Pica v Police - [2013] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PICA v POLICE
[2013] SASC 114
Judgment of The Honourable Justice Vanstone
12 July 2013
POLICE - RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES - OTHER MATTERS
Appellant appealed against convictions for several summary offences claiming magistrate's findings unsafe and unsatisfactory.
Held: Appeal dismissed - appellant unable to point to any error by the magistrate in the approach to, or evaluation of, the evidence.

PICA v POLICE
[2013] SASC 114
Magistrates Appeal: Criminal

VANSTONE J: After a trial in the Magistrates Court the appellant, Giovanni Pica, was found guilty of failing to stop his vehicle (a bicycle) when directed, assaulting a police officer and resisting a police officer in the execution of his duty. He now appeals against those convictions.
Upon the appeal several grounds were raised. Broadly they devolve to a contention that the magistrate’s decision was unsafe and unsatisfactory, that he should have found that the police officers concerned had abused their power and that he should have acquitted the appellant. In support of his argument about the conduct of the police the appellant also sought to present what he called fresh evidence.
Background
The incident leading to the charges occurred at about half past eight o’clock in the evening of 1 September 2011. The prosecution case was that the appellant was seen to be riding his bicycle without lights along Portrush Road at Maylands. He was spoken to and issued with an expiation notice. It was alleged that about 20 minutes later the same police patrol again observed the appellant riding his bicycle without lights. He was told to stop but ignored that direction and entered private property. Police then approached the appellant intending to arrest him whereupon he fended off one of the officers with his arm. It was said that the appellant continued to resist the attempts to arrest him and was ultimately restrained only by use of capsicum spray.
The appellant gave evidence before the magistrate. He said that the genesis of the incident was at the Norwood police station in the late afternoon of the same day. He had attended there to retrieve his bicycle which had been left there on the previous day. He said that there he saw the station sergeant and that his interaction with him was cordial. He then rode home. Shortly after arriving a police patrol containing an officer whom he had seen but not spoken to at the station stopped outside his house and he was questioned about whether his bicycle was stolen property.
Later the appellant said he went out to premises called “Fitness First”. It was when he was riding home along Portrush Road that he was stopped and spoken to by the same police patrol in relation to having no lights and riding on the footpath. The appellant said that after the police had gone through his belongings he was issued with an expiation notice. They then drove off. He said he felt intimidated by their behaviour.
The appellant said that soon after he had resumed his journey the same patrol approached him again. As the appellant went to turn into Janet Street, Maylands, and was crossing the road he became aware of the loud engine noise of a vehicle which turned out to be the same patrol. The flashing lights of the police car were activated and the vehicle was travelling very fast. The appellant said that, having reached the home of a friend to which he had been heading, he quickly pedalled down the driveway. The police then approached him and told him he was under arrest and both officers tried to handcuff him. He denied having assaulted any officer, but admitted “deferring them from handcuffing me”. The appellant said he told the police that they were trespassing and the struggle continued. Eventually his friend emerged from his house and the appellant said by this time the police were threatening him with a baton and using capsicum spray on him. The appellant acknowledged that the police had warned him of their intention to use the spray before employing it. Having been sprayed he said he “blindly ran” and the police employed the capsicum spray again. Eventually the appellant was handcuffed and taken to the City Watchhouse.
The appellant denied that in Janet Street he had been directed to stop his bicycle. He denied having struck out at the officers and said that such attempts to resist the police as he made were in response to being “manhandled inappropriately”. He said he was in fear for his life. He said he believed that the police officers had been intent on running him over in Janet Street.
The magistrate gave ex tempore reasons for accepting the evidence of the police officers and rejecting the evidence of the appellant. He formed a poor view of the appellant’s reliability. The magistrate rejected the appellant’s evidence that he was being subjected to harassment. The magistrate found the actions of the police to have been appropriate and rejected the suggestions of conspiracy and unlawful behaviour on their part.
Although the appellant represented himself in this Court, in the Magistrates Court he was represented by a solicitor.
The fresh evidence which the appellant sought to present in this Court was the subject of an interlocutory application applying to add a ground of appeal to accommodate the fresh evidence, together with an affidavit of the appellant sworn on 17 June, being the day of the appeal hearing. The affidavit concerned a conversation which the appellant affirmed he had had on 30 May 2013 with the officer from whom he took delivery of his bicycle on the evening of 1 September 2011. I shall not set out the appellant’s account of that conversation because, plainly, it is hearsay. While he asserted that the officer in question had been asked to provide an affidavit to the Court, that had not been done, apparently in accordance with police practice.
Analysis
It is apparent from the evidence given before the magistrate that there is quite an unhappy history of dealings between the appellant and police. The appellant was frank about that in his evidence.
The difficulty for the appellant in prosecuting this appeal is that he cannot point to any error in the approach to, or evaluation of, the evidence given before the magistrate. He had full opportunity before the magistrate – assisted by his solicitor – of presenting his version of the events and ample opportunity to present such other evidence as he thought could assist in his defence.
The magistrate took what he described as “very strong views” about the witnesses whose evidence he heard. The magistrate was impressed by the police evidence. He noted that the officers gave their evidence in a measured manner, that they made appropriate concessions and that there was no suggestion of embellishment or exaggeration in that evidence. The magistrate also had the benefit of the evidence of the appellant’s friend, the occupier of the premises where the incidents occurred. That witness was called by the police. The magistrate found the evidence to be largely consistent with the evidence of the police.
On the other hand he found the appellant to be a “particularly unimpressive witness”. He was “constantly prone to exaggeration”. He was said to have taken “every opportunity to criticise the police generally and the police actions on this particular night”. He was said to have “deliberately downplayed his actions”. The magistrate found that the appellant’s past difficulties with the police had coloured his evidence. An assessment of the transcript of the appellant’s evidence before the magistrate leads me to the view that these criticisms were open to the magistrate.
In this Court the appellant attempted to point to what he said were some inconsistencies in the evidence of the two main police witnesses. I have read the transcript of the police evidence with a view to evaluating the suggested inconsistencies. In my view, such variances as are seen are plainly explicable having regard to the fact that the incident started in one location, continued elsewhere and was ultimately fraught.
In my opinion the magistrate was entitled to view the evidence as he did. I find that the central attack on the findings of the magistrate is without substance.
As to the recent affidavit filed by the appellant, the interaction at the Norwood police station earlier on was of some relevance as a matter of background, or prelude, to what occurred later in the day. At trial there was a dispute about what happened at the police station, the appellant claiming that his dealings with the station sergeant were cordial and the police officers alleging that the appellant had been shouting and swearing at the sergeant. Police also disputed the appellant’s description of the interaction at the appellant’s home between the time of his retrieval of his bicycle and his later arrest. Inasmuch as the appellant relied on the earlier events it was for him to call evidence about them at trial; including the evidence of the station sergeant. The evidence in the trial was taken over three days, being 4 October, 5 December and 6 December 2012, and so it cannot be claimed that the appellant and his legal adviser had no opportunity to call further evidence going to the earlier events. In any event, the critical evidence was that bearing directly on the events leading directly to the charges.
Since the affidavit of the appellant contained hearsay material it falls to be rejected. However, I can say that, even had the assertions within it as to the May 2013 conversation being placed before me in an admissible form, it would not necessarily have had any impact on my decision.
One can have some sympathy for Mr Pica. Rarely in these matters is one side wholly in the wrong. However, it was for the magistrate to evaluate the evidence and to reach a decision. As I have said, I can find no error in the way he performed his role. In those circumstances the appeal must fail.
Conclusion
For the above reasons the appeal is dismissed.