Madison v Police - [2021] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MADISON v POLICE
[2021] SASC 68
Judgment of the Honourable Justice S David
8 June 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
POLICE - RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES - DISCRETION AND DUTY TO INVESTIGATE AND ENFORCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - OFFICER ACTING IN EXECUTION OF DUTY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
This is an appeal against a finding of guilt by a Magistrate that the appellant assaulted a police officer contrary to s 6(1) of the Summary Offences Act 1953 (SA).
The offence occurred in the early hours of the morning on 4 October 2018 at the City Watch House. The appellant struck a cell guard to the groin whilst being searched after having been detained in police custody. The Magistrate proceeded without conviction and placed the appellant on a bond in the sum of $500.00 to be of good behaviour for 18 months.
The respondent conceded the appeal on the basis that the Magistrate failed to correctly identify that proof of the appellant’s lawful detainment was a pre-condition to the lawfulness of the duty being exercised by the police officer. There was no evidence adduced at trial that the appellant was in lawful custody at the time she struck the police officer. Accordingly, there was insufficient evidence to establish the appellant's guilt.
Held, allowing the appeal:
1. The conviction is quashed, and a verdict of acquittal entered.
Summary Offences Act 1953 (SA) s 6, s 81, referred to.
Re K (1993) 46 FCR 3336; 71 A Crim R 115, applied.
Lindley v Rutter [1981] 1 QB 128; Botton v Winn (Supreme Court of Victoria, Phillips J, 19 December 1987) ; Director of Public Prosecutions v Tupper [2018] VSC 285, discussed.

MADISON v POLICE
[2021] SASC 68
Magistrates Appeal: Criminal

DAVID J:On 2 February 2021, following a trial before a Magistrate, Miriam Josephine Madison (‘the appellant’) was found guilty of the offence of assaulting police (count 3), contrary to s 6(1) of the Summary Offences Act 1953 (SA). The appellant was also charged on the same Information with the offences of loitering, contrary to s 18(2) of the Summary Offences Act (count 1) and failing to state all personal details, contrary to s 74(a)(3) of the Summary Offences Act (count 2).After the Magistrate declined a request from the prosecutor for an adjournment to produce witnesses relevant to counts 1 and 2, no evidence was adduced on those charges and the appellant was found not guilty of counts 1 and 2.
On 12 March 2021, the appellant was sentenced for the offence of assaulting police (count 3). The Magistrate proceeded without conviction and placed the appellant on a bond in the sum of $500.00 to be of good behaviour for 18 months.
The appellant appeals her finding of guilt on the following grounds:
1.The Magistrate erred in failing to correctly identify the elements of the offence charged pursuant to s 6(1) of the Summary Offences Act;
2.The Magistrate erred in finding that the conduct of the police officers prior to the removal of the appellant’s stockings was lawful;
3.In addition, and in the alternative to ground 2, the Magistrate erred in failing to find the conduct of the police officers prior to the removal of the appellant’s stockings was unlawful;
4. The Magistrate erred in failing to find that the act of removing the appellant’s stocking was unlawful;
5.The Magistrate erred in finding that the police officers were acting in the course of their duties when they physically removed the appellant’s stockings;
6.The Magistrate erred in failing to correctly apply an element of the charged offence against s 6(1) of the Summary Offences Act, namely that the alleged offence against the police officer occurred in the execution of the officer’s duty; and
7.The Magistrate erred in reversing the onus of proof.
In effect, two main contentions were advanced by the appellant on appeal. First, the Magistrate failed to correctly identify that the offence of assaulting police contrary to s 6 of the Summary Offences Act requires the prosecution to prove that the application of force by the defendant was unlawful; and secondly, the Magistrate failed to correctly identify that proof of the appellant’s lawful detainment was a pre-condition to the lawfulness of the duty being exercised by the police officers and, in the circumstances of this case, was an element of the offence.
At the hearing, the respondent conceded the appeal on the basis of the second contention which was broadly encapsulated by appeal grounds 2 to 7, namely that the Magistrate erred in failing to correctly identify that the prosecution was required to establish that the appellant was in lawful custody as a precondition to the lawfulness of the duty being exercised by a police officer. At trial, no evidence was adduced as to the lawfulness of the appellant’s custody, and as such there was insufficient evidence to establish the appellant’s guilt of the offence.
The appeal was allowed and the finding of guilt quashed. A verdict of an acquittal was substituted for the reasons which follow.
Background
On 4 October 2018, police officers Constable Whale (‘MW’) and Senior Constable Walker-Roberts (‘KWR’) were working at the City Watch House. Both were female police officers working their shift as cell guards.[1] It was not disputed at trial that MW was a police officer, or that she was working in her capacity as a police officer at the time of the offence. The officer in charge of the City Watch House was a male officer, Sergeant Mead, who was assisted by another male police officer, Senior Constable Grant.[2]
[1] Transcript dated 15 December 2020 of South Australia Police v Miriam Josephine Madison (AMC-18- 13705) before Magistrate McGrath, 1.
[2] Ibid.
In the early hours of the morning, the appellant was detained in police custody and brought to the City Watch House.[3] MW and KMR were not involved in the arrest of the appellant.[4] MW and KWR were working as cell guards and were instructed by one of the senior officers to ‘process’ the appellant by taking her fingerprints and photographing her before charging and releasing the appellant on police bail.[5] MW and KWR gave evidence that the appellant refused to have her photograph taken so Sergeant Mead directed that the appellant be placed in a holding cell.[6]
[3]     Ibid 1 – 2.
[4]     Ibid 7.
[5]    Ibid 1 – 3.
[6]    Ibid 3 – 4.
MW and KMR gave evidence that upon escorting the appellant to the cell they told her to remove her stockings as they were an item of clothing that she could potentially use to harm herself.[7] MW explained that if a detainee is placed in a holding cell they are not always within view of police so it is protocol or a ‘general standard request’ for all items of clothing, which could be used for self‑harm, to be removed from their person regardless of whether there is any indication of self-harm or not.[8] MW and KMR said that the appellant refused to comply with the direction to remove her stockings, so they attempted to physically remove the appellant’s stockings.[9] The appellant was seated on a bench inside the cell whilst MW and KMR were standing on either side of the appellant trying to pull down her stockings.[10] MW gave evidence that the appellant said: ‘I will remove the stockings, just stop’.[11] KR agreed that the appellant may have also said: ‘I don’t have any underwear on could you leave the cell so that I can remove my pantyhose’.[12] There was also a suggestion that one of the male police officers was in the close vicinity.[13]
[7]    Ibid 4; 14.
[8]    Ibid 10.
[9]    Ibid 6; 14 – 15.
[10] Ibid 5.
[11] Ibid.
[12] Ibid 20.
[13] Ibid 6; 16.
MW and KMR gave evidence that they took a step back, at which time the appellant lunged forward and punched MW to the groin area.[14] MW did not sustain an injury.[15] That act relates to count 3 on the Information. MW and KMR subsequently restrained the appellant and removed her stockings before leaving the cell. MW and KR had no further contact with the appellant.[16]
[14] Ibid 5; 15; 19.
[15] Ibid 6.
[16] Ibid 6 – 7; 15 – 16.
MW agreed that at no time did the appellant say anything or behave in a manner which suggested that she was at risk of harming herself.[17] Rather, MW said there is a police protocol which requires all detainees to remove all items of clothing which can be used by a person to self-harm, irrespective of whether a person has given any indication of the existence of such a risk.[18] There was no evidence adduced from MW or KMR that they had turned their mind to the question of whether the appellant was at risk of self-harm or that they considered the removal of the stockings necessary for the appellant’s protection or safety.
[17] Ibid 8.
[18] Ibid.
It was put to the witnesses at trial that KMR struck MW to the groin during a struggle in trying to remove the appellant’s stockings. This suggestion was rejected by both MW and KWR.[19]
[19] Ibid 9; 23.
The appellant did not give or call evidence.
The appellant’s counsel at trial submitted there was no case to answer as there was no evidence that the defendant was lawfully under arrest, therefore the prosecution could not establish that MW was acting in the lawful execution of her duty when she was struck by the appellant.[20] The Magistrate rejected the argument and found a case to answer.
[20] Ibid 34; 36.
The Magistrate’s reasons
The Magistrate made the following factual findings:
(1)The appellant punched MW to the groin in the cells of the City Watch House whilst the appellant was in police custody.
(2)There was no reasonable possibility that KWR accidentally struck MW to the groin whilst trying to remove the appellant’s stockings, or that the appellant accidentally punched MW to her groin.
(3)MW and KWR were acting in the course of their duties as police officers in asking the appellant to remove her stockings and in physically removing the stockings.
(4)There was no evidence that the appellant’s initial arrest was unlawful.
The Magistrate found the appellant guilty, concluding that: ‘…I find that the defendant deliberately and intentionally struck MW with her fist to the groin of MW, and that at that time MW was acting in the course of her duty’.[21]
[21] South Australia Police v MADISON [2021] SAMC 9, [51].
Consideration
At the time of the commission of the offence, s 6(1) of the Summary Offences Act provided that a person who assaults a police officer in the execution of the officer’s duty is guilty of an offence. The respondent conceded the appeal on the basis that the Magistrate had not correctly identified that proof that the appellant was in lawful custody was a precondition to the lawfulness of the duty being exercised in this case. As no evidence was adduced as to the lawfulness of the appellant’s custody, it was conceded that there was insufficient evidence to establish the appellant’s guilt.
In determining whether a police officer was acting in the execution of his or her duties at time of the assault, it is necessary to examine the ambit of a police officer’s duties to decide whether the police officer’s conduct falls within any duty imposed by statute or at common law, or whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty, or whether the conduct of the police officer falls outside the scope of any such duty.
As said by the Court in Re K:[22]
… a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.
[22] (1993) 46 FCR 336; 71 A Crim R 115.
In the circumstances of this case, the appellant allegedly assaulted MW whilst she was executing her duty as a police officer in removing the appellant’s stockings prior to placing her in a cell. The sources of power for conducting this search are the common law power to conduct ‘safety searches’ and a statutory power under s 81 of the Summary Offences Act.
Common law power
There is a common law power for police to conduct a safety search on a person lawfully in police custody. The scope of the common law power to conduct a safety search of a person in lawful custody was considered in Lindley v Rutter.[23] The facts of that case involve a female defendant who was arrested at night for disorderly behaviour while drunk. She was removed to a police station and placed in a cell. The defendant refused to be searched by a female police officer and resisted when the police officer attempted to search her. A second police officer assisted and together the police officers removed the defendant’s brasserie. The police officers believed they were acting in accordance with standing orders which required them to search every female prisoner and remove that item of clothing for their own protection. The defendant was charged with, and convicted of, assaulting a police officer in the execution of her duty. On appeal, the Court held that even though the police officer believed she was acting in accordance with standing instructions, she was still under a duty to consider whether the search was necessary for any lawful purpose and whether the removal of the brasserie was necessary for the defendant’s own protection. Since she had not applied her mind to those matters, her conduct was not justified. Accordingly, the police officer was not acting in the course of her duty and the defendant was entitled to use reasonable force to resist, and the appeal was allowed.
[23] [1981] 1 QB 128.
Donaldson J said:[24]
This is not to say that there can be no standing instructions. … But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far as searches are concerned, he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. Clearly going through someone’s pockets or handbag is less an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so.
The forcible removal of her brassiere was understandably regarded by the defendant as peculiarly offensive. Such conduct would require considerable justification. It was inherently unlikely that possession of the brassiere could lead to accidental injury. If it was to be used intentionally for this purpose, other clothing would probably have served as well. Indeed, there would have had to have been some evidence that young female drunks in general were liable to injure themselves with their brassieres or that the defendant had shown a peculiar disposition to do so. It would obviously be a justification if the defendant had by words or conduct threatened to do so. But that is not this case.
[24] Lindley v Rutter [1981] 1 QB 128, 134 – 5 (Donaldson J).
In Botten v Winn,[25] Phillips J considered the powers that existed at common law for a police officer to search and seize property from a person under arrest. The facts of Botten concerned the forcible removal of a wristwatch by two police officers from a male person who had been arrested before he was placed in a cell at the police station. One of the police officers, Senior Constable Winn, was assaulted in a struggle with the applicant in trying to remove the watch. The other police officer, Senior Constable Comitti, gave evidence that it was common practice to remove all property from prisoners which could be used as a weapon.
[25] (Supreme Court of Victoria, Phillips J, 19 December 1987).
Phillips J considered that it was incumbent on the prosecution to prove that the police officer in removing the applicant’s watch was acting in the execution of his duty which raised the issue of whether there was any justification at law for the removal of the watch.
After reviewing numerous authorities on the issue, Phillips J concluded that they established the following matters of principle as to the common law power to search a person in lawful custody:[26]
1. That a police officer has a right to search a prisoner in lawful custody and take possession of property in circumstances where he or she reasonably suspects the property may be connected with a crime committed by the prisoner (and arguably any other crime) or where part of the property is an object which might be used to do injury to the prisoner or others or to effect an escape or cause damage;
2. A police officer purporting to exercise this right must have regard to all the circumstances of the particular case to ensure its valid exercise;
3. At least some searches should be preceded by the police officer informing the person to be searched of the reason or reasons for the search.
[26] Botten v Winn (Supreme Court of Victoria, Phillips J, 19 December 1987), 15a.
His Honour found that: [27]
…the only clear evidence justifying the removal of the watch was that given by Senior Constable Commiti. He regarded it as a potential weapon. But to the point of its attempted removal the applicant had exhibited no violence or tendency to violence whatsoever. The worst that could be said of him, to that point, was that he was in a drunken condition and had previously made a nuisance of himself. If regard had if fact been had to the particular circumstances of the case, there was simply no basis for the conclusion that he might use the watch as a weapon.
[27] Botten v Winn (Supreme Court of Victoria, Phillips J, 19 December 1987), 18a.
In Director of Public Prosecutions v Tupper,[28] Macaulay J considered the common law power to conduct a ‘safety and evidence search’ and cited Botten v Winn[29] with approval. His Honour said:[30]
…But, in my view there is no reason to doubt the existence of a common law power enabling police to search a suspect in lawful custody, including one that might involve the removal of some or all of the person’s clothing. This particular power is an incident of the power of the arrest itself. ... [T]he power stems from the duty of police to take reasonable measures to ensure that a person in custody does not harm himself, herself or others, escape, or destroy or dispose of evidence. The shorthand expression ‘safety and evidence search’ captures these purposes.
It is not wise to constrain or define how a particular search may or should be carried out, other than by reference to the general principles that have been stated in Lindley and Botton. That is to say, there is no reason to stipulate that such a search can never involve the removal of all items of an arrested person’s clothing, as opposed to only some of them. Some circumstances may require a frisk over external clothing, or the removal of only outer clothing or, I expect in rare circumstances, the removal of underclothing as well.
In all cases the appropriate balance must be struck between observing a person’s privacy and dignity, on the one hand, and the duty to ensure safety and the preservation of evidence, on the other. But given that the range of possible circumstances in which a search might need to be conducted on an arrested person is impossible to predict and almost limitless, it is in advisable to impose arbitrary limits which must apply in every case on the specific means by which the safety and evidence search power may be exercised.
[28] [2018] VSC 285.
[29] (Supreme Court of Victoria, Phillips J, 19 December 1987).
[30] Director of Public Prosecutions v Tupper [2018] VSC 285, [35] – [37].

I draw from these authorities that it is not sufficient for a police officer to simply follow standing orders or general protocols as to a requirement for the removal of clothing from a person in lawful custody on the basis that the clothing is capable of being used to harm oneself or others, and without first giving consideration to whether it is necessary in the particular circumstances faced by the police officer for the clothing to be removed to ensure the protection of the detainee and others. There is an obvious need for a police officer to balance the protection of the detainee and others with considerations of privacy and dignity.
In this matter, there was no evidence adduced at trial as to the circumstances of the appellant’s arrest and it was not established that the appellant was in lawful custody at the time she was placed in a holding cell and the police officers attempted to forcibly remove her stockings. Further, there was no evidence adduced from either police officer that they turned their mind to the issue of whether the removal of the appellant’s stockings was in fact necessary for her protection. Rather, MW gave evidence that she was simply following a general order or protocol to remove the appellant’s stockings as they were an item of clothing which had the potential to be used by the appellant to harm herself, irrespective of whether there was any actual risk of self-harm. MW agreed that the appellant had given no indication, by words or conduct, that she was in fact at risk of harming herself. It should also be noted that KWR agreed that the appellant may have said words to the effect that she was not wearing any underwear beneath her stockings, and if that was so, to remove the appellant’s stockings involved a highly intrusive ‘safety search’. Accordingly, there was no evidence upon which the Magistrate could properly find the police officers were justified in exercising their common law powers to conduct a safety search and remove the appellant’s stockings.
Section 81 of the Summary Offences Act 1953
Section 81 of the Summary Offences Act provides a power for police to search, examine and take particulars of persons. Section 81(1) provides a person who is taken into lawful custody may be searched in accordance with this section and anything found as a result of the search may be removed. Lawful custody is a precondition to the exercise of the power. Again, there was no evidence adduced at trial establishing that the appellant was in lawful custody.
Conclusion
The Magistrate failed to correctly identify that the prosecution was required to establish that the appellant was in lawful custody as a precondition to the lawfulness of the duty being exercised by a police officer. No evidence was adduced as to the lawfulness of the appellant’s custody.Accordingly, there was insufficient evidence upon which the Magistrate could be satisfied that MW was acting in the execution of her duty as a police officer at the time she was assaulted and it was not open as a matter for law for the Magistrate to convict the appellant of the offence.
I consider it appropriate to exercise my discretion not to order a retrial as the evidence adduced at the first trial was insufficient to sustain a conviction and the prosecution should not, as a matter of principle, be afforded the opportunity to present a new case which was not presented at the first trial. In reaching that conclusion, I have also taken into account the lenient penalty ultimately imposed by the Magistrate and the respondent’s concession that a verdict of acquittal is the appropriate order.
Order
The conviction is quashed, and a verdict of acquittal entered.