Police v FORBES
[2015] SASC 94
•26 June 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FORBES
[2015] SASC 94
Judgment of The Honourable Auxiliary Justice Duggan
26 June 2015
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - PRACTICE AND PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES - AFFRAY
Appeal against acquittal - the respondent was charged with aggravated affray pursuant to s 83C of the Criminal Law Consolidation Act 1935 (SA) - the incident giving rise to the charge was a brawl between members of the Hells Angels Motorcycle Club and the Finks Motorcycle Club at The City Nightclub. The prosecution relied on camera footage showing the brawl and an earlier altercation between two member of the respective clubs. The Magistrate found a case to answer but acquitted the respondent after giving himself a Prasad direction.
Held: appeal allowed - the Magistrate erred in finding that there were deficiencies in the prosecution evidence such as to justify the acquittal of the respondent as a consequence of the Prasad direction - the orders of the Magistrate are set aside and the matter is remitted for retrial before another Magistrate.
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(h), s 15, s 83C, referred to.
Jessen v Police (2011) 112 SASR 1; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Bilick & Starke (1984) 36 SASR 321; The Queen v Prasad (1979) 23 SASR 161; R v Pahuja (1987) 49 SASR 191; R v Cluse (2014) 120 SASR 268; Shepherd v The Queen (1990) 170 CLR 573; Valance v The Queen (1961) 108 CLR 56; Colosimo & Ors v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645; Morgan v Colman (1981) 27 SASR 334; R v Bridgland [2014] SASCFC 80; R v Nguyen (1995) 36 NSWLR 367, considered.
POLICE v FORBES
[2015] SASC 94Magistrates Appeal
DUGGAN AJ: This is a prosecution appeal against the acquittal of the respondent on a charge of aggravated affray. The Magistrate found a case to answer on the charge, but acquitted the respondent following a Prasad direction.
The charge arose out of an incident which took place at The City Nightclub in Hindley Street, Adelaide in the early hours of 29 May 2011. The respondent is a member of the Finks Motorcycle Club (the Finks). In the course of the summary hearing the prosecution alleged that, following an incident at The Firm, a nightclub on North Terrace, earlier in the morning between another member of the Finks and a member of the Hells Angels Motorcycle Club (the Hells Angels), a group of Finks members went to the The City Nightclub. There they assaulted a group of Hells Angels members who were dancing on the dance floor.
Affray is an offence against s 83C of the Criminal Law Consolidation Act 1935. [1] It is not in dispute that in order to prove the charge in the present case the prosecution was required to prove that:
(i)the respondent together with at least one other person[2] used violence towards another;
(ii) the respondent’s conduct was voluntary;
(iii)the respondent intended to use violence or was at least aware that his conduct may be violent;
(iv)the violence used by the respondent and the other or others with him was unlawful;
(v)the conduct was such that it would have caused a person of reasonable firmness present at the scene to fear for his or her personal safety.
[1] The elements of the offence are set out by White J in Jessen v Police (2011) 112 SASR 1.
[2] This refers to the circumstance of aggravation based on the allegation that the respondent committed the offence in company (Criminal Law Consolidation Act 1935, s 5AA(1)(h)).
The evidence for the prosecution was comprised mainly of CCTV footage taken from various cameras inside and, in the vicinity of, both nightclubs. According to the prosecution case the evidence establishes the following facts:
· At 3.26 a.m on the morning of the alleged offence approximately fifteen members of the Hells Angels went to The Firm.
· At 3.58 a.m the Hells Angels were evicted from The Firm. Several police officers were present while the eviction was in progress. Some Finks members were also present outside the club.
· An altercation took place between a member of the Hells Angels and a member of the Finks on the footpath outside the club as the eviction was taking place. Toby Sahlstorfer, a Hells Angels member, ran towards Danny Beckett, a Finks member, and the two men exchanged punches. Sahlstorfer was restrained by police officers but continued to abuse Beckett. Sahlstorfer was arrested.
· At 4.05 a.m the respondent was walking along Hindley Street in the company of a number of Finks. A few minutes earlier Peter Pantic, a Finks member, was walking along Hindley Street with a female companion. At 4:11 a.m Pantic and his companion were walking along Bank Street.
· At 4:13 a.m eleven members of the Hells Angels entered The City Nightclub in Hindley Street.
· At Approximately 4:29 a.m a group of Finks members spoke to security staff outside The Firm. The respondent was present in this group.
· At 4:33 a.m Pantic and his female companion entered The City Nightclub.
· At 4:53 a.m a group of 11 Finks, including the respondent, entered The City Nightclub.
· Several Hells Angels members were on the dance floor of the club at this time. The Finks members immediately approached them and fighting commenced.
· The respondent was in the leading group of Finks as they walked through a tunnel to the club and approached the dance floor. He swung a punch and was knocked to the floor. After getting up he punched a person twice and pulled him to the floor. He then armed himself with a bar stool and hit another person with it.
· A number of people ran from the nightclub when the fighting started.
· The respondent was among several other Finks who left the nightclub at 4:56 a.m.
It is against the background of this evidence that the prosecution argues that the incident at The Firm provided the catalyst for subsequent events at The City Nightclub. It is argued that inferences can be drawn from the CCTV evidence in particular which establish that the Finks embarked on a course of retaliation and organized themselves to go in a group to The City Nightclub aware that members of the Hells Angels had gone there. The determination of the Finks is said to be apparent from the footage showing them striding along the tunnel and onto the dance floor. The appellant draws attention to the fact that no time is wasted by the Finks as they approach the Hells Angels on the dance floor and the altercation takes place. The footage is also relied upon to prove that the respondent was in the forefront of the approach towards the Hells Angels and that he voluntarily took part in an attack on the rival gang.
After the close of the prosecution case before the Magistrate, counsel for the respondent submitted that there was no case to answer. The Magistrate rejected that submission and found a case to answer but decided to acquit the respondent after giving himself a Prasad direction. His reasons for doing so were as follows:
The prosecution case relies on circumstantial evidence and the inferences that can be drawn from that circumstantial evidence. The prosecution case relies primarily on video footage to establish that. As has been stated by the Crown, a case to answer is to be considered on the basis of the prosecution case at its highest.
On the prosecution case at its highest, in my view there is a case to answer. That is however not the end of my consideration. It has been submitted that failing a finding of no case to answer I should consider [giving] myself a Prasad direction.
The evidence in my view at its highest does not establish a case proving the offence beyond reasonable doubt. It does not exclude beyond reasonable doubt plausible possibilities consistent with innocence in relation in particular to elements three and four of the charge which prosecution must prove beyond reasonable doubt, namely that the defendant intended to use violence prior to and at the time of attending the City Nightclub, and further that the violence used by him was unlawful.
In relation to element three, the defendant was not present at the Firm Nightclub when the incident between a member of the Finks and Hells Angels occurred. This event on the prosecution case was the reason the Finks attended the City Nightclub. There is no evidence that the defendant was advised of it. There is no evidence that he was involved in any plan to attend the City Nightclub for purposes of retribution against the Hells Angels. There is no evidence that either he or other members of the Finks even knew that members of the Hells Angels were in attendance there. There is evidence that Mr Pantic, a Finks member, and his partner were at the City Nightclub. Defence counsel submits that it is possible the defendant and his group went to City Nightclub to meet Mr Pantic. That is one of the propositions that the prosecution has not excluded beyond reasonable doubt as a plausible possibility.
It is clear that there was confrontation between the two groups but it is unknown on the evidence who instigated the brawl that ensued. There is no doubt, based on the footage, that the defendant was involved in the brawl. The prosecution have not excluded however that once the altercation erupted, that the defendant by his actions was not acting in self-defence of himself and/or others. It has therefore not proved beyond reasonable doubt that the violence he used was unlawful.
In short, the prosecution case is based on speculation and inference. The defendant's agreement to enter into an affray is an inference which is not supported beyond reasonable doubt. In terms of the altercation between the two groups at the City Nightclub, the prosecution relies upon the CCTV footage which could amount to assault, but is equally consistent with the defendant acting in his own self defence and of others. Mere suspicion, even strong suspicion is an insufficient basis to find the charge proved beyond reasonable doubt.
For [the] reasons stated I give myself a Prasad direction and acquit the defendant.
As stated above, the Magistrate found that there was a case to answer on the charge. The test to be applied for such a determination in a circumstantial evidence case was explained by King CJ in Questions of Law Reserved on Acquittal (No. 2 of 1993): [3]
It follows from the principles as formulated in Bilick[4] in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto [1992] FCA 112; (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
The procedure which has become known as a Prasad direction was discussed in The Queen v Prasad[5] where King CJ stated:
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.
The learned Chief Justice commented further on this procedure in R v Pahuja:[6]
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.
I accept that the Prasad procedure applies in both jury and summary trials.
[3] (1993) 61 SASR 1 at 5.
[4] (1984) 36 SASR 321.
[5] (1979) 23 SASR 161 at 163.
[6] (1987) 49 SASR 191 at 201.
The issue which presents itself in the present case is whether, despite the Magistrate’s finding of a case to answer, it was appropriate for him to embark on the exceptional course of invoking the Prasad procedure and concluding that the evidence presented by the prosecution was so deficient or unreliable as to render it inappropriate for the case to continue.
This was not a case in which the primary facts upon which the prosecution relied for the drawing of inferences were unsatisfactory or unreliable. The relevant facts were there to be seen in the events recorded by the CCTV. However the criticisms of the prosecution case which were made by the Magistrate related to the inferences which the prosecution sought to draw from relatively undisputed facts.
As already stated, it is an element of the offence of affray that the defendant intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.[7] It is a further element of the offence that the defendant’s actions are unlawful.[8] The deficiencies which the Magistrate relied upon in acquitting the respondent were in relation to these elements.
[7] Section 83C(6).
[8] Section 83C(1).
The Magistrate confined his conclusion in relation to the issue of intent to the prosecutor’s argument that the explanation for the alleged offence was retaliation for the earlier incident at The Firm. He pointed out that there was no evidence that the respondent was advised of this incident and no evidence that he was involved in any plan to go to The City Nightclub for the purpose of retribution. The Magistrate said that there was no evidence that either the respondent or other members of the Finks knew that members of the Hells Angels were at the other night club. He said that the Finks members knew that Mr Pantic and his partner were at The City Nightclub and the prosecution did not exclude beyond reasonable doubt that the reason for the attendance by the Finks at the nightclub was to meet Mr Pantic.
This reasoning and the significance which the Magistrate attached to it in acquitting the respondent overlooks the fact that motive was but one strand in the circumstantial case on the issue of intent.[9] The prosecution case did not stand or fall on the issue of motive or the reason for the conduct. The motive advanced by the prosecution is neither an element of the offence of itself, nor an indispensable link in a chain of reasoning to establish an element of the offence.[10] Consequently there is no need to establish motive beyond reasonable doubt or, as the Magistrate stated, to exclude any other plausible possibility for the conduct beyond reasonable doubt.
[9] cf. R v Cluse (2014) 120 SASR 268 per Vanstone J at [71].
[10] Shepherd v The Queen (1990) 170 CLR 573 at 579-580.
In considering whether the necessary intent to use violence was established, it was relevant to take into account what might be regarded as a purposeful and strident entry by the respondent and the other Finks members into The City Nightclub, the immediate precipitation of the incident when they arrived and approached the Hells Angels members and, most importantly, the actions of the respondent during the incident. A common source for inferring what a person intended is by considering the proved actions of that person.[11]
[11] Valance v The Queen (1961) 108 CLR 56 at 83. See also Colosimo & Ors v Director of Public Prosecutions (NSW) (2005) 64 NSWLR 645 at [61] for an application of this process in an affray case.
None of these considerations were referred to in the reasoning of the Magistrate. In my view the combined effect of the available evidence of intent cannot be viewed as so deficient and unreliable as to justify an acquittal based on the principles referred to in Prasad. I have reached this conclusion without regard to the evidence of motive. However, I am also of the view that the evidence of motive was not of such a nature as to justify excluding it from consideration altogether. The evidence of animosity between the two clubs is another matter to be taken into account in considering the aspect of retaliation.
The other matter relied upon by the Magistrate in dismissing the charge rested on his conclusion that the prosecution failed to exclude the possibility that the respondent was acting in self-defence or the defence of others. This resulted in his finding that the prosecution had not proved beyond reasonable doubt that the violence was unlawful.
Section 15 of the Criminal Law Consolidation Act 1935 (SA) provides a defence to a charge of an offence if the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose and the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportional to the threat that the defendant genuinely believed to exist. It is for the prosecution to rebut the defence. There is no reason why the defence should not apply where the offence of affray is alleged.
However, the Magistrate did not refer in his reasons to the evidence upon which he appears to have concluded that the defence was properly raised and that it would inevitably succeed. In my view the state of the evidence at this stage of the hearing was not such as to pre-empt the matter in this way and justify an acquittal on the charge.
Apart from anything else it appears that no consideration was given to the fact that even if, contrary to the prosecution case, the two groups engaged willingly in a fight, self defence would not be available.[12]
[12] Morgan v Colman (1981) 27 SASR 334 at 336; R v Bridgland [2014] SASCFC 80 at [27]-[34]; R v Nguyen (1995) 36 NSWLR 397 at 412.
For the reasons which I have stated I am of the view that there was insufficient reason to direct an acquittal at the close of the prosecution case and there were errors in the reasoning process of the Magistrate which resulted in him making that order.
I allow the appeal, set aside the orders of the Magistrate and order a retrial of the matter before another magistrate.
14
1