Police v Caruso - [2021] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v CARUSO
[2021] SASC 58
Judgment of the Honourable Justice Parker
21 May 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
This is an appeal by the police against a finding made by a Magistrate that there was no case to answer.
The respondent was charged with assaulting a prescribed emergency worker contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) in relation to events alleged to have occurred on 29 August 2020. At the close of the prosecution case, the respondent submitted that there was no case to answer. On 16 December 2020, the Magistrate held that there was no case to answer.
The appellant appealed to this Court on two grounds:
1.The trial court erred in failing to properly have regard to the evidence and inferences to be drawn from the sworn evidence of the witness Constable Rylee O’Grady.
2.The trial court erred in finding that there was no case to answer (either on the charged offence against s 20AA(3) of the Criminal Law Consolidation Act 1935 or upon the charge of an attempt to commit that offence).

Held, per Parker J, allowing the appeal:
1.The Magistrate erred in overlooking the evidence of the complainant that the respondent spat straight at her while looking at her.
2.The Magistrate erred in misconstruing the relevant question to be asked, that being, not whether the respondent’s saliva could have come into contact with the complainant, but whether he had threatened such conduct in circumstances where it was reasonable for the complainant to believe that he was in a position to carry out the threat and intended to do so, or there was a real possibility that he would carry out the threat.
3.Due to the combination of matters referred to in the preceding paragraphs, the Magistrate erred in finding that there was no case to answer.
4.The matter be remitted for a further hearing before a different magistrate.

Criminal Law Consolidation Act 1935 (SA) ss 20, 20AA, 20AC, 270A; Magistrates Court Act 1991 (SA) s 42, referred to.
Edwards v Police (1998) 71 SASR 493; MacPherson v Beath (1975) 12 SASR 174; Police v Harrison [2017] SASC 18, applied.
Nasr v Police [2017] SASC 138; Parish v Police [2018] SASC 18; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; The Queen v Bilick and Starke (1984) 36 SASR 321, discussed.
Fox v Percy (2003) 214 CLR 118, considered.

POLICE v CARUSO
[2021] SASC 58

Magistrates Appeal: Criminal

PARKER J: This is an appeal by the police against a finding made by a Magistrate that there was no case to answer.
Background
The respondent was charged with assaulting a prescribed emergency worker contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) in relation to events alleged to have occurred on 29 August 2020 in a cell in the Adelaide City Watch House.
It was the prosecution case that the respondent assaulted the complainant by threatening that his saliva would contact the complainant, Constable O’Grady. The threat was alleged to have been made by the respondent spitting in the direction of the complainant, without contact occurring.
The prosecution case comprised evidence from Constable O’Grady and two video recordings of the incident, one recording captured on Constable O’Grady’s body worn camera and the other recording from a CCTV camera installed somewhere in the cell.
The unchallenged evidence of Constable O’Grady was that she had arrested the respondent whereupon he was taken to the City Watchhouse. After he was breath tested, she entered his cell to inform him that his licence was to be suspended. He became quite angry and said words to the effect of: “you had better leave the cell before I kick your fucking head in”. She retreated towards the cell door where other police officers were standing. She then told him that his car was going to be impounded. He then told her to “get fucked” and then spat straight at her while looking at her. The cell was about 4 m by about 3 m in size. The conduct of the respondent was recorded on her body worn video camera and also on the CCTV located in the cell.
At the close of the prosecution case, the respondent submitted that there was no case to answer. He contended that there was no evidence that he had spat with the intention of arousing fear in the complainant. His action in spitting was an act of disrespect and not one of assault. It was akin to “showing the middle finger” rather than a threatened application of force.
On 16 December 2020, the Magistrate published his reasons for finding that there was no case to answer.
Grounds of appeal
The appellant appealed to this Court on three grounds. However, he did not proceed with Ground 2. The remaining two grounds are:
(1)The trial court erred in failing to properly have regard to the evidence and inferences to be drawn from the sworn evidence of the witness Constable Rylee O’Grady.
(3)The trial court erred in finding that there was no case to answer (either on the charged offence against s 20AA(3) of the Criminal Law Consolidation Act 1935 or upon the charge of an attempt to commit that offence).
The Magistrate’s reasons
The Magistrate held that there was no case to answer. Noting that neither of the video recordings were particularly precise or detailed, the Magistrate found that it is difficult to see anything done by the respondent which could clearly be identified as spitting. The Magistrate identified that Constable O’Grady’s evidence that the respondent spat at her was not challenged and that evidence, coupled with a careful viewing of the video recordings in slow motion, was sufficient to satisfy his Honour that the defendant did indeed spit.
Before ultimately finding that there was no case to answer, the Magistrate made the following observations in relation to whether the respondent’s actions amounted to a threat to cause the officer to come into contact with human biological material:[1]
For the defendant to cause his saliva to come into contact with Constable O’Grady he would need to aim his saliva at her. I could not tell if he did direct his saliva at her but I do know his saliva did not touch Constable O’Grady, which could mean either he did not aim at her or alternatively he did aim at her but missed. He may have spat on the floor in a display of contempt. I could not see where the saliva landed nor do I think it possible to tell where it landed. I accept it landed on the floor but I cannot be any more precise. Constable O’Grady was in uniform and not surprisingly she was wearing shoes. Because the saliva was on the floor of the cell and Constable O’Grady was wearing shoes I think there was little or no likelihood she could come into contact with the defendant’s human biological material. Nor am I satisfied the defendants actions amount to an attempt.
[1] Police v Caruso (Magistrates Court of South Australia, Magistrate Fahey, 16 December 2020) at 3.
Legislation
The relevant provisions of the CLCA are as follows:
20—Assault
(1) A person commits an assault if the person, without the consent of another person (the victim)—
(a)     intentionally applies force (directly or indirectly) to the victim; or
(b)     intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)     threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i) the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii) there is a real possibility that the person will carry out the threat; or
(d)     does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)     accosts or impedes another in a threatening manner.
20AA—Causing harm to, or assaulting, certain emergency workers etc
(1) A person who causes harm to a prescribed emergency worker acting in the course of official duties, intending to cause harm, is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2) A person who causes harm to a prescribed emergency worker acting in the course of official duties, and is reckless in doing so, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3) A person who assaults a prescribed emergency worker acting in the course of official duties is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
…
(6) Without limiting the ways in which a person can cause harm to a prescribed emergency worker, harm can be caused by causing human biological material to come into contact with a prescribed emergency worker.
(7) For the purposes of this section, a person causes human biological material to come into contact with a victim if the person performs any act (including, without limiting the generality of this subsection, by spitting or throwing human biological material at the victim, or deliberately applying human biological material to their person knowing that the victim is likely to come into physical contact with the person in the course of their duties) intended or likely to cause human biological material to come into contact with the victim.
(8) This section does not apply to conduct occurring before the commencement of this section.
(9) In this section—
assault means an assault within the meaning of section 20(1) and includes, to avoid doubt, an act consisting of intentionally causing human biological material to come into contact with a victim, or threatening to do so;
harm has the same meaning as in Division 7A;
human biological material means—
(a)      blood, saliva, semen, faeces, urine or vomit; or
(b)     any other material prescribed by the regulations;
prescribed emergency worker means—
(a)      a police officer; or
(b)     a prison officer; or
(c)     a community corrections officer or community youth justice officer; or
(d) an employee in a training centre (within the meaning of the Youth Justice Administration Act 2016); or
(e) a person (whether a medical practitioner, nurse, security officer or otherwise) performing duties in a hospital; or
(f) a person (whether a medical practitioner, nurse, pilot or otherwise) performing duties in the course of retrieval medicine; or
(g) a medical practitioner or other health practitioner (both within the meaning of the Health Practitioner Regulation National Law (South Australia)) attending an out of hours or unscheduled callout, or assessing, stabilising or treating a person at the scene of an accident or other emergency, in a rural area; or
(h) a member of the SA Ambulance Service Inc; or
(i) a member of SAMFS, SACFS or SASES; or
(j) a law enforcement officer; or
(k) an inspector within the meaning of the Animal Welfare Act 1985; or
(l) any other person engaged in an occupation or employment prescribed by the regulations for the purposes of section 5AA(1)(ka); or
(m) any other person prescribed by the regulations for the purposes of this paragraph, whether acting in a paid or voluntary capacity, but does not include a person, or person of a class, declared by the regulations to be excluded from the ambit of this definition;
…
20AC—Alternative verdicts
If—
(a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against section 20AA or 20AB has been established; but
(b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified offence against this Act; and
(c) the jury is satisfied beyond reasonable doubt that the specified offence against this Act has been established,
the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the specified offence against this Act.
270A—Attempts
(1)     Subject to subsection (2), a person who attempts to commit an offence (whether the offence is constituted by statute or common law) shall be guilty of the offence of attempting to commit that offence.
The appellant’s submissions
Ground 1
The appellant submits that, in considering whether there was a case to answer, the Magistrate erred by failing to have proper regard to the evidence of Constable O’Grady that the respondent was looking directly at her at the time that he spat. The appellant contends that this evidence was critical to an assessment of whether the respondent’s conduct constituted a threat and to the respondent’s state of mind at the time that he spat in the direction of Constable O’Grady.
Ground 3
In relation to whether there was a case to answer, the appellant contends that the Magistrate misapprehended or mischaracterised the submissions made by the appellant and respondent’s counsel. The Magistrate evaluated whether the appellant could establish that the respondent spat in the direction of the complainant or that he spat with the intention of causing human biological material to come into contact with the complainant or that his actions made it likely that it would.
The appellant submits that the Magistrate incorrectly referred to ss 20AA(6) and 20AA(7). Section 20AA(6) had no application to the offence charged and s 20AA(7) defines the circumstances in which a person causes human biological material to come into contact with another. However, the Magistrate failed to have regard to s 20AA(9) which makes it clear that an assault against a prescribed emergency worker means an assault within the meaning of s 20(1) and includes “to avoid doubt, an act consisting of intentionally causing human biological material to come into contact with a victim or threatening to do so”.
The appellant submits that the Magistrate ought not to have focused on whether the respondent’s saliva could have come into contact with the complainant but whether the respondent threatened such contact by his actions, with the requisite state of mind. The Magistrate erred by not considering whether there was evidence capable of establishing each of the element of the offence of assault, as particularised by the appellant.
The appellant submits that the following evidence is relevant to whether the Court considers there was a case to answer:
(1)The complainant was a police officer acting in the course of her duties, having arrested the respondent.
(2)The complainant told the respondent that his licence was being disqualified, causing the respondent to become quite angry.
(3)The respondent used words to threaten violence towards the complainant, causing her to take steps to retreat to a “safe place at the cell”.
(4)While the complainant stood at the cell door, within 3 to 4 metres of the respondent, the complainant told the respondent that his car would be impounded.
(5)The respondent said words to the effect of “you can get fucked”, looked directly at the complainant, and spat towards her.
(6)The respondent’s saliva did not make contact with the complainant.
(7)These events took place in the area of a 3 metre by 4 metre cell over a period of seconds.
The appellant submits that this evidence, when considered in its entirety, in combination, and the inferences most favourable to the appellant are drawn, there is evidence capable of producing in a reasonable mind a conclusion beyond reasonable doubt that:
(1) The respondent threatened to cause human biological material to come into contact with the complainant;
(2)There were reasonable grounds for the complainant to believe that the respondent was in a position to carry out the threat and intended to do so, or to believe that there was a real possibility that the respondent would carry out the threat; and
(3)The respondent intended to cause the complainant to fear the application of force or that he was recklessly indifferent as to whether such a fear was aroused.
During the course of oral argument, the appellant’s counsel further submitted that the distance between the complainant and the respondent was not an impossible distance and was not so great to mean that any fear of contact that was aroused would be unreasonable. This is in contrast with a case in which it would be impossible for there to have been contact.
In the alternative, the appellant submits that the Magistrate should have found a case to answer with respect to an attempt to commit an assault against a prescribed emergency worker pursuant to s 20AC and 270A of the CLCA.
The respondent’s submissions
Ground 1
The respondent agrees that the Magistrate erred by failing to properly have regard to the sworn evidence of Constable O’Grady and the inference which could have been drawn from it, however, does so on a different basis to the appellant.
The respondent contends that the Magistrate erred in finding that it was Constable O’Grady’s evidence that the spit landed on the floor, when in fact Constable O’Grady did not give evidence about any human biological material. The respondent emphasises that Constable O’Grady gave evidence that he “spat” straight at her, however, the definition of “human biological matter” set out in s 20AA(9)(a) does not include the word “spit”. While the respondent accepts that the word “spit” may be understood to be the colloquial term for saliva, Constable O’Grady gave no evidence of what was spat at her.
Ground 3
The respondent submits that the appeal should not be allowed on Ground 3 on the basis that there was always no case to answer. The respondent contends that the fundamental problem with the prosecution case at trial was that the incorrect offence was charged.
The respondent submits that while there is no doubt that a threat amounts to an assault, a threat inherently relates to some future action. Leaving aside the evidence in this particular matter, the respondent submits that actually spitting at someone would more appropriately be characterised as an attempt to cause saliva to come in contact with the complainant, rather than a threat for the same to occur.
Consideration
As this is an appeal by way of rehearing in accordance with s 42 of the Magistrates Court Act 1991 (SA) this Court must “conduct a real and independent review of the evidence put before the magistrate and come to its own conclusions”.[2] However, in doing so the Court must make due allowance for the advantage held by the Magistrate in having heard and seen the evidence given at trial. This Court should not interfere with the findings of fact made by the Magistrate unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbably” or “contrary to compelling inferences”.[3]
[2] Parish v Police [2018] SASC 18 at [8] (Lovell J).
[3] Fox v Percy (2003) 214 CLR 118 at [29] (Gleeson CJ, Gummow and Kirby JJ); Parish v Police [2018] SASC 18 at [8] (Lovell J).
It is also important to recognise that the Magistrate decided this matter on the basis that the respondent had no case to answer. This was not a case where a finding that the respondent was not guilty was made after a trial. In Questions of Law Reserved on Acquittal (No 2 of 1993) King CJ summarised the principles to be applied when considering a no case to answer submission as follows:[4]
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.
[4] (1993) 61 SASR 1 at 5.

Thus, the test to be applied by the Magistrate was whether there was evidence with respect to every element of the offence charged with, which, if it was to be accepted by the trier of fact, could prove that element of the offence beyond reasonable doubt.[5]
[5] The Queen v Bilick and Starke (1984) 36 SASR 321 at 337 (King CJ).
In essence, ground 1 of the notice of appeal explains and particularises the contention in ground 3 that the Magistrate erred in finding that there was no case to answer. For this reason, I will consider ground 1 concurrently with ground 3.
The respondent was charged under s 20AA(3) of the CLCA with the offence of assaulting a prescribed emergency worker acting in the course of official duties. There was no dispute that Constable O’Grady was a prescribed emergency worker acting in the course of official duties.
Accordingly, the question to be decided by the Magistrate was whether the evidence was capable of persuading a trial court beyond reasonable doubt that the respondent had assaulted Constable O’Grady in accordance with the definitions of “assault” in s 20(1) of the CLCA.
Of itself, s 20(1) is a definitional provision and does not create any offence.[6] The prosecution relied upon the definition of assault in s 20(1)(c). In the particular circumstances of this case, when applying the definition of assault in s 20(1)(c) it must also be recognised that s 20AA(9) provides that the references in s 20AA to “assault” include “an act consisting of intentionally causing human biological material to come into contact with a victim, or threatening to do so”. The term “human biological material” is defined in s 20AA(9) to mean, amongst other substances, saliva.
[6] Nasr v Police [2017] SASC 138 at [83] (Blue J).
The Court viewed the video taken from Constable O’Grady’s body worn camera on two occasions. On the second occasion a substance could be seen being projected from the appellant’s mouth. The Court did not view the video taken by the cell camera as the parties agreed this would not provide any assistance.
While the respondent has contended that the evidence of Constable O’Grady did not indicate what substance he had spat, I hold no doubt that a trier of fact could be satisfied beyond reasonable doubt that the substance she referred to, and that can be seen on the video being projected from his mouth, was saliva.
Thus, the relevant issues were whether the evidence taken at its highest was capable of persuading a reasonable decision maker beyond reasonable doubt that the respondent had:
·threatened by words or conduct;
·to apply force, directly or indirectly, to Constable O’Grady; and
·there were reasonable grounds for her to believe that he was in a position to carry out the threat and intended to do so; or
·there were reasonable grounds for her to believe that there was a real possibility that he would carry out the threat.
The chapeau to s 20(1) stipulates that the conduct must occur without the consent of the complainant. The parties also accept that the conduct must be unlawful.
It is also necessary to have regard to the principles stated by Bray CJ in MacPherson v Beath, where a person has been charged with assault in circumstances where there has been no actual physical contact.[7] His Honour stated the following principles:[8]
1.The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him. By violence I mean any unlawful physical contact.
2.The mens rea of such an assault is the defendant’s intention to produce that expectation in the victim’s mind.
3.There remains the alternative possibility of a reckless assault where the defendant, while not desiring to cause such fear, realises that his conduct may do so and persists with it.
(Numbering added and citations omitted)
[7] (1975) 12 SASR 174.
[8] Ibid at 177.
In Edwards v Police Debelle J found that a magistrate had erred in applying the principles stated by Bray CJ in MacPherson v Beath. The magistrate had incorrectly applied an objective test so as to determine that the defendant was guilty of a reckless assault by holding that he should have foreseen that his conduct would have caused the victim to fear unlawful physical contact.[9]
[9] (1998) 71 SASR 493 at 495-496.
Debelle J held in Edwards that in order to establish recklessness where there was no actual physical contact it was necessary to show that the defendant had adverted to the consequence of his actions. A defendant could not be convicted of assault if he did something without caring about the consequences and did not direct his mind to those consequences.
In Police v Harrison Vanstone J held that s 20(1)(c) of the CLCA did not change the common law meaning of assault.[10] The provision simply codified the common law. Vanstone J rejected a contention that the provision merely required proof that the respondent did something which was reasonably interpreted by the victim to amount to a threat.
[10] [2017] SASC 18 at [14].
Before applying the preceding principles to the facts of this case, I note that the appellant complains that the Magistrate incorrectly found that the evidence of Constable O’Grady was that the respondent’s saliva landed on the floor of the cell. The appellant has correctly identified that no such evidence was given by Constable O’Grady and that was not the prosecution case.
The Magistrate said that he could not determine from the video evidence where the saliva had landed and nor he did think it was possible to tell where it landed. That accords with my own observation of the video evidence. His Honour also accepted that the saliva landed on the floor. Leaving aside his Honour’s mistaken understanding of the evidence of Constable O’Grady about the saliva landing on the floor, and also noting her evidence that the saliva did not hit her, I simply observe that the laws of gravity inevitably required that the saliva hit the floor and, if not, the wall. Thus, his Honour’s acceptance that it hit the floor was very probably correct and the error about the evidence of Constable O’Grady was immaterial. The important point is that his Honour did not incorrectly find that the saliva had hit Constable O’Grady.
I consider that the Magistrate erred in concluding that he could not tell whether the respondent had directed his saliva at Constable O’Grady. That conclusion overlooked her specific evidence that the respondent “spat straight at me whilst looking at me”. I also accept the correctness of the appellant’s submission that the relevant question was not whether the respondent’s saliva could have come into contact with Constable O’Grady, but whether he had threatened such conduct in circumstances where it was reasonable for Constable O’Grady to believe that he was in a position to carry out the threat and intended to do so, or there was a real possibility that he would carry out the threat. In that respect the Magistrate erred.
There was no direct evidence as to the respondent’s state of mind in the sense identified in the second and third enumerated paragraphs from the judgment of Bray CJ in MacPherson v Beath referred to at [35] above. However, there was circumstantial evidence, that when taken at its highest, was capable of satisfying those elements of the offence charged. The circumstantial evidence comprised the obvious anger of the respondent at the suspension of his licence and the impounding of his car, the words that he used and his action in spitting in the direction of Constable O’Grady while looking at her.
Because this was a no case submission, when considering the circumstantial evidence it was not necessary for the Magistrate to exclude the possibility of a reasonable hypothesis consistent with innocence. The only question for the Magistrate was whether there was evidence which, when taken at its highest, might exclude such a hypothesis.
I consider that the combination of matters referred to above establishes that the respondent did have a case to answer and the Magistrate erred in finding otherwise. Those matters were that immediately after threatening violence towards her, the respondent said that she could “get fucked” and while looking directly at her spat towards her.
When taken at its highest, the direct evidence of Constable O’Grady was capable of persuading a trial court beyond reasonable doubt that the respondent had threatened to cause saliva to come into contact with her and that there were reasonable grounds for her to believe that he was in a position to carry out the threat and intended to do so. Alternatively, there were reasonable grounds for her to believe that there was a real possibility that he would carry out the threat. The circumstantial evidence when taken at its highest was also capable of persuading a trial court beyond reasonable doubt that the respondent intended to cause Constable O’Grady to fear the application of force or was recklessly indifferent as to whether he aroused such a fear.
I stress that I am simply concluding that the prosecution evidence, when taken at its highest, could establish each element of the offence under s 20AA(3) of the CLCA. The question of guilt or innocence is a matter to be determined in due course by the trial court.
I turn to the contention by the respondent that he was charged with the incorrect offence. He submits that although a threat amounts to an assault, a threat inherently relates to a future action. He asks how can the action of spitting at a person amount to a threat to cause saliva to come into contact with them rather than an attempt for that to occur? Thus, he suggests that he should have been charged with an attempt to commit the offence in question rather than with the completed offence.
Because the definitions of “assault” s 20(1)(c) and in s 20AA(9) provide that a threat may constitute an assault, in some circumstances spitting that falls short of its target could amount to both an assault and an attempted assault. In this case, the words that accompanied the act of spitting and the respondent’s clear display of anger could, when taken at their highest, potentially satisfy a trial court that there was a threat so as to constitute an assault as defined.
Moreover, s 20AC required the Magistrate to consider whether it would have been open to a trial court to return an alternative verdict. The alternative verdict would be an attempt in accordance with s 270A of the CLCA to commit the offence under s 20AA(3). For these reasons, I do not accept the contention by the respondent that he should only have been charged with an attempted offence.
Conclusion
I uphold the appeal and direct that the matter be remitted for a further hearing before a different magistrate.