleged breaches were indeed material and whether they affected the validity of the convictions and orders.

The court found that there were procedural errors in the handling of the appellant's arrest and charges. The evidence suggested that the police did not have a reasonable suspicion to arrest the appellant, which meant the arrest was unlawful. Additionally, the court found that the statutory requirements for recording interviews were not followed, which further undermined the legitimacy of the evidence obtained. These procedural errors were deemed significant enough to impact the fairness of the proceedings and the validity of the convictions. Consequently, the court set aside the convictions and orders, and the matter was remitted for re-hearing before another magistrate to ensure that all legal and procedural requirements were properly observed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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 APPEAR1 The information was in the following terms:“ On the 14th 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 14th 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 14th 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 14th 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 4163 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 3064 (2000) 77 SASR 2105 Counsel for the appellant did not seemingly encounter difficulty when seeking to identify error.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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