Hall v Police

HALL V POLICE

[1999] SASC 197

Magistrate’s Appeal

LANDER J. The appellant was charged on two complaints. He was charged on the first complaint on 6 September 1997 with using offensive language in a police station. He pleaded guilty to that offence. He was charged with four further offences which were said to have been committed on the same day.
That he assaulted Garry Robert George Griffiths, a member of the police force, in the execution of his duty.

Resisted Garry Robert George Griffiths, a member of the police force, in the execution of his duty.

Drove a vehicle, namely a camel, on roads namely Shepherds Hole Track and the Common whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle.

Drove a vehicle, namely a camel wagon on roads namely Shepherds Hole Track and the Common whilst he was so much under the influence of intoxicating liquor as to be incapable of exercising effective control of the said vehicle.

He pleaded not guilty to all four charges on that second complaint and, in due course, the learned Chief Magistrate dismissed counts three and four. In fact he found no case to answer in respect of count three and dismissed count four after the completion of the defendant’s case.
However, the learned Chief Magistrate found counts one and two proven.
Without proceeding to conviction on count one he ordered the appellant to enter into a bond in the amount of $100 to be of good behaviour for a period of twelve months.
The learned Chief Magistrate dismissed the offence to which the appellant pleaded guilty without recording a conviction or entering a penalty.
The learned Chief Magistrate rejected the appellant’s application for costs in relation to the dismissal of counts three and four on the second complaint.

The Notice Of Appeal

In the appellant’s notice of appeal only two grounds of appeal were raised. They were:
“(a).. The finding of the learned Chief Magistrate as to guilt was against the evidence and the weight of the evidence in that he erred when finding there was corroboration for the prosecution witness, Sergeant Gary Griffiths’ evidence in the evidence Carmel Stapleton:
(b) Such further or other grounds of appeal in respect of a finding of guilt will be provided upon the advice of counsel.”
Subsequently the appellant filed amended grounds of appeal:
“1..... The Learned Chief Magistrate erred in refusing to award the Appellant his costs to the extent that he was successful in obtaining the dismissal of the Drink Driving charges.
2.The Learned Chief Magistrate erred in accepting the evidence of the witness, Stapleton, as corroboration of Sergeant Griffiths in that:-
2.1She stated in cross-examination that she could not really see whether the Appellant was tapping Sergeant Griffiths on the shoulder to get his attention or whether the Appellant pushed Sergeant Griffiths;
2.2The witness Stapleton further stated that she was too far away from them and could not really see anything.
3...... The Learned Chief Magistrate erred in finding that, on one reading of the transcript of evidence, the witness Stapleton’s evidence was consistent with agreeing that the Appellant might simply have tapped Sergeant Griffiths, then failing to give the Appellant the benefit of the doubt based on that concession, thereby failing to have regard to an hypothesis consistent with innocence.
4.The Learned Chief Magistrate failed to correctly instruct himself on the way in which he should use evidence of the witness Stapleton, which conflicted in cross-examination with what she said in chief concerning a tap or a push and which was consistent with the explanation given by the appellant.
5...... The Learned Special Magistrate failed to correctly instruct himself in the way in which he should use the evidence of the witness, Stapleton, in cross-examination, by accepting that there was evidence consistent with the Appellant’s version of events and failing to find that was a true departure from her primary evidence about this particular matter, is that it was inconsistent with her evidence-in-chief.
6.The Learned Special Magistrate erred in finding that there was corroboration sufficient to support the charge of Assault Police and that this charge should have been dismissed and consequently the charge of Hindering Police also.”
There was no objection by the respondent to the amended grounds of appeal and the appeal proceeded upon the basis of a consideration of those grounds.
The appellant in essence complained about the finding that counts 1 and 2 had been proved to the requisite level of satisfaction. He contended that the charges in both counts should have been dismissed. In addition he argued that the learned Magistrate should have exercised his discretion in the appellant’s favour and awarded the appellant his costs on counts 1 and 2.
All five counts arose out of a continuing set of circumstances which occurred on 6 September 1997 at Oodnadatta.

The Prosecution Case

The appellant is a teamster who owns and operates a team of camels. I think, ordinarily, he lives in Alice Springs but in September 1997 and for some months earlier he had been in Oodnadatta.
On 6 September 1997, a farewell function had been arranged for a builder who had been employed in Coober Pedy for about twelve months. On the night before a group of persons had purchased two kegs of beer for the function which took place at a water hole, Shepherds Hole, near Oodnadatta.
The appellant did not attend that function on that night but did attend the function which continued on to the next day namely 6 September 1997. He arrived at the function at 12.30 pm after he had completed work duties outside his teamster duties that morning.
There were not only kegs of beer at the function but there were also bottled and canned beer. The appellant had his first beer at 12:30 pm.
The undisputed evidence is that the appellant drank beer during that day at the water hole and later whilst being carried on the wagon which was being driven by his camel team.
I think it right to say that the appellant’s evidence was that he had five cans of beer and perhaps a glass of beer over a period of time up until about 5:30 pm. There was considerable dispute on the evidence as to the effect that alcohol had upon the appellant during that day and I will refer to that evidence generally in due course.
The Sergeant of Police stationed at Oodnadatta, Sergeant Garry Griffiths, had occupied the position of Senior Police Officer in the town for about two years. There were two other police officers under his command but they were absent from the town on the day in question.
The appellant and Sergeant Griffiths were known to each other. It was Sergeant Griffiths’ evidence that he had known the appellant for about two months. The appellant had come to his attention as soon as the appellant had first arrived in Oodnadatta because the appellant was driving a team of camels and a camel wagon. That generated a good deal of conversation in the town and Sergeant Griffiths met the appellant.
They had, probably, conversed on three occasions before 6 September 1997 in circumstances unconnected with any police activity on the part of Sergeant Griffiths. Sergeant Griffiths referred to their conversations as congenial.
At about 4:50 pm on 6 September 1997, Sergeant Griffiths was on patrol in Oodnadatta. He observed a group of local children who were, to use his expression, “milling around” Mr Hall’s camel wagon on Kurka Drive as it was heading back into the town in the direction of the airport. The wagon was being drawn by two camels but there was a third smaller camel hitched to the wagon.
Sergeant Griffiths said that his attention was drawn to the wagon because he noticed a number of adult people on the top of the wagon from what appeared to be cans of beer. He noticed the appellant and Mr Zarbo standing up on the back of the wagon jigging around. He said there were two other adults sitting on the front of the wagon on the driver’s bench or platform and a couple of others sitting on the side and children milling around.
Whilst there was some dispute as to who exactly was doing what when Sergeant Griffiths made his first observation, there was no dispute that the appellant was on the wagon and was apparently in charge of it when he was approached by Sergeant Griffiths.
Sergeant Griffiths said that on that first sighting of the wagon he believed that it was under the control of one or more persons who were affected by alcohol and it constituted a danger to the children who were milling around.
Sergeant Griffiths called upon Mr Hall to stop the wagon. After the wagon stopped he observed that there were further persons in the bottom deck of the wagon who appeared to him to be very drunk. He also observed that there was an esky on board together with cartons of beer.
There was no real dispute as to all of those facts. There were a number of people on board the wagon. Some were drunk. There was an esky and there were cartons of beer.
Sergeant Griffiths said that he made observations of the appellant and that he noticed that the appellant reeked of liquor. His speech was slightly slurred. He was loud, antagonistic and he was slightly unsteady on his feet. His face was very flushed, his eyes were bloodshot and watering.
He formed the impression that the appellant and two other men on the wagon were moderately to grossly affected by alcohol. He also said that he observed two women who were “drunk”.
Sergeant Griffiths’ evidence was that he explained to Mr Hall the concerns he had in relation to the wagon being driven in Oodnadatta by persons who were affected by alcohol and suggested to the appellant that he ought to unhitch the wagon to make the wagon safe. His evidence was that he was told to “get fucked”.
Sergeant Griffiths said that shortly after a wind blew up and startled the camels and they took off, with the wagon in tow and with the appellant and one other man on board. The appellant was unable to pull the camels up and the wagon and camels travelled about sixty metres.
When he first observed the appellant on the wagon, the appellant was dancing around with a Mr Zarbo. Mr Zarbo was known to him. He said Mr Zarbo was more intoxicated than Mr Hall.
After Mr Hall brought the wagon to a stop Sergeant Griffiths said that he drove the distance to the wagon and tried to speak to him again. He said he told Mr Hall that the wagon was to stay put and that it was not to be driven by him or the others because they were too intoxicated. He further told him that if the appellant drove the wagon or if anyone else drove the wagon the driver would be arrested for driving under the influence.
He said that Mr Hall’s reaction was to say “fuck off Garry”. He said that Mr Hall then turned up the ghetto blaster and started dancing on top of the wagon with Mr Zarbo. They were drinking out of their cans of beer. There was considerable dispute as to Sergeant Griffith’s evidence regarding this conversation, which occurred at 4:50 in the afternoon.
The appellant accepts that some persons on board the wagon were affected by alcohol. He also accepts that at some stage he danced on top of the wagon with Mr Zarbo and he also agrees that at that time a stereo on board the wagon was playing. He did not accept that he was affected by alcohol or that he used the language referred to by Sergeant Griffiths.
He did, in his evidence, accept that he was warned that if he was to drive the wagon he would be “booked” for drink driving and that the warning was given in general terms to anyone else who might drive the wagon. He also agreed that he was asked to put the wagon away and put the camels away.
He said that he thought that Sergeant Griffiths’ attitude indicated that he was “picking on” the appellant.
In relation to the movement of about sixty metres to which Sergeant Griffiths’ adverted in his evidence, the appellant said that he drove the team deliberately over that distance of sixty metres to take the camels and wagon off the road and put them on his block. Whilst he was prepared to accept that the wind had come up at precisely the same time his evidence was to the effect that the wagon and camels were always under his control in relation to that movement.
In the end what happened to this point of time does not need to be resolved.
What is important is that it appears clear on all of the evidence that Sergeant Griffiths warned the appellant and anyone else who was listening, or anyone to whom the appellant was prepared to relate the warning, that if the wagon was driven by anyone who was affected by alcohol that Sergeant Griffiths would arrest the driver.
At about 5:30 pm, Sergeant Griffiths made further observations of the appellant.
On this occasion Sergeant Griffiths said the appellant was sitting on the wagon which was being pulled by two camels. A third camel was tagging along behind. Sergeant Griffiths said the appellant was sitting to the left of Carmel Stapleton, who was also sitting on the front seat. He said Herbie Klempt and Adolf Zarbo were on the back of the wagon and standing up. They were both drinking beer from cans. He said the appellant also had a can of beer in his hand.
The wagon was moving at a slow pace and was being followed by a number of young children.
Sergeant Griffiths said he approached the wagon from the left hand side. He said that when the appellant became aware of his approach the appellant put the can of beer down between his legs and his hands went up into the air. Sergeant Griffiths called out to the appellant for him to stop the wagon but the appellant replied that he was not driving. Eventually, however, the appellant directed Carmel Stapleton’s attention to a handbrake and she pulled that on.
Sergeant Griffiths asked Mr Hall to get down from the wagon. Mr Hall replied that he was not driving and there was nothing that Sergeant Griffiths could do about that.
He said:
“You have told me not to drive. You fucked up. I’m not fucking driving.”
Sergeant Griffiths said that he told Mr Hall that Carmel was just a kid and had no idea how to stop the wagon.
He said the appellant said:
“Yes, she did. Look, I am drunk. She is sober. You told me not to drive so Carmel volunteered to drive it for me. Stop hassling me Garry. Just fuck off.”
Sergeant Griffiths said the appellant was still in the same condition as he had been. His breath reeked. He smelt strongly of alcohol. His face was flushed. His eyes were blood shot and watering. His mouth was dry. He was slightly unsteady on his feet. He was loud and becoming aggressive.
Sergeant Griffiths asked Carmel Stapleton to get down from the wagon, which she did. Whilst he was speaking to her, Mr Zarbo who remained on the wagon, and Mr Klempt who had got off the wagon, kept telling Sergeant Griffiths that Carmel was a minor and that he could not speak to her. He said they and the appellant were “heggling him”. I think he meant heckling him, i.e. interrupting him.
Sergeant Griffiths asked Carmel Stapleton to get into the police car but she declined. She also declined a lift back to town in the police car.
The prosecution case was at that stage the appellant’s behaviour worsened. He kept telling the police officer to ‘Fuck off’ and to ‘Get Fucked’. Mr Klempt, so the sergeant said, told the police officer to ‘Piss off’. Mr Zarbo was yelling but he was no more, said Sergeant Griffiths, “than a dribbling drunk”.
Mr Hall’s anger continued to mount, so Sergeant Griffiths claimed. He clenched his fists and took up an aggressive stance. He was swearing. He was extremely angry and “his eyes were glaring”.
Sergeant Griffiths said that he believed the appellant was deliberately attempting to provoke an incident. He therefore decided to leave and take away a number of children, who had gathered.
His evidence was:
“A.... I decided that to try and calm the situation and for the children’s safety and my safety that I would turn and leave and get the kids out of the carriageway.
Q.In relation to what you did with the children, did you ask them to come, did you give them a direction, did you gather them together, what did you do.
A...... That was my intention to do that. I turned and walked, started to walk from Mr Hall to do that, to round the kids up. I had a dual cab car which I could convey a few kids in plus a van, take them back to town but before I could do that process, I was struck from the rear.
Q.Just before we go on, how far were you from town where this incident occurred approximately.
A...... Just over a kilometre, maybe 1.2 kilometres. It wasn’t too far.
Q.You mentioned you were struck, would you just tell us about the circumstances of that.
A...... As I turned to walk away, I had only taken a few steps and I felt a sharp blow to the back of my right shoulder and it was delivered with considerable force. It made me stumble. I didn’t fall over, but I had to take several steps to regain my balance.
Q.At the time that you were struck, I think you mentioned that you were intending to go off to gather the kids, if I recall correctly.
A...... Yes.
Q.You described the blow and it caused you to stumble. How many times were you struck.
A...... Once.
Q.Do you know what it was that struck you.
A...... No. I couldn’t decide whether it was an open hand or a first, but it was a heavy blow.
Q.I don’t want you to make an assumption whether it was a hand or a fist or anything. I will ask it a different way. When you say that it was an open hand, you didn’t know if it was an open hand or fist. On what basis do you say that.
A...... It certainly felt like a blow from someone else, a body blow. When I regained my balance, which was only a matter of seconds, I swung around. There was Mr Hall and his arm was still out and I took hold of them. I was in no doubt that I had been struck by Mr Hall. Mr Klempt, Herbie Klempt was nowhere near me.
Q.Were you able to make a distinction as to whether the blow was from something sharp or blunt.
A...... Blunt. I have been struck with stones and sticks and other objects throughout my career and certainly wasn’t something like that.
Q.At the time that you were struck and you stumbled, did you then turn around.
A...... Yes.
Q.Did you see anybody immediately behind you or in front of you at that stage.
A...... Yes, Mr Hall.
Q.What distance was there between you and him when you turned around.
A...... He was virtually right behind me.
Q.You mentioned other people, how far were you away from the wagon at that time.
A...... I was off to the left of the wagon, probably about two metres.
Q.Did you see any other people who were in the immediate proximity of you and Mr Hall when you turned around.
A...... Not behind us. I could see a couple of kids that were in front before I turned around. The young Stapleton girl. I was still aware that Mr Zarbo was on top of the wagon.
Q.When you were struck, before you were struck, did anybody say anything to you.
A...... Yes. I recognised Mr Hall’s voice making a very sharp comment to me.
Q.What did he say.
A...... ‘Fuck off Garry’.
Q.I just want to get this clear, was that before or after you were struck.
A...... Just before.
Q.When you heard those words spoken, did you turn around or focus upon who the person was who apparently said that.
A...... I didn’t get an opportunity. The blow came virtually immediately after.
Q.Were there any other blows apart from that blow which you have described.
A...... No none at all.”
It was that action, i.e. the striking of Sergeant Griffiths on the back, which gave rise to the charge of assault in count 1.
Sergeant Griffiths said that he immediately arrested the appellant by taking hold of his right wrist and saying to him:
“You are under arrest for assaulting police”.

He said that the appellant told him to ‘Fuck off’, and said “you can’t arrest me”. He said that the appellant refused to submit to the arrest. His evidence was:
“Q. Continue. What happened then.
A...... He didn’t submit the arrest and then he commenced to resist and he was pulling me back towards his camels and then I warned him ‘Stop resisting. You’re under arrest. Now, come with me back to the station’. His reply was to say ‘Get fucked. You can’t arrest me. I wasn’t fucking driving’. I said “You’re under arrest for assaulting me, not DUI’ and he again told me to ‘Fuck off’.
Q.What then happened.
A...... We struggled and eventually he pushed me in the chest fairly heavily and pulled free of my grip at the same time.
Q.Where was this act of resisting taking place.
A...... It was on the left side of the camel wagon, near the camels.
Q.In relation to where you told the court earlier that you had been assaulted by the defendant, where was it in relation to that.
A...... Probably only a metre or two back.
Q.At that stage whilst he was resisting you what duty were you attempting to perform.
A...... I was attempting to remove the children from the area for some safety.
Q.I think you misunderstood me. I’m talking about the resisting, not the assault. He assaulted you.
A...... I was trying to effect the arrest and take him to custody and charge him.
Q.At that stage were you able to do that with any success.
A...... No. I was unsuccessful unfortunately.”
Eventually the appellant pulled free. He ran to the other side of the wagon. Sergeant Griffiths could not catch him. When he went to one side the appellant went to the other. That happened three, four or five times.
The appellant then unleashed the small camel, and from behind the camel jumped on the back of it, raised his middle finger on his right hand to the police officer, said “Get Fucked Garry. Up yours cunt. I’m fucking go. I’m fucking off”, and rode away.
He rode away for about 200 metres and then the camel turned and came back to join the two camels attached to the wagon.
In the meantime Sergeant Griffiths had got back in the police car and driven the car forward to near where the appellant and the camel returned.
The appellant, said Sergeant Griffiths, jumped off the small camel, got onto the wagon, then jumped from the wagon onto the camel, which was hitched on the right-hand side of the wagon.
He then kicked the camel at the same time yelling “Yahoo”. The wagon then lurched forward as the camel responded to the kick. Mr Zarbo who was on the wagon fell over. The wagon travelled about 60 metres veering to the left and came to rest against a fence. When the wagon came to rest, the appellant climbed back onto the wagon, did a jig and then jumped off. During his jig he said:
“Fuck off Garry, catch me if you can”.
Sergeant Griffiths said the appellant jumped to the other side of the fence, which encircled airport land and the appellant landed on the airport land. He then jumped backwards and forwards over the fence a number of times to elude Sergeant Griffiths.
Sergeant Griffiths eventually got back, in his car and drove up to the fence where the appellant was. The appellant he said then unzipped his pants, took out his penis and with the wind at his back, urinated. Sergeant Griffiths said, notwithstanding the distance between them, that the force of the wind blew the urine at him. He said the appellant was yelling out:
“Take that you fucking cunt”.
Sergeant Griffiths said that he concluded that he had no opportunity of apprehending the appellant so he got back in his car and drove back to the wagon, intending to unhitch the camels.
He said that when he reached down to the hitching mechanism the appellant appeared and said in a “loud screaming voice”, “leave my fucking stock alone, don’t touch my camels”. The appellant was clearly angry. He was standing with his left foot slightly forward. His fists were raised and clenched at just below shoulder height. He was a couple of paces away from Sergeant Griffiths.
Sergeant Griffiths then tried to arrest him and took hold of the appellant’s right wrist and left forearm. At the same time he said to the appellant “You’ve been arrested now, stop being stupid and stop resisting”.
A wrestling match near the camels then developed, accompanied by some pushing and shoving. Mr Zarbo and Mr Klempt were still present, but although vocal, did not interfere.
Sergeant Griffiths did not have a police baton but was wearing a utility belt on which he had a firearm and a capsicum spray.
Sergeant Griffiths said that because of the appellant’s behaviour, in particular his aggression, and the fact that the camels tethered to the wagon had become agitated by the violence of the appellant and Sergeant Griffiths, he had reached the conclusion that he had no alternative but to use the capsicum spray.
Sergeant Griffiths said that he took the spray out of his belt and said to the appellant: “Back off or I will spray with this pepper spray”.
He said the appellant responded by rushing at him. Sergeant Griffiths took a couple of paces backwards and then sprayed the appellant for about a second. He said that he deliberately only used a short burst because the wind was coming from behind Mr Hall and into Sergeant Griffiths’ face and he was keen not to get any on himself.
When he was sprayed the appellant coughed and spluttered and put his hands up to his eyes. Sergeant Griffiths restrained him and dragged him clear from the camels. With some difficulty he eventually handcuffed the appellant.
After he had handcuffed the appellant, Sergeant Griffiths asked Mr Klempt to bring some water from the police van. Sergeant Griffiths then sprayed water onto the appellant and told Mr Klempt to wash his face.
The appellant attempted to fight again. He was cursing, swearing, spitting. He was attempting to spit at Sergeant Griffiths. He would not cooperate in having his face and eyes washed. He would not get into the police van and had to be picked up and put in backwards
Sergeant Griffiths said that the appellant was still moderately to grossly affected by alcohol at this time.
Sergeant Griffiths was unable to take him to a medical practitioner. The nearest medical practitioner was 200 kms away. He was, however, aware that there was a nursing sister, Sister Peter Simson at the Oodnadatta Hospital. He took the appellant to the police station and formally charged him and filled out the charge book and the various sections in the charge book which are required to be completed according to general orders.
Next he took the appellant to the Oodnadatta Hospital and to the treatment room for treatment by the nurse, Mr Simson.
He said that only the three of them were in that room and there was a very strong smell of alcohol.
After Mr Simson had finished treating the appellant, he returned the appellant to the police cells.
He said the appellant’s manner was still the same. He said:
“(H)e was aggressive, he still reeked of alcohol, his eyes were bloodshot and watery but at that stage he had been sprayed with capsicum spray. But he was very, very repetitive on (sic) his language, loud”.
At that stage Sergeant Griffiths gave him his rights under s79a of the Summary Procedure Act. In response to the advice given him the appellant said that he wanted to telephone his father in Alice Springs. Sergeant Griffiths made that call but there was no answer. The appellant’s father rang back later that night.
Sergeant Griffiths charged the appellant with one further offence relating to the appellant’s conduct in the police station. He was charged with using indecent language at a police station. That is the charge to which the appellant pleaded guilty.
Sergeant Griffiths granted the appellant police bail at 10.46 pm. He had earlier considered the question of bail but Sergeant Griffiths said the appellant was in no fit state to understand bail or to accept any conditions of bail before about 10.15 pm.
I have recounted the whole of Sergeant Griffiths’ evidence-in-chief for the purpose of covering the whole period during which the appellant and Sergeant Griffiths were associated. Whilst the events after the resist arrest are not directly relevant to determine whether the offences were committed as alleged, those events became important in an assessment of the reliability of Sergeant Griffiths’ evidence.
Sergeant Griffiths was vigorously cross-examined by counsel for the appellant.
He was cross examined on two particular matters.
Apparently the appellant complained to the Police Complaints Authority about Sergeant Griffith’s behaviour. The findings of the Police Complaints Authority were put to him and he was asked to comment upon those findings.
The findings, of course, were not evidence and indeed were not relevant. I suppose they were matters upon which Sergeant Griffiths could be cross examined as to his credit.
In any event it was put to him that following the release of the assessment and recommendations of the Police Complaints Authority, Sergeant Griffiths was removed from Oodnadatta. He denied that. He said that he left Oodnadatta because he applied for a position which was advertised and for which he was selected. He said he did not leave Oodnadatta prematurely. In fact he served longer than normal in that post.
It was put to him that the Police Complaints Authority suggested that he had exceeded his authority in a number of different ways and in particular in relation to the appellant in the way that he treated him in arresting him and spraying pepper spray into the appellant’s face.
Sergeant Griffiths disagreed and said that he had acted appropriately in the circumstances having regard to the behaviour of the appellant.
He does not appear, on a reading of his cross examination, to have been shaken in any way in relation to the assessment and recommendations of the Police Complaints Authority. As I have said that report was not of itself evidence and not relevant in the determination of the issues before the learned Magistrate.
The report could only have been used if it contained any admissions by Sergeant Griffiths or for cross examination as to his credit.
The other topic upon which he was vigorously cross examined was the appellant’s condition when he was taken to nurse Simson.
“Q.... Do you maintain your evidence that when you were with Simson at the hospital, the defendant’s breath reeked of alcohol, his eyes were blood shot, face was flushed, speech was slurred and he had difficulty standing.
AMaintain that his breath reeked of alcohol, his eyes were blood shot and watery. At that stage there would be a contribution in relation to the capsicum spray and when he stood still for a minute he was still slightly unsteady on his feet. His speech was slurred, it wasn’t dribbling and drooling.
QYou say that he presented in that way when you were in the presence of Simson.
AYes, he did.
QMr Simson says that in his evidence that the defendant wasn’t visibly drunk. He was quite coherent. He wasn’t slurring. He wasn’t staggering and he didn’t smell any alcohol on him.
OBJECTION: APP Wojtasik objects.
QDo you agree or disagree that the defendant was in that state in the presence of Mr Simson.
LAST QUESTION READ BACK BY REPORTER
OBJECTION: APP Wojtasik objects.
OBJECTION WITHDRAWN
LAST QUESTION READ BACK BY REPORTER
AI agree that the defendant was and how I described him before. Breath reeked of liquor. His eyes blood shot and watery. I understand at that time that he had been sprayed with capsicum spray which would have contributed to his redness of his face and the water and redness of his eyes. The room or the treatment room in the hospital did reek and smell strongly of alcohol once Mr Hall was there. When we brought Mr Hall into the treatment room, he was immediately sat down on the chair and I totally disagree with the comments made by Mr Simson that none of those circumstances existed.
QDo you say that at that time the smell of alcohol was so strong as to be unmistakable.
AYes.
QIn fact, do you say at that stage, and I’m talking about the time you spent with Simson at the hospital after Simson had seen him in the cells, his breath still reeked obviously of alcohol.
AYes. It smelt very strongly. In fact, it was very strong in the confines of that small treatment room.
QAre you saying it was stronger in that small treatment room in the presence of Simson than it was anywhere else.
AIt was in a confined area as opposed to being an open area.
QIsn’t it correct that when he was with you at the presence of Simson, he was abusive towards you but he was not abusive towards Simson.
AYes, that is correct.”
That evidence was inconsistent with the evidence of Mr Simson who was called by the Prosecutor.
Mr Simson knew the appellant but did not socialise with him. Mr Simson had also been at the function near Shepherds Hole earlier that day but had not consumed alcohol. He had seen Mr Hall down there. Mr Hall had a can of beer in his hand.
About six o’clock that night he was telephoned by Sergeant Griffiths and summoned to the police cells. When he arrived he was told that the appellant had been sprayed in the face with capsicum spray and that the appellant was pretty wild and upset. Sergeant Griffiths asked him if he could sedate the appellant.
Mr Simson said that the appellant was angry and abusive towards Sergeant Griffiths. He was swearing using the language to which Sergeant Griffiths deposed. Mr Simson asked Mr Hall to calm down. He looked at his eyes and thought that Mr Hall had been given inadequate treatment for the capsicum spray and suggested that the appellant be taken to the hospital to have his eyes irrigated. Mr Simson described the appellant as very, very angry.
He said that when the appellant was brought to the hospital he had settled down a lot. At that time Mr Simson also noticed that the appellant’s wrists had been bleeding and that his skin was broken on both wrists.
Mr Simson then treated the appellant, irrigating his eyes. The appellant refused a local anaesthetic because that treatment required his eyes to be covered for three hours and he was not prepared to agree to that.
In respect of the appellant’s condition otherwise, he was asked:
“Q.... I don’t know whether you misunderstood my question or not but my question to you is, did you on this night both at the cells and at the treatment room at the hospital, address your mind to or assess Mr Hall regarding alcohol consumption.
ANo.”
He was later asked in evidence in chief:
“Q.... On 6 September 1997 both at the cells and at the hospital did you notice whether or not Mr Hall was affected by liquor.
ANo.”
The matter was elaborated upon in cross examination.
“Q.... Had you dealt with on a fairly regular basis persons intoxicated by liquor to varying stages.
AAll the time.
QCan I put this to you that is it correct that if Rick Hall was affected by liquor had been drinking you would noticed it.
AIf he had been - I am used to seeing people in Oodnadatta who have been drinking, who are uncooperative, aggressive towards me, staggering, slurring.
QHe was doing none of that.
ANo. He was quite cooperative with me, talking to me.
QWhen you say no, you agree with me when I say he wasn’t displaying any of those symptoms of being affected.
ANo.
QHe didn’t smell of alcohol.
ANo.
QHis eyes were, you say, bloodshot and watery but that would be explained by the capsicum spray I suppose.
AYes.”
In re-examination his attention was directed to an interview which he had given to the Police Internal Investigation Branch in connection with the complaint to the Police Complaints Authority. During re-examination he was questioned by the Magistrate, in relation to that interview.
“Q.... You gave this answer to the Police Officer from Internal Investigations and you said this:
He asked you “Was he visibly drunk?”, that’s referring to Hall. You said “No, no he wasn’t visibly drunk, he was um, he was quite coherent, he wasn’t slurring, he wasn’t staggering, I didn’t smell alcohol on him but um, again, as I have said previously I wasn’t, I wasn’t really assessing him for that.”
Is that your recollection of his condition today that he wasn’t slurring, he wasn’t staggering.
AYes.
QDid you see any sign at all that any of his faculties were impaired.
ANo, only that he was very, very angry, very upset.
I will return to that evidence.
The Prosecutor also called Carmel Stapleton. She was the young girl who was sitting next to the appellant at the front of the wagon when the wagon was stopped on the second occasion by Sergeant Griffiths.
Carmel Stapleton said that she came to be on the camel wagon because the appellant asked her to help him drive it to Shepherds Hole. She said apart from the appellant there was three other adults and about six children on the camel wagon.
She said, after being questioned at length about observations she has made of people, that the appellant was drunk. Her evidence was:
“Q.... What condition did you consider Mr Hall was in when you were on the wagon with him.
AHe was drunk.
Q...... When you say that ‘he was drunk’, how drunk do you say he was.
AI don’t know. Really drunk I suppose.
Q...... What was it that made you say that he was really drunk, not what made him, but what was it about him that you saw that led you to use the words “really drunk”.
ABecause he was dancing around and I could smell alcohol coming off him.
Q...... When you smelt the alcohol coming from him, was it just a slight smell or a strong smell.
AStrong smell.
Q...... Was it a smell that was very obvious to you.
AYes.
Q...... Was it easy to smell alcohol.
AYes.”
She said as they went along there was loud music playing on the wagon and the appellant was dancing around on top of the wagon holding a can of beer.
By the time that Sergeant Griffiths first appeared the appellant had stopped his dancing and was sitting next to her on the seat.
It was the appellant, she said, who brought the wagon to a halt and he did so by pulling on the brakes. She was not strong enough to pull on the brakes herself.
She said that Sergeant Griffiths asked her to jump off which he did. She went and stood near the front of the police car.
She said that she did not hear Sergeant Griffiths speaking to the appellant but she did see the appellant and Mr Hall speaking.
She saw Sergeant Griffiths start to walk away and she began to walk away as well because she had been asked by Sergeant Griffiths to walk home. She then saw the appellant push Sergeant Griffiths in the back. She said that it was a hard push and Sergeant Griffiths was pushed forward.
She said that Sergeant Griffiths turned around and she thought that he sprayed the spray into the appellant’s eyes.
She said, however, in evidence in chief that there was an interval between the appellant pushing Sergeant Griffiths and Sergeant Griffiths spraying Mr Hall. She said that during that time Sergeant Griffiths tried to handcuff the appellant but was unable to succeed. She also said that during that interval the appellant jumped on the baby camel and rode away. Later she thought that perhaps the appellant rode the camel before he pushed Sergeant Griffiths.
She said that she also saw the appellant near the fence urinating.
Later in her evidence in chief she said that about half an hour elapsed between the camel wagon being stopped by Sergeant Griffiths and Sergeant Griffiths using the capsicum spray on the appellant.
In cross examination she did not resile from her evidence in relation to the appellant’s condition on this occasion although she did say that he was not staggering and he was having no trouble standing up.

She was unable to remember whether the appellant jumped on the camel from the ground or from the wagon. She did say that Sergeant Griffiths drove after the appellant when he rode off on the camel.
She was cross examined about the push in the back and her evidence was:
“Q.... You say that Rick pushed the Sergeant on the back of his shoulder and you indicated his left shoulder.
AYes.
Q...... Can I suggest this to you. That Rick went up to the Sergeant and tapped him in the left shoulder, the right shoulder, “I’m sorry”, about three or four times and said; “What am I going to do with the camels”. Do you remember that happening.
ANo.
Q...... Do you remember Rick saying to the Sergeant that he would go with him.
ANo.”
Later she was asked:
“Q.... What I want to put to you is Rick at that point said something to the Sergeant about “What am I going to do with the camels”, or “What about the camels” and as he did that, he tapped the Sergeant on the shoulder to get his attention. Do you agree that that happened or not.
AI don’t know because I couldn’t really see nothing. I couldn’t really see. I was too far away from them.
Q...... Is it the case that you couldn’t really see whether Rick was tapping him to try and get his attention or whether Rick pushed him.
AYes, couldn’t really see.”

No Case To Answer

At the end of the prosecution case the appellant’s counsel submitted that there was no case to answer in respect of count 3. Count 3 related to the appellant riding the small camel which had been hitched to the back of the camel wagon away from the camel wagon. In respect of that count, the learned Magistrate agreed there was no case to answer and that charge was dismissed. He, however, found a case to answer in respect of counts 1, 2 and 4.

The Defence Case

The appellant gave evidence in his own defence.
That morning he had worked as a grounds person at the school in Coober Pedy. He finished work about midday, went home, harnessed his camels to his wagon and drove the wagon down to Shepherds Water Hole. He had been asked by those organising the function to bring his camels and wagon to take children for rides.
I have dealt with the appellant’s evidence in relation to the first occasion on which the camel wagon was stopped. Nothing much turns on that except that it is clear that the appellant had been drinking. He was warned about driving the camel wagon again.
The appellant denied that on that first occasion he was affected by alcohol but he admitted that he danced on the wagon. He said that he had done that because it had been pretty dry and it was about to rain and that was the cause for celebration.
The appellant went out in his wagon again that day. On that second occasion he did not drive the camel wagon but allowed Carmel Stapleton, a young girl, to drive. One wonders why he would have done that if he had not been affected in some respects by alcohol. It is not necessary to make any finding as to whether or not the appellant was affected by alcohol in relation to the offences with which he was charged, because the charges involving alcohol were dismissed. However, if he was affected by alcohol that might affect the reliability of his evidence. More importantly if he was affected by alcohol then it was surprising that Mr Simpson was unable to detect any smell of alcohol on the appellant less than an hour later.
In respect of the second incident, the appellant’s evidence was that the camel wagon was being driven by Carmel Stapleton. He said that Sergeant Griffiths drove up from behind the camel wagon as it was proceeding along and indicated to Ms Stapleton that she should stop. The appellant said she immediately pulled the brake on and pulled the reins.
The appellant said that Sergeant Griffiths pulled up and immediately said; “I’m arresting you for driving under the influence”.
If that was Sergeant Griffiths’ first statement it is rather surprising it was made unless the appellant was affected by alcohol and Sergeant Griffiths had spoken to him on the earlier occasion or Sergeant Griffiths was acting perversely. The appellant said that he was told to hop down from the wagon which he did. He told Sergeant Griffiths that he was not driving and a number of persons on the camel wagon called out to the same effect.
The appellant said that Sergeant Griffiths then asked Carmel Stapleton to step down so that he could have a word with her. Sergeant Griffiths then spoke to Carmel Stapleton privately. While he was doing so Herbie George, who is Carmel Stapleton’s brother, kept on insisting that Sergeant Griffiths could not interview her without an adult being present.
The appellant said that Sergeant Griffiths told Herbie George; “Look if you don’t bugger off I’ll do you for obstructing the course of justice”.
The appellant said that after Sergeant Griffiths had spoken to Carmel Stapleton Sergeant Griffiths advised the appellant that he was arresting him for driving under the influence. The appellant said that he and the others protested that he was not driving.
He said that Sergeant Griffiths then moved away from him. The appellant said that when he asked what he should do with the camels the appellant noticed Sergeant Griffiths was moving into the space occupied by a camel called Nardoo. The appellant therefore attempted to gain his attention. He said:
“I repeated what I was saying, I was tapping him on the shoulder, and I was getting pretty desperate because if he didn’t turn around or stop his movement into the area it was very likely that Nardoo might have had a go at him. She had had all her weight off that leg, it was off the ground a little bit; she wasn’t waving it about but she was certainly indicating that she wasn’t happy with him there.”
The appellant said that Sergeant Griffiths then spun around and said; “Now I’m arresting you for assaulting a police officer.”
The appellant’s evidence continued:
“Q Do you know why he did that.
A I can only make inferences. I don’t know why.
QYou mentioned something about tapping him in your evidence earlier; could you describe that to us please?
AYes, I was - I had my right arm extended, I was tapping him on his right shoulder, that would have turned him away from the camel back towards me, and it would have brought him right out of danger.
QDid you tap him more than once?
AYes, I did and he was walking - I was following him because he was walking away from me and he was getting closer to - this happened pretty quickly over about 1.5 metres and we were about 50cm to a metre from real danger.
QAfter you’d tapped him what happened?
AHe spun around, grabbed both my wrists close to his body, put my arms down in front of him and twisted my wrists very hard and told me fairly close to my face that he was arresting me for assaulting a police officer.”
The appellant said that he then twisted his wrists so as to break Sergeant Griffiths hold upon him and then “skipped out of his reach”.
The appellant said he jumped on top of the wagon “so we could discuss it without him actually being able to further harm me”.
He said that because Sergeant Griffiths was disinclined to discuss anything with him he decided, in an endeavour to lighten the atmosphere, to jump on the camel which was at the rear of the camel wagon. He said that when he jumped on that camel she took off immediately, ran some distance, circled around and returned to the rear of the wagon.
He said that during this time Sergeant Griffiths had got in his car and driven his car in pursuit of the appellant and the camel and had returned to the camel wagon.
The appellant then said that he took off at a slow jog jumping the airport fence “because at that stage I just wanted to take stock”.
He said that whilst he was on the other side of the fence he urinated.
Whilst urinating he heard some commotion near the camel wagon and he saw Sergeant Griffiths was interfering with the harness. The appellant returned to the camel wagon. He said Sergeant Griffiths grabbed him from behind with one arm and reached around with his right arm and sprayed the appellant in the face from behind.
He said then that the Sergeant pulled the appellant’s arm up behind his back and drove him to the ground with his knee. He was then handcuffed. He said he told Sergeant Griffiths the handcuffs were hurting his right arm.
He said he was pulled to his feet by the handcuffs and his face was sprayed.
He was taken to the police station and from there taken to the clinic for treatment by Mr Peter Simson.
He said that during the whole of that period he continually asked Sergeant Griffiths to loosen the handcuffs but he refused.
He said that he was very angry. He felt abused and hurt and he was shocked by what had happened.
He said that before he was sprayed it is possible that his eyes were bloodshot which he said would have been due to dust. His face may have been flushed because he gets sunburnt very easily. In response to a question that his speech was slurred and loud he said that he has a noticeable lisp and that could account for Sergeant Griffiths’ observation about his manner of speech.
He said that Mr Simson treated his eyes by irrigation. He agreed that he refused treatment by way of eye pads.
He said that whilst he was in the cells both before and after he was treated by Mr Simson that he swore at Sergeant Griffiths. He said that he used the expression “fuck you Garry” reasonably often but that was because of what had been done to him.
The appellant called Mr Zarbo.
Mr Zarbo said that when the camel wagon was stopped on the second occasion and the appellant got off the wagon to talk to Sergeant Griffiths he saw the appellant walk around and tap Sergeant Griffiths on the shoulder. Mr Zarbo was not prepared to admit that it was any more than a tap. He said that Sergeant Griffiths then turned around and grabbed the appellant, threw him to the ground, handcuffed him and whilst he was handcuffed sprayed him with the pepper spray.

The Magistrate’s Reasons

The question on this appeal, as of course it was before the learned Magistrate, was whether the respondent had made out beyond reasonable doubt that the appellant was guilty of counts one and two, namely that first he assaulted and secondly that he resisted Sergeant Griffiths in the execution of his duty.
The assault, it was claimed by the respondent, was the blow to Sergeant Griffiths’ back. The appellant’s account was, as I have already stated that he did not strike Sergeant Griffiths on the back but that he did tap Sergeant Griffiths on his shoulder to gain his attention.
The act of hindering police, it was claimed by the respondent, was the appellant’s behaviour immediately after he broke Sergeant Griffiths’ hold upon him.
The Magistrate was confronted with a conflict of evidence. Whilst, in a sense, the appellant’s evidence explained Sergeant Griffiths’ evidence in the end result there was a direct conflict between the two men in relation to how the appellant’s hand came into contact with Sergeant Griffiths’ back and in respect of the appellant’s conduct after the appellant broke Sergeant Griffiths’ hold upon his wrists.
The learned Magistrate observed:
“Cases of this sort are always difficult where two people give evidence on oath and their stories are so diametrically opposed. For that reason it has been important that I have close regard to the other witnesses who have given evidence in the case and I was fortunate in this matter that there was some good and reliable witnesses who came to offer their evidence.”
The learned Magistrate accepted the evidence of Mr Simson who he believed was a truthful witness but he did note that Mr Simson clearly disliked Sergeant Griffiths and showed that he had clearly disapproved of Sergeant Griffith’s actions in relation to the appellant.
The learned Magistrate recounted that Mr Simson did not observe any signs of intoxication of Mr Hall. In recounting that observation of Mr Simson the learned Magistrate did not say whether he accepted that evidence or not. I suppose it must be inferred that he accepted the evidence because he had found Mr Simson to be a truthful witness.
It is, however, difficult to understand how Mr Simson failed to observe the smell of alcohol on the appellant in view of the appellant’s own evidence that he had consumed alcohol.
Mr Simson went further, of course, and said that in his opinion Mr Hall was not affected by alcohol. That evidence was contrary to the evidence of Sergeant Griffiths but more importantly contrary to the evidence of Carmel Stapleton.
The learned Magistrate did not deal with the conflict in evidence between Ms Stapleton and Mr Simson.
The learned Magistrate dealt with the evidence of Mr Zarbo who was called on behalf of the appellant. He said that he did not believe that Mr Zarbo was a particularly good witness and that his recollection was faulty about many things.
Mr Zarbo’s account of the more important events was clearly incorrect. It was inconsistent with the evidence of all the other witnesses.
Clearly enough the learned Magistrate rejected Mr Zarbo’s evidence. He said:
“He was well cross examined by Mr Wojtasik and I form the clear impression that much of his evidence was as a result of reconstruction both from reading a statement which he had given to the police at a later time and as a result of speaking to others. He said he was adamant that he was not drunk on that day because he only had six cans of beer over several hours. Griffiths on the other hand described him as being a dribbling drunk. I suspect that the truth lies somewhere in between those two assessments. I am prepared to give some weight to Zarbo’s evidence but I think I must be cautious when I consider what he has to say.”
The learned Magistrate then turned his attention to Sergeant Griffiths’ evidence. He said there was some aspects of his evidence which concerned him when measured against the whole of the evidence given in the trial.
First he noticed the conflict of evidence between the appellant and Mr Simson in relation to the appellant reeking of alcohol. In respect of that matter he did not mention Ms Stapleton’s evidence but concluded:
“It is clear to me that, while Hall was affected by liquor, that the Sergeant has exaggerated, either consciously or unconsciously, his evidence about Mr Hall’s condition at that time.”
I must say I find it difficult to understand how the learned Magistrate could have come to a conclusion that the appellant was affected by alcohol but then accept Mr Simson’s evidence. Mr Simson’s evidence was that not only was the appellant not affected by alcohol but that he did not smell of alcohol.
I would have thought a conclusion that the appellant was affected by alcohol almost necessarily meant that Mr Simson’s evidence had to be rejected, at least on that matter.
Next the learned Magistrate discussed what he described as “the Sergeant’s obvious dislike for Hall and his contempt for Klempt and Zarbo.”
He thought Sergeant Griffiths’ attitude somewhat unprofessional. He said that Sergeant Griffiths’ attitude showed in his evidence in which he made gratuitous and improper remarks about Mr Hall’s character.
It was understandable that Sergeant Griffiths may have disliked the appellant. It was the appellant who had complained about him to the Police Complaints Authority. It was more than likely in those circumstances that Sergeant Griffiths would be likely to dislike the appellant.
The third point which the learned Magistrate adverted to was in relation to count four.
He said that in respect of this count Sergeant Griffiths’ evidence was completely unsupported. He said that Ms Stapleton’s evidence was that she did not observe the appellant driving the camel wagon. Nor did Mr Zarbo.
The learned Magistrate said that he suspected that at the time that Sergeant Griffiths stopped the camel wagon on the second occasion he was brusque, officious and unreasonable. He said that he thought Sergeant Griffiths’ handling of the matter was poor. He said he failed to exercise sensible discretions which ought to have been exercised to prevent the situation from getting out of hand. The use of the capsicum spray was, in his opinion, quite unacceptable.
Notwithstanding that trenchant criticism of Sergeant Griffiths the learned Magistrate said this about his evidence:
“So although the Sergeant gave his evidence pretty well, I am left with a feeling of concern about the accuracy of his evidence. I think that he was substantially truthful but I suspect that he has exaggerated parts of his evidence.
He went on to say:
“For these various reasons (referring to the three reasons to which I have referred) I am not prepared to make findings beyond reasonable doubt on the Sergeant’s evidence alone. I have looked for supporting evidence, therefore, in relation to each count.”
Because there was no supporting evidence the learned Magistrate dismissed count four.
The learned Magistrate also formed a somewhat adverse view of Mr Hall’s evidence. He said of Mr Hall:
“Mr Hall for his part was, I thought, a rather engaging character but I am forced to say that I do not feel that he has been entirely truthful to the Court. The whole of his evidence seems to be substantially to suggest that he was more intoxicated than he admitted. His admitted actions during the day all point to a greater degree of intoxication and that which he admitted (sic).”
The learned Magistrate then indicated that he accepted Ms Stapleton’s evidence and concluded that the appellant was significantly affected by alcohol. He said that the appellants behaviour was a result of being so affected. He said that it caused the appellant to act out of character.
Again I have difficulty with the learned Magistrate’s reasoning. I agree with the exception of Mr Simson’s evidence that the evidence suggests that the appellant was significantly affected by alcohol. I think the whole of his conduct that day was consistent with a person who was inebriated and who, as a result, became disinhibited.
Indeed I believe the appellant’s own evidence suggests that he was significantly affected by alcohol and disinhibited. It is hard to believe that the appellant jumped on the wagon when the camel wagon was stopped for the purpose of talking to Sergeant Griffiths. It is also hard to believe that whilst he was on the camel wagon he attempted rationally to explain his position to Sergeant Griffiths. It is also difficult to believe that he jumped on the camel’s back and rode away for the purpose of “lightening the moment”. Such an action is consistent with intoxication. It is also difficult to believe that once the camel came back to the camel wagon he ran away and jumped the fence and then urinated for the reasons to which he deposed.
I cannot understand how the learned Magistrate could have accepted that the appellant was intoxicated and had behaved out of character but at the same time accept Mr Simson’s evidence. More particularly I cannot understand how the learned Magistrate could use Mr Simson’s evidence for the purpose of rejecting or criticising Sergeant Griffiths’ evidence. Mr Simson said the appellant did not smell of and was not affected by alcohol. Sergeant Griffiths said the appellant was affected by alcohol. The learned Magistrate found, contrary to Mr Simson’s evidence, that the appellant was affected by alcohol.
If he had rejected Mr Simson’s evidence, which would have been logically consistent with his finding that the appellant was intoxicated and acting out of character, then he would not have been in a position to criticise Sergeant Griffiths’ evidence in so far as it was inconsistent with Mr Simson’s evidence.
In my opinion, if the learned Magistrate was of the opinion that the appellant was intoxicated and acting out of character, which in my opinion was an appropriate conclusion upon the evidence, the learned Magistrate should have declined to accept Mr Simson’s evidence that the appellant neither smelled of alcohol nor was obviously intoxicated.

It was not only Sergeant Griffiths’ evidence that the appellant was intoxicated but it was also evidence of Carmel Stapleton.
Her evidence was severely criticised on this appeal. Grounds 2, 3, 4 and 5 of the Notice of Appeal are devoted to Ms Stapleton’s evidence. It was argued that her evidence should not have been accepted but if it was accepted it did not support the evidence of Sergeant Griffiths.
Carmel Stapleton was a fifteen year old schoolgirl at the time this incident occurred and sixteen when she gave her evidence. She is an Aboriginal girl who lives in Oodnadatta with her parents.
Some allowance has to be made in a review of Carmel Stapleton’s evidence for the fact that she was a young Aboriginal girl giving evidence in a difficult and widely publicised case. The disadvantages that some Aboriginal people have in giving evidence have been well documented. The differences between cultures and usage of English have potential to create misunderstanding. Among them are the differences between standard English and Aboriginal English in expressing quantity and distance: Eades, D. “Aboriginal English and the Law” (1992) Continuing Legal Education Department of the Queensland Law Society at page 29. Aboriginal culture makes it difficult for some Aboriginal people to answer multiple questions. (Ibid, page 47). Furthermore, an agreement to a statement may not be a genuine agreement, but merely gratuitous concurrence.
In R v Anunga (1976) 11 ALR 412 at 414 Forster J said:
“Most Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman. Indeed their action is probably a combination of natural politeness and their attitude to someone in authority.”
Since R v Anunga a number of studies have recognised the propensity of Aboriginal people to answer leading questions in the way the questioner wants: Recognition of Aboriginal Customary Laws (1986) Law Reform Commission; Aboriginal Witnesses in Queensland’s Criminal Courts (1996) Criminal Justice Commission; Mildren J Criminal Law Journal 21 1997.
In Aboriginal English, a typical response to a question requiring a specific quantity, such as, “How many people were there?” is to list the people present, rather than provide a number. (Ibid at page 29). If the question is culturally inappropriate, often an Aboriginal person will respond with, “I don’t know”, or “I don’t remember”. The answer does not always mean that the person has no knowledge or recollection, but is more often a comment on the inappropriateness of the question. (Ibid, page 45.) Another difficulty concerns questions which require a choice to be made between two alternatives. An answer to an ‘either-or’ type question often refers to the last alternative offered. (Ibid page 48).
A close analysis of Ms Stapleton’s evidence reveals some common examples of Aboriginal English. In particular, the following passage demonstrates the examples I have outlined:
“Q.... From the time you first got on the wagon that was being pulled by the camels when Mr Griffiths, the Sergeant stopped you, how many people were on the wagon.
AI don’t know. I can’t remember.
Q...... Do you remember who some of the people were.
AYes.
Q...... Can you tell us who they were.
AHerbie George Klempt and Chrissy, Kylie, Sarina, can’t remember the rest.
Q...... So how many children were on the wagon.
AAbout six.
Q...... How many adults.
AAbout three.”
It is important in assessing Ms Stapleton’s evidence to bear in mind the difficulties which confronted her.
I did not have the undoubted advantage that the learned Magistrate had in hearing Carmel Stapleton’s evidence. However I have read her evidence and scrutinised it carefully.
The learned Magistrate said of Ms Stapleton:
“I formed a very good impression of Ms Stapleton. She was a good witness. She was observant. As I have said, she was shy and hard to lead and her evidence was occasionally a little bit literal but I feel very confident that she was truthful and that I can rely on her evidence.”
It is true that in cross examination she diluted some of what she had said previously. I got the strongest impression, however, that she was not resiling from her evidence. She tended simply to agree with Mr Amy who was a good cross examiner but nonetheless I cannot ignore the changes that she made.”
In my opinion the transcript fully supports the learned Magistrate’s observations of Ms Stapleton. Her evidence reads well and is impressive. There are, as the learned Magistrate observed, examples where perhaps Ms Stapleton has adopted too literal approach to a question asked of her but that is no doubt due to her age, her Aboriginality and the confronting circumstances in which she was being questioned.
Carmel Stapleton’s evidence was, in my opinion, to the effect that the appellant whilst drunk, pushed Sergeant Griffiths in the back and then behaved in a rather extraordinary fashion. Her evidence supported that of Sergeant Griffiths. In so far as Sergeant Griffiths’ evidence needed to be supported Ms Stapleton’s evidence did so.
It was submitted that the learned Magistrate should have found that Ms Stapleton had observed the appellant merely tap Sergeant Griffiths on the shoulder and in those circumstances found that there was a hypothesis consistent with innocence and acquitted the appellant.
I do not agree that Ms Stapleton’s evidence should be read in that way.
Ms Stapleton’s answers were in response to multiple questions, one of which required a choice between two alternatives. Given the difficulties experienced by Aboriginal witnesses in answering these types of questions, it cannot be said that Ms Stapleton clearly resiled from the evidence she had previously given.
I cannot agree that the learned Magistrate was under any obligation at all to find that she resiled in her cross examination from her evidence in chief and to find that there was a hypothesis consistent with innocence.
Indeed, if anything the learned Magistrate made findings which were too favourable to the appellant. I believe that he was wrong in finding that, because Sergeant Griffiths evidence was inconsistent with that of Mr Simpson, Sergeant Griffiths could not be relied upon. I do not believe that Mr Simpson’s evidence in relation to the appellant’s condition is consistent with any other evidence in the matter and indeed I think it is inconsistent with the uncontroverted evidence of Ms Stapleton. I cannot understand how Mr Simpson was not able to smell alcohol on a person who admitted to drinking during the day and who, Ms Stapleton described was drunk.
I believe that the learned Magistrate’s findings in relation to the appellant’s state of intoxication are inconsistent. I believe that having found that the appellant was intoxicated to the extent that he behaved out of character he should have rejected Mr Simson’s evidence. If he had done so he could not have formed such an unfavourable view of Sergeant Griffiths’ evidence.

Conclusions On The Finding Of Guilt

In my opinion the learned Magistrate was right to find that the respondent had established that the appellant was guilty of counts one and two.
I make no comment as to whether or not he should have dismissed count four because the dismissal of that count is not subject to appeal.

Costs

The appellant has also complained that the learned Magistrate erred in failing to award the appellant his costs in relation to the dismissal of the drink driving charges. It is true, of course, that the appellant was successful in having those two charges dismissed. It is also true, of course, that the appellant was found guilty of the two other charges. The learned Magistrate made no order as to costs.
The discretion to award costs is given by s189 of the Summary Procedure Act (1921). Section 189 subsection 1 provides:
“Subject to (2), the Court may award such costs for or against a party to proceedings as the Court thinks fit.”
Section 189(2) is not relevant in the circumstances of this case.
Whilst s189(1) gives the Court an unfettered discretion to award costs it is a discretion which, of course, must be exercised judicially. In exercising that discretion the Court must only have regard to matters relevant to the proceedings themselves.
The purpose of awarding costs is, of course, to compensate a successful party against the cost of the proceedings. Costs are not awarded by way of a penalty; Latoudis v Casey (1990) 97 ALR 45.
The appellant can only succeed on this appeal if the appellant can, in my opinion, point to some error of principle or irregularity in the proceedings such as to show there has been an error in the exercise of the Magistrate’s unfettered discretion; Kellett v Buchanan [1935] SASR 70 at 73.
This was not a case where the appellant was acquitted of all of the counts alleged against him. Each of the counts was interwoven with each other and the appellant was acquitted only of two of the counts alleged against him and found guilty of the other two. In those circumstances it was within the exercise of the learned Chief Magistrate’s discretion to make no order as to costs.
I am not satisfied that the learned Chief Magistrate erred in the exercise of the principles relating to an award of costs under s189 or had regard to any matter which was irrelevant or failed to have regard to any matter which was relevant to the exercise of his discretion.
In those circumstances, in my opinion, the ground of appeal against the refusal by the learned Magistrate to make an order for costs is not made out.
The appeal must be dismissed.

[1999] SASC 197

25 May 1999