House v Police No. Scgrg-99-276 Judgment No. S155

[1999] SASC 155

HOUSE V POLICE

[1999] SASC 155
Magistrates Appeal
1 MARTIN J.  (Ex tempore )          This is an appeal against a decision of a magistrate, in which he found the appellant guilty of assault, damaging property and being unlawfully on premises.  In essence, it was submitted that the findings were unreasonable and could not be supported having regard to the evidence. 
2 The three charges arose out of an incident that occurred at the home of the alleged victim, Rohan Scott Little, on 16 August 1998.  The appellant and Little had been work mates and friends for some years, but in recent times that relationship had deteriorated to the point where the magistrate found that there was "bad blood" between them. 
3 According to Little, the appellant had been harassing him for a long time over another incident and he borrowed a video camera from a friend to get evidence of that harassment.  It was common practice for the appellant to drive his wife to work past the home of Little and Little was waiting for them to do so on the day in question. 
4 The magistrate justifiably found that, in order to get the evidence he sought, Little had, in some way, to entrap or provoke the appellant into offending conduct.  If Little had ignored the appellant on that day, nothing would have happened. 
5 As the appellant and his wife were driving past the premises, Little faced the video camera at them and shouted out, causing the appellant to return.  According to Little's evidence, he said  "Stop, I've got this video for evidence for the police".
6 The appellant, having returned, parked his car on the street adjacent to the front of Little's premises.  The magistrate found that Little was acting in an offensive manner and that he made clear to the appellant, in an offensive and bad-mannered way, that he was collecting evidence and intended to use it against the appellant "with the cops". 
7 At that particular time he had no reason to act in that manner and, ultimately, admitted that the appellant had not done anything at that stage.  Little taunted the appellant by saying he had "got him, fucking got him", and "fucking going to take this stuff to the fucking cops". 
8 The magistrate found that this conduct enraged the appellant.  In the words of the appellant's wife, after being taunted by Little at a time when the appellant was still sitting in the car, the appellant "lost the plot", ran around the back of the car, jumped over the fence and ran across the wet lawn.  According to her evidence, as the appellant ran across the lawn, Little went back inside and shut the door.  The appellant skidded on the terrazzo verandah and fell through the door. 
9 In the magistrate’s view, it was "hard to blame him [the appellant] for losing his cool", but his Honour recognised that the provocation was not a defence to criminal acts.  His Honour found that the appellant leapt from his car in a rage and ran quickly across the front lawn toward Little. 
10 Although his Honour expressed doubts about the appellant's version that he intended to suddenly pull up and confront Little, his Honour expressly stated that he was not satisfied beyond reasonable doubt as to why the appellant had run flat-out across the front lawn.  His Honour was faced, in that respect, with a choice of intention namely, to confront Little either physically or verbally.
11 In those circumstances, and having considered the relevant sections of the evidence to which my attention has been drawn, in my view I should treat the appellant as having intended to stop and verbally confront Little. 
12 As often occurs with incidents of this type, there was a conflict between the evidence of the appellant and Little.  His Honour said he was not overly impressed with either person as a witness, as he thought they both tried to "gild the lily".  He thought Little probably tried to do so more than the appellant.  Notwithstanding that view, his Honour accepted that much of what Little said was the truth. 
13 The appellant's wife also gave evidence and his Honour found that she was a frank, honest and straightforward witness. 
14 According to Little, he closed the screen door in the appellant's face and the appellant deliberately ran through that door.  He said the appellant pushed him up against the wall and down into the hallway, and that he was trying to grab the appellant around the throat.  A section of the appellant's beard was pulled out during the struggle, but Little denied that he pulled the beard.  His Honour preferred the evidence of the appellant that Little had grabbed the beard and yanked it out.  He found that Little was clearly lying about that part of the incident. 
15 According to Little, the appellant somehow walked away from the scuffle and wrenched the middle of the door out.   He threw it at Little and Little's arm was cut.  That act formed the basis of the charge of assault occasioning actual bodily harm.
16 The appellant gave evidence that he did not deliberately run through the door.  He said he skidded when he lost his footing on the verandah and it was in this manner that he went through the door.  His Honour found that the appellant was not entirely convincing on that particular issue.  The appellant described a general melee in the hall which included parts of his beard being pulled out.   Eventually he walked out of the house. 
17 His Honour observed that the appellant's wife basically confirmed what the appellant had said, including the fact that he slipped on the verandah. 
18 As to the charge of being unlawfully on the premises, his Honour found that the appellant: "had no right to barge on to the property in the way he did." In his Honour's view, implied consent and licence were not applicable and the appellant had run "flat out" onto the property without permission to confront Little. His Honour found in those circumstances that the appellant did not have any right to run onto the premises with that intention and that he was, therefore, guilty of being unlawfully on the premises. The test to be applied by the magistrate was explained in Samuels v Nicholson (1973) 6 SASR 498. The critical issue is whether the appellant's conduct went beyond a mere matter of compensation between the appellant and Little so as to amount to a crime deserving of punishment. It is recognised that judicial minds will differ as to what facts constitute the offence, as the assessment is, to a considerable degree, a matter of the subjective view of the facts.
19 In arriving at his ultimate finding, his Honour referred to the fact of provocation and that the appellant had no right to barge onto the property in the way he did.   He said:
"He shouldn't have done it.  He didn't have any right to do it.  He must be found guilty of being unlawfully on premises."
20 Counsel for the appellant submitted that his Honour may have overlooked the relevance of the conduct of Little in provoking the appellant to the question whether this was conduct amounting to a crime and deserving of punishment.   I agree.  His Honour appears to have dismissed the provocation and simply proceeded to find guilt on the basis that the appellant had no right to be on the premises and shouldn't have been there. 
21 As mentioned, on Little's evidence, he had called upon the appellant to stop as the appellant was driving past his property.  When the appellant returned, he goaded the appellant in what the magistrate described as an offensive and bad mannered way.  It was that goading that caused the appellant to lose his temper and to enter onto the premises with, as I said previously, an intention to confront Little verbally.  During the course of the incident, at no time did Little say to the appellant that he was not to enter onto the premises.  That is not said as a criticism of Little, but as a factual observation of the circumstances in which the appellant came to be on the premises.  While there may not have been time, it is also pertinent to observe, that when the appellant alighted from his motor vehicle and started to run across the lawn, Little did not verbally indicate that he should stop or refrain from doing so.  Little retreated behind the closed door.  As counsel for the appellant pointed out, there is no evidence that Little was intimidated by the conduct of the appellant. 
22 In these circumstances I am satisfied that the appellant's conduct amounted to a trespass, but that is not the test.  Having regard to the test enunciated in Samuels v Nicholson, and the circumstances in which the appellant came to be on the premises, in my opinion the prosecution failed to prove the offence as charged. 
23 As to the circumstances in which the door was damaged, his Honour was not satisfied that the appellant intended to run straight through the door.  He referred to the fact that the door was closed almost moments before the appellant arrived at a fast pace and the failure of the prosecution to prove that the appellant did not skid on the verandah. 
24 His Honour accepted that the appellant may have skidded a bit, but he found that, given the manner in which the appellant ran toward the door, he was satisfied beyond reasonable doubt that the appellant was recklessly indifferent as to whether he went through the door or not.   His Honour said:
"He should not have run to the door in the manner in which he did even allowing for the fact that he may have skidded.  As a consequence of his reckless indifference he went into and subsequently through the door.  He was very familiar with the place.  It wasn't [as] if he was taken unaware.  As a consequence of his recklessness he went through the door and the door was damaged beyond repair.  I am satisfied beyond reasonable doubt that he is guilty of the offence of wilful damage by reckless indifference."
25 As to the charge of assault occasioning actual bodily harm, his Honour found he was not confident enough of Little as a witness to accept his evidence that the door was thrown by the appellant, in view of the denial by the appellant and the evidence of the appellant's wife that the appellant did not throw the door at Little.  Although Little was cut in the arm, his Honour was unable to arrive at a finding as to how he sustained the cut.  It was in those circumstances his Honour found the appellant not guilty of assault occasioning actual bodily harm.  His Honour found the appellant guilty, however, of the lesser alternative of assault.  He accepted the evidence of Little that he was pushed backward by the door coming in and found as follows:
"I am satisfied beyond reasonable doubt on all the evidence that the defendant ran at Mr Little with hostile intent and that with reckless indifference, with or without skidding, he crashed through the door pushing Mr Little backward.   Such an action, in my view, amounts to assault upon the victim Rohan Scott Little.  On Mr House's own evidence if the door hadn't been closed he would have run straight into Mr Little in any event which would have amounted to an assault."
26 I have read the evidence to which the magistrate referred where Mr House said if the door had not been closed he would have run straight into Mr Little.  In the passage of cross-examination the appellant said he was hoping not to run into Little.  When it was put to him that he would have gone straight into him he replied;  "In this case, yes."  That answer was not explored and it does not necessarily follow that the appellant was conceding that it was merely his pace that would have resulted in him running into Little.  He may well have had in mind that his attempt to stop was unsuccessful because he slipped on the verandah. 
27 The trial occupied only one day and the magistrate had the advantage of hearing the appellant, the appellant's wife and Little give evidence and be tested by cross-examination.  He delivered his ex tempore reasons the same day.  There is no basis and nothing has been identified as a basis upon which this court can interfere with his Honour's view as to the credit of the witnesses or his essential findings as to the events that occurred.   The appellant's attack on the findings is centred primarily upon inferences that his Honour drew and his determination that the conduct amounted to the offences with which the appellant was charged. 
28 In the written outline of submissions and during the course of oral submissions today, counsel for the respondent has made a significant and, in my opinion, an entirely appropriate concession.  Counsel has agreed that the finding by the magistrate that the appellant may have skidded into and through the door must, in turn, mean that accident was not excluded as a reasonable possibility.  In these circumstances, the respondent has submitted that the convictions for damaging property and assault, on the version of facts as found proven by the magistrate, cannot be sustained. 
29 His Honour did not discuss the meaning of "reckless indifference" as he applied it to both charges.  He found that the prosecution had failed to prove the appellant did not skid on the verandah, which left open the reasonable possibility that the inability to stop was caused by the skidding and, in essence, that contact with the door and pushing Little backwards was the result of an accident. 
30 As I mentioned previously, there was no finding or evidence that Little was put in fear by the conduct of the appellant.  The facts as found by the magistrate also tend against a finding that the appellant adverted to the possibility that he might not be able to stop.  It is to be remembered that Little closed the screen door in the appellant's face. 
31 In those circumstances, the convictions for assault and damaging property cannot be sustained.  The findings of guilt, of assault and damaging property cannot be sustained.  The appeal will be allowed, the findings of guilt on all three counts are set aside and verdicts of acquittal are substituted.
32 I order that the respondent pay the appellant's costs of this appeal fixed at $150.