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 respondent is alleged to have slapped the face of a female companion, now known to police as DF. The incident was witnessed by Sergeant Peter Stephen.[1] Sergeant Stephen intervened immediately after observing the incident, at which time DF informed him that “it was OK”, and that the respondent had “just slapped” her. DF did not appear to be emotional or distressed, and was not injured.[2] The respondent was arrested and released on bail the following morning.
[1] The transcript has recorded the Sergeant as “Steven” but two police affidavits on file refer to his name as “Stephen”. I have adopted this latter spelling.
[2] Magistrate’s ex tempore Judgment, Police v Leon Baker, 19 February 2015, MCPAR-14-5131 at [14] (“Magistrate’s Judgment”).
On 19 February 2015, the respondent entered a plea of not guilty to the charge in the Ceduna Magistrates Court and the trial proceeded. DF did not give evidence, having told the police that she was unwilling to do so. After the close of the prosecution case, the Magistrate invited submissions as to whether or not the prosecution evidence was “sufficient to form the ingredient of consent or otherwise of having received force from the defendant”.[3] The Magistrate was interested in the question whether a prima facie case of lack of consent had been established.[4]
[3] Trial transcript at T13.
[4] Magistrate’s Judgment at [18].
The Magistrate delivered an ex tempore judgment and acquitted the respondent of the charge after having given himself a so called Prasad direction.[5] His Honour found the prosecution evidence “so lacking in weight and reliability that no reasonable tribunal of fact could safely convict [the respondent] of the charge. Particularly on the issue of [DF’s] consent, or lack thereof”.[6]
[5] The Queen v Prasad (1979) 23 SASR 161 at 163.
[6] Magistrate’s Judgment at [21].
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).
The appellant maintains that the Magistrate erred in law when acting on the Prasad direction he had given himself. Even if so, and whilst the matter was not determined after a completed hearing on the merits, the question will arise whether this is a case that warrants interference, in light of the concerns outlined above.
Summary of the prosecution case
The essence of the prosecution case rested upon the evidence of Sergeant Peter Stephen. On the evening of Tuesday, 20 May 2014, at approximately 9:30pm, Sergeant Stephen was conducting a uniform mobile patrol in a marked police car. He drove towards the outer perimeter fence line of the Ceduna Town Camp, which is an accommodation facility for visiting Aboriginal people. Sergeant Stephen, while speaking with one of a group of people, observed, from a distance of about 50 metres, what appeared to be a conversation taking place between the respondent and DF. He could see their heads moving as they interacted. Sergeant Stephen then saw the respondent slap DF. When the slap landed on the face of DF, her whole head tilted downwards. Sergeant Stephen said that he recognised the respondent; he had been in police custody the previous evening while Sergeant Stephen was on duty.
Sergeant Stephen ran towards the respondent and DF. Other police officers arrived to assist but their evidence had no material bearing on the nature and circumstances of the incident itself. The respondent was taken to Ceduna Police Station and charged with assault.
Sergeant Stephen said that the respondent and DF appeared to be moderately intoxicated. The respondent also appeared to be visibly frustrated with the presence of police officers. According to Sergeant Stephen, DF appeared to pass off the incident as though it was a normal day; she did not present as emotional or distressed. DF did not suffer any injuries as a result of being slapped.
DF did not give evidence. According to Sergeant Stephen, at the time of the incident, DF said she did not want the respondent to be arrested. The prosecution had made efforts to locate DF in order to have her give evidence at the trial, but was unable to do so. The Magistrate offered the prosecution an adjournment at the close of its case to permit it to make further efforts to find DF. However, the prosecution refused this offer because DF had expressed her unwillingness to assist in any event.
At the close of the prosecution case, the Magistrate invited submissions concerning whether the evidence before the court would be sufficient to establish the essential element of lack of consent. After hearing from the prosecution, the Magistrate did not call on the respondent.
The Magistrate’s Reasons
The Magistrate ruled in the following terms.[10]
...I am aware that this is the close of the prosecution’s case and all prosecution need is to establish a prima facie case in law...
I accept the evidence of [Sergeant Stephen] that he could see at all material times what was going on initially between the defendant and [DF]. I accept that his vision was not obstructed nor impeded in anyway whatsoever even taking into account he had to see initially through a fence. I accept [Sergeant Stephen’s] evidence at all material times there was sufficient lighting to ensure he had sight of the defendant and [DF].
In giving consideration to the circumstantial evidence prevailing at the material time I have to be satisfied that such evidence must exclude any other reasonable hypothesis other than guilt of the defendant.
I am of the view that at the close of the prosecution’s case and because prosecution’s case is hampered by the absence of evidence from [DF] the evidence thus far, in my view is so lacking in weight and reliability that no reasonable tribunal of fact could safely convict the defendant of the charge. Particularly on the issue of the victim’s consent, or lack thereof. Hence I invoke a Prasad direction at this stage to dismiss the charge as against the defendant.
[10] Magistrate’s Judgment at [18]-[21].
On appeal, the appellant contends that the Magistrate erred in conflating the two propositions of “no case to answer” and the Prasad direction and, in any event, the appellant contends that the Magistrate erred by invoking a Prasad direction and finding the respondent not guilty at that stage of the trial.
Law concerning a Prasad direction
In Question of Law Reserved under s 350(1) No 2 of 1993,[11] King CJ outlined the principles upon which there is no case to answer.
I would restate the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.
It does not appear that the Magistrate directed himself that there was no case to answer. Rather, his Honour adopted the related procedure known as the Prasad direction. In The Queen v Prasad,[12] King CJ said this.
I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case.
King CJ elaborated further on the Prasad direction in R v Pahuja.[13]
The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution, should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting a conviction, is insufficiently cogent to justify a verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution’s case.
[11] (1993) 61 SASR 1 at 5.
[12] The Queen v Prasad (1979) 23 SASR 161 at 163.
[13] (1987) 49 SASR 191 at 201.
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.
I accept this submission. In my view, the combined effect of the evidence given by Sergeant Stephen concerning the primary facts, is not to be seen as so deficient, so lacking in weight and reliability, as to justify an acquittal based on the Prasad principle. It was open to a reasonable tribunal of fact to infer, from the circumstances as observed by Sergeant Stephen, that DF had not consented to being slapped in the face. The trial should have proceeded to the hearing of the defence case, if any.[19]
[19] The respondent did not apply for a no case to answer ruling or a Prasad direction. Indeed, as it happens, prior to the Magistrate inviting and hearing submissions at the close of the prosecution case, counsel for the respondent indicated (uninvited) an intention to call the respondent. The Magistrate proceeded down the Prasad path notwithstanding this.
There is the issue of the behaviour of DF immediately after the incident. The fact that she did not complain to the police and did not want the respondent charged and did not cooperate with the police are matters which might assist with an inference that she had earlier, that is, at the time of the slap, in fact consented. However, these are evidentiary matters only. They are at least as consistent (in my view, more consistent) with a finding that DF was prepared to submit to this conduct. Submission and failure to complain are not the same as consent. I do not need to develop this notion any further, given my finding that the Magistrate was wrong to conclude (even with the benefit of this “submission” type evidence) that the evidence was so lacking in weight and reliability that no reasonable tribunal could safely convict.
Nevertheless, this is a case where, in my view, this Court should be reluctant to interfere. The authorities in this area (referred to earlier) focus on two reasons for such a reluctance. The first is that where the verdict of acquittal is based upon a reasonable doubt, such a determination 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. The second reason is, as Dixon J (as he then was) pointed out in The King v Wilkes,[20] that the allowance of an appeal against an acquittal has always been regarded as the exercise of an exceptional discretionary power, essentially because what is involved is the undesirable placing of an alleged offender in a situation of double jeopardy. As such, an appeal against an acquittal should only be allowed in the clearest and most compelling circumstances for the purpose of correcting manifest error.
[20] [1948] HCA 22; (1948) 77 CLR 511 at 516-517.
In this case, and whilst I appreciate that because of the Magistrate’s Prasad intervention, the whole of the evidence potentially available may not have been before the Magistrate, his Honour did, in effect, make a finding, based on the whole of the prosecution evidence, that he was not satisfied of the prosecution case beyond reasonable doubt. It was open on the evidence as it stood, for the Magistrate, himself, to make this finding. I would reject ground two on the notice of appeal. To this extent, the prosecution has put its best case forward and there is no suggestion that its case would change at any re-trial. However, there are additional considerations.
This appeal has allowed for an important matter of principle, concerning trial process, to be considered. Whilst each case will turn on its own facts, the mere fact that an alleged victim does not give evidence, will not necessarily mean that lack of consent cannot be proved beyond reasonable doubt. However, the incident itself involved an assault (if proved) very much towards the low end of the scale of seriousness for this type of criminal offence. Further, it is plain that for whatever reasons (and it is not appropriate to speculate about those reasons) DF does not want the matter to proceed in court and does not want her companion on that day, the respondent, to be prosecuted.
In my view, this is not a case involving clear and compelling circumstances where an appeal should be allowed in order to correct manifest error. Notwithstanding the error of process adopted by the Magistrate, it is not in the interests of justice for the respondent, having been acquitted, to be exposed to the double jeopardy of a re-trial.[21]
[21] Cf; the approach taken by Zelling J in Thorogood v Warren (1979) 20 SASR 156 and by Mitchell J in Samuels v McKenzie [1969] SASR 83.
I dismiss the appeal.