Police v Baker - [2015] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BAKER
[2015] SASC 110
Judgment of The Honourable Justice Nicholson
30 July 2015
CRIMINAL LAW - PROCEDURE - VERDICT - POWER OF JUDGE TO DIRECT VERDICT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONSENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
Appeal against acquittal. The respondent was charged with basic assault pursuant to section 20 of the Criminal Law Consolidation Act 1935. The charge arose out of an incident that occurred at Ceduna Town Camp, where the respondent was witnessed slapping his companion, DF. The prosecution relied on the evidence of Sergeant Stephen, who witnessed the incident and arrested the respondent. DF was not emotional or distressed about the incident and she was not injured. The prosecution’s case rested on the evidence of Sergeant Stephen, as DF had expressed her unwilling to give evidence. At the close of the prosecution’s case, the Magistrate invoked a Prasad direction and acquitted the respondent of the charge. The Magistrate determined that the prosecution’s evidence was so lacking in weight and reliability that no reasonable tribunal could safely convict the respondent of the charge.
Held: appeal dismissed. On the evidence before the Magistrate, there was a case to answer. The Magistrate erred in finding that the evidence before his Honour was so lacking in weight and reliability that no reasonable tribunal could safely convict and in invoking a Prasad direction. Nevertheless, clear and compelling circumstances sufficient for the exercise of the Court’s exceptional power to allow a prosecution appeal against acquittal not established.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
The Queen v Prasad (1979) 23 SASR 161, applied.
Weinel v Rojas (Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994), discussed.
Semple v Williams (1990) 156 LSJS 40; Director of Public Prosecutions (Commonwealth) v Sharon Lee Brown (1994) 72 A Crim R 527; Police v W, BC [2006] SASC 105; SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996); Question of Law Reserved under s 350(1) No 2 of 1993 (1993) 61 SASR 1; R v Pahuja (1987) 49 SASR 191; Police v Forbes [2015] SASC 94; Police v Nobel [2014] SASC 63; Police v Zare-Saisan [2011] SASC 46; Thorogood v Warren (1979) 20 SASR 156; Samuels v McKenzie [1969] SASR 83; The King v Wilkes [1948] HCA 22, (1948) 77 CLR 511, considered.

POLICE v BAKER
[2015] SASC 110
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is a prosecution appeal against an acquittal by a Magistrate. The respondent had been charged, by complaint dated 30 May 2014, with the offence of basic assault contrary to section 20 of the Criminal Law Consolidation Act 1935.
The charge arose out of an incident that occurred, on 20 May 2014, near the outer perimeter fence line of the Ceduna Town Camp. The…

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 Baker

Details

AGLC: Police v Baker [2015] SASC 110
Case: [2015] SASC 110
Decision Date: 30 July 2015

CaseChat Overview and Summary

In Police v Baker, the appellant, the South Australian Police, filed a notice of appeal against the respondent's acquittal on 16 March 2015. The respondent was initially charged with assault under section 20 of the Criminal Law Consolidation Act 1935, with the key issue being whether the complainant, DF, consented to the alleged assault. The appeal was grounded on two main arguments: first, that the Magistrate erred in determining that the respondent's evidence of DF's lack of consent was so unreliable that no reasonable tribunal could convict based on it, and second, that the Magistrate erred in finding reasonable doubt about whether DF consented to the assault. The appellant sought an order to set aside the respondent's acquittal and remit the case for a retrial before a different Magistrate.

The court noted the established judicial approach to prosecution appeals against acquittals, which requires a cautious and exceptional standard of review. This approach recognises the inherent difficulties appellate courts face in assessing witness credibility and the potential risk of double jeopardy for the respondent. The court emphasised that such appeals are allowed only in the clearest and most compelling circumstances to correct manifest errors. In this case, the appeal hinged on whether the Magistrate's decision to acquit was plainly wrong based on the evidence presented.

Upon reviewing the evidence, the court found that the Magistrate did not make an explicit finding of no case to answer but instead concluded that the prosecution's evidence was so lacking in weight and reliability that no reasonable tribunal could safely convict. The Magistrate's decision appeared to focus primarily on the absence of DF and the perceived unlikelihood of consent to the described assault. The court found that the Magistrate did not provide adequate reasons for his conclusion and that the evidence did not lack reliability or weight in terms of the primary facts observed by Sergeant Stephen. The court further noted that the Magistrate failed to consider several relevant factors, such as the inherent unlikelihood of consent to being struck in the manner described, the force of the blow, and the circumstances under which the incident occurred.

Ultimately, the court determined that the Magistrate's decision to acquit was plainly wrong. The court found that the evidence was sufficient for a reasonable tribunal to convict, and the Magistrate's exclusion of relevant factors without proper justification was a manifest error. Consequently, the appeal was allowed, the respondent's acquittal was set aside, and the matter was remitted for a rehearing before a different Magistrate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

The appellant filed a notice of appeal on 16 March 2015. By its first ground of appeal, the appellant contends that the Magistrate erred in finding that the appellant’s evidence of DF’s lack of consent was so lacking in weight and reliability that no reasonable tribunal of fact could safely convict on it. By its second ground, the appellant contends that the Magistrate erred in finding that there was reasonable doubt about whether DF consented to the assault. Whilst this was not an express finding by the Magistrate, it is implicit in his Honour’s conclusion as set out in the previous paragraph of these reasons. The appellant seeks an order that the respondent’s acquittal be set aside and that the matter be remitted for re-hearing (before a different Magistrate).The approach to prosecution appeals from a summary decision of acquittal For the reasons articulated by Olsson J in Weinel v Rojas,[7] prosecution appeals from a decision by a Magistrate to acquit are treated differently to other appeals heard by this Court.[7] (Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994). Olsson J expressed similar views in Semple v Williams (1990) 156 LSJS 40 and in Director of Public Prosecutions (Commonwealth) v Sharon Lee Brown (1994) 72 A Crim R 527.It must firmly be borne in mind that prosecution appeals against dismissal are to be approached on a basis different from that applicable to other appeals, for several reasons.The first is that, as was pointed out by Zelling J in Thorogood v Warren (1979) 20 SASR 156 at 159, appellate courts have always been reluctant to interfere with a verdict of acquittal based upon a reasonable doubt. As he there emphasised the finding of a reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance - neither of which are readily susceptible to review by an appeal court. In my view this problem is doubly compounded when an important area of consideration is the resolution of conflicting views of expert witnesses. Secondly, as was pointed out by Dixon J (as he then was) in The King v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 516, the allowance of an appeal against an acquittal has always been regarded as the exercise of an exceptional discretionary power. This is essentially because, as in the case of prosecution appeals against sentence, what is involved is the undesirable placing of an alleged offender in a situation of double jeopardy. An appeal should only be allowed in the clearest and most compelling circumstances, for the purpose of correcting manifest error. As I expressed the proposition in Semple v Williams (1990) 156 LSJS 40, an appellate court will be prepared to set aside an order of dismissal based upon the impact of the evidence upon the fact finder and remit a matter for retrial only where it appears that the order of dismissal sought to be impugned was plainly wrong on any reasonable interpretation of the recorded evidence and (where relevant) the inferences which patently arise from it.This Court has long been hesitant to interfere, on appeal, with decisions of Magistrates to acquit following a hearing on the merits and will only do so in exceptional circumstances. In Police v W, BC, White J stated:[8]The approach of this Court generally to appeals by the prosecution against the dismissal of a charge based on a finding of reasonable doubt is well established. This Court is reluctant to interfere with a verdict of acquittal based upon such a finding. There are two considerations which cause this Court to adopt that approach. The first is that a finding of reasonable doubt often rests on the magistrate’s appraisal of the witnesses. The second is that a prosecution appeal places the respondent in a situation of double jeopardy. Where there is an error of law, the court may be more willing to interfere.In SA Police v Murphy, Debelle J said:[9][A]lthough s 42 of the Magistrates Act provides a right of appeal to the prosecution from an acquittal by a magistrate, appellant courts are reluctant to interfere with a verdict of acquittal which is based upon a reasonable doubt ... When there is an error of law the court might be the more willing to interfere. When there is an appeal against an acquittal and that acquittal was based upon a reasonable doubt, the appellant court will not interfere except in a very unusual case... Plainly, where there is an appeal which involves a question of fact and the issues in the appeal depend on the view taken of conflicting testimony or an impression gained from an observation of witnesses, the appellant tribunal is at a distinct disadvantage.[8] Police v W, BC [2006] SASC 105 at [12]. [9] SA Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996).

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The law concerning a claim of “no case to answer” and the law concerning a Prasad direction serve different purposes and call for different approaches when evaluating the evidence. Consideration The appellant was charged with the offence of assault contrary to section 20 of the Criminal Law Consolidation Act 1935. In the circumstances, as alleged by the prosecution, the elements of the offence are as follows:(1)That the respondent applied force to DF;(2)That the application of force by the respondent was intentional;(3)That the act of applying force was done without DF’s consent; and(4)That in applying the force the respondent acted unlawfully.Conduct that lies within the limits of what would generally be accepted in the community as normal incidents of social interaction or community life cannot amount to an assault.[14] [14] Criminal Law Consolidation Act 1935 (SA) s 20(2)(a). The Magistrate did not make a finding that there was no case to answer. On my view of Sergeant Stephen’s evidence, which was accepted by the Magistrate, there was a case to answer. Sergeant Stephen’s observations and the inferences available from the facts as recorded in his observations, taken at their strongest for the prosecution case, were capable of producing, in the mind of a reasonable tribunal of fact, satisfaction with respect to each of the four elements of the offence beyond reasonable doubt. I accept for present purposes that the Prasad procedure applies to both jury and summary trials.[15] The question which arises is whether, there being a case to answer, it was appropriate for the Magistrate to engage in the exceptional Prasad procedure and to conclude that the evidence presented by the prosecution was “so lacking in weight and reliability that no reasonable tribunal could safely convict on it”. [15] As did Duggan AJ in Police v Forbes [2015] SASC 94 at [7], Sulan J in Police v Nobel [2014] SASC 63 at [9] and David J in Police v Zare-Saisan [2011] SASC 46 at [18]. In this respect, the only element of the offence which taxed the Magistrate was as to whether or not the prosecution could prove a lack of consent by DF to the slap. The Magistrate gave no explanation for his finding that the evidence before him was so lacking in weight and reliability that no reasonable tribunal of fact could safely convict, other than the fact that the prosecution case was “hampered” by the absence of DF.[16] [16] Magistrate’s Judgment at [21]. Sergeant Stephen’s evidence did not lack reliability or weight material to the primary facts the prosecution had sought to establish. The primary facts were seen and explained by an eye witness. The Magistrate accepted that Sergeant Stephen had given a reliable account of the observed events. The real issue concerns what, if anything, was to be inferred from these events; in particular, whether a lack of consent could be inferred beyond reasonable doubt. As I have said, the Magistrate gave no reasons for his conclusion that the evidence was so lacking in weight and reliability that no reasonable tribunal could safely convict.[17] It is therefore not possible to know what his Honour took into account or failed to take into account. The appellant submitted that a reasonable tribunal of fact would not be entitled to ignore the following matters which, at least by implication, do appear to have been excluded from the Magistrate’s consideration:(i)the inherent unlikelihood, in the ordinary course of public discourse, that any person would consent to being hit by another in the way disclosed by Sergeant Stephen’s evidence;(ii)the force of the actual blow[18] and the inherent unlikelihood that any person would consent to a blow of such force; and(iii)the actual circumstances in which DF was hit and the inherent unlikelihood that any person would, during the course of an argument with another person, consent to being struck in the way disclosed in the evidence.[17] The Queen v Prasad (1979) 23 SASR 161 at 163.[18] Sufficient to move DF’s head downwards.