Hogg v Police No. Scciv-03-690

HOGG v POLICE
[2003] SASC 229
Magistrates Appeal (Ex Tempore)

PRIOR J: The appellant was charged on complaint with three offences. He pleaded not guilty to all three charges. On the fourth day of the hearing the prosecution withdrew the first charge, which alleged a breach of bail conditions. The trial continued on the remaining two charges. The appellant was found guilty of resisting a member of the police force in the execution of his duty but not guilty of assaulting that member in the execution of his duty.
When recording a conviction, the presiding magistrate said that he did not see the act of resisting police officers as the most serious. However, His Honour’s view was that the offence was of sufficiently serious dimensions to add some degree of concern as to the appellant’s prospects for the future. The magistrate said that a conviction was appropriate given that the matter proceeded over five days and the likelihood of re-offending. His Honour ordered the appellant to pay costs totalling $1400 and required him to enter into a bond in the sum of $1000 to be of good behaviour for a period of 18 months. The magistrate also ordered the appellant to perform a period of 100 hours of community service within a period of six months.
In this appeal the appellant challenges the finding of guilt, the recording of a conviction on the charge found proved, the severity of the sentence imposed and the order that the appellant pay a substantial sum as the costs of the prosecution.
There are 42 grounds of appeal in the Notice of Appeal. A number of those grounds complain that the magistrate should have considered the issue of self-defence or defence of property. The magistrate’s findings are said to be against the weight of the evidence and unsafe. Other grounds attack the behaviour of investigating officers and complain of the magistrate’s failure to give any weight to such failures. The respondent disputes the relevance of a number of the grounds of appeal.
The charge found proved arose out of an exchange between the appellant and police officers, outside premises at 7 Seavista Grove, Christies Beach on 13 March 2002. The appellant had been arrested at that address the day before. He was charged and admitted to bail on condition that he not make contact with, communicate with, harass, annoy, injure or assault his estranged de facto Ms Rowe. It was a further condition of his bail that he not attend at the address of Seavista Grove unless accompanied by police and for the purpose of collecting personal property from that address.
On 13 March, the appellant went to the Christies Beach Police Station and asked to be escorted to the Seavista Grove address to collect his car. Constables Vickery and Tank, went with the appellant. After they spoke with Ms Rowe at the house, the appellant collected his car and drove off. Soon after that, the appellant telephoned police communications to complain that his car had been damaged and that there was property missing from the boot. His call was transferred to the Christies Beach Police Station. He was told that the patrol which had gone to the premises with him earlier, would see him at Seavista Grove. The appellant returned to 7 Seavista Grove. He parked his car across the driveway, in front of the premises.
Constables Vickery and Tank returned to the premises, arriving at about the same time as three other police officers. One of them, Constable Parish went and spoke to Ms Rowe at the front door of the house. He returned to the appellant’s car. Parish then informed Vickery of Rowe’s complaint that the appellant had yelled abuse from his direction towards the house. Given what he had been told, Vickery regarded the appellant as being in breach of the conditions of his bail, granted the day before. He asked the appellant to get out of his vehicle. As the appellant did so, Vickery told the appellant that he was under arrest for breach of bail conditions.
Vickery’s evidence was that he went to touch the appellant on the left side. He saw Tank touching the appellant on the right side, as the appellant got out of his car. Vickery’s evidence was that as the appellant raised both arms straight up he was struck in the right ear by the appellant’s left arm. Vickery’s evidence was that, besides that, the appellant was trying to break the hold that the two police officers had upon him. Vickery said that he let go of his hold of the appellant because of the pain in his ear and then grabbed him again, turning the appellant around. Vickery said that the appellant was resisting him in his arrest by not standing still and throwing his arms around. At this time, the appellant was calling out “slut, whore, thief”, yelling that abuse towards the house. The appellant was put on the ground and had handcuffs placed on his wrists, with his arms around the rear of his body.
The appellant’s evidence was closely examined by the magistrate. The appellant said that he was not acting in a hostile manner and that at no stage did he assault Constable Vickery. He said he was pushed from behind and did not know who did that. He also claimed that he did not hear Constable Vickery tell him he was under arrest at the scene of the incident. He said that Constable Tank said that he would be arrested.
The magistrate, having summarised the evidence from all witnesses, including the appellant, indicated that he regarded Constable Tank as providing him with as objective an account of matters under discussion as circumstances permitted. The magistrate said that whilst he thought that, on occasions, the behaviour and demeanour of Constable Tank was, at least, suggestive of officiousness, his evidence was, nonetheless, cogent.
As for Constable Vickery, the magistrate accepted “beyond reasonable doubt” that his evidence “represented an objective attempt …. to give evidence of matters observed by him on 12 and 13 March 2002”. The magistrate said he regarded Constable Vickery as being forthcoming and fair, making no attempt “artificially to enhance details he had observed of relevant events”. The magistrate spoke of the evidence of this Constable as also being cogent. In particular, the magistrate said that he did not think that the blow, which undoubtedly he had received, induced Vickery to embroider his evidence. The magistrate found that Vickery, being aware of the conditions of the bail agreement entered into on 12 March 2002 by the appellant, was concerned that the appellant’s behaviour, when attending at Seavista Grove, should not result in a breach of the bail conditions. The magistrate found that Vickery did not regard the appellant as being in breach of bail conditions when he first went to Seavista Grove on 13 March. His Honour found that when Vickery returned to those premises, about one hour later, it was in response to a police radio report, that there was a domestic violence disturbance at that address. His Honour said:
“… It is clear that the defendant had returned to those premises but the evidence demonstrates (and the Prosecutor concedes) that the defendant contacted police in relation to returning to those premises. Constable Parish, after having a conversation with Elizabeth Rowe, the occupant of those premises, informed Senior Constable Vickery, that the defendant had yelled abuse towards the house.
I accept that Senior Constable Vickery believed, first, that this information had been accurately conveyed to him by Constable Parish and, second, that it constituted a breach of the bail conditions. I accept beyond reasonable doubt that the defendant was told that he was under arrest for breach of bail conditions. Moreover, following his arrest, the defendant yelled abuse towards the house, or probably yelled abuse towards the house, including the words ‘slut’, ‘whore’, ‘thief’, or words to that effect. Plainly, in those circumstances, there was post hoc support provided for the allegation as to the defendant’s behaviour. However, in any event the arrest of the defendant was justified on the basis of the officer having reasonable cause to suspect the defendant of having committed an offence.”
With respect to the charge of resisting Vickery in the execution of his duty, the magistrate said he was satisfied beyond reasonable doubt that the appellant raised both arms straight up and his left arm struck Vickery’s right ear, the appellant resisting by not standing still and throwing his arms about. The magistrate said he was satisfied beyond reasonable doubt that the evidence of Vickery represented the truth of the matter with respect to the resist arrest charge and found the facts proved against the defendant on that count.
With respect to the charge of assaulting Constable Vickery, the magistrate said it was necessary for him to be satisfied beyond reasonable doubt that the blow alleged to have been struck to Vickery’s left ear was deliberate, not an accident and that it did not proceed as a direct and unintended consequence of the physical activities of either Vickery or Tank, or both, in taking hold of the appellant. The magistrate said that, having regard to all the evidence, the conclusion he reached was that he could not be so satisfied beyond reasonable doubt that the act of the appellant in striking Vickery was deliberate. Saying that, the magistrate added that he was and remained satisfied beyond reasonable doubt that the appellant’s actions in relation to resisting police were deliberate. However, the magistrate said the evidence of all police officers present did not universally support a conclusion that the force applied by the appellant was intentional as opposed to accidental, or that it was a by product of force applied to him by another officer or officers. Whilst dismissing the assault police charge on those grounds, the magistrate indicated that considerations of self-defence did not arise.
The magistrate’s remark with respect to considerations of self-defence not arising on the assault police charge are plainly correct. The same needs to be said with respect to the resisting arrest charge. I agree with the submissions put by the respondent that the appellant did not raise any issue of self-defence in his evidence, neither did those issues present themselves upon an examination of all the facts of the case. The appellant’s answer to the two charges was to deny having resisted or assaulted the police. Thus, he did not, by his answer to the charges, raise a defence under s 15 of the Criminal Law Consolidation Act 1935. The situation remains the same with any suggested issue of defence of property. That issue was not raised at the hearing by the appellant. In evidence, he denied that he had used any force against the arresting officers. Thus, there was no issue of self-defence properly before the Court.
The magistrate’s findings involve favourable credibility findings with respect to the version of events deposed to by police and Constable Vickery, in particular. The magistrate has clearly disbelieved the appellant. Nothing in the material before the Court, or in the submissions put before me indicates that the magistrate’s findings involve some palpable misuse of the advantage he had in seeing and hearing the witnesses. After closely considering the evidence and the submissions put on the hearing of the appeal I find that the magistrate had not acted on evidence that was glaringly improbable. This Court cannot properly interfere with the magistrate’s credibility findings nor uphold the various points pursued by the appellant with respect to the conviction being unsafe or against the weight of evidence[1].
[1] Devries v National Australian Railways Commission (1993) 177 CLR 472; (1993) 112 ALR 641 at 646
The alleged errors of law are not made out. In particular this is not a case involving a process condemned by Bray CJ in Hallion v Samuels (1978) 17 SASR 558. That case stands for the authority that where a person is charged with two such offences and the acts constituting the resistance are the same as those constituting an assault a conviction on one charge is a bar to a conviction on the other. In this case the charge of resisting Vickery was separate from the charge of assaulting him as particularised.
I reject the appellant’s complaint of a lack of proper particulars being given. I do not accept that his answer to the charges was prejudiced or embarrassed by the failure to produce a record of his contact with police communications or that the magistrate’s failure to disclose his inability to comprehend things alleged to be said on the tape taken at the Christies Beach station after his arrest generates good cause to shake the propriety of the proceedings or the credibility findings made.
I am satisfied that the appellant was not unfairly disadvantaged in his answer to the charges and the conduct of his defence because of anything done or omitted in the process from arrest to charges and to the finding of one charge proved. However, the matter is a little different with respect to what occurred after the magistrate announced his decision.
The appellant complains that the magistrate failed to hear him on what should be the proper consequence of his finding of guilt. In this Court counsel for the respondent conceded that the magistrate appears to have fallen into error in assessing whether a conviction should have been recorded given the imposition of a fine or sentence of community service. Counsel conceded that whilst the hearing proceeded over five days the prosecution had always indicated to the appellant that they would not oppose any submission that the circumstances of the resist arrest charge were such that the Court could impose a fine or a sentence of community service without recording a conviction.
Given the submissions put to me I find, as I think the magistrate should have found, good reason existing for not recording a conviction. In my view the evidence and submissions put before me establish that the appellant is unlikely to commit the offence of resisting arrest again. The appellant’s character is not attacked. The offence may be said to border on the trifling. There were extenuating circumstances associated with the appellant’s return to Seavista Grove for the second time. I therefore allow the appeal for the purpose of setting aside the conviction recorded. The finding of guilt on the resist arrest charge stands, so does the sentence imposed. The community service is now to be performed within six months of the date of this judgment.
On its face the order for costs was well within the discretion of the magistrate. There is nothing in the submissions put by the appellant that any award of costs should be reduced by 2/3rds because only one charge was found proved. The hearing time was all related to the charge found proved.
In its present form s 13 of the Criminal Law (Sentencing) Act 1988 did not oblige the magistrate to inform himself as to the appellant’s means to pay costs or any fine as much as it was open to the appellant to place any difficulties he might have before the court. The appellant complains that he was not given a proper opportunity to make submissions to the magistrate. I have been told that the appellant’s means are such that he would be unable to comply with the costs ordered or anything like it. Accepting that, some modest amount could be ordered on what is now before me. However, given the retention of the penalty imposed by the magistrate, the time the appellant spent in custody, his present lack of means and other circumstances surrounding this sorry affair, I set aside the order for payment of costs and make no order as to costs of the hearing before the magistrate.
In considering the appeal against conviction I have not taken into account the matters the appellant sought to raise today. I agree with what the respondent has put in his outline of argument with respect to the application to receive further material. There is no significant possibility that an acquittal would have resulted if that material was before the magistrate. The appellant’s evidence at the hearing is indicative of a man in full control of his faculties. Even without the latest submissions I accept that the appellant was very emotionally upset. I have taken that into account in the orders I have made with respect to penalty and costs.
The orders of the Court therefore are:
1 Appeal allowed.
2 Conviction and order for costs in the Court below set aside.
3Finding of guilt and penalties imposed affirmed, the community service ordered to be performed within six months from today.
4No orders to costs of the appeal.

[2003] SASC 229

25 July 2003