MOUKACHAR v Police - [2004] SASC 272

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MOUKACHAR v POLICE
Judgment of The Honourable Justice Nyland
7 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against conviction and sentence - appellant charged with hindering police - pleaded not guilty - convicted and $500 fine imposed - appellant self-represented on appeal - findings of magistrate not inconsistent with facts established by the evidence - appellant failed to point to any error of law on part of magistrate with regard to conviction or sentence - no grounds for interference by appellate court - appeal dismissed.
Summary Offences Act 1953 s 6(2), referred to.
DeVries v Australian National Railways [1992-1993] 177 CLR 472, applied.

MOUKACHAR v POLICE
[2004] SASC 272
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against conviction and sentence. The appellant was charged on complaint that on 11 May 2002, in Adelaide, he hindered Peter Foot, a member of the police force in the execution of his duty, contrary to the provisions of s 6(2) of the Summary Offences Act 1953.
The appellant pleaded not guilty to the charge. The trial proceeded before a stipendiary magistrate sitting in the criminal jurisdiction of the Adelaide Magistrates Court on 28 April 2004.
On 24 June 2004, the learned magistrate convicted the appellant and imposed a fine of $500, together with court costs, prosecution fee and levies totalling $619.50.
Although the appellant was represented at trial he was unrepresented on the hearing of the appeal. He also appears to have prepared the notice of appeal himself without the benefit of legal assistance as the only ground contained therein states:
“I am seeking to be heard at the District Court relating to my conviction of hinder and penalty and another charge related matter pending court appearance on 26 – I’ve been victimise(d).”
At the commencement of the hearing of the appeal, I asked the appellant if he intended to obtain legal assistance to assist him with respect to his argument and whether he required an adjournment for that purpose. The appellant indicated, however, that he believed that he was capable of making the appropriate submissions to the court on his own behalf and was happy to proceed unrepresented.
Before turning to the issues raised on appeal, it is useful to consider the circumstances which gave rise to the charge against the appellant. Three witnesses gave evidence for the prosecution, namely, Trevor John Hallion, Enrico Rech and Senior Sergeant Peter John Foot. Their oral evidence was supplemented by the following exhibits which were tendered by consent:
P1         Affidavit of Mr Hallion.
P2         Cassette tape.
P3         Affidavit of B J Molony.
The appellant also gave evidence at the trial but did not call any other witnesses to give evidence on his behalf.
The principal witness for the prosecution was Senior Sergeant Foot. He was at the relevant time a Sergeant of police stationed at the Hindley Street police station. He gave evidence that at about 10.15 pm on 11 May 2002, he was driving east along Rundle Street in a marked police vehicle on uniform solo patrol. As he was travelling along he saw two males assault another person knocking him to the ground on Rundle Street. Foot immediately stopped his car whereupon the two males ran away in an easterly direction along the northern footpath of Rundle Street. Foot eventually caught them. One of the males was quite aggressive, whilst the other was quite subdued. Foot caught the aggressive one first and pushed him up against the wall and told him he was being detained. The other man simply walked back to Foot’s location. The one held against the wall by Foot was, however, struggling and trying to break free of his hold.
Foot said that he pushed the struggling man face forward towards the wall. He then called for assistance as he was on his own and there were no other policemen around. Foot said that as he was doing that, the appellant came over and started yelling and screaming and causing him quite a bit of trouble. The appellant said to the man facing the wall “I am going to kill you”. He then pushed Foot out of the way and started yelling at the man being held by Foot. Foot said that the appellant then turned and threatened him with a verbal tirade of abuse and pushed him. Foot said that he was holding the man he had apprehended with his right arm and he turned his left side towards the appellant who was brushing him. Foot said the appellant brushed him out of the way and Foot pushed him back with his left hand. Foot said he spoke to the appellant a number of times and told him to move away and that he was hindering. The appellant, however, was continually saying “I’m going to kill you, sue you for touching me. I’m going to kill you”. Foot said he drew his capsicum spray and held it out. He told the appellant that he was going to spray him with a defensive spray if he did not move back. Foot said the appellant continued to yell threats at him and he held the spray towards the appellant’s face. He got to the point where he had actually cracked the seal, at which point the appellant moved away and told him that he was going to get him in the street later. Foot said that just prior to taking out the defensive spray he again called for urgent radio assistance. The learned magistrate found the fact that Foot was concerned for his safety was evidenced by the tape (Exhibit P2), which was a record of his request for assistance. Foot said he later arrested the appellant for hinder police, at which point the appellant abused him and swore at him and told him he was going to kill him.
The appellant was subsequently handcuffed and was then walked over to the police car by Constable Molony who had arrived to assist Foot and in due course the appellant was conveyed to the city watchhouse. Foot said that he remained at the scene and obtained statements from the witnesses, Trevor Hallion and Enrico Rech.
In the course of cross-examination Foot was asked about the two men whom he observed committing the assault on the other. Foot said their names were John Michael Stevens and Benjamin Modra. They were detained but not arrested on the night in question and as far as he was aware, nothing had happened with respect to charging them with the crime of assault. Foot’s understanding was that the assault matter had not been pursued as the victim had passed away from an unrelated disease within a month of the incident.
Trevor Hallion told the court that he was in Rundle Mall with his friend Ric Rech on the night in question and saw the two men punch the third. He saw Foot apprehend one of the men and push him up against the wall. Hallion said that the appellant then came from behind Foot and started pushing between the officer and the person being held up against the wall in an effort to have a go at the alleged offender.
Hallion described the appellant as “ranting and raving” and said that Foot warned the appellant to move back a number of times before he threatened to use the spray.
(Enrico) Anthony Rech said that the appellant had approached Foot’s position from across the road, appeared to have a confrontation with him and was advised by Foot to back off.
The appellant said in evidence that at the relevant time he had been having a drink at a wine bar in Rundle Street. He saw a man being assaulted by some others and fall to the ground. The appellant felt it was his “duty as a fellow human being – was knocked down on the footpath, to get up and try to stop those two offenders, or talk to them. That’s my intention”. He said he got up and crossed the road to where Foot was with the offender to try to help. He denied trying to push Foot out of the way in order to get the man being held against the wall and he also denied threatening to kill Foot. The appellant asserted that it was only his intention to assist Foot in the apprehension of the alleged offender but admitted that Foot told him to move away. He said he was only trying to help Foot, but Foot pushed him away with his left fist. The appellant said that he moved away after Foot had warned him on the third occasion and when Foot said that he was going to use the capsicum spray.
In her reasons for judgment, the learned magistrate summarised the evidence and said (at para 26):
“It was apparent from the evidence of the defendant that he had been greatly upset by the assault he had witnessed. In my view the state of agitation the defendant felt at the time has coloured his evidence and has caused him to reconstruct and exaggerate certain events. Where his evidence and that of Senior Sergeant Foot differs, I prefer the evidence of Senior Sergeant Foot.”
The learned magistrate declined to draw an adverse inference against the prosecution for their failure to call either Stevens or Modra. She was satisfied with the explanation provided by the prosecution that neither man was charged with the assault following the death of the victim from an unrelated matter. She also accepted that the prosecution had been unable to speak with Stevens, despite an attempt to contact him by telephone and were unaware of the whereabouts of Modra.
The learned magistrate took into account inconsistencies between the oral evidence given by Foot as opposed to his notes and the statement of the incident. She also took into account suggested inconsistencies arising out of the evidence of Hallion and inconsistencies between Hallion’s evidence and that of Foot, but considered that any such inconsistencies were understandable. She found both Foot and Hallion to be credible witnesses. She considered that the evidence of Foot and Hallion was entirely consistent in their description of the appellant’s efforts to interfere with the actions of Foot as he was detaining the person as well as the appellant’s refusal to move away when requested until threatened with the use of capsicum spray. Their evidence was also supported by the evidence of Rech whom the magistrate also found to be a credible witness.
The learned magistrate found that the following facts were proved beyond reasonable doubt (para 31):
“… At about 10.15 pm on 11 May 2002, Senior Sergeant Foot had detained two male persons, John Stevens and Benjamin Modra, following an assault upon another unnamed male person. Senior Sergeant Foot was holding one of the detained men against a wall and he had his hand pressed against the man’s chest. The defendant thereupon ran from across the other side of Rundle Street and intentionally pushed between Senior Sergeant Foot and the person being held by him and threatened the person being detained. Senior Sergeant Foot requested the defendant to move away and when he failed to do so, he again requested him to move away and pushed him against his chest in an effort to move him away. The defendant then threatened Senior Sergeant Foot. Senior Sergeant Foot pushed the defendant a second time in an effort to move him away and then threatened to use a capsicum spray if he did not move. He broke the seal on the canister and he was about to use the spray when the defendant moved away. The defendant was subsequently handcuffed and arrested.”
The magistrate then considered the elements of the offence and said (paras 35, 36):
“I have already found that the defendant intentionally pushed between Senior Sergeant Foot and the person being detained and threatened the person being detained. Senior Sergeant Foot requested the defendant to move away and when he failed to do so, Senior Sergeant Foot pushed him away. The defendant threatened Senior Sergeant Foot and he would not move away. Senior Sergeant Foot then pushed the defendant a second time and threatened to use the capsicum spray if he did not move back. By his conduct, which I have already found was intentional, the defendant hindered Senior Sergeant Foot in his effort to detail the persons suspected of having committed an assault.
There was no dispute that Senior Sergeant Foot was, at the relevant time, a member of the police force. There was also no dispute that he was acting in the execution of his duty at the time of the incident.”
In view of those findings, the magistrate found the charge proved beyond reasonable doubt.
On the hearing of the appeal, the appellant did not point to any error by the learned magistrate in her reasons for judgment, but in effect sought to re-agitate the issues which were the subject of evidence at the trial. The appellant clearly feels a great sense of grievance as a result of being charged with an offence when, in his view, he was attempting to assist the police with the apprehension of the men who committed an assault, with the latter in effect being let off scot-free. His submission was (Tr 4-5):
“Yes. What I did was I crossed the road from the other side because I saw those two offenders there assault that man and that man he fall on the ground, the concrete, and he didn’t get up. My intention was just to help a human being and try to stop those two offenders getting from the scene.
What happened was we got to the point where the offenders were and at the same time that the police officer asked me to move he asked me to move from the scene. As I was trying to reply to his request he kept on, like, his fists at me and he, like, punched me. The second time I repeat he asked me the same thing to which I replied the same.
HER HONOUR
Do you agree he asked you to move back?
MR MOUKACHAR
Yes, he did, but what I am trying to say is if the police officer approached me in like a different way, which I believe is my right, I would have moved completely because I was there to help the police officer and help this man that was bashed by those two offenders and not to let them get away.”
The appellant asked that I accept his evidence as credible in preference to the prosecution witnesses. He expressed his belief that the witnesses, Hallion and Rech, were not present when the offence took place. The learned magistrate, however, had the benefit of hearing from all of the witnesses including the appellant and I am obliged to pay due regard to the advantage she had.
In DeVries v Australian National Railways Commission[1], the High Court considered this matter and said (per Brennan, Gaudron and McHugh JJ at 479):
“…a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 1971 CLR 167. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’; SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, or had acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’; Brunskill (1985) 59 ALJR at 844; 62 ALR at 57.”
[1] [1992-1993] 177 CLR 472
The findings made by the learned magistrate in this case were not inconsistent with facts established by the evidence, nor were they glaringly improbable. The findings were based primarily upon the evidence of Foot and Hallion, whom the learned magistrate accepted as witnesses of truth as to essential matters. The learned magistrate formed the view that the appellant had been greatly upset by the assault that he had witnessed and that the state of agitation felt by him had coloured his evidence and caused him to reconstruct certain events.
All of those findings were open on the evidence. The appellant has failed to identify any error on the part of the learned magistrate which would require this court to interfere. In my opinion the appeal against conviction should be dismissed.
I now turn to the appeal against sentence. The magistrate was provided with a pre-sentence report dated 15 December 2002. Although that related to another matter, it set out in some detail the appellant’s prior history which included a number of previous court appearances. The learned magistrate was also provided with an offender history report which disclosed that the appellant had a number of relevant prior convictions which were admitted by him.
The appellant did not point to any error of fact or law or failure by the magistrate to take into account any material consideration. The prescribed maximum sentence for the offence of hinder police is a fine of $2,500 or imprisonment for six months. Given the circumstances of the offending committed against the appellant’s prior history, the fine of $500 imposed by the learned magistrate would appear to be well within the range of penalty appropriate to this offence. The appeal against sentence should also be dismissed.