MANGAN v POLICE No. SCGRG-98-915 Judgment No. S54

[1999] SASC 54

MANGAN v POLICE

[1999] SASC 54

Magistrates Appeal

1 WICKS J This is an appeal against a conviction for assault against Mr Charlie Pipicelli, a person above the age of 12 years, thereby occasioning him actual bodily harm contrary to s40 of the Criminal Law Consolidation Act 1935. In the hearing before me, both parties were in agreement that the Magistrate had made a number of errors and that it would be unfair to allow the conviction to stand. The only issue before me was whether I should order a new trial or whether I should put an end to the matter by dismissing the charge.
2 At the trial Mr Charlie Pipicelli gave evidence.  He was called as a witness for the prosecution.  He said that he accompanied a number of friends to the Metropolis Hotel in Hindley Street, Adelaide, a nightclub, in the early hours of Sunday 8 September 1996.  One of the group was shortly to be married and the occasion was to celebrate a buck’s night out.
3 Mr Pipicelli’s account of the events that occurred was as follows.
4 One of the group, John Vottari, became involved in a scuffle with one of the security officers of the nightclub.  Mr Pipicelli observed the altercation and ran to his friend to offer aid.  He was grabbed by a security officer, placed in a headlock and punched in the stomach, winding him and causing him to fall down.  Another security officer punched him in the face.
5 Mr Pipicelli said that after the security officer released him he was grabbed in a headlock by a patron.  He described him as some guy standing around.  He was shortly released from the headlock.
6 Two security officers grabbed Mr Pipicelli by each arm and brought him towards some dancing blocks on the dance floor.  They pushed him towards the dance area.  His head was pushed down on one of the dancing blocks.  He was then hit over the head with a walkie-talkie.  He immediately turned around and saw the person who had hit him.  He said that it felt as if he had been hit with a blunt object on the back of the head.
7 The person concerned was wearing a white coloured shirt, the sleeves of which were rolled up to the elbows, blue jeans and black shoes.  He was a security officer.  He had a goatee beard, blue eyes and was of stocky build with a short haircut, with hair blond or sandy in colour which was level at the top and well groomed. 
8 The security officers pushed Mr Pipicelli towards the staircase.  At that stage, the security officer who had hit him over the head attempted to do so again as he started to walk down the stairs.  A further scuffle broke out with the security officer saying "I will take you on" as he pushed Mr Pipicelli down the stairs. 
9 At this stage Mr Pipicelli was bleeding profusely.  He said he had blood all over him.
10 While descending the stairs the security officer who had hit Mr Pipicelli with the walkie-talkie raised his walkie-talkie again as if to strike Mr Pipicelli.  A further scuffle ensued in which Mr Pipicelli grabbed the walkie-talkie and put it in his pocket.  Once outside the nightclub, the security officer who had struck Mr Pipicelli said "Come on, I’ll go you".  He then kicked Mr Pipicelli in the vicinity of the left eye, causing a severe bruise to develop.
11 Later, the police arrived and entered the nightclub with Mr Pipicelli who identified the appellant as the security officer who had assaulted him.  Mr Pipicelli handed the walkie-talkie to the police. 
12 As a result of the fight with the security officer, Mr Pipicelli had blood on his hands and over the top part of his body.  He had clearly sustained bodily harm.
13 Mr Stratos Karnas was also called as a witness for the prosecution.  His account of the events that occurred was as follows.
14 At about 12.30 am on Sunday 8 September 1996 Mr Karnas went to the Metropolis Nightclub in Hindley Street with a number of friends.  During the course of the evening, he saw a security officer approach his friend Mr John Vottari, one of the group, and speak in his left ear.  Mr Vottari moved over a little to try and hear what was said by the security officer.  He then straightened up and the security officer grabbed him around the neck and pulled him back towards a balustrade of a side staircase. 
15 He said once the security officer had grabbed Mr Vottari around the neck and dragged him back Mr Pipicelli yelled out "What’s happening with my mate" and went over to assist.  At that stage, two security officers had grabbed Mr Pipicelli, one around the neck and one by his arm and dragged him back towards the dance floor.  Near the staircase, one of the security officers hit Mr Pipicelli in the stomach and winded him.  One of the two security officers who had hold of Mr Pipicelli at the time was responsible for the hit in the stomach.
16 Once Mr Pipicelli was released by the security officers, one of the patrons of the nightclub grabbed him about the neck, gave him three or four punches and released him.
17 Mr Karnas said two other security officers then grabbed Mr Pipicelli, one on either side and pushed him towards a dancing block on the dance floor.  He was then pushed face down onto the block when another security officer then hit him on the head with what appeared to be a walkie-talkie.
18 Mr Karnas described the person concerned.  He was muscular, well built wearing dark trousers and a white shirt.  His hair was short cropped and he had a goatee beard.
19 On being struck with the walkie-talkie, Mr Pipicelli was released by the security officers. 
20 Mr Karnas picked Mr Pipicelli up from the floor.  Mr Karnas and his friends were then told to leave the premises.
21 While on the way to the stairs, another scuffle broke out between Mr Karnas and his party and the security officers.  Mr Karnas’ evidence was that halfway down the stairs another argument broke out between Mr Pipicelli and the security officer who had struck him with the walkie-talkie. 
22 The security officer raised his right hand again clutching the walkie-talkie as if to strike Mr Pipicelli again.  Mr Pipicelli then took the walkie-talkie away from the security officer.
23 When asked if there was anything that he could recall that distinguished the security officer in question from other security officers, Mr Karnas replied that the security officer in question had very short hair, a goatee beard and a very stocky build.
24 At the bottom of the stairs, Mr Karnas and his friends were told to leave and they made their way outside on to the footpath.
25 Mr Karnas observed that Mr Pipicelli was bleeding from the back of his head and said that he first noticed the blood when they had come down the stairs.
26 Mr Karnas said that on reaching the footpath, Mr Pipicelli was very "fired up" and was most upset at the fact that he had been hit.  The security officer kicked Mr Pipicelli with what was described as a round leg style kick with his right leg to the face.
27 The person that was alleged to have hit Mr Pipicelli with the walkie-talkie was identified as the defendant by Mr Karnas while the latter was giving evidence.
28 Mr Giovanni Vottari was one of Mr Pipicelli’s friends and gave evidence at the hearing before the learned Magistrate.  His evidence was as follows.
29 Mr Vottari had gone upstairs in the nightclub to an area where there was a dance floor and bar.  While upstairs, he was approached by a security officer who said that he had reason to believe that Mr Vottari had been causing trouble, an allegation which Mr Vottari denied.  In the witness box he denied that he had been up to anything prior to the security officer making his approach.
30 The security officer grabbed Mr Vottari in a strong headlock.  Mr Vottari said he had trouble breathing whilst in the headlock.  However, he noticed his friend Mr Charlie Pipicelli only a couple of metres away and saw the security officer come up to Mr Pipicelli and apply a headlock from behind.  Another security officer grabbed Mr Pipicelli’s arm and held it behind his back.  While all this was going on, Mr Pipicelli was saying to the security officers, referring to Mr Vottari, "Let him go, he hasn’t done anything wrong".  After putting Mr Vottari in a headlock, the security officer attempted to move him and a scuffle ensued. 
31 The dance floor in the upstairs area had a number of wooden blocks on it known as dancing blocks.  While his head was in a headlock, Mr Vottari was able to see Mr Pipicelli and observed one of the security officers punch Mr Pipicelli in the stomach.  One of the security officers then punched Mr Pipicelli in the face.  Mr Pipicelli and Mr Vottari were only two metres or so apart when these events were occurring. 
32 After Mr Vottari saw Mr Pipicelli punched in the face two security officers escorted Mr Vottari down a set of side stairs and let him out of the premises into the side street.  Mr Vottari then walked around to the front entrance where he noticed Mr Pipicelli with blood all over him.  He had a black eye and also a gash to the head. 
33 Mr Constantine Arvanitakis was called as a witness for the prosecution.  He said that at about 12.30 am on Sunday 8 September 1996 he also went to the Metropolis Nightclub in Hindley Street with Mr Karnas and other friends. 
34 Shortly after arriving, after a period of time downstairs, Mr Arvanitakis went upstairs where there was a bar.  Mr Vottari was standing on the left hand side of Mr Arvanitakis.  He said they were not dancing.  A security officer came up to Mr Vottari and spoke in his ear.  Mr Vottari made a reply which Mr Arvanitakis was unable to hear because of the very loud music that was playing at the time. 
35 Mr Arvanitakis next observed that the security officer put Mr Vottari in a headlock.  Either immediately before applying the headlock or after it had been applied, the security officer said to Mr Vottari "What the fuck did you say to me?". 
36 After the headlock had been applied, Mr Vottari soon began gasping for air and was starting to choke.  Mr Pipicelli approached him and called out "Let go of my mate", or something like it and put his hands on the security officer to ease off the pressure on Mr Vottari’s neck.  Two security officers then took hold of Mr Pipicelli and started dragging him towards the southern end of the dance floor where there were some dance blocks.  As they were dragging him, he was being punched.  He was still being held in a headlock and one arm was pinned to his back.  Mr Arvanitakis asserted that Mr Pipicelli was struck on the head with a two-way radio on the right side of the forehead.
37 Mr Arvanitakis also referred to a patron who gave a number of punches at Mr Pipicelli while he was being dragged to the dance blocks.  Mr Arvanitakis was unable to say how many punches Mr Pipicelli received from the patron. 
38 Mr Emmanuel Fortuna came on to the scene and tried to break up the fight and was attempting to pull Mr Pipicelli away from the security officers.  Mr Fortuna came out of the brawl with blood on his shirt and trousers.  Mr Pipicelli had blood in his hair, on his face and had some kind of cut on his head.  Mr Fortuna and Mr Pipicelli were told to leave and they started exiting via the stairs.  Mr Arvanitakis followed some distance back and by the time he reached the stairs there seemed to be a further scuffle occurring midway down the stairs.  It appears that Mr Fortuna was trying to stop another fight from erupting.
39 Mr Pipicelli went down the stairs, through the premises to the footpath outside.  Mr Arvanitakis followed.  According to Mr Arvanitakis the same security officer who had hit Mr Pipicelli on the head was trying to start another fight with him and Mr Pipicelli was being restrained by his friends.  In attempting to start another fight, the security officer concerned put up his fists and shouted "Come on" or words to that effect.
40 According to Mr Arvanitakis the security officer then adopted a karate stance and used a "left round house kick" to Mr Pipicelli’s right side of the face. 
41 Given that it is common ground that the conviction cannot stand, I now turn to the question of whether I should order a new trial or simply dismiss the charge.
42 In DPP For Nauru v Fowler (1984) 154 CLR 627, the High Court observed at p630:
"                 The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.  In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case.  In the present case, the admissible evidence given at the trial satisfies this test.  Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.  The alleged misuse by the respondent of his position as a senior officer of the Phosphate Corporation might have been regarded as a reason in favour of granting a new trial, whereas, on the other hand, the facts that the respondent was no longer on the island of Nauru and that the offences were thought to warrant only one month’s imprisonment and a small fine might have been thought to provide arguments to the contrary.  These were matters that should have been weighed by the Supreme Court in deciding how its discretion should be exercised."

43 There are minor differences between the accounts of the various witnesses called by the complainant.  However, I think it is reasonably clear that Mr Pipicelli was struck on the head by a walkie-talkie whilst in the vicinity of the dance floor in the upstairs area of the nightclub by a person whom he identified, and that further scuffles ensued between Mr Pipicelli and that person whilst they were descending the stairs in the course of leaving the premises.  The person concerned was a security officer in the employ of the Metropolis Hotel.  He was identified by Mr Karnas while Mr Karnas was giving evidence in the trial before the learned Magistrate.
44 In my opinion there was sufficient evidence given at trial to justify a conviction. 
45 In Siebel v R (1992) 57 SASR 558 King J said at p564:
"                 The evidence in the case is quite strong enough to justify a  new  trial.  There  are,  however, other considerations.  Any new trial will occur almost three years after the incident in question.  The matter has been a cloud over the heads of the accused persons for all that time.  There were moreover strong indications at the trial that the lapse of time since the incident had affected the memory of crucial witnesses.  The further lapse of time will intensify that problem.  The delay has been due entirely to actions or omissions on the part of the authorities.  There was considerable initial delay in pursuing the investigations.  There was further delay in initiating the prosecution.  The further delay as a result of the mistrial is the consequence of an error on the part of counsel for the prosecution.  In these circumstances, I have reached the conclusion that the interests of justice would not be served by requiring the appellants to stand trial again."

46 There has been a considerable delay in this matter.  The alleged assault occurred on 8 September 1996, almost two and a half years ago.  The Information was laid on 4 February 1997.  The matter was heard on 3 November 1997.  A conviction was recorded and a penalty imposed on 22 June 1998.  This appeal was instituted on 6 July 1998 and heard on 20 October and 4 November 1998.  The matter is likely to be three years old when it comes to be reheard.  On a retrial, witnesses will be asked to recollect, in minute detail, events which occurred three years ago.  We are concerned in this case with an environment where there is a great deal of noise and where many people are milling about.  It is highly likely that there will be considerable inaccuracy in the evidence merely through the process of decay in recollection.  The appellant has already had this matter hanging over him for two and a half years and it might be three if not three and a half years before it is finally disposed of.  The matter would be dealt with summarily rather than as a trial before a jury.
47 In the circumstances, and for the reasons I have given, I would allow the appeal, quash the conviction and dismiss the charge.  In all the circumstances, I do not think it appropriate that there should be a retrial in this matter.