Klatt v Police No. Scciv-03-570

KLATT v POLICE
[2003] SASC 202
Magistrates Appeal

DUGGAN J. The appellant was found guilty of making a false representation to a member of the police force knowing the representation to be false and such as would reasonably call for investigation by the police. The complaint was laid pursuant to s 62(1)(a)(i) of the Summary Offences Act 1953. After being found guilty of the offence, the appellant was sentenced to imprisonment for one month. He now appeals against conviction and sentence.
The charge arose out of a report made by the appellant following an altercation at the premises at which he was living in Mount Gambier. The appellant, who was 19 years of age at the time of the incident, was living at the premises with Brendan Parry and Regina Wilson. Prior to the incident, he had borrowed some CDs from an acquaintance, James Brooks. According to James Brooks he had tried unsuccessfully to have these CDs returned to him. Then, on 18 April 2002, he and his father, Anthony Brooks, went to the appellant’s premises to retrieve the CDs. There is a dispute as to what then occurred, but it is common ground that there was an altercation during which James Brooks and his father returned to their vehicle and drove off.
At 12.20 pm on the same day, the appellant rang the Mount Gambier Police Station. He said in evidence that this call was made a few minutes after the Brooks left the premises. Constable Hyson said in evidence that he took the call at the police station and the appellant said that there had been a dispute over some CDs and a person had come to his home demanding them. The appellant said the person punched him in the face and threatened his girlfriend. He also said that his girlfriend had defended herself with a baseball bat. Constable Hyson said police officers would attend at the apartment as soon as possible, but they were tied up at the time.
The appellant made a further telephone call to the police five or ten minutes after his first call. According to Constable Hyson, the appellant used abusive language and complained about the police delay in attending the apartment. The appellant went on to say:
“A guy holds a shotgun to your head and you don’t give a shit … If that cunt comes back with a shotgun I will break his fucking arms and legs. I will warn you now.”
The appellant made no reference to a shotgun on the occasion of the first telephone call.
In the light of the complaint about the shotgun in the second telephone conversation, a patrol car was dispatched immediately to the appellant’s premises. The appellant then told the police that the man who came to the door with James Brooks was carrying a shotgun. He said he thought it was a single barrelled shotgun and approximately a metre long. He said the man threatened to shoot him. According to the appellant, the shotgun was pointed in his general direction.
Brendan Parry also gave a statement to the police when they attended at the apartment. He confirmed the appellant’s assertion that the man with James Brooks was carrying a shotgun.
The police then went to Anthony Brooks’ home and found two firearms in a locked cupboard. One was a .303 rifle and the other was an antique double barrelled shotgun.
Brendan Parry was called as a prosecution witness at the hearing before the magistrate. He said that, when giving his statement to the police, he confirmed the appellant’s version because he felt intimidated by the appellant. He said that a shotgun had not been produced during the incident. He said that he and the appellant had “compared our statements” so as to “get out stories straight”. On the day following the police visit to the apartment he told the police that his previous statement was incorrect and that a shotgun was not involved. It was then that the police charged the appellant with making a false statement.
Anthony and James Brooks gave evidence before the magistrate. Both denied that a shotgun was taken to the appellant’s premises.
The magistrate accepted the version given by Anthony Brooks, James Brooks and Brendan Parry and rejected the appellant’s version. He found the charge proved beyond reasonable doubt.
The main ground of appeal against conviction is that the magistrate rejected the evidence of the appellant without giving adequate reasons for so doing.
In his reasons for decision, the magistrate set out the evidence for the prosecution and the defence in some detail. After identifying the elements of the offence and reminding himself of the onus and standard of proof, he said:
“From my observation of the witnesses in court, and from a careful consideration of the evidence, I am totally convinced that the prosecution witnesses, in particular, Brendan Parry, Anthony Brooks and James Brooks, were witnesses of truth. They gave their evidence in a forthright manner. As for the defendant, I was left with the overwhelming impression that he lied to the police on the date in question and he continued to lie to this court. I accept Brendan Parry’s evidence that the defendant’s statement to the police about Anthony Brooks brandishing a shotgun and threatening the occupants of Powell Street with it and punching the defendant in the face was an outright lie.
This is supported by the evidence of Constable Hyson who received the two telephone calls from the defendant. The first call did not mention the involvement of a firearm, however, during the second call, the defendant was angry and upset at the fact that the police had not responded to his earlier call fast enough, so he threw in the involvement of a firearm, knowing full well that it would bring an immediate response from the police. Having done that, he continued with the lie, knowing full well that it was a lie and that it would call for an investigation by the police. On the totality of the evidence I find the defendant guilty as charged.”
According to the argument presented on behalf of the appellant, the magistrate did not explain in sufficient detail how he reached his findings on credibility
There is no need to canvass in detail the considerations relevant to the requirement for courts to give adequate reasons for their decisions. These considerations are summarised in authorities such as Papps v The Police (2000) 77 SASR 210; Sun Alliance Insurance Limited v Massoud [1989] VR 8 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
Suffice to say that the process of reasoning leading to the result in the case should be made clear so as to enable the parties to understand how the decision was arrived at and an appellate court to properly scrutinise and review the reasoning process. The extent to which a court is required to provide reasons depends on the circumstances of the particular case.
The resolution of the present case was dependent largely on the courts assessment of the credibility of the witnesses. It is evident from the reasons for judgment that the magistrate carefully considered the evidence of each witness. He placed justified emphasis on the admitted fact that the appellant did not mention the shotgun on the first occasion he rang the police, although he did so on the second occasion when he complained in an angry manner that the police had not responded to his earlier call. The magistrate also had before him the evidence of Brendan Parry, a source independent of Anthony and James Brooks.
Mr Kyrimis, for the appellant, drew attention to two issues which he said were of particular relevance to the defence case. The first is the fact that firearms were found in the cupboard in Anthony Brooks’ home. The appellant denied any prior knowledge that Mr Brooks possessed firearms. As against this, it would appear that the appellant had sufficient knowledge of firearms to be able to differentiate between a shotgun and a rifle. When the police found the weapons, one of the officers returned to the appellant to seek further clarification of the appellant’s description of the gun. The appellant confirmed that the weapon he said he saw was a single barrelled shotgun. This description did not tally with the shotgun found in the cupboard.
The magistrate referred to the evidence of the finding of the shotgun, although he did not deal specifically with the defence argument based on esoteric knowledge by the appellant. It would be surprising if the magistrate had overlooked the defence argument on this issue and, in any event, the discrepancy between the description of the shotgun given by the appellant and the description of the shotgun found in the cupboard tends to diminish the relevance of the defence argument.
The other matter to which Mr Kyrimis drew attention was the fact that Anthony Brooks accompanied his son because he was fearful of violence. According to the argument, this supports the view that Mr Brooks senior took the shotgun along as a measure of protection. It is true that the magistrate did not refer to this argument in his reasons for decision. However, he was not required to comment upon every defence argument and, in my view, the failure to refer to this particular argument does not give rise to concern.
There was ample evidence upon which to base a conviction in this case and the magistrate’s reasons were adequate in the circumstances.
The appeal against conviction will be dismissed.
As has been stated, the appellant was sentenced to imprisonment for one month. There was also an order that he pay $518.26 compensation to the South Australia Police.
The appellant is drug dependant and had been on the methadone programme for approximately 18 months prior to this incident. He has a lengthy history of prior offending which includes property offences and an assault. A number of the offences were committed when the appellant was a youth. He has a significant number of convictions for driving an unregistered and uninsured vehicle. These offences indicate a continuing disregard for the law.
The present offence involved false accusations of illegal conduct against another person. It also led to a loss of police time in investigating allegations which were false in part.
The maximum penalty for this offence is imprisonment for two years. The sentence of imprisonment for one month was well within the sentencing discretion.
There was criticism of the magistrate for making the following observation in his extempore sentencing remarks:
“The other important aspect that I have taken into account is the fact that you have really shown no contrition or remorse for your actions. My observations of you during the course of the trial led me to conclude that you have adopted a fairly cavalier type of attitude to this offence, and also, your general approach to other aspects of the law as is evident by your criminal history.”
I do not think it can be inferred from these remarks that the magistrate treated lack of remorse as an aggravating factor. The remarks are consistent with a decision not to reduce the penalty by reason of remorse.
It was also suggested that the magistrate’s reference to the appellant displaying a cavalier approach was based on the fact that the appellant arrived late at the court on some occasions during the trial. I do not accept that this is a necessary inference from the remarks made by the magistrate.
I reject the submission that the sentence is manifestly excessive. Nor do I agree that the magistrate erred in failing to suspend the term of imprisonment. There is nothing in the appellant’s antecedents or in the nature of the offending which would require such an order as a matter of course. It has not been demonstrated that the magistrate erred in the exercise of his discretion in this respect.
The appeal against sentence will be dismissed.

[2003] SASC 202

4 July 2003