Police v ATHERTON - [2010] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ATHERTON
[2010] SASC 87
Judgment of The Honourable Justice Duggan
1 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - INSULTING, ABUSIVE, UNSEEMLY OR THREATENING LANGUAGE AND BEHAVIOUR - OFFENSIVE BEHAVIOUR - SOUTH AUSTRALIA
Appeal against dismissal of charges by Magistrate – respondent charged with disorderly behaviour and resisting arrest – both charges dismissed by Magistrate following trial – whether an intention to interfere with the comfort of other people is an element of the offence of disorderly behaviour – whether Magistrate provided adequate reasons for decision – whether open to Magistrate to dismiss the charges.
HELD: appeal in relation to charge of disorderly behaviour dismissed – appeal against dismissal of the charge of resisting arrest dismissed – reasons adequate – reasons demonstrate Magistrate’s preference for defence witness account of respondent's language and conduct – Magistrate erred in holding that an intention to interfere with the comfort of other people was an element of the offence of disorderly behaviour – error did not vitiate the finding that offence of disorderly behaviour had not been proved – Magistrate impliedly rejected police version of events – it was open to the Magistrate to conclude that it had not been proved beyond reasonable doubt police officers believed an offence had been committed – accordingly the charge of resisting arrest was properly dismissed.
Summary Offences Act 1953 (SA) s 7(1)(a), s 6(2), referred to.
Daire v Stone (1991) 56 SASR 90; Police v Pfeifer (1997) 68 SASR 285; Densley v Mertin [1943] SASR 144; Mariner v Police [2004] SASC 432; Normandale v Brassey [1970] SASR 177; Barrington v Austin [1939] SASR 130; Haifawi v Police [2000] SASC 19; Hamra v Police (1999) 205 LSJS 172, applied.

POLICE v ATHERTON
[2010] SASC 87
Magistrates Appeal: Criminal

DUGGAN J: The respondent was charged with disorderly behaviour and resisting arrest contrary to ss 7(1)(a) and 6(2) of the Summary Offences Act 1953 (SA). He was tried and acquitted by a Magistrate in the Adelaide Magistrates Court. This is a prosecution appeal against the dismissal of the charges.
The charges arose out of an incident which took place at the Adelaide Oval in the course of a cricket match on 17 February 2008. The respondent was a spectator who was on the grassed hill area at the northern end of the oval.
At the trial, police officers involved in the incident gave evidence and told the Court that they had arrested another spectator. The police officers escorted this spectator from the ground, utilising a flight of stairs at the rear of the hill which lead to a roadway and an exit from the ground.
After they reached the road the police officers said that the respondent ran towards them. Constable Yates gave evidence that the respondent said “Fuck you cunts. Fucking let him go.” and then raised his fists and adopted an aggressive stance. Brevet Sergeant Kotaras said he was assisting the police officers escort the other spectator when he saw the respondent. He said the respondent was agitated and using words such as “fuck” and “cunt”. The respondent then adopted a “fighting stance” raising his clenched fists.
Senior Constable Hunt said that as he was escorting the other spectator he saw the respondent running towards him. Senior Constable Hunt said he put his hand up towards the respondent, shouted “get back” and then pushed the respondent in the chest. According to Senior Constable Hunt’s evidence, the respondent then clenched his fist and brought his arm up in front of him. Other police officers then took hold of the respondent. Senior Constable Hunt could not hear whether the respondent said anything.
The defence called Dr Richard Savory, who attended the match with his two sons aged 13 and 15. He was watching the cricket from the hill and, towards the end of the game, went to the road behind the hill to fill up some water bottles. While at the tap he saw a young man being led along by police officers. He said another young man whom he identified as the respondent was shouting at the police officers and calling out “He has done fucking nothing. He did not throw the chips. He was not even on the ladder”.
Dr Savory said that the respondent was walking at about the same speed as the police officers, but at a distance of about five metres. He said some other police officers then took hold of the respondent and restrained him. The respondent was attempting to throw them off as he was pushed to the ground. Dr Savory said “He was not violent but he was trying to fling himself around and throw them off”.
Dr Savory said that, at this stage, he was about two metres away from the respondent. According to Dr Savory the respondent said “I have done nothing” when he was apprehended. He said one of the police officers elbowed the respondent in the neck three times and said “You shit” or “You cunt”, he could not remember which. Dr Savory was able to ask the respondent for his name which the witness recorded on his mobile telephone.
In cross-examination Dr Savory said that none of the police officers raised a hand or told the respondent to go away. He said that the respondent did not act in a threatening way towards the police and, in particular, did not adopt a fighting stance. The witness said that the respondent did not use the word “cunt”.
Dr Savory said that when he returned home he made notes of what he saw and heard during the incident. The notes were made approximately two hours after the incident. He then rang the Adelaide Police Station and left his name and address so that the respondent could contact him.
The Magistrate delivered ex tempore reasons for her decision to dismiss the charges. In the course of her reasons she said:
The defendant has been charged with two offences alleged to have occurred on 17 February 2008. It is alleged that he was at the cricket, became involved in an incident, was screaming out words, took up a fighting stance towards police officers, was told that he was being arrested, was arrested and resisted his arrest.
There has been evidence given by a number of police officers with respect to their observations on that occasion and they have been cross-examined at length with regard to that. The defendant himself has not given evidence as to what occurred. However he has called, as part of the defence case, Doctor Savory who was present at the oval.
Unusually in this case I do not propose to go through the prosecution evidence in significant detail. Doctor Savory has given evidence as to what he says occurred. If I accept his evidence then in my view that must negated, although defence are not required to do so, that must negate much of the evidence which has been given by the police officers and I could not then be satisfied beyond reasonable doubt that the offences are made out.
Doctor Savory has given evidence. There is no dispute that he does not know the defendant. He was present at the oval on the relevant occasion. What initially drew his attention was some noise. He turned and he saw a person, not the defendant, being carried out. He said that he observed a person who I understand was the defendant, although that was never specifically established, yelling out words to the effect, “he fucking didn’t do it, he didn’t throw the fucking chips, he wasn’t up the ladder” or something similar. He observed the defendant in the vicinity of the person who was being carried out by the police officers. He then saw police officers grab hold of the defendant. He saw the defendant struggle. He ended up with the defendant on the ground.
…
… It is quite apparent the defendant was protesting at what he saw as being inappropriate behaviour of the police with regard to a person who he apparently believed had done no wrong. I accept the defendant used the words which have been said by Doctor Savory. I do not accept the words went beyond that. I accept he said those words as part of a protest to the police officers. Whilst I accept the language may be such that in perhaps other circumstances it would be considered of itself to be objectionable, in the particular circumstances in which it occurred I do not consider it was. I accept the evidence of Doctor Savory they are the words that were in fact spoken.
In those circumstance[s] I cannot be satisfied beyond reasonable doubt the offence was made out. I also cannot be satisfied beyond reasonable doubt that the police officers believed an offence had been committed and therefore that it was appropriate to arrest the defendant in those circumstances. I therefore am satisfied the arrest was in fact unlawful and what happened thereafter was also unlawful. In those circumstances the defendant was entitled to resist the arrest are at least to use behaviour in order to stop the arrest.
Counsel for the appellant argued that the reasons given by the Magistrate were inadequate. It was submitted that the Magistrate concentrated on the language used by the respondent and did not deal with the question whether the respondent adopted a fighting stance when one of the police officers is alleged to have put his hand up towards the respondent.
It must be acknowledged that the reasons given were quite brief. However, the tenor of the reasons makes it reasonably clear that the Magistrate accepted the essential features of Dr Savory’s evidence in preference to the version given by the police officers. She said that his evidence negated “much of the evidence” given by the police officers. She made a clear finding of credibility in favour of the defence witness. She referred in her reasons to the prosecution allegations which included the assertion that the respondent was screaming out and adopting a fighting stance. It is clear that Dr Savory would have seen the respondent take up such a stance if that had occurred. According to the evidence of the police officers, this took place just before the respondent was apprehended. On his version, Dr Savory had the respondent and the police officers under observation at this point in time.
The next point raised by the appellant was that the Magistrate erred in her description of the elements of the offence of disorderly behaviour. When dealing with this part of the case the Magistrate said:
The first question that I must determine is whether in fact an offence has been made out of disorderly behaviour. I refer to Daire v Stone which I have previously referred to at the case to answer stage. At para 9 of that judgment the court noted:
The classic judicial pronouncement as to what amounts to the offence of disorderly behaviour appears in the time-honoured words of Napier J (as he then was) in Barrington v Austin where his Honour said, “I have no doubt that these words, “disorderly behaviour”, refer 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.”
A little later the court notes:
It seems to me that the prosecution established the conduct of a person which frequently occurs in many different types of situations. As the learned special magistrate had to determine the degree of that conduct was such as to constitute the criminal offence of disorderly behaviour whereby it could be said that the breach of decorum was such that it tended to interfere with the comfort of other people who may be in or in the vicinity of the public place: see Barrington v Austin. This conduct must be tested objectively: see Ellis v Fingleton. Nevertheless the prosecution must prove beyond reasonable doubt that there is a conscious and deliberate course of conduct by the accused person which constitutes this interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such an interference.
Later in her reasons the Magistrate said:
However I accept the defendant’s language as such, in the circumstances in which it occurred, was not conduct which was deliberate and conscious and intended to interfere with the comfort of other people.
Although Legoe J held in Daire v Stone[1] that an intention to interfere with the comfort of other people was an element of the offence, this part of the decision was not followed by the Full Court in Police v Pfeifer.[2]In Pfeifer Doyle CJ pointed out that Legoe J did not refer to the earlier cases of Densley v Mertin[3] and Normandale v Brassey[4] in which single Judges of this Court, when dealing with the offence of offensive behaviour, expressed the view that the prosecution did not have to prove an intention to offend or knowledge that the conduct would offend. After reviewing the authorities Doyle CJ said:[5]
If it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive. If the magistrate dismissed the complaint because an intention to offend, or knowledge that the conduct would offend, was not proved, the magistrate erred.
[1] (1991) 56 SASR 90.
[2] (1997) 68 SASR 285.
[3] [1943] SASR 144.
[4] [1970] SASR 177.
[5] (1997) 68 SASR 285 at 293.
The conduct must be conscious and deliberate in the sense that it is not accidental. However, it appears that the Magistrate in the present case considered that there must be a specific intention when she referred to conduct “intended to interfere with the comfort of other people”.
Although the Magistrate applied an incorrect test in relation to the requisite state of mind for the offence, it appears that she adopted an appropriate test in deciding whether the conduct itself was of such a nature as to be capable of constituting disorderly behaviour. She quoted a passage in Daire v Stone which included reference to Napier J’s statement in Barrington v Austin where he said:[6]
…I have no doubt that these words, “disorderly behaviour”, refer 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.
This description of the offence has been adopted in subsequent cases.[7]
[6] [1939] SASR 130 at 132.
[7] Mariner v Police [2004] SASC 432 per Besanko J at [32], [33]; Hamra v Police (1999) 205 LSJS 172.
It is apparent that her Honour applied this test to the present case. Although she directed her attention to the words attributed to the respondent by Dr Savory, this was the only aspect of his evidence which could have given rise to a consideration of disorderly behaviour. In other words, the Magistrate appears to have applied the correct test for disorderly behaviour to the facts as deposed to by Dr Savory, which she accepted.
It is not always straightforward to determine whether conduct constitutes disorderly behaviour. However, it is my view that it was open to the Magistrate to reach the conclusion that the conduct of the respondent as described by Dr Savory did not constitute disorderly behaviour. If so, then the error of definition in relation to the state of mind of the respondent was not the only reason for the dismissal of the charge.
For these reasons the appeal against the dismissal of the charge of disorderly behaviour will be dismissed.
The Magistrate also discussed the charge of resisting arrest. She did so on the basis that she could not be satisfied beyond reasonable doubt that the police officers believed an offence had been committed. It does not necessarily follow from the fact that a person is not guilty of a charge upon which he was arrested that he or she cannot be found guilty of resisting arrest on that charge. The issue which must be decided is whether the police had reasonable cause to suspect that an offence had been committed. If they did, then the arrest is lawful and to resist it constitutes an offence.
The Magistrate impliedly rejected the police version when she accepted Dr Savory’s evidence. That being so, it was open to her to conclude that she could not be satisfied beyond reasonable doubt that the police officers believed an offence had been committed.[8]
[8] See Haifawi v Police [2000] SASC 19.
The appeal against the dismissal of the charge of resisting arrest will also be dismissed.