Police v Dunn - [2008] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DUNN
[2008] SASC 123
Judgment of The Honourable Justice Vanstone
7 May 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - SELF-DEFENCE AND OTHER FORMS OF DEFENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - ARREST AND DETENTION - EFFECTING ARREST
Respondent convicted in Magistrates Court of theft in form of shoplifting but acquitted of assault upon person who attempted to detain her - police appeal against acquittal - whether the magistrate correctly applied law of self-defence.
Held: appeal allowed - magistrate's order dismissing the assault charge set aside - respondent convicted - penalty imposed.
Criminal Law Consolidation Act 1935 s 15, s 271, referred to.
Christie v Leachinsky [1947] AC 573, considered.

POLICE v DUNN
[2008] SASC 123
Magistrates Appeal
Criminal

VANSTONE J: Donna Dunn was apprehended by a supermarket security officer after failing to pay for a number of items. In fleeing from the custody of that officer she was alleged to have assaulted a woman (“K”) who attempted to impede and detain her. She was charged upon complaint with theft and assault. After a trial in the Magistrates Court she was convicted of theft, but acquitted of assault.
The acquittal turned on the magistrate’s characterisation of the actions of the security officer and the lawfulness of K’s actions. The police now appeal against the acquittal, arguing that had correct legal principle been applied to the facts as found by the magistrate, the respondent must have been convicted.
Background
The relevant events took place in the afternoon of 9 September 2006 at the Foodland store at Norwood. The respondent was seen by the security officer, Ms Jones, inside the store carrying a Foodland issue red shopping basket, as well as her own green “enviro” bag. The respondent placed a number of items in the green bag and a loaf of bread in the basket. She spent some fifteen or so minutes in the store. When she went to the checkout she placed the green bag at her feet and produced to the checkout operator only the bread from the basket. Ms Jones approached her after she left the checkout. She was asked to accompany the officer to a storeroom (being utilised as an office) and there requested to empty the green bag. After declining to provide her name and address, the respondent picked up her bag and ran from the storeroom. She was seen to run through the greengrocery, then straight through the middle of the store, jumping over a checkout counter and then into the adjacent mall. During the respondent’s flight Ms Jones yelled to a Foodland cleaning lady, whom I have called K: “Stop that woman”.
The victim K said in evidence that as she was moving towards her cleaning room, she saw three people running, one of whom yelled out: “Grab that lady”. She said that she realised that the person running away had done something wrong and so she intervened to help. She said the person – who was clearly the respondent – bumped into her and she “grabbed her” and started to hold onto her. She described the respondent “pushing and shoving around [trying] to get away from me”. She said the respondent then scratched her hand and hit her in the face with her handbag. She said she sustained a large scratch to her hand.
The respondent gave evidence in her defence. The magistrate rejected her evidence that the failure to pay for the items was inadvertent. The respondent said that she ran from the storeroom because she felt that she would be sick and because she was acutely in need of a lavatory. She said she was hyperventilating and feared that she might suffer some sort of attack. The only lavatories she knew of were located in the nearby Hoyts cinema. She said that as she ran down the corridor to leave the store, she heard Ms Jones shout out: “Stop that lady”. She saw that K had her arms out to impede her progress. She recognised that K was responding to Ms Jones’ call. She said that K pushed her against the wall and held her in some sort of “lock”. The respondent said she resisted, still intent on finding a toilet, and there was a tussle over her handbag, which K took from her shoulder.
The respondent’s answer to the assault charge was one of self-defence. The relevant provision governing the situation was s 15 Criminal Law Consolidation Act 1935. It relevantly provides as follows:
15—Self defence
(1)     It is a defence to a charge of an offence if—
(a)the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b)the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist1.
(2)     (omitted)
(3)     For the purposes of this section, a person acts for a defensive purpose if the person acts—
(a)in self defence or in defence of another; or
(b)to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4)     However, if a person—
(a)resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b)resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,
the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5)     If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.
Notes— (omitted)
In acquitting the respondent of this charge, the magistrate appears to have reasoned in the following manner.
First he found that Ms Jones had not arrested the respondent. He observed that Ms Jones had not explicitly advised the respondent that she was under arrest and the respondent had gone willingly to the storeroom. He found that until such time as the respondent was arrested, there was no power to detain her in the storeroom. The magistrate then considered s 15(4). His Honour found that K was neither exercising a power of arrest, nor acting in response to an unlawful act by the respondent. This conclusion rested on his finding that K’s belief that “someone was doing something wrong” was an assumption only, was not based on any observation made by K herself and did not, accordingly, justify K’s actions. Therefore what would otherwise amount to a constraint on the respondent’s right to use self-defence was not engaged. Finally the magistrate concluded that the respondent believed that her resistance to K’s attempts to restrain her was necessary and reasonable for a defensive purpose, as provided by s 15(1)(a) and that the conduct was reasonably proportionate.
Analysis
In my view there is a flaw in the learned magistrate’s reasoning. I consider that s 15(4) in fact came into play, effectively narrowing the scope of “defensive purpose” in s 15(1) and hence the availability of the defence. I say that for these reasons. It was clear that K was acting in response to Ms Jones’ request for assistance. K read the situation correctly, understanding that the fleeing person was believed to have committed an unlawful act. She was entitled to form her belief on the basis of the circumstances and the store detective’s actions. She was entitled by s 271 Criminal Law Consolidation Act to intervene in the way she did. That provision is as follows:
271—General power of arrest
(1)A person may, without warrant, arrest and detain a person liable to arrest and detention under this section.
(2)A person who arrests and detains another under this section must take the necessary action to have the other person delivered into the custody of a member of the police force forthwith.
(3)A person is liable to arrest and detention under this section if the person is in the act of committing, or has just committed—
(a)an indictable offence; or
(b)theft (whether the theft is a summary or indictable offence); or
(c)an offence against the person (whether the offence is summary or indictable); or
(d)an offence involving interference with, damage to or destruction of property (whether the offence is summary or indictable).
There is no suggestion that K used more than reasonable force in her attempt to stop and hold the respondent.
Just as K correctly assessed the situation, so did the respondent understand that K was acting in response to Ms Jones’ call. At no time during her evidence did the respondent assert that she believed K to be acting unlawfully. Neither did she use any other expression which would suggest that such was her state of mind. Rather, her aim in grappling with K was to free herself so she could continue her journey to the Hoyts cinema complex.
Upon this analysis, it is of no moment whether Ms Jones had, technically, arrested the respondent prior to K’s interaction with her. Certainly Ms Jones had the power to arrest and detain pursuant to s 271 Criminal Law Consolidation Act. Ms Jones had, in company with a male employee, stopped the respondent just after she left the supermarket, identified herself as a store detective and invited her to accompany them to the “office”. The respondent was told that Ms Jones had reason to believe that she had goods in her bag for which she had not paid. Once in the storeroom she was asked to empty her bag and did so. She was asked for her name and address. Ms Jones was making notes of the items taken from the bag and of the conversation. Furthermore, once in the storeroom, Ms Jones said that she “blocked off one entrance” because she anticipated that the respondent might flee. Although it does not appear that Ms Jones advised the respondent that she was arresting her, it seems that the situation was plain to both. Indeed the respondent said that she knew that she had to stay there and expected she would be chased, but chose to run from the storeroom for the reasons already mentioned.
In my view Ms Jones was exercising the power of arrest which she had. It is true that it would have been preferable had she told the respondent that she was doing so. (See, for example, Christie v Leachinsky [1947] AC 573 per Viscount Simon at 587-8.) However, the situation was clear to both parties. In any event, there is no reason to think that the arrest which K later attempted to effect, if otherwise lawful, would be tainted by any technical deficit associated with Ms Jones’ earlier actions.
Conclusion
On the facts found by the magistrate the respondent should have been convicted not only of theft, but also of assault of K. The dismissal of the second charge should be set aside and in its place a conviction recorded.
Since Mr M Grant, counsel for the appellant, does not press for any substantial penalty additional to that imposed in relation to the theft charge, namely a two day suspended sentence, I think it appropriate that the respondent be required to enter into a further bond to run concurrently.
Accordingly, the orders I make are:
1. allow the appeal;
2.set aside the order of the magistrate dismissing the assault charge;
3.convict the respondent of assault, being count 2 on the complaint;
4.require the respondent to enter into a bond in the sum of $100 to be of good behaviour for nine months.