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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v ATHERTON

Details

AGLC: Police v ATHERTON [2010] SASC 87
Case: [2010] SASC 87
Decision Date: 1 April 2010

CaseChat Overview and Summary

The respondent, Mr Atherton, appealed against the dismissal of charges of disorderly behaviour and resisting arrest by a police officer. The charges arose from an incident where the respondent was at a public place and allegedly used offensive language and physically resisted arrest. The Magistrate found that the respondent's behaviour did not reach the threshold of being disorderly and that the evidence did not support a finding that he resisted arrest. The respondent appealed on the grounds that the Magistrate failed to consider the necessary elements of the offences and did not provide adequate reasons for the dismissal of the charges.

The court had to determine whether an intention to interfere with the comfort of other people is an essential element of the offence of disorderly behaviour under South Australian law. The court also had to examine whether the Magistrate provided sufficient reasons for dismissing the charges and whether it was open to the Magistrate to dismiss the charges given the evidence presented. Additionally, the court needed to assess whether the respondent's behaviour constituted resisting arrest as per the relevant statutory provisions.

The court found that the offence of disorderly behaviour under South Australian law does not necessarily require an intention to interfere with the comfort of others, and the Magistrate's failure to consider this did not affect the outcome. The court held that the Magistrate provided adequate reasons for dismissing the charges, which included a consideration of the evidence and the applicable legal standards. The court concluded that the Magistrate was entitled to dismiss the charges based on the evidence presented, and the appeal was therefore dismissed.

The court made no orders regarding the costs of the appeal.

Orders