Lepadatu v Police

[1999] SASC 400

LEPADATU V POLICE

[1999] SASC 400

Magistrate’s Appeal

1 MARTIN J. The appellant was found guilty of resisting three named police officers in the execution of their duty contrary to s 6(2) of the Summary Offences Act 1953. The notice of appeal identified two grounds of appeal; that the Magistrate erred in law in finding that the police had a right to arrest the appellant and that the finding in favour of the power to arrest was against the weight of the evidence. On the hearing of the appeal the appellant also argued three additional grounds. First, it was contended that the count upon which the appellant was tried was duplicitous because it charged him with having resisted three police officers in the execution of their duty. Secondly, it was said that the Magistrate erred in his finding of guilt because he found that the appellant resisted two police officers when he was charged with resisting three officers. Finally, it was submitted that in all the circumstances the verdict of guilty was unsafe and unsatisfactory.
2 The charge arose out of a domestic dispute.  Police were called when the appellant’s daughter ran to a neighbour’s house for help following an alleged assault by the appellant upon his wife and his daughter. In the meantime the appellant took his wife to the Flinders Medical Centre, but was asked to leave after causing a disturbance and threatening a security officer.  He returned home while his wife remained at hospital.
3 Constables Adey and Brooks attended at the neighbour’s house.  They took the appellant’s daughter to a friend’s home because she did not want to return to her own home.  The officers then attended at the appellant’s home to check on the welfare of the appellant’s wife, but were informed by the appellant’s other daughter that her mother had been taken to the hospital.  At the hospital the police were advised that the appellant had left, but that he had assaulted his wife and hospital staff.  Constable Adey gave evidence that, on the basis of the information he had received, he decided to arrest the appellant.  Constable Brooks said she had not decided to arrest the appellant at that time.
4 The police then drove to the appellant’s residence.  Upon arrival, according to evidence given by Constable Adey which was accepted by the Magistrate the following occurred:
"A.     First of all we knocked on the door, Mr Lepadatu answered the door.  Stefan Lepadatu answered the door and left the main wire door opened, the main door.  Left the wire door closed.  He said ‘yes’.
I said "We are from Sturt police can you come outside so we can talk to you?’
He said ‘You can talk to me here.
Constable Brooks said ‘We would like to talk to you in private away from your young daughter?’
He said ‘Why what about.’
Constable Brooks said ‘We have received information that you assaulted your wife giving her a black eye and also assaulted your 16 year old daughter giving her a blood nose?’
He said "it’s a family matter, has nothing to do with you and then slammed the door shut and walked away from the door.’
I said, I was yelling through the door ‘We need to speak to you about these allegations.’  He returned to the door and stood behind the screen and yelled ‘Get off my property now this is a family matter and no business of yours.’
I said ‘In that case you are under arrest for the assault on your wife and daughter, do understand (sic)?’
There was no answer.  The door was slammed shut.
I said ‘You are under arrest would you please come back and open the door or we will be forced to break in to arrest, can you hear me?’
He said ‘Go away.’
I said ‘Come out here now.’"
5 A relative of the appellant unlocked the door and the police forced their way past the door despite attempts by the appellant to resist their entry.  Constable Adey  entered the house and, as he did so, he told the appellant he was under arrest.  As he and another officer, Constable McCulloch, took hold of the appellant, the appellant moved his arms violently.  A mat on the polished floor slipped causing the appellant and Constables Adey and McCulloch to fall to the floor.  The appellant struggled and Constable McCulloch ended up with his knees between the appellant’s shoulders.  Constable Adey said he held the appellant’s arms while Constable Brooks applied the handcuffs.  The appellant refused to stand and the police were forced to drag him out of the house.  At the police station the appellant became cooperative and the handcuffs were removed.
6 The appellant gave a markedly different version.  It is unnecessary to set out that version which was, in its essential aspects, rejected by the Magistrate.  His Honour found that the police attended following receipt of information that the appellant had assaulted his wife causing an injury to her eye or eyes, and also his daughter, causing her nose to bleed.  In addition they had received information that he had assaulted a security officer at the Flinders Medical Centre.  His Honour specifically found that Constable Adey had decided to arrest the appellant prior to attending at the appellant’s premises.  He accepted the evidence of Constable Adey that he had entered the premises with the intention of arresting the appellant and that he had told the appellant he was under arrest.  Similarly he accepted the evidence of the police concerning the appellant’s resistance.
7 Counsel for the appellant conceded that if Constable Adey had formed the intention to arrest the appellant prior to arriving at the premises, and if Constable Adey informed the appellant of that intention prior to entering the premises, the arrest was lawful.  He argued, however, that the police had misused their powers of arrest.  He said they had decided to arrest the appellant because he declined to answer questions.  In essence he argued that the purpose of the arrest was to enable the officers to question the appellant.
8 The appellant’s argument hinged on three words used by Constable Adey when the appellant declined to open the door and told the police to leave the premises.  Constable Adey responded:
"In that case you are under arrest for the assault on your wife and daughter.  Do you understand?"
9 Counsel submitted that the use of the three words, "in that case", should have led the Magistrate to the view that Constable Adey arrested the appellant for the purpose of questioning him and not in respect of the assaults alleged to have been committed by the appellant. He pointed out that the power of Constable Adey to effect an arrest is found in s 75 of the Summary Offences Act 1953 which states:
"A member of the police force without any warrant other than this Act at any hour of the day or night may apprehend any person who the officer finds committing or has reasonable cause to suspect of having committed or being about to commit an offence."
10 The Magistrate said he had no doubt in accepting the evidence of the police that they had reasonable cause to suspect that the appellant had committed the offences of assault to which I have referred.  His Honour found that Constable Adey had decided to arrest the appellant prior to attending at the appellant’s premises.  I agree with his Honour’s view.  In my opinion there is no substance to the contention put by the appellant and there is no basis for interfering with the Magistrate’s finding.  The police were confronted with an awkward situation and it was appropriate for them first to request the appellant to accompany them.  Although Constable Adey had made a decision to arrest the appellant, he was not obliged to carry that decision into effect without first exploring the possibility that the appellant would accompany him voluntarily.  I am satisfied, as was the Magistrate, that the police did not exercise their power for any purpose associated with the questioning of the appellant.  There was ample evidence upon which to draw the conclusions drawn by the Magistrate.
11 The exercise of the power of arrest was lawful and reasonable. The grounds based on the lawfulness of the arrest fail.
12 As to the issue of duplicity, no point was taken before the Magistrate.  The appellant was charged with having resisted three police officers in the execution of their duty.  In essence, counsel argued that the appellant was charged with three offences in the one count and thus the single count offended the rule against duplicity.  He said three separate counts should have been laid in the one complaint. 
13 It is unnecessary to discuss the rule against duplicity at length. It is founded upon considerations of fairness. The differing approaches to the rule were discussed by Kirby J in Walsh v Tattersall (1996) 188 CLR 77. In that case a single compendious charge was presented in respect of a course of conduct by which the defendant pursued a false claim for payments pursuant to the South Australian Workers Rehabilitation and Compensation Act 1986. Dawson and Toohey JJ referred to the dishonest means alleged against the defendant as a continuing false pretence over a period of twelve months by receiving payments on the basis that he was incapacitated for work. They accepted that one activity of a continuing kind was involved and held that in such a situation it was legitimate to bring a single charge.
14 Gaudron and Gummow JJ decided the case on a different point.  In his review of the law relating to duplicity, Kirby J adopted a stricter approach and expressed the view (p 112):
"This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges."
15 It is clear that no unfairness was caused to the appellant by reason of the charging of one offence as opposed to three.  The appellant was well aware of the case he was required to meet.  Even on the stricter approach adopted by Kirby J, in my opinion the single count was not bad for duplicity as it was one of those cases where the facts were so closely related that they amounted to the one activity.
16 Counsel for the respondent also relied upon the approach taken by Walters J in Hull v Nuske (1974) 8 SASR 587 at 593 when his Honour said:
"It seems to me that the offence of resisting a police officer in the execution of his duty is a "conduct offence" and that the actus reus can be properly made up of behaviour consisting of one set of circumstances which form the central feature of the offence. The fact that the behaviour alleged to constitute a resistance of a police officer is aimed or directed at two police officers, lawfully engaged in the joint performance of the one and the same duty, does not in my opinion lead to the consequence that there are two independent actus rei which may be separately charged. In my view, it would be going too far to say that in relation to each officer, the external facts arising out of the one set of circumstances and involving a resistance of that police officer, in the execution of a duty being lawfully performed by him jointly with another police officer, can lead to the commission of two distinct offences. I think an unjust result would follow if an offender were to be convicted of two or more separate offences arising out of a continuous act or proceeding which gave rise to a resistance, at the same time, of more than one police officer in the execution of duty. It seems to me, therefore, that in the circumstances of this case, the conviction for breach of s. 6(2) of the Act is not bad for duplicity, simply because it is recorded in the language of the complaint. It follows that I do not think the complaint was defective; it disclosed only one offence."
17 I respectfully agree with the observations of Walters J.  The complaint alleging duplicity is not made out.
18 The final ground of appeal related to the statement by the Magistrate that he found the charge of resisting two police officers in the execution of their duty to be proved beyond reasonable doubt.  The appellant was charged with resisting three police officers.  In those circumstances the appellant submits that the Magistrate has not dealt with the charge against the appellant that was before him.  In essence it is said that he did not deal with the case as required by s 69 of the Summary Procedure Act 1921 which states:
"When parties and their evidence have been heard, the Court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require ..."
19 Notwithstanding the terms of the complaint, at the outset of his reasons the Magistrate referred to the defendant being charged with having resisted two police officers in the execution of their duty.  His Honour has clearly made a mistake as to the number of police officers to which the complaint referred.  The terms of his judgment demonstrate, however, that he was under no misapprehension about the facts of the matter. The central features of the charge and the evidence were not affected by his Honour’s mistake.  As described by Walters J in Hull v Nuske, the Magistrate found that the actus reus of the offence had been proved.  The error was not of any significance to his Honour’s findings and no prejudice or unfairness has ensued.  The appellant has had his case heard and determined as required by s 69 of the Summary Procedure Act.
20 Sections 181 and 182 of the Summary Procedure Act empower the Court of Summary Jurisdiction to amend complaints, orders and other processes of the Court.  On appeal the Supreme Court possesses all the same powers of amendment as the Court of Summary Jurisdiction (Supreme Court Rules 96C.06 and 97.18).  This power has been used on appeal to amend the terms of a conviction:  see Robey v SA Police (unreported judgment of Cox J delivered 17 September 1993 and Hull v Nuske).  If necessary I would exercise that power.
21 One of the grounds of appeal alleges that the verdict is unsafe or unsatisfactory.  In my opinion there is no substance in that contention.
22 The appeal is dismissed.