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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Madison v Police

Details

AGLC: Madison v Police [2021] SASC 68
Case: [2021] SASC 68
Decision Date: 8 June 2021

CaseChat Overview and Summary

In Madison v Police, the appellant was convicted of assaulting a police officer in the execution of her duty. The appeal against the conviction was allowed, and the finding of guilt was quashed, with a verdict of acquittal being substituted. The case involved two female police officers, Constable Whale and Senior Constable Walker-Roberts, who were working as cell guards at the City Watch House. The appellant was detained and brought to the City Watch House, where the police officers were instructed to process her by taking her fingerprints and photographing her. The appellant refused to have her photograph taken, and she was directed to be placed in a holding cell. The appellant also refused to remove her stockings, which the police officers considered a potential risk for self-harm. When the police officers attempted to remove the appellant's stockings, she lunged forward and punched one of the officers to the groin area. The appellant was subsequently restrained and had her stockings removed before being left in the cell.

The legal issue in this case was whether the police officer was acting in the execution of her duty at the time of the assault. The court held that for a police officer to be considered acting in the execution of their duty, their conduct must fall within any duty imposed by statute or at common law, or it must be a general scope of such a duty without involving an unjustifiable use of powers associated with the duty. The court found that the police officer's conduct in this case fell outside the scope of any such duty as there was no evidence adduced at trial establishing that the appellant was in lawful custody, which is a precondition to the lawfulness of the duty being exercised by a police officer. As a result, it was not open as a matter of law for the magistrate to convict the appellant of the offence.

The court considered it appropriate to exercise its 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. The court also took into account the lenient penalty ultimately imposed by the magistrate and the respondent's concession that a verdict of acquittal is the appropriate order.

The final order of the court was to quash the conviction and enter a verdict of acquittal. This case highlights the importance of establishing lawful custody as a precondition to the lawfulness of the duty being exercised by a police officer and the necessity of examining 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.

Orders

Orders of the court

Held, allowing the appeal:

1. The conviction is quashed, and a verdict of acquittal entered.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.