Justine Louise Andrews v Michael Laurence Hayes No. SCGRG 93/339 Judgment No. 3948 Number of Pages 4 Justices

[1993] SASC 3948

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT ADELAIDE DUGGAN J

CWDS
Justices - jurisdiction and procedure generally - Appeal against conviction for offence of disorderly behaviour - desirability of court making specific reference to criminal onus - Elliott v Harris 13 SASR 516 referred to - evidence assessed in accordance with principles laid down in Laurie v Nixon (Full Court unreported 12th November, 1991) - appeal dismissed.

HRNG ADELAIDE, 13 April 1993 #DATE 13:5:1993
Counsel for appellant:     Mr J. Lister
Solicitors for appellant:    Sykes Bidstrup
Counsel for respondent:     Ms J. Rugless
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The appellant was convicted of behaving in a disorderly manner in a public place, namely, Hindley Street. According to the prosecution case the offence took place on 16th December, 1991. After a lengthy summary hearing the learned magistrate accepted the evidence of two uniformed police officers that the appellant behaved in a disorderly manner in the street outside a hotel from which she had been removed by one of the police officers. It is conceded that if the evidence of the police officers is to be believed the conduct amounted to disorderly behaviour. However the grounds of appeal challenge the learned magistrate's view as to the veracity of the police evidence and the manner in which he arrived at that view. It is also claimed that he failed to apply correctly the onus and standard of proof; that he failed to take into account the evidence as to the good character of the appellant; and that he failed to consider whether an inference adverse to the prosecution case should be drawn by reason of its failure to call a material witness. 2. The two uniformed police officers who gave evidence of the incident outside the hotel were Constable Kittel, a woman police officer, and Senior Constable Hills. According to their evidence they entered the Royal Admiral Hotel in Hindley Street shortly after 12.30 a.m. Hills spoke to the appellant who was in what is known as the discotheque section towards the rear of the premises. He then moved off. According to Kittel, the appellant poked her tongue out at Hills as he turned his back on her and made an indecent gesture with her fingers at the same time. Kittel stated that the appellant was unsteady on her feet and, in due course, she noticed a strong smell of liquor on her breath. Her speech was slurred. Kittel described the appellant as being moderately affected by liquor. 3. Kittel said she asked the appellant to step outside the hotel and the appellant put her hands out in front of her and said "Take me now". The appellant also said "It was only a cheeky joke. This is bullshit. I'm staying here.". 4. At this stage Kittel took hold of one of the appellant's arms, pushed it up behind her back and removed her from the premises. Outside the hotel Kittel said she told the appellant she had been removed from being drunk and disorderly and she was not to enter the premises for another 24 hours. The direction was given pursuant to s.128 of the Liquor Licensing Act, 1985. 5. It was at this stage, said Kittel, that another female emerged from the hotel. Her name is Rhonda Hazel and she gave evidence for the defence. Kittel said Mrs Hazel linked arms with the appellant and told her that she did not have to obey the police directions. According to Kittel, Hazel was moderately to grossly affected by alcohol and she was aggressive in her behaviour. Kittel said the appellant then commenced swearing and stated that she was going back inside the hotel. Although the appellant was warned about her language and conduct she continued to abuse Kittel and swear at her. The appellant was then told she was under arrest. Eventually the appellant and Hazel were placed in the rear of a "cage car" and taken to the city watchhouse. Constable Hills said he spoke to the appellant inside the hotel. As he approached the door on his way out of the hotel he realised Kittel was not with him and he turned to see her escorting the appellant from the premises. Hills saw Hazel join the group and heard her shouting and yelling abuse. Hills could not recall the details of the conversation between Kittel and the appellant but he said he remembered Kittel telling the appellant that she was not to return to the hotel and the appellant saying she wanted to go back. He also heard her use offensive language and noticed Hazel link arms with the appellant. He said he arrested Hazel for assaulting police and disorderly behaviour. 6. The appellant gave evidence. She said that on the evening of the alleged offence she went to the Royal Admiral Hotel. She was sitting at a table in the hotel when the police officers walked in. She said to the male police officer as he walked by "Not much happening here." She denied making a rude gesture with her hand or poking her tongue out. She said she had the habit of flicking her tongue in and out of her mouth because she wore dentures. The appellant said that the woman police officer then came up and told her she was being "a smart arse." The appellant continued:
    "She was tapping me on the shoulder telling me I'd done
    something obscene with my mouth and I said 'No, I didn't' and
    she said 'Yes, you did'. I said 'What are you doing, arresting
    me?' because she kept tapping on me on the shoulder to get up
    and she said 'Come on' and so I stood up and I said to her 'Are
    you going to take me by the wrist?' and she said 'No, not for a
    smart arse' and put my hand up my back and marched me out the
    door." 7. The appellant said that the placing of her arm up behind her back hurt her and she told the woman police officer so on a number of occasions. She said that outside the woman police officer twisted her arm higher up and shook it. The appellant said that at no stage did she endeavour to go back into the hotel. When they were outside Hazel, whom she did not know, came out and told the police to let the appellant go. She also took hold of the appellant's arm. According to the appellant, Hazel swore at the police and she was arrested. The appellant said that at no stage did she swear and that the woman police officer held her arm up behind her back throughout the time they were on the footpath. She was not even told why she was being arrested. However she said the police officer did say something to her about not re-entering the hotel. 8. As I have said, Hazel was called by the appellant to give evidence. She said she had never met the appellant before this night. She said she was in the back room of the hotel when two police officers walked through. She did not see any incident between the appellant and either of the two police officers in the hotel, but she did see the appellant being taken out of the hotel. She said she could see that the appellant was in pain as her arm was being held behind her back. The appellant complained that she had a shoulder injury (the appellant also mentioned this in her evidence) and the witness said she could see that the appellant was in pain. 9. It can be seen from this short resume of the evidence that there were wide divergences between the prosecution and defence versions as to what occurred at the scene of the alleged incident. The divergences were just as marked when the witnesses came to describe what happened at the city watchhouse. The appellant claimed in evidence that she was there subjected to abuse which could only be described as disgraceful. She alleged, for example, that the watchhouse sergeant told her she had no rights and to get against the wall because her breath stank. She was also told that if she wanted to see a doctor she would be put in a cell for 48 hours and the police "would let her rot". The witness Hazel also made a variety of allegations of misconduct against the police. All these allegations were denied. 10. It was claimed on behalf of the appellant that the learned magistrate did not apply the correct onus and standard of proof. The appellant's counsel drew particular attention to certain passages in the reasons for decision. The learned magistrate said:
    "But Mrs Hazel's evidence that constable Kittel hurt the
    defendant by holding her arm up behind her back, notwithstanding
    her protests and exclamations of pain, raises a serious issue as
    to the truthfulness of the police witnesses. On the other hand,
    Mrs Hazel was on her own admission in a disturbed frame of mind
    due to mental illness, and was quite possibly affected by
    alcohol as well in my view, and after some reflection it seems
    to me that I can only prefer the police evidence." 11. Later in his reasons his Honour said:
    "Altogether, I decidedly prefer the police account of the
    incident in the hotel and on the footpath. The defence evidence
    of misconduct on the part of Sergeant Fleet and Constable Baker,
    and also of Kittel and Hills' taunting the defendant, does not
    persuade me to the contrary point of view. If anything, the
    defendant's apparently extravagant account of Sergeant Fleet's
    supposed misbehaviour tends to support the view that she is a
thoroughly unreliable witness." 12. (Fleet and Baker were on duty at the city watchhouse at the time). The magistrate did not refer specifically to the charge being proved beyond reasonable doubt. However in my view Bray CJ's comment in Elliott v Harris (No. 2) 13 SASR 516 at 525 that " ... it is impossible to infer from that omission that he was applying some different standard of proof or that he had disregarded the most fundamental principle of criminal law in Anglo-Saxon systems" is also applicable in the present case. Although I am of the view that it is preferable that crucial findings should be expressed in the reasons for decision in language which makes it clear that the criminal onus is being applied, I think that in the circumstances of the present case it must be inferred that the appropriate onus was applied. I am of the view that it must be implied from his Honour's reasons that he accepted the police evidence on those matters necessary to constitute the offence beyond reasonable doubt and that the evidence relating to the alleged police misconduct was part of the material which he took into account in deciding the ultimate issue of guilt. I do not read his Honour's comments about the possibility of the defence evidence persuading him to a different view as in any way indicating a reversal of the presumption of innocence or a misunderstanding of the standard of proof required. 13. The next criticism of the learned magistrate's reasoning arises from the following comment on Mrs Hazel's evidence:
    "It seems that Mrs Hazel and the defendant were not known to
    each other before this incident - that I accept - but there is a
    distinct possibility that the defendant influenced Mrs Hazel's
    account of the events at the hotel and the latter has adopted
    the defendant's version out of ill-feeling against the police
    due to her alleged experiences in the Watchhouse. Although I
    should say about this that the prosecution evidence as to her
    behaviour in the Watchhouse, including that of the cell guard,
    Constable Baker, is that Mrs Hazel was hysterical and quite
    irrational." 14. The charge against Mrs Hazel was not proceeded with. According to a letter written on her behalf to the Commissioner of Police she had been diagnosed sometime before as a manic depressive. The learned magistrate did not explain the circumstances in which the appellant might have influenced the evidence of this witness and the allegation was not put to either witness in specific terms during the giving of evidence. However in examination-in-chief the appellant stated that she had not spoken to Mrs Hazel since the incident until she had seen her at the court. The learned magistrate was not prevented by this denial from drawing an inference to the contrary, although I think it a little unusual that he was prepared to do so without the allegation being put to the witness more directly. Nevertheless, having read Mrs Hazel's evidence, I think there is much to support the magistrate's apparent view that she was unreliable. Her evidence as to the main issue in the case, the incident outside the hotel, was, in my view, vague and unsatisfactory and I reject the argument that it deserved more weight than the magistrate was prepared to attach to it. 15. The learned magistrate did not specifically refer to the evidence of the appellant's good character. However the matter was referred to on a number of occasions during the proceedings and I do not think it can be inferred that it was not taken into account when the evidence was being assessed. Another ground of appeal claims that the learned magistrate failed to consider whether an adverse inference should be drawn against the prosecution for failing to call a potential witness who was one of several people who apparently witnessed the incident outside the hotel. Constable Hills took a statement from one of them. According to evidence given by Kittel at the trial the witness was advised to attend court but did not do so. When he did not attend Kittel tried to contact him but was unable to do so. No application for an adjournment was made by the defence by reason of the non- attendance of the witness and in all the circumstances I do not think it would have been appropriate for the learned magistrate to draw any inferences as to his non-attendance. 16. I have considered the various criticisms of the prosecution witnesses made by counsel for the appellant and I have also made an independent assessment of the evidence in order to determine the propriety of the verdict (Laurie v Nixon unreported decision, Full Court, 12th November, 1991). However I have reached the view that in all the circumstances the conviction was properly recorded. 17. The appeal will be dismissed.