Hamra v Police No. Sccrm-99-1084 Judgment No. S466

[1999] SASC 466

HAMRA v POLICE
[1999] SASC 466

Magistrates Appeal:  Criminal

1 DEBELLE J. (ex tempore)      This is an appeal against conviction. 
2 On 14 May 1999 the appellant was convicted in the Adelaide Magistrates Court of two offences.  The first was that on 18 August 1998 he behaved in a disorderly manner in Clovelly Avenue, Clarence Gardens.  The second was that on the same day in the same place he assaulted a police officer in the execution of his duty.  He pleaded not guilty.  After a hearing in which the two police officers involved in this matter and the appellant had given evidence, the magistrate convicted the appellant.  The conviction was recorded on 20 November 1998.  However, the magistrate did not sentence the appellant until 14 May 1999. 
3 It is apparent that the magistrate believed that the offending was relatively minor and merited no more than some kind of community service.  He allowed the appellant an opportunity to seek to find some suitable kind of community service outside the community service organised by the Correctional Services Department.  The appellant was not able to do so.  In the result the magistrate ordered that he serve a period of 100 hours of community service within a period of nine months.  In addition the appellant was ordered to pay levies and costs totalling $174. 
4 It is not immediately apparent from the grounds of appeal what the nature of the appeal is.  In the notice of appeal, the appellant had stated that the appeal was against both conviction and sentence.  The grounds of appeal are "I am appealing because I agree with the events that occurred but not with the facts of the charges".  When this appeal was initially called on on Tuesday last the appellant indicated that he was appealing against the conviction but not against the sentence. 
5 The facts leading to the conviction are set out in the reasons of the learned magistrate.  I do not propose to summarise them but to highlight certain aspects of those facts. 
6 According to the police, the appellant had been following a police vehicle for some time.  The appellant had been to the Sturt Police Centre where these police officers had been interviewing a person by the name of Blakeney, who had identified the defendant in relation to some other matter.  After they had been followed for some time the police officers stopped their vehicle and stopped the appellant's vehicle.  He was approached by Detective Gordge, who identified himself and asked the appellant to get out of the car and identify himself.  According to the police, the appellant refused. 
7 The police officer asked why the appellant had been following the police vehicle.  The appellant said "Get away from me, you have got nothing on me".  The police officer then asked the appellant for his name.  According to the police officer, the appellant refused.  It seems by that time the appellant and the police officer were both outside the motor car.  When again asked for his name, the appellant said "I'm not telling you anything.  Get away from me.  This is police harassment.  Help, help, police harassment".  The appellant was waving his arms in the air. 
8 According to the police evidence, the appellant then turned towards Detective Gordge and pushed him in the chest with both hands, which were open.  This caused Detective Gordge to step back a couple of steps.  The police officers say that the appellant continued to shout "Police harassment, help, help".  This attracted the attention of a cyclist who was riding by and of the occupant of a house who had come to the letterbox.  Neither of those persons became involved in any way.  One of the police officers described the appellant's conduct as ridiculous. 
9 The appellant did not dispute most of those facts.  He did not dispute that he was behaving in the manner which was alleged against him.  The appellant did, however, dispute the fact that he had assaulted the police officer.  It was his evidence that the police officer had first grabbed him by the wrist and it was only then that he pushed the police officer in the chest, and that he did so because of the fact that the police officer had first grabbed him.  He was simply seeking to cause the police officer to step back. 
10 The offence of disorderly behaviour refers to a substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a public street or public place: Barrington v Austin (1939) SASR 130 at 132. It is a question of fact and degree in every case whether the conduct complained of amounts to a nuisance of the kind which would constitute disorderly conduct. As I have said, there is no dispute about the facts. The only question is whether the appellant's conduct on this occasion constituted disorderly conduct.
11 The appellant's conduct might have been ridiculous, to use one of the words which were used by the police officer.  There is no suggestion that he used any obscenity or profanity.  All he did was shout out the words to which I have already referred.  There is no suggestion in any of the police evidence that the conduct in any sense interfered with the comfort of any other person who was in the vicinity of these events.  The appellant might have been making a lot of noise and in one sense it might be described as unnecessary noise.  In order to comply with the police request he had to do no more than give his name and address and perhaps explain his conduct.  His reaction was, in all the circumstances unwarranted.  The question whether his behaviour was appropriate to the occasion or was warranted by the occasion is not the issue which the magistrate had to determine.  He had to decide whether it constituted disorderly conduct.  It would be a sad day if behaving in a ridiculous manner necessarily constituted disorderly conduct.  However ridiculous the appellant's behaviour might have been, I do not think it constituted disorderly conduct.  For these reasons the appeal against the conviction for that offence is allowed. 
12 I turn to the appeal against the charge of assaulting police.  The magistrate had the benefit of seeing the witnesses.  At the end of the day the issues turn upon the question whether he was to accept the evidence of the police officers or that of the appellant.  The issue is a narrow one, mainly whether the appellant is to be believed when he says that he was first grabbed on the wrist by the police officer, an allegation which was denied by the police.  There is nothing to which I have been referred which justifies this court, sitting as a court of appeal, without the benefit of seeing the witnesses, which warrants interfering with this conviction.  The magistrate has carefully considered the matter.  He has concluded that he should accept the evidence of the police officers and I am not satisfied that I should interfere with that conclusion.  For those reasons the appeal against the conviction for assaulting a police officer is dismissed. 
13 The appellant had said earlier that he was not appealing against sentence.  However, the conclusion which I have reached requires that there be some interference with the sentence which was ordered.  If that were not to be the appellant would gain no benefit from his success in having the conviction for one offence set aside.  The appellant is unrepresented and he is not to be bound by the statement he made earlier when he was not fully apprised of the position.  I will hear the parties in a moment as to sentence. 
14 It would have been noticed that this appeal was late.  The appellant was convicted on 14 May.  He did not institute the appeal until 12 August.  He was some 10 weeks out of time.  His explanation for that is that he was occupied in application for waiver of fees and for a copy of the transcript.  I accept the explanation.  The respondent does not point to any prejudice nor is it possible really to identify any.  At the end of the day this appellant had been convicted of two minor offences and I do not think the delay is of such a nature or of such length that there should not be an extension of time.  One other relevant factor is the prospects of the success of the appellant on appeal.  For the reasons already given, he plainly did have good prospects of success.  For all of these reasons I extend the time within which to appeal to 12 August 1999. 
15 The orders of the court will be: 

1. Appeal allowed. 

2. The conviction for the offence of disorderly conduct is set aside.

3. The sentence ordered by the magistrate will be set aside and in lieu thereof there will be an order that the defendant serve 56 hours of community service within three months from the date of this order.  The defendant is required to report by no later than Monday next, 1 November, to the Department of Correctional Services at the courts unit at the Adelaide Magistrates Court.  The defendant will pay CIC levy of $56, plus the other costs ordered by the magistrate.  They total the sum of $174 and that is to be paid at the rate ordered by the magistrate, namely $5 per month, first payment to be made on Friday, 5 November 1999.

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