Khammash v Police No. Scciv-01-4
[2001] SASC 52
•9 March 2001
KHAMMASH v THE POLICE
[2001] SASC 52
Magistrates Appeal
(Criminal)1................ Gray J The appellant, Mr Khammash, was convicted on charges of common assault and indecent assault. This is an appeal against conviction.
The Complaint
2 The complaint alleged that Mr Khammash:
"...
3...... On the 8th day of January, 2000, at Reynella in the said State indecently assaulted LK
Section 56 of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.
4...... On the 8th January, 2000, at Reynella in the said State indecently assaulted SJO
Section 56 of the Criminal Law Consolidation Act, 1935
This is a minor indictable offence.
...
6...... On the 8th day of January, 2000, at Reynella in the said State assaulted SJO
Sections 39(1) of the Criminal Law Consolidation Act, 1935.
This is a summary offence.”
Background
The Crown Case - a short description
3 On Saturday 8 January 2000, two young women, SJO and KL were walking on Reynell Road, Reynella. They were working, promoting the products of the AAPT phone company. They were approached by Mr Khammash who was driving his father’s two door sports car. Mr Khammash was aged about thirty years, SJO twenty years and LK nineteen years.
4 Mr Khammash had purchased a second vehicle in the Reynella area. He asked SJO and LK to drive the vehicle to Parafield. He offered them $20. They refused. The conversation then turned to the product the women were promoting.
5 Mr Khammash turned into a side street. Both women entered his vehicle to discuss the promotion. Relevant paper work was filled out. Mr Khammash provided details, including a false name and address. Once the forms were completed, the women left his vehicle and stood on the footpath. Mr Khammash drove away, but then turned his vehicle and stopped in front of the women. At that point, according to the women, his behaviour became erratic.
6 Mr Khammash accused the women of taking his wallet. They denied the accusation. He searched the surrounding area and then asked to search their bags. They agreed. SJO said she did so because she was scared. Mr Khammash then said he wanted to search their persons. The women strenuously objected. They denied giving consent.
7 At some point, the women attempted to run away. Mr Khammash gave chase. He caught SKO, grabbed her and dragged her back to his car. LK unsuccessfully tried to free SJO.
8 SJO described the body search as “rough”. Mr Khammash held her in a headlock. She claimed that he "was groping her breasts, groin, legs, stomach, basically everywhere." This was over her clothing. She described the groping as “pretty hard”.
9 Mr Khammash then searched LK. She described being held by the left breast whilst he patted her body with his other hand. She said that he touched her crutch and was patting and stroking her in that area. This was over her clothing. She said she was yelling for help.
10 Witnesses described seeing the women in a distressed state.
11 A witness gave evidence that she observed an altercation as she drove past. She saw a man holding both women. She described the women as struggling, hysterical, crying and yelling out. She said the man was also yelling and sounded angry. The women were yelling, "stop your car". The witness did not stop. She drove home quickly to summon her father. He telephoned the police.
12 Other people arrived. Mr Khammash left the area saying:
"I might have left [the wallet] ... at the house where th[e] car was."
The Defence Case - a Short Description
13 There was little dispute about the facts up to the point where Mr Khammash undertook a U-turn to speak with the women.
14 It was the defence case that as Mr Khammash drove away, he noticed that his wallet was not where he had left it on the console. He searched to no avail. He claimed that prior to purchasing the vehicle, his wallet contained $2,300.00 cash.
15 Mr Khammash claimed he was polite when speaking with the women. He was not rude. The women became emotional, but he remained respectful. The magistrate summarised his evidence as follows:
"He said that at one stage, they had attempted to run off and he had grabbed one and brought her back to the car. When asked whether he searched either girl, he said that he had. That he asked them if he could pat them down and they both said yes. He denied that he had either in a headlock or he had ripped any of the pages of their papers. He said that he had searched their papers and their bags and he searched the car, the grass, a letterbox and the surrounding area 10 metres by 10 metres, which included ground-cover and trees. He thought it possible that they had put his wallet somewhere. He said that a person with a dog and his father-in-law came across and tried to calm them down, but he said that he was pretty calm by then and left in his vehicle, to see if he had possibly left it at the house where had bought the car. He said there was only a small possible chance of that, but he was checking to make sure. After he had gone, he looked in the back seat and found his wallet on the floor. He was sure that it wasn't there when he looked before. He thought it possible that one of them had thrown it back into the car. He regarded that as a slight possibility. He was relieved as his objective was to relocate his wallet. He counted the money. It was all there and he drove home. He later spoke to the police and exercised his right not to answer questions and, of course, no inferences of any kind can be drawn in that regard.
...
However, with respect to the intended search he used the words, 'I want to pat you's girls down.' He said they both replied 'You can pat us down'. He described that conduct as frisking them, patting them down, everywhere except their genitals. 'I did not touch their genitals'. He said that he asked SJO first and she said 'You can pat me down if you like'. He denied that he had touched her on the breasts. He said he touched her around her genitals, but only in that area, not the genitals. He patted down on her buttocks to see if there was a hard object. He said that he was still being polite at that stage. As to the other girl, again he asked her permission and he said she said 'Yes'. He denied touching her breasts or her vagina. He admitted searching around her buttocks. He said that there was no resistance whatsoever from the girls, but they kept on swearing, 'They were defensive with profanities'. He admitted that he tried to pull one of the girls to the car, he wanted them to stay around. When asked of the incident where the girls ran off, he admitted they were screaming and ran toward the front door of a house 10 metres away. He couldn't recall what they were saying, but dragged one back to the car. He said he held both of the wrists of one girl in one hand, but pulled her back gently."
16 Mr Khammash said that the women consented to having their person searched. He maintained that there was no indecent touching.
17 Mr Khammash accepted that he had grabbed SJO and dragged her back to his car.
18 Mr Khammash later found his wallet on the back seat of his car. He thought that one of the women must have thrown it there when he was away from his vehicle.
The Magistrate's Findings on Credibility
19 On critical issues, the magistrate rejected the evidence of Mr Khammash. However, he accepted that Mr Khammash believed his wallet had been stolen. Mr Khammash's account of the women’s treatment was rejected. The magistrate said:
"I was not impressed by the defendant as a witness and I thought that some of his claims were fanciful.”
“I simply do not believe that he felt pressured into signing up to the service they offered.”
“I reject entirely his claim that he asked their permission and they granted him their permission to undertake a body search.”
“I reject his denials that he did not touch their breasts and groin areas and I accept what they say about that.”
20 On critical issues, the magistrate accepted the women's evidence, although he found they had exaggerated to some degree. He said:
"It is true that both SJO and LK described a different sequence in the unfolding of the events alleged and their description of those events in some respects differs. I also think that Mr Retalic's assertion that there was some degree of exaggeration of the events is partly accurate. Generally speaking, however, I was impressed by both LK and SJO and I think that the discrepancies in their evidence are easily explained by the circumstances in which they found themselves. Where their description of the events was in conflict with the description given by the defendant, I prefer the formers version."
Review of Findings on Credit on Appeal
21 As was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission[1] at (479):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
[1] (1992-93) 177 CLR 472
22 These remarks were approved in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)[2]. Kirby J then said at (323):
“Appellate judges must necessarily perform their statutory function. They must rehear the matter and form their own conclusions on the evidence recorded at the trial. Rising to their duty, they must condescend to a re-examination of the facts, if their statutory charter so requires or permits. Yet that re-examination obliges appellate judges to take into account, and give full weight to, the advantages which the trial judge had and which, in the nature of their different functions and purpose, they may not have.”
Kirby J acknowledged the many technological and social advances, that have increased an appellate court’s ability to assess witness credibility. At (330) he stated:
“None of the foregoing considerations requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.”
[2] (1999) 73 ALJR 306
These remarks are relevant to my consideration of this appeal.
The Magistrate's Initial Findings of Fact
23 The magistrate made the following findings:
"The defendant had purchased a vehicle that day;
He was alone and driving his father's white sports car;
He approached SJO and LK and offered them $20 to help him get a car home. I suspect he hoped to strike up a liaison with one or both and hoped to impress them with his father's car. The offer of a job was a fortuitous means of an introduction. He was happy to spend time with them, even after his offer was refused. I suspect he was having a bit of fun with them. They were both young and attractive. I suspect, as he says, that he didn't want to enter into any contractual arrangements with AAPT, so he gave incorrect details. I simply do not believe that he felt pressured into signing up to the service that they offered.
After they left his car, he could not find his wallet, despite searching for it and he suspected them of having stolen it.
As SJO said, his behaviour became quite erratic and he seemed like a different person. It is not necessary to determine whether they did in fact have his wallet at any time. I suspect not, but in that regard, I find that the defendant believed that they did.
He challenged both girls verbally and they denied that they had his wallet.
He searched the car, but didn't find his wallet and then alighted and then challenged the girls again. They were shouting at each other.
He searched the immediate area and the girls belongings without a result.
At one stage, although it is unclear as to precisely when, the girls ran from him seeking assistance from a nearby house. The defendant gave chase and grabbed at least SJO and dragged her back towards the car.
He decided to physically search them. I reject entirely his claim that he asked their permission and they granted him their permission to undertake a body search. Whilst he had hold of each of them the other one was trying to render their assistance and they were obviously distressed. They had only met the defendant a few minutes earlier. Quite simply, he manhandled them.
I reject his denials that he did not touch their breasts and groin areas and I accept what they say about that."
Common Assault
24 The allegation of common assault related to the unlawful application of force by Mr Khammash in dragging SJO back to his vehicle. These facts were not disputed. However, Mr Khammash submitted that his conduct was justified in the circumstances.
25 Mr Khammash raised defences under Section 15A of the Criminal Law Consolidation Act 1935 (SA) and section 76 of the Summary Offences Act 1953 (SA).
Section 15A Defence
26 Section 15A provides:
"(1) It is a defence to a charge of an offence if -
(a)... the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable -
(i).... to protect property from unlawful appropriation, destruction, damage or interference;
...
...
(c).. [and] the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
...
(4) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”
27 Section 15A (4) is explicit. Once a defence is raised, it is taken to have been established. The Crown must then disprove the defence beyond reasonable doubt.
28 There are two limbs to this defence[3]. The defendant must have genuinely believed that the conduct to which the charge relates was necessary and reasonable. If the Crown cannot prove beyond reasonable doubt that Mr Khammash did not have a genuine belief, then the genuine belief is taken to have been established.
[3] See the discussion in Police v Lloyd (1998-99) 72 SASR 271 at 276-277 dealing with the comparable s 15 of the Criminal Law Consolidation Act (1935) SA
29 The second limb requires an objective assessment of whether the conduct was reasonably proportionate. That assessment is to be made in the circumstances as Mr Khammash genuinely believed them to be, and with respect to the threat that Mr Khammash genuinely believed to exist. The Crown must prove that Mr Khammash's conduct was, in the circumstances as he genuinely believed them to be, not reasonably proportionate to the threat that he genuinely believed to exist. The genuineness of his beliefs are taken to be established unless the Crown disproves their existence beyond reasonable doubt.
30 Mr Khammash claimed that his wallet had been unlawfully appropriated. He genuinely believed that there would be ongoing interference with his property. The magistrate found that the first limb of s. 15 A had not been negatived by the Crown. The Crown failed to disprove that Mr Khammash genuinely believed that the women had stolen his wallet and that he needed to locate and retrieve it from them.
31 However, the magistrate found that the second limb had been negatived by the Crown. He said:
"The defendant says that the grabbing of the alleged victim and the dragging of her back to the car was, he believed, necessary to ensure the recovery of his property. I do not believe in the circumstances that the prosecution has negatived that claim. I do not, however, believe that his manhandling of her in that way was reasonably proportionate to the claimed threat. His conduct was far in excess of what the circumstances required and, in my view, a reasonable man would so conclude. He cannot avail himself of a Section 15(A) defence. Accordingly, in my view, the prosecution has satisfied me beyond reasonable doubt that each and every element of that offence has been established and I find the defendant guilty of count 6."
32 The magistrate found that Mr Khammash's conduct was not, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist. This finding was open to the magistrate.
33 On appeal, counsel for Mr Khammash complained about the magistrate’s use of the phrase "would so conclude". It was submitted that the Crown had not discharged the burden imposed by s 15A. It was said that the relevant inquiry was whether a reasonable man "might conclude" that the conduct was reasonably proportionate.
34 This submission involved a misunderstanding of the magistrate's factual findings. The magistrate found that a reasonable man would have concluded that Mr Khammash's conduct was far in excess of what the circumstances required. He was also of the view that a reasonable man would so conclude. These findings were open to the magistrate. I am satisfied that they were made beyond reasonable doubt. The Crown proved beyond reasonable doubt that in the circumstances as Mr Khammash genuinely believed them to be, the conduct was not reasonably proportionate to the threat he genuinely believed to exist. No error has been demonstrated with respect to the section 15A defence.
Section 76 Defence
35 It was submitted that section 76 of the Summary Offences Act 1953 (SA) excused Mr Khammash’s behaviour. It was said that he apprehended SJO as he believed she had stolen his wallet. He intended to call the police, keep her next to the car and deliver her into police custody when they arrived.
36 Section 76 provides:
"If the owner of any property, ... finds a person committing an offence ... with respect to, that property, the owner, ... may apprehend the offender and deliver the offender forthwith into the custody of a member of the police force to be dealt with according to law."
37 The magistrate did not address s 76 in his reasons.
38 SJO, LK and Mr Khammash agreed that Mr Khammash repeatedly asserted that he was going to call the police and that he intended to take SJO and LK to the police. However in evidence, Mr Khammash also said:
"All I wanted was my wallet back. ... I wasn't thinking about calling the police - thinking of that step yet."
"That was my objective to relocate my wallet:"
"[I was] threatening with calling them with the police so they can be a little bit scared."
39 I do not consider that Mr Khammash apprehended SJO with the intention of delivering her forthwith into police custody. He intended to scare her and search her in an attempt to locate his wallet.
40 Mr Khammash is further precluded from utilising s 76(1) because the section is only available if the owner of the property:
"... finds a person committing an offence ... with respect to, that property."
41 The magistrate accepted that Mr Khammash believed that the women had misappropriated his wallet. However, Mr Khammash failed to establish that any offence was committed by SJO.
42 In R v Turner[4] the Victorian Court of Appeal addressed a comparable provision[5] and said:
" ... To justify action under this section the arresting party must prove that the person arrested or to be arrested was found committing the offence.The arrestor acts at his peril. If he can only prove reasonable suspicion but fails to prove that the arrested party was actually committing the offence, the arrest is unlawful."
[4] [1962] VR 30 at 35
[5] Section 459 Crimes Act 1958 (Vic) "Any person may without warrant apprehend any person who is found committing any offence against section 19 or section 130-6 of this Act or who is found committing any indictable offence in the night; and may forthwith take him or deliver him to a member of the police force to be taken before a justice to be dealt with according to law and the night shall for the purposes of this section be deemed to commence at nine o'clock of the evening of each day and to conclude at six o'clock of the morning of the next succeeding day."
I reject the submission that a defence under s 76(1) of the Summary Offences Act 1935 (SA) had been established in this case.
Indecent Assault
43 The magistrate made the following additional findings:
"My findings, as indicated, are that during the course of the non-consensual body search, the defendant touched or groped or stroked both girls on the breasts (or a breast) and groin, but that he did so principally in an effort to determine whether they had hidden his wallet there. By touching the girls in that manner, he obviously assaulted them in a manner that any ordinary person would, in my view, find was indecent. It is inconceivable that in making the decision to touch them in that manner, that the defendant, himself, would not have known that his conduct was indecent, or at the very least, he was reckless in that regard.
...
As I have said, I regard the defendant's principal purpose with regard to the body search as an endeavour to ascertain if his wallet was secreted within either girls clothing. He knew what he was doing was indecent, yet he so acted and in so far as any specific intent is required, I am satisfied beyond reasonable doubt that its presence is proved."
44 Counsel for Mr Khammash complained that the magistrate applied the incorrect burden of proof. The magistrate said:
"I remind myself of the elements of the offence as charged, the burden of proof carried by the prosecution and the presumption of innocence in favour of the defendant."
It was accepted by counsel for Mr Khammash that this was a reference to the criminal burden. However it was submitted that the magistrate’s use of the word "prefer" in the following passage of his reasons, demonstrated the application of the incorrect burden of proof.
"Where their [the women's] description of the events was in conflict with the description given by the defendant, I prefer the former's version."
It was said that by preferring the women's evidence to that of the accused, the magistrate made a finding on the balance of probabilities. It was contended that preferring one body of evidence to another falls short of satisfaction beyond reasonable doubt. It was submitted that this error was compounded by the magistrate's finding that there was "some degree of exaggeration of events" by the women. The magistrate made no finding as to precisely which evidence was exaggerated.
45 Counsel for the Crown accepted that the use of the word "prefer" was unfortunate. Considered in isolation it could lead to ambiguity. However it was submitted that when the magistrate's reasons were considered in their entirety, it was clear that his critical findings and conclusions were made beyond reasonable doubt.
46 In my view, the use of the word "prefer" was undesirable. Standing alone, it did not identify whether the magistrate was preferring the women's evidence to the point of being satisfied beyond reasonable doubt.[6] It is however necessary to consider his reasons in their entirety. I have done so. I am satisfied that with respect to his critical findings, the magistrate preferred the women’s evidence to that of Mr Khammash beyond reasonable doubt
[6] The Queen v Calides (1983-84) 34 SASR 355, Harris v Mill S592.
47 The magistrate reminded himself that the Crown had to prove each and every element of the offence beyond reasonable doubt. He also understood that Mr Khammash was presumed innocent until the Crown established his guilt beyond reasonable doubt. His reasons disclose his specific rejection of the evidence of Mr Khammash on critical matters. Later in his reasons, he considered whether intent had been proven beyond reasonable doubt. I understand his use of the word "satisfied" to be a reference to "satisfied beyond reasonable doubt."
48 As earlier observed, the magistrate found some parts of the women’s evidence were exaggerated. Ideally, the magistrate should have identified those matters. Counsel for the Crown submitted that the magistrate excluded these matters when making his critical findings. I accept this submission. The magistrate’s findings rely on part of the women’s evidence. Ample evidence confirms those findings. The magistrate clearly identified those parts of the women’s evidence that he accepted and acted upon.
49 The other matter of complaint related to an alleged reversal of the onus of proof. Counsel for Mr Khammash drew attention to the following remark of the magistrate:
"Beyond accepting those things I found that there wasn't a great deal else that he [Mr Khammash] said that I felt that I could unreservedly accept."
50 Counsel for Mr Khammash submitted that the issue was not whether the magistrate could unreservedly accept Mr Khammash's evidence. He said that the use of such a phrase did not give effect to the presumption of innocence.
51 Counsel for the Crown submitted that if the magistrate had unreservedly accepted Mr Khammash's evidence, he would have been entitled to an acquittal. It was said that it did not follow that the magistrate used his inability to unreservedly accept Mr Khammash's evidence as an aid in proof of the Crown case. Later in his reasons, the magistrate specifically rejected the accused's testimony and accepted that of SJO and LK.
52 I consider the Crown’s submission to be correct. I do not accept that the magistrate took the view that Mr Khammash had to unreservedly satisfy him of any fact. The magistrate's statement should not be taken out of context. The reasons must be viewed in their entirety.
53 I reject the submission that the magistrate applied an incorrect onus of proof or that he reversed the onus of proof. I reject the other suggestions that the magistrate erred.
Consciousness of Guilt
54 The magistrate said:
"The manner in which he [Mr Khammash] left the scene and his own admission that he expected to hear from the police is suggestive of a consciousness of guilt."
Counsel for Mr Khammash submitted that this conclusion amounted to a positive finding that Mr Khammash had acted out of consciousness of guilt. He further submitted that the evidence failed to support such a conclusion. In Edwards v R[7], Deane, Dawson and Gaudron JJ said at (210):
"Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. (See Shepherd v. The Queen (1990), 170 C.L.R. 573). If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."
[7] (1993) 178 CLR 193
55 The magistrate limited his finding. He concluded that the conduct of Mr Khammash was only suggestive of a consciousness of guilt. In my view this conclusion was open to the magistrate. He took the matter no further. No error has been demonstrated.
Conclusion
56 I do not conclude that any of the grounds of appeal have been made out. The appeal is dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 (1992-93) 177 CLR 472
2 (1999) 73 ALJR 306
3See the discussion in Police v Lloyd (1998-99) 72 SASR 271 at (276-277) dealing with the comparable s 15 of the Criminal Law Consolidation Act (1935) SA
4 [1962] VR 30 at 35
5Section 459 Crimes Act 1958 (Vic) "Any person may without warrant apprehend any person who is found committing any offence against section 19 or section 130-6 of this Act or who is found committing any indictable offence in the night; and may forthwith take him or deliver him to a member of the police force to be taken before a justice to be dealt with according to law and the night shall for the purposes of this section be deemed to commence at nine o'clock of the evening of each day and to conclude at six o'clock of the morning of the next succeeding day."
6 See [ ]
7 (1993) 178 CLR 193
0