McDonald, Scott Raymond v Sherrin, Robyn Lynette
[1998] TASSC 126
•14 October 1998
126/1998
PARTIES: McDONALD, Scott Raymond
v
SHERRIN, Robyn Lynette
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 75/1998
DELIVERED: 14 October 1998
HEARING DATE/S: 14 October 1998
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Sufficiency of evidence - Question for court - Ex parte proceedings - Charge of drunk and disorderly - Whether on basis of evidence magistrate entitled to hold offence not proved.
R v Ormsby [1945] NZLR 109; R v Ackerley 46/1963; Hebble v Phegan 50/1997; Barrington v Austin & Ors [1939] SASR 130; Melser & Ors v The Police [1967] NZLR 437; Reeve v Cornish 3/1973; Leonard v Newell [1983] Tas R 78; Richardson v Shipp [1970] Tas SR 105; Weissensteiner v R (1993) 178 CLR 217; Watson v Trenerry unreported Supreme Court of the Northern Territory 3 October 1997, applied.
Police Offences Act 1935 (Tas), s4(1)(b).
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: K Brown
Respondent: R A Browne
Solicitors:
Applicant: Director Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment category classification:
Court Computer Code:
Judgment ID Number: 126/1998
Number of pages: 4
Serial No 126/1998
File No LCA 75/1998
SCOTT RAYMOND McDONALD v ROBYN LYNETTE SHERRIN
REASONS FOR JUDGMENT EVANS J
14 October 1998
This is an appeal against the dismissal of a charge that the respondent was drunk and disorderly in breach of the Police Offences Act 1935 ("the Act"), s4(1)(b), which provides that:
"A person shall not, in a public place, be -
…
(b) drunk and disorderly;"
The particulars of the charge before the Court were:
"You are charged with on the 4th May 1998 in Terry Street, a public place at Glenorchy in Tasmania, being drunk and disorderly."
The respondent did not appear at the hearing of the complaint which proceeded ex parte. The evidence tendered on behalf of the applicant was an affidavit sworn by Constable Cook, the two substantive paragraphs of which are as follows:
"On Monday 04 May 1998, at approx 3.40pm, I was on duty, and at the public enquiries counter of the Glenorchy Police Station. As a result of information received, I attended the offices of Housing Services, I0 Terry Street, Glenorchy. There, I observed a female, known to me as Robyn Lynette SHERRIN, the Deft now present in court. I observed that the Deft appeared to be strongly affected by liquor, as her speech was very slurred, her eyes were bloodshot, her breath smelt strongly of intoxicating liquor, and she was very unsteady on her feet. I was informed by Housing Services staff, that the Deft was no longer welcome in that premises, and that they wished her to leave.
I requested the deft to leave the premises, and she agreed. I walked the deft from the premises, and as we exited the doorway, onto Terry Street, the Deft attempted to push past me, and re-enter the premises. I said, 'Robyn, you are not allowed back in there, so stop this.' The Deft yelled at me, "I wanna go and see the lady!' I again told the deft that she was not to re-enter the building, and she started yelling incoherently, and began to wave her arms towards my face. The Deft then stumbled off the footpath, and was narrowly missed by a passing car. I formed the opinion that the Deft was Drunk and acting in a Disorderly Manner, and placed her under arrest for that offence. I then walked the Deft down to Glenorchy Police Station, where the custody procedures were completed. Shortly after, the Deft was conveyed to Hobart Police Watchhouse, where she was charged, searched, and detained until she was bailed. Terry Street is a public place in the State of Tasmania."
The learned magistrate expressed reservations about the sufficiency of the evidence and adjourned the matter to give the applicant the opportunity to adduce more evidence. When the hearing resumed on 30 July 1998, the applicant tendered no further evidence. The learned magistrate said that having re-read Constable Cook's affidavit, she had the same reservations as she had on the last occasion that the matter was before her. She had on that occasion anticipated that an additional affidavit would be filed, further addressing the circumstances in which the offence occurred. She said Constable Cook's affidavit did not satisfy her beyond reasonable doubt that the respondent's conduct was disorderly. The complaint was dismissed.
For the offence to be established, the learned magistrate had to be satisfied beyond reasonable doubt that the respondent:
when in a public place;
was drunk; and
was disorderly.
Public Place
The relevant events occurred on Terry Street, Glenorchy, a public place within the definition of that term in the Act, s3(1).
Drunk
The word "drunk" is not defined in the Act.
A person is drunk when, as a result of the consumption of intoxicating liquor, the person's physical or mental faculties, or judgment, are appreciably and materially impaired in the conduct of the ordinary affairs or acts of daily life. R v Ormsby [1945] NZLR 109, applied in R v Ackerley 46/1963 by Gibson J.
Constable Cook's evidence was that the respondent appeared to be strongly affected by liquor, her speech was very slurred, her eyes were bloodshot, her breath smelled strongly of intoxicating liquor, and she was very unsteady on her feet. This evidence, coupled with the evidence of the respondent's later behaviour, was clearly sufficient to satisfy the learned magistrate beyond reasonable doubt that the respondent's faculties were appreciably and materially impaired by intoxicating liquor, ie, she was drunk. The behaviour to which I refer is the respondent's attempt to push past Constable Cook to re-enter the premises she had been requested to leave, yelling incoherently, waving her arms, and stumbling from the footpath and narrowly missing a passing car.
Disorderly
The word "disorderly" is not defined by the Act.
In Hebble v Phegan 50/1997 at 13, Zeeman J said of a charge of engaging in disorderly conduct in a public place in breach of the Act, s13(1)(c) that in order to sustain the charge "it is sufficient to show that the conduct complained of, according to the time, place and circumstances, offends against public decorum and is calculated to disturb, alarm or annoy (Kruger v Humphries [1968] SASR 75)".
In Barrington v Austin & Ors [1939] SASR 130, Napier J at 132 said that disorderly behaviour refers to "any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place". In Melser & Ors v The Police [1967] NZLR 437, the judges of the Court of Appeal all expressed views to the effect that conduct which is the subject of a complaint of disorderly conduct must do more than seriously offend against recognised values of orderly conduct and must be likely to cause a disturbance or to annoy others. North P at 443, Turner J at 444 and McCarthy J at 446.
In Reeve v Cornish 3/1973, Crawford J relied on Barrington v Austin & Ors (supra) and Melser & Ors v The Police (supra) when considering what amounted to disorderly conduct for the purposes of the Act, s10(1)(a). The passage quoted above from the decision of Napier J in Barrington v Austin & Ors (supra) has been approved by the Full Court in South Australia and favourably cited in nearly all of the authorities I have read on disorderly conduct.
It is clear from the authorities I have read that the limits of disorderly behaviour cannot be sharply defined. Subject to that qualification, I proceed on the basis that to obtain a conviction, the applicant had to satisfy the learned magistrate that the conduct complained of, viewed in the light of the surrounding circumstances, was a substantial breach of public decorum which was likely to disturb, alarm or annoy others.
Approach to the Appeal
This is not an appeal by way of rehearing. The question for me is whether, on the basis of the evidence before the learned magistrate, she was entitled to hold that the offence was not proved. It is only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the respondent's guilt that I should allow the motion. Leonard v Newell [1983] Tas R 78 and Richardson v Shipp [1970] Tas SR 105.
The respondent did not attend the hearing to deny her guilt or give evidence. This is not to be taken as an admission of guilt. As to her failure to give evidence, I direct myself in accordance with the joint judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner v R (1993) 178 CLR 217. In summary, the uncontradicted evidence of Constable Cook can more safely be accepted and any doubts about its reliability or the inferences to be drawn from his evidence may be more readily discounted.
When dealing with a charge involving disorderly conduct, the correct approach to the evidence is as stated in Watson v Trenerry, an unreported decision of the Supreme Court of the Northern Territory dated 3 October 1997 where Martin CJ said:
"It is for the tribunal of fact to say whether matters established before the tribunal or any of them in fact constitute disorderly behaviour (per Zelling J in Samuels v Hall [1969] SASR 296 at p309, and Mitchell J pointed out in Ellis v Fingleton (1972) 3 SASR 437 at 440 that 'Whether conduct is disorderly … is to be decided by an objective test.' It is a matter of judgment for the court drawing upon 'its own experience and knowledge of life' per Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at p564."
Constable Cook's affidavit establishes the following:
That shortly after 3.40pm on Monday, 4 May 1998, he attended the offices of Housing Services at 10 Terry Street, Glenorchy.
That he observed the respondent at the premises and she was drunk.
That he was informed by Housing Services staff that the respondent was no longer welcome on the premises. He requested the respondent to leave, which she did.
When in Terry Street, the respondent attempted to push past Constable Cook and re-enter the premises.
Having been told by Constable Cook that she was not allowed back into the premises and to stop, the respondent yelled at Constable Cook, "I wanna go and see the lady".
When Constable Cook again told the respondent she was not allowed to re-enter the premises, she began yelling incoherently and began to wave her arms towards his face.
The respondent then stumbled off the footpath and was narrowly missed by a passing motor vehicle.
The relevant conduct is detailed in items (4) to (7) above. It occurred during the afternoon on a public street. Whilst staff were present in the Housing Services office, there is no direct or inferential evidence that they witnessed or overheard the events which are the subject of the charge. Constable Cook and the driver of the motor vehicle were on the street at the relevant time. There is no evidence of the presence or likely presence of other people on the street. The respondent's conduct must be assessed on the basis that the only people who were present were Constable Cook and the motorist.
In a drunken state, the respondent sought to re-enter premises which she had been requested to leave. In doing so, she attempted to push past Constable Cook, yelled incoherently and began to wave her arms at him. She then stumbled from the footpath and was narrowly missed by a passing car. The unavoidable conclusion is that this amounted to a substantial breach of decorum. The question then is, was it likely to disturb, alarm or annoy. I can see no alternative to the conclusion that Constable Cook was likely to be annoyed by the respondent attempting to push past him, yelling at him and waving her arms at him. Similarly, I can see no alternative to a conclusion that the respondent, by stumbling from the footpath and being narrowly missed by a passing car, was likely to cause annoyance to the driver of the car.
I am accordingly satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent. I allow the appeal and will hear the parties on any consequential orders that I should make.
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