Perre v Police - [2022] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
PERRE v POLICE
[2022] SASC 80
Judgment of the Honourable Chief Justice Kourakis
4 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – ASSAULT – CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The appellant appeals against conviction in the Magistrates Court of South Australia for aggravated assault by spitting on a police officer acting in the course of his official duties.
The offending occurred in November in circumstances where the appellant was in remand awaiting trial on charges of murder and attempted murder. While in custody, he was assaulted by another prisoner. The next day, when police attended at his cell to speak to him, the appellant spat towards one of the officers, landing spittle on his jacket.
In March 2022, the appellant was convicted by a Magistrate of the offence. He appeals on the grounds that the Magistrate gave inadequate reasons (Ground 1) and failed to adequately direct himself on the issue of forensic disadvantage (Ground 2). The appellant emphasises a number of investigation failures including the absence of any forensic DNA evidence, photographs, measurements of the cell, CCTV footage or statements from prison officers.
Held, per Kourakis CJ, dismissing the appeal and affirming the conviction:
1. The Magistrate’s reasons were inadequate in that they failed to explain why his Honour was satisfied beyond reasonable doubt that the offending had occurred despite the investigation failures and did not address the defence submission as to the improbability that the offending had occurred.
2. On rehearing, the evidence proves beyond reasonable doubt that Mr Perre spat on the police officer in the course of his official duties.
Criminal Law Consolidation Act 1935 (SA) s 20(3), referred to.

PERRE v POLICE
[2022] SASC 80
Magistrates Appeal

KOURAKIS CJ: Mr Perre appeals against his conviction on a charge of aggravated assault, the aggravating circumstance of which is that Mr Perre knew that the victim was a police officer acting in the course of his official duties. The trial was heard in the Magistrates Court on 3 February 2022 and the Magistrate delivered his reasons on 22 March 2022.
In November 2018, Mr Perre was held in remand at the Adelaide Remand Centre awaiting his trial on charges of the murder of an officer of the National Crimes Authority (‘NCA’) and the attempted murder of another employee alleged to have been committed by exploding a parcel bomb in its Adelaide office. On 22 November 2018, Mr Perre was himself the victim of an assault committed by R. The assault was captured on CCTV. Officers of the Department of Correctional Services (DCS) intervened and brought the assault to an end. Mr Perre told them that he did not wish to press charges or have the police involved in any way.
Nonetheless DCS reported the assault to SA Police. On the next day two police officers, Detective Brevet Sergeant Cassell and Detective Sergeant Bull, attended at the Remand Centre to investigate the assault and, if warranted, arrest R. They were shown the CCTV footage and formed the view that R had assaulted Mr Perre. They decided to first speak to Mr Perre in his cell. Detective Cassell stood in the doorway to the cell, and called Mr Perre by his given name, Domenic. Mr Perre asked of Detective Cassell who he was. Detective Cassell responded that he and Detective Bull were police officers. Detective Cassell testified that Mr Perre was lying on the bed on his right side facing away from the cell door. He saw Mr Perre roll his shoulders and tilt his head over his left shoulder. Detective Cassell heard Mr Perre clear his throat, and then saw Mr Perre spit in his direction. The spittle landed on the lapel of Detective Cassell’s jacket. Detective Cassell walked away and wiped the spittle off with a handkerchief. Detective Bull gave evidence to the same effect but said that the spit landed on Detective Cassell’s arm as well as his chest.
Detectives Cassell and Bull did not report Mr Perre for the assault until 12 December 2018.
Neither Detective Cassell’s jacket nor his handkerchief, or samples taken from them, were submitted for forensic DNA testing. Nor did either of the Detectives take photographs of the spittle on Detective Cassell’s jacket or of the cell. Detective Bull did not make notes of the incident. The Detectives did not draw a plan of the cell and its contents, and did not measure its dimensions. Neither of them made enquiries of DCS to ascertain whether there was CCTV footage of Mr Perre’s cell at the time of the alleged assault. I will refer to these omissions as the investigation failures.
Mr Perre appeals on two grounds. The first is the insufficiency of the Magistrate’s reasons in explaining why he was satisfied beyond reasonable doubt that the offence was committed against what was submitted to be the improbability that Mr Perre could spit as far as alleged, and in the face of the investigation failures. The second ground is that the Magistrate took an erroneously narrow view of the forensic disadvantage suffered by Mr Perre as a result of the investigation failures.
I would dismiss the appeal. I accept that the reasons of the Magistrate were inadequate, and in several respects erroneous, but, on a rehearing of the evidence, I am satisfied that the evidence proves the guilt of Mr Perre beyond reasonable doubt.
The Evidence
Before he went to the cell, Detective Cassell spoke to a prison intelligence officer, Phillip Hall. Detective Cassell testified that Mr Hall informed him that Mr Perre did not want to discuss the assault and did not want to make a complaint. He told Detective Cassell that Mr Perre would not sign a statement nor interact with police in any way in relation to the assault. Detective Bull could not recall Mr Hall communicating that information to them. Detective Cassell explained that he nonetheless spoke to Mr Perre because he “was the victim in this matter and regardless of what other people say to me about purporting as to what Mr Perre wants is not necessarily what Mr Perre may have said”.
Detectives Cassell and Bull went to Mr Perre’s cell in G Division. A prison officer opened Mr Perre’s cell and returned to tell the detectives, who were about 15 metres away, that the door was open. Detective Cassell stepped into the doorway to Mr Perre’s cell. Detective Cassell testified that Mr Perre was lying on a bed at about knees height above the floor with Mr Perre’s head about two and a half feet away from him. Detective Bull was behind Detective Cassell. It was then that the assault, the evidence of which I have already summarised, allegedly occurred.
In cross-examination, Detective Bull testified that he heard Mr Perre tell the prison officer that he did not want to talk to anybody. He testified that he moved to within 1.5 metres of the cell door when Detective Cassell was speaking to Mr Perre. He accepted that in a statement he prepared just several months after the incident, he wrote that he was 2 metres away. Detective Bull gave a description of how Mr Perre spat at Detective Cassell which was similar to Detective Cassell’s description. He denied the suggestion that he did not have a view of Mr Perre’s head from where he was.
It was put to Detective Cassell that when he was at the door, Mr Perre said “I don’t want to talk to you. I have no time for you”. Detective Cassell disagreed. He denied that he responded by telling Mr Perre, “We’re from SAPOL”. Detective Cassell also disagreed that he said, “I want to talk to you about something”. He strongly denied that Mr Perre told him to “Fuck off”. He also denied saying to Mr Perre, “You’re in enough trouble and it would be in your interest, or advantageous to you, to consider talking with us”.
Detective Cassell was cross-examined about the contents of a written record of the incident he made later that day. The following sentence from the statement was read to him: “He then turned and rolled his head back over his left shoulder to look at me while remaining on his side.” It was put to him that his testimony departed from that statement by adding that Mr Perre had also rolled his shoulders over in order to make his account of being spat on more plausible. Detective Cassell responded, “No, I’m saying that because that’s what I recall.”
Detective Cassell testified that he was “a little bit stunned” after he was spat on. He had not expected it. He spoke with both a prison officer and Detective Bull about Mr Perre spitting on him. They discussed what they would do about the incident. They decided to handle it later because they were there to speak to R. They proceeded to speak to and then arrest R for the assault on Mr Perre.
In cross-examination Detective Cassell testified he did not know whether the prison officer who had opened the door would have been in a position to corroborate any part of his account. Detective Cassell agreed that he had not obtained a statement from anybody else. He agreed that neither he nor Detective Bull took photographs of his jacket or the cell. Detective Cassell testified that his mobile phone was in a locker downstairs. Detective Bull explained that mobile phones were not allowed in the prison. He did not ask the prison officers if they had a phone. The camera they had brought with them in the event that they should interview R was in their car.
Detective Cassell did not know whether or not there was a security camera in Mr Perre’s cell. Detective Cassell did not enquire if there was CCTV footage of Mr Perre’s cell and nobody raised the possibility with him.
Detective Cassell gave evidence that it did not occur to him immediately after he was spat on that he should obtain corroborative evidence of his account. Detective Cassell agreed to the suggestion put to him in cross-examination that “all we have to go on is your evidence”. He agreed that no crime scene examiner was called in to measure the cell, Mr Perre’s height, or to calculate the distance from where Mr Perre’s head was to the cell door. When asked why that was not done, Detective Cassell replied, “because the layout of the cell is very basic and the approximations for the height were very easy”.
It was put to Detective Cassell that he did not arrest or report Mr Perre on that day because Mr Perre never spat on him. Detective Cassell replied “No, he definitely spat on me”. Detective Cassell testified that Mr Perre was reported for the offence on 12 December 2018.
Detective Cassell washed his handkerchief when he went home. He did not think to have it photographed because he just wanted to remove the spittle. It did not cross his mind to take it to the Forensic Science Centre even though he was an experienced detective. He agreed he could have given his shirt and jacket to the Forensic Science Centre to analyse for DNA.
Detective Cassell testified that Detective Bull was the investigating officer whereas Detective Bull testified that it was Detective Brevet Sergeant Jason Olsen. It would have been unwise to say the least, to appoint Detective Cassell the investigating officer of the offence of which he was the victim. It is understandable therefore that Detective Cassell thought Detective Bull was the investigating officer and equally understandable, and wise, that yet another detective, who was not a witness to the offence appears to have been assigned the role.
Later in the cross-examination, Detective Cassell volunteered that there was reason for not handing over his clothing for testing. He said “well, the fact that I have wiped the spit off from my jacket is one thing. The fact that the hankey was not clean and contaminated is another”.
It was put to Detective Cassell that he “wanted to get Mr Perre moved and perhaps slipped into another place where the police, or whomever could pop in an informer and say Perre confessed [to the murder of Bowen] to them”. Detective Cassell denied the suggestion and said that he found it offensive, and that it was not how he operated. He denied that he deliberately did not get his clothing examined so that it would be his word against Mr Perre’s.
In the cross-examination of Detective Bull, the following exchange occurred on why Detective Cassell’s handkerchief was not analysed for DNA:
QThe best evidence that could be, Domenic Perre’s DNA on Mr Cassell’s handkerchief that had previously been in Mr Cassell’s pocket.
ASorry, I don’t know what the question is.
QIsn’t that an obvious line of inquiry. Bang bag up the thing, take it to forensic science, say Mr Perre just spat on me, can you test it.
ANo, I disagree with that.
QHow could you possibly disagree with that, officer.
ABecause the Forensic Science Centre –
QDon’t tell me things you’ve been told, just tell me what you know.
AWe’re in charge of risk managing our investigations and what we do during investigations and the items that we submit to forensic science to be tested and in my experience for a matter such as this, that wouldn’t be tested at the Forensic Science Centre.
QA matter of a man that had just spat on a police officer who was charged with the murder of another one, are you actually saying that to his Honour, is that what you’re saying.
AYes, I am. The fact that he was charged with a murder of another police officer has no relevance in this matter whatsoever.
QThe truth of the matter is, you didn’t do it and neither did Cassell because he didn’t spit on you and you knew there wouldn’t be any spit on the handkerchief.
AThat’s not true.
In re-examination, Detective Bull referred to the large backlog in DNA testing at the Forensic Science Centre.
Possible motives for speaking to Mr Perre against what they understood his wishes to be were put to Detective Bull.
Mr Perre’s counsel put to Detective Bull that in approaching Mr Perre he was “in some way trying to exacerbate a motive in relation to the death of Bowen.”
I understand the question to suggest that Detective Bull hoped that Mr Perre might act aggressively in order to produce evidence that Mr Perre had an ingrained hostility to police which was his motive for murdering Detective Bowan. Detective Bull thrice denied that.
The Magistrate’s Reasons
The Magistrate set out what he considered to be the defence case in the following passage:
5Both police witnesses were cross examined at length, in particular about their prior knowledge of the accused's willingness to co-operate with police and their response to the alleged assault. They were asked what Remand Centre officers had told them and why they had failed to obtain any CCTV recording of the incident, why they did not take photographs of the interior of the cell, why they did not photograph the spittle on Cassell's clothing and why Cassell's clothing and handkerchief were not forensically examined. The aim of the cross-examination was to suggest the two witnesses were not acting in the course of their official duties and that they had failed in their professional duty to conduct a detailed examination of events leading to a prosecution brief. This was taken up again in closing addresses.
I accept that the Magistrate took an unduly narrow view of the defence case in that passage. Although the defence that the detectives were not acting in the course of their duties was put at trial, but not on appeal, it is manifest from the last question of the cross-examination in [22] above that its primary purpose was to suggest that Mr Perre never spat on Detective Cassell at all. However, the Magistrate later expressly adverted to that aspect of the defence:
7The point of the defence closing address was police officers knew the accused would not make a statement about the assault and so there was no point in seeing him and if not, they were not acting in their official capacity. It was also submitted the response of the two police officers was a failure of policing which casts a shadow over the testimony of the two police witnesses and deprived the accused of his opportunity to defend himself. If the accused did really spit at Cassell why was the handkerchief not forensically examined.
The defence that the detectives were not acting in the course of their duties was plainly untenable. Detective Cassell was undoubtedly correct, or at the very least reasonably took the view, that he should ascertain for himself whether Mr Perre would give him a statement about the assault. For the same reason the detectives’ decision to speak to Mr Perre gives no reason to doubt their testimony. The last sentence of paragraph 7 of the reasons correctly states the defence case on the significance of the investigation failures. However, after stating the question raised on the defence case, the Magistrate’s reasons fail to disclose why he was satisfied beyond reasonable doubt of Mr Perre’s guilt despite the investigation failures.
The Magistrate found that Detectives Cassell and Bull were credible and reliable:
9Neither of Sergeant Cassell or Bull were the investigating officer. They made a report and they made a statement. They were not expected or required to do more. If indeed there was any failure to do anything more, such failure does not detract from their evidence. I do not have any doubts about the evidence of the two prosecution witnesses. I consider they were credible and reliable. I accept that the incident occurred as they stated.
(emphasis added)
The last three underlined sentences are conclusions, they are not reasons. The observation that the detectives were not expected or required to do more may be right or wrong from the perspective of their operational duties, but there was just no evidence on that. Be that as it may, the observation does not deal with the assessment of credit given the investigation failures.
The reasons for discounting the defence submissions founded on the investigation failures may have appeared obvious to the Magistrate but they needed to be explicated. They were first, that Detective Cassell’s decision-making was affected by the fact that he was not only a police officer but also the victim. Not surprisingly, as he himself explained, he was shocked by the incident. Secondly, there was no appointed investigation officer for the assault committed by Mr Perre because the detectives were there to investigate the alleged offence against Mr Perre committed by R. Thirdly, from the perspective of Detectives Cassell and Bull, it was a simple offence to which they were both eyewitnesses, and being a relatively less serious offence, it did not warrant the commitment of scarce forensic resources to analyse the spittle for DNA. Innocent human responses like those are much more likely explanations for the investigation failures than the largely conspiratorial theories which are the only possibilities consistent with innocence. I use the expression conspiratorial because the possibility of fabrication entails collusion between Detective Cassell and Detective Bull to dishonour their oath and commit a range of offences in order to harm Mr Perre, because of a belief that he did bomb the NCA offices. Alternatively, they may have colluded for some random reason. It is trite that Mr Perre carries no onus and does not have to show a motive for the detectives fabricating the allegation and committing perjury. However, the evaluation of the defence hypothesis, that the reason for the investigation failures was that the allegation that Mr Perre spat on Detective Cassell was fabricated cannot proceed in a vacuum.

The matters put to the detectives as possible motives for their decision to speak to Mr Perre when he had indicated that he did not want to, cannot rationally explain why the detectives may have determined on a plan to falsely accuse Mr Perre of spitting on Detective Cassell.
The Magistrate correctly identified the forensic disadvantages faced by Mr Perre in the first three sentences of the following paragraph:
10The thrust of the criticisms of the police investigation is they failed to have Bull's handkerchief forensically examined. This last alleged failure placed the accused at a forensic disadvantage. The jacket and the handkerchief could either prove or disprove the allegations of spitting, but because there was no forensic examination the accused was deprived of this opportunity. I was referred to Duncombe-Wall v Police and Holmden v Bitar in support of the proposition that the proceedings should be permanently stayed or dismissed because of the forensic disadvantage.
It does not detract from the Magistrate’s reasons that he may have mistakenly thought that Mr Perre was seeking a stay.
The Magistrate made the following finding of intermediate fact:
Findings
1        I find the accused was held in Unit 7 of the Adelaide Remand Centre and he was the only occupant.
2        I find Detective Brevet Sergeant Cassell and Detective Sergeant Bull visited Unit 7 intending to speak with the accused.
3        I find the two police officers were informed that the accused did not wish to speak with police.
4        I find the cell door was opened by a Remand Centre guard.
5        I find Detective Brevet Sergeant Cassell stepped into the doorway of the call and addressed the accused of his first name.
6        I find Detective Brevet Sergeant Cassell identified himself as a police officer.
7        I find the accused spat at Detective Brevet Sergeant Cassell and spittle landed on the police officer's clothing
8        I find the accused knew why the police officers wished to speak with him and he knew they were acting in the course of their duties
17.And I am satisfied beyond reasonable doubt that the accused assaulted Simon Cassell and that he committed the offence knowing that Simon Cassell was a police officer acting in the course of his official duty.
The Magistrate did not explain his reasons for finding 7 nor his reasons for finding the assault proved beyond reasonable doubt.
I am persuaded that the Magistrate’s reasons are inadequate in that his Honour did not explain why he was satisfied beyond reasonable doubt that Mr Perre had spat on Detective Cassell when the detectives had not taken the relatively simple steps of retrieving their telephones to photograph the spittle on Detective Cassell’s jacket, and of obtaining a statement from the prison officer including having that prison officer independently observe the spittle. Even though the decision not to submit samples for DNA analysis is not a simple investigative measure, it was nonetheless a submission that was made and included amongst the investigation failures and should have been addressed.
Moreover, the Magistrate did not refer at all to the defence submission that the account of the detectives should be doubted because it was fanciful to think that Mr Perre would be able to land spittle on Detective Cassell’s jacket from where he was lying on the bed. It is important to acknowledge at the outset that no evidence as to how far a person might be able to spit was adduced. Nor was there any physiological expert evidence on the ability of a person to spit whilst in a position like that of Mr Perre on the bed at the time of the alleged incident. The defence submission called on the Magistrate to apply his Honour’s understanding of the human capacity to spit, not for the purposes of relying on any notorious fact, but in order to assess the inherent probability of what Detectives Cassell and Bull described. There are of course limits to the personal experience of a Magistrate which can be brought to mind in making that assessment. Plainly enough if there were an allegation that one person had managed to spit on another from opposite ends of a football oval there could be no objection to, or difficulty in, a trier of fact having regard to the inherent improbability, if not impossibility, of the act described. Equally if the allegation is that one person was able to spit on another whilst standing toe to toe, a Magistrate would have no difficulty in assessing that that was very possible. However, in the circumstances of the assault described by Detectives Cassell and Bull, it is difficult to see how the Magistrate could have accepted the defence submission that the evidence that Mr Perre landed spittle on Detective Cassell was fanciful. The proper response of a trier of fact addressing that submission could only be to say that it is not possible to make any conclusion about the probability or improbability of the evidence based on a broad understanding of how far humans can spit. Nonetheless the submission had to be addressed in the Magistrate’s reasons. It could not be ignored.
It is necessary therefore to consider whether to remit the matter for a new trial or to affirm the conviction.
I proceed on the basis that the Magistrate’s assessment that Detective Cassell and Detective Bull were credible and reliable was based on the content of their evidence and their respective demeanours. I have read the transcript of their evidence. The testimony of each reads coherently and is internally consistent and broadly consistent with the testimony of the other. There is no significant overstatement, prevarication, or obstructiveness in their evidence such as to detract from its apparent reliability. The restrained answers they gave to the serious accusations made against them in cross-examination enhanced their credibility.
The investigation failures are adequately explained by the matters I have already referred to and does not leave any reason to doubt the detectives’ credibility. In so far as those failures are also relied on for the forensic disadvantage ground that ground, is in essence, a repetition of the ground that reasons do not adequately explain why the testimony of the detectives was accepted and the charge found proved beyond a reasonable doubt.
I have also dealt with the submission that Mr Perre could not have spat on Detective Cassell having regard to their respective positions.
The motives put to the detectives for choosing to speak to Mr Perre were vague and lacking in substance. They can be dismissed as remote and fanciful. Even if they were accepted as reasonably possible, notwithstanding the most obvious and probable reason of wishing to first speak to Mr Perre as the victim of their assigned investigation, no reason was put to Detective Cassell for deciding to write up a false statement on the same day, or to Detective Cassell and Detective Bull for later colluding to bring trumped up charges and to give false evidence. Nor was any hypothesis advanced on appeal. There is no onus to show a motive to bring a false charge. However, given the failure to allow the detectives an opportunity to deny any such hypothesis identified by the defence, it was not necessary for the Magistrate to explore the far-flung corners of the universes of alternative realities and fanciful possibilities. Nor is it necessary for me to do so.
I am satisfied beyond reasonable doubt that Mr Perre spat on Detective Cassell.
I dismiss the appeal and affirm the conviction.