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…

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 Dunn

Details

AGLC: Police v Dunn [2008] SASC 123
Case: [2008] SASC 123
Decision Date: 7 May 2008

CaseChat Overview and Summary

The case of Police v Dunn involved an appeal by the police against the respondent's acquittal of an assault charge by a magistrate. The respondent had been convicted of theft in relation to shoplifting but was acquitted of assaulting the person who attempted to detain her. The legal issues before the court centred on whether the magistrate correctly applied the law of self-defence in acquitting the respondent of the assault charge. The respondent argued that her actions were justified as a form of self-defence against the detaining officer, who was responding to the security officer's request to stop the respondent.

The court found that the security officer, Ms Jones, was exercising her power of arrest, and although it would have been preferable for her to inform the respondent explicitly, the situation was clear to both parties. The court held that the respondent's actions did not constitute self-defence as she failed to demonstrate that she genuinely believed, on reasonable grounds, that the officer was acting unlawfully. The court concluded that the magistrate should have convicted the respondent of both theft and assault. The police appeal was allowed, and the order dismissing the assault charge was set aside. The respondent was convicted of assault, and a new bond of $100 to be of good behaviour for nine months was imposed concurrently with the existing sentence.

In summary, the court found that the respondent's actions did not meet the legal criteria for self-defence, and as such, the magistrate's decision to acquit the respondent of the assault charge was incorrect. The appeal was allowed, and the respondent was convicted of assault, with a new bond imposed concurrently with the existing sentence for theft.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.