Karpany v Police - [2013] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KARPANY v POLICE
[2013] SASC 124
Judgment of The Honourable Chief Justice Kourakis
9 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
The appellant was found guilty of hindering police. The appeal is against the Magistrate’s finding of guilt. The appellant argued, firstly, that he was not afforded an adequate opportunity to defend the charge and, secondly, that the Magistrate erred in finding that he had intended, or was aware, that his actions would hinder police.
Held:
(1) The appellant failed to establish that a miscarriage of justice had arisen with respect to the procedural fairness of the trial (at [10], [15] and [16]).
(2) The Magistrate did not err in finding that the appellant intended, or knew, that his conduct would hinder police (at [24]).
(3) Appeal dismissed (at [26]).
Summary Offences Act 1953 (SA) s 6(2), referred to.
Leonard v Morris (1975) 10 SASR 528, discussed.
Grey v R (2001) 184 ALR 593; The Queen v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, considered.

KARPANY v POLICE
[2013] SASC 124
Magistrates Appeal: Criminal

KOURAKIS CJ: After a trial in the Magistrates Court, in which he appeared without counsel, the appellant, Mr Karpany, was found guilty of an offence of hindering a police officer at Port Germein on 30 November 2011. The Magistrate placed the appellant on a bond without recording a conviction. Mr Karpany appeals against the finding of guilt.
The Notice of Appeal, which was not drawn by a solicitor, raised many grounds of appeal, including a constitutional challenge to the legislative authority of the State to make laws binding an indigenous Australians. That ground, and many of the others, were abandoned by counsel, Mr Koziol, who appeared for Mr Karpany on the appeal. Mr Koziol argued only two grounds. The first was that Mr Karpany was not afforded an adequate opportunity to defend the charge. The second was that the Magistrate erred in finding that Mr Karpany had intended, or was aware, that his actions would hinder Brevet Sergeant Garden (“Garden “) in the execution of his duty, namely the arrest of Mr Karpany’s son. For the reasons which follow, I hold that those grounds are not established and dismiss the appeal.
The Trial
The Magistrate summarised the prosecution evidence in the following way:[1]
The prosecution called three witnesses, Brevet Sergeant Garden and Constables Osborne and Burgess. In response to a complaint about a disturbance Sgt Garden attended the Port Germein Hotel, from which he was directed to the bowling club and then to a private residence, where he located Owen William Karpany (now known to be the defendant’s son) and arrested him, as he suspected him to be the person about whom reports of disorderly conduct had been received. During this arrest, Owen William Karpany called out for assistance and the defendant came out of the front door of the house to where Brevet Sgt Garden was struggling with Owen William Karpany. The defendant approached and was yelling at Brevet Sgt Garden to get off the property and was doing so from such close proximity that the police officer felt threatened and pushed the defendant away, following which another two police officers who had just arrived, assisted with the arrest.
[1] Police v Karpany MCPIR-12-1561 (Mr D Whittle SM) 18 February 2013, [4].
Mr Karpany gave evidence in his defence. His testimony is summarised in the following paragraph of the Magistrate’s reasons:[2]
The defendant then gave evidence upon affirmation. He said that he was in this house putting to bed his mate who was drunk. His son had been drinking and wanted the defendant to go over to the pub and sing some songs. He did not want to. Unbeknown to him, his son must have slipped out and gone to the pub. The defendant was cleaning up the house and his three grandchildren were in the lounge room playing on the floor. The defendant then heard screaming and realised the kids had gone outside so he ran out front door. He saw that the police officer he now knows as Garden had his son on the ground with his right hand on his head into the dirt and with his left hand was trying to handcuff him behind his back. The youngest grandchild was standing next to him watching and he went over to grab his grandson. Sgt Garden was going off telling him to get away and he was going to be charged. The defendant said “Hey, what’s going on here?” He grabbed or was trying to grab his grandson and then the other two and then other police came in. He moved away from Garden and then Burgess pushed him in the chest. After this, they completed arresting his son and the defendant told the police to give him some water. They took his son away to the police vehicle and he managed to get together his three grandchildren and put them into his car. He rang Aboriginal Legal Rights. About 25 minutes later Garden came back again and talked to him, asking for his licence and then saying he was too old for this. The defendant said, “So am I”.
[2] Ibid, [18].
The Magistrate made the following findings:[3]
Accordingly, I find beyond reasonable doubt that after Brevet Sgt Garden had sprayed the defendant’s son with OC spray, and was kneeling over him attempting to handcuff him and finalise taking him into custody, the defendant arrived and stood over Garden and his son and told him, in circumstances which Brevet Sgt Garden understandably found threatening, “Fuck off you’ve got no right to be here”. When Garden then said something to the defendant to try to get him to withdraw and the defendant again told him to fuck off to get off his son. Then, Garden pushed the defendant away, at which time Constable Burgess stepped between Garden and the defendant and continued to move the defendant away from the arrest of his son.
I make no finding about the exact positions of the children at various times but I have no doubt that they were in the front yard of the property and causing the defendant very great concern, in addition to his concern about his son being arrested and sprayed with OC spray.
It is quite plain that Brevet Sgt Garden, and all of the police officers involved, were acting in the lawful execution of their duty and that Garden was exercising a lawful power of arrest. I find beyond reasonable doubt that the defendant’s actions made Garden’s work in arresting the defendant’s son significantly more difficult.
Having made these findings, it is irresistible to infer from all of the circumstances that the defendant either intended to make the work of Brevet Sgt Garden in arresting his son more difficult or, at the very least, was aware that what he was doing was likely to impede the police and decided nevertheless to act as he did.
[3] Ibid, [31]-[34].
Trial was procedurally fair
The appellant’s complaint that he did not have an adequate opportunity to defend himself has two aspects. First, it is contended that there has been a miscarriage of justice because the appellant did not have an opportunity to call his son as a defence witness.
Mr Karpany and his son had been charged on a single complaint, the latter with using offensive language and resisting arrest. The charge against the appellant was severed and it was listed for trial on 23 January 2013. The trial of his son was listed on a later date. The appellant was in court when both trial dates were set.
The appellant’s trial proceeded on 23 January 2013. At the conclusion of his evidence the Magistrate asked the appellant whether he proposed to call any other witnesses. The appellant replied that the only other witness was his son who was in Claire. However, the appellant continued:[4]
I can’t see him giving evidence because he was sprayed with capsicum. What could he see what was going on.
[4] Trial transcript, T95.
The appellant was asked again whether he had any other witnesses and responded:[5]
No, there’s no other witnesses.
[5] Ibid.
I am satisfied on the basis of that exchange that the appellant was afforded an adequate opportunity to call his son. The appellant’s decision not to call his son was based on his assessment that his son was not in a position to give any testimony that would support his defence. The appellant has not adduced any material on appeal to show that that assessment was mistaken. Nor for that matter has the appellant adduced any material to show that his son would have been prepared to give evidence in advance of his own impending trial. In those circumstances the appellant has failed to show that there has been a miscarriage of justice.
The second aspect of the appellant’s complaint on this ground is that he was not provided in a timely manner with a printout of a police communications log which shows the times at which police patrols were tasked to a disturbance at the Port Germein Hotel, and the times at which they reported the actions that they had taken in response to that tasking.
I received, on the appeal, an affidavit from the police officer who prosecuted the appellant at his trial. He deposed that a copy of the log had been given to Mr Karpany Senior on the morning of the trial. I was told from the bar table by Mr Koziol that the appellant could not recall receiving a copy of the log but that he accepted that it may have been given to him. Mr Koziol put his argument on the basis that the disclosure of the log on the morning of the trial did not give the appellant an adequate opportunity to consider it, and the use to which it might be put in his defence. Counsel for the police, Ms Schwarz, was, for her part, content to proceed on the appeal on the basis that the disclosure was not given in a timely manner.
The log shows that Garden was despatched to the Port Germein Hotel at about 14:55 as a result of a report that Mr Karpany’s son was acting in an abusive and threatening way. The log shows that Garden went from the hotel to a nearby address on Sixth Street at about 15:07. Subsequent entries record that at 15:12 Garden communicated that he had completed the arrest of Mr Karpany’s son. The log also shows the attendance of a police patrol from Port Pirie at about 15:16.
The log records are generally consistent with the evidence of all three police witnesses that the incident which culminated in the arrest of Mr Karpany’s son occurred at about 3.00 pm on 30 November 2011. Nonetheless, counsel for the appellant contended that if the log had been disclosed earlier the appellant might have investigated the information recorded in the log. He argued that a cross-examination informed by the log and the results of any subsequent enquiries may have elicited inconsistencies in the testimony of the police witnesses.
The appellant’s submission on this ground should be rejected. On an appeal to this Court from a conviction in the Magistrates Court the appellant must show that there has been a miscarriage of justice. Speculation as to what might have been achieved if a different course had been adopted does not discharge that burden. The speculation about the effect of the non-disclosure of the log in this case can be contrasted with the failure to disclose a “letter of comfort” given to a prosecution witness, a situation which was considered by the High Court in Grey v R.[6] The very nature and content of a “letter of comfort” provides a reason to scrutinise the recipient’s testimony and it is readily apparent that cross‑examination about the motive it gives the recipient to implicate the defendant will materially assist in the defence case.
[6] (2001) 184 ALR 593.
The appellant also raised the reference in the log to the activation of an emergency alarm at about the time that Garden was tasked to the disturbance. There was no mention by any of the prosecution witnesses of the activation of an alarm. Mr Koziol submitted that inquiries about the emergency alarm might also have elicited information which might then have been deployed in the trial to cast doubt on the prosecution evidence. That submission, too, is speculative and fails to establish that there has been a miscarriage of justice.
Intention to Hinder Police
I turn to the appellant’s second ground. The elements of the offence of hindering and resisting a police officer in the execution of his or her duty were considered by this Court in Leonard v Morris.[7]
[7] (1975) 10 SASR 528.
Bray CJ described the mental element of the offence in this way:[8]
I think the defendant must either intend substantially to impede the particular individual who happens, whether known or unknown to him, to be a police officer in the performance of whatever that individual is engaged in, which happens whether known or unknown to the defendant, to be in the execution of his duty as a member of the police force, or else he must, being aware that what he is doing or about to do is likely so to impede that individual, decide nevertheless to do it or go on doing it.
[8] Ibid, 531.
Wells J explained the mental element in these terms:[9]
It is sufficient for the prosecution to prove that the defendant voluntarily committed acts that, in the circumstances as he was aware of them, and as he then and there realised, were likely to, and did in fact, substantially impede or obstruct certain acts being done, or about to be done, by another person; that that other person was in fact a police officer; and that the acts seen as likely to be, and that were impeded or obstructed, amounted in fact to the execution by that police officer of his duty or a part there.
[9] Ibid, 547.
Even though it is not an element of the offence that a defendant know that the police officer was engaged in the execution of his duty, a reasonable belief that the police officer was not so engaged may still exonerate a defendant charged with resisting or hindering police in a way which does not constitute an assault.[10] However, in this case, there was no evidential basis for such a belief.
[10] The Queen v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381, 385-386 (Dixon CJ); 389 (Kitto J); 399 (Menzies J).
Bray CJ and Wells J both accepted that the interference had to be substantial. The meaning of substantial in this context was explained by Walters J in the following way:[11]
Nevertheless, it seems to me that the concept of “hindering” involves some positive and active conduct and that the word should not be given such a vague or notional meaning as would comprehend some trivial or ineffective impediment or obstruction of a police officer.
[11] (1975) 10 SASR 528, 535.
The critical question on this ground is therefore whether, in all of the objective circumstances established by the evidence, the Magistrate was correct to find that Mr Karpany knew, or believed, that his conduct would make Garden’s job of restraining his son more difficult.
Garden explained the difficulty caused by the appellant’s conduct in this way:[12]
He was not making my job easier. He was making my job significantly more difficult. I was trying to arrest – sorry, restrain fully a gentlemen on the floor. I was trying to – I wanted to handcuff the person on the floor. However I couldn’t concentrate fully on doing that because I had to concentrate as well with Mr Karpany basically leaning over the top of the pair of us. I had to concentrate on what Mr Karpany may have done, so I couldn’t give my undivided attention to the person that had been arrested. I could only give 50% of my attention. So that made my job a lot harder; it made my job so much harder that I had to physically push Mr Karpany in the chest to get him away to try and placate the situation. I don’t know because I’m not that person, I don’t know what effect Mr Karpany was having on the gentleman on the floor but the gentleman on the floor certainly wasn’t calming down when this gentlemen was here.
[12] Trial transcript, T30-31.
I am not persuaded that the Magistrate erred in finding that the appellant intended, or knew, that his conduct would make Garden’s job in restraining Mr Karpany’s son materially more difficult. Let me explain why. First, the very statements made by the appellant took the form of commands to Garden to desist from restraining his son and to leave the premises. Those commands disclose a desire to bring an end to the very actions which Garden was taking in the execution of his duty. Secondly, it is obvious that the appellant’s conduct would cause Garden the difficulties he described in his testimony. In the ordinary course, it would be readily apparent to anyone that approaching and shouting at a person attempting to restrain another will be distracting and make his or her job more difficult. The evidence did not disclose any reason to doubt that Mr Karpany had the capacity to observe and appreciate that fact at the time. Thirdly, Mr Karpany falsely denied that he had told Garden to get off his son and leave the premises.
The appellant’s complaint on this ground must also be rejected.
Conclusion
I dismiss the appeal.