Police v Harrison - [2017] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HARRISON
[2017] SASC 18
Judgment of The Honourable Justice Vanstone
23 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
Appeal by police against Magistrate’s acquittal of the respondent on two charges of aggravated assault. Where respondent alleged to have assaulted two police officers by his conduct. Where no battery alleged.
Whether s 20(1)(c) of the Criminal Law Consolidation Act requires proof of intention to cause an apprehension of violence.
Held: Appeal dismissed. Section 20(1)(c) of the Act requires proof of the respondent’s intention to cause the complainant to apprehend violence, or a real possibility of violence.
Criminal Law Consolidation Act 1935 (SA) s 20, referred to.

POLICE v HARRISON
[2017] SASC 18
Magistrates Appeal: Criminal
VANSTONE J.

After a trial in the Kadina Magistrates Court, the respondent, Adam Harrison, was found not guilty of two charges of aggravated assault, involving two police officers. The prosecution alleged assaults in the form of threats by conduct, rather than any battery. The police now appeal against the acquittals, arguing that the Magistrate misconstrued the provision containing the offence of assault, by requiring the prosecution to prove that the defendant intended by his conduct to threaten the officers.
For the reasons which follow I consider that this form of assault requires proof of an intention to cause the victim to apprehend violence, or a real possibility of violence. Accordingly, the argument put on behalf of the police fails.
Background
The offences were said to have occurred late on Tuesday, 15 March 2016 at Sultana Point. The victims named in the charge were Brevet Sergeant Clifton and Brevet Sergeant Hoy. The charges were aggravated because both victims were police officers and offensive weapons were involved.
Both officers were recalled to duty after police received information that the respondent had assaulted his partner and was armed with a knife. On arrival in the area police were told by the respondent’s mother that he had taken some tools from her home and walked off down the road. He was affected by drugs. The officers found the respondent sitting in a parked Toyota Hilux on a property on Sultana Point Road. Neither the vehicle nor the property were his. Each officer parked his police vehicle nearby. Brevet Sergeant Clifton said he saw the respondent in the passenger seat of the Hilux crouching down. Clifton said he told the respondent: “Adam, get out of the vehicle and show me your hands.” After more similar instructions were issued by Clifton the respondent opened the passenger door and got out. Once he shut the door Clifton could see that he was holding a jemmy bar and a pair of wire cutters. Clifton said that the respondent “took a step or two forward”. Clifton then took out his taser and directed the respondent to drop the weapons and get on the ground. He told the Magistrate: “I was in fear that Adam was going to continue to move towards me and assault me with the crowbar. That was my main concern.” At that point the respondent complied with the officer’s directions. He was then arrested.
Brevet Sergeant Hoy observed the incident from a slightly different position but still very close by. He said he heard Clifton yelling out the respondent’s name and telling him to come out of the car with his hands up. He said the respondent got out of the car but stood in the wedge of the passenger door and the body of the car and he could not see his hands. He said he, Hoy, yelled at him to put his hands on his head and the respondent did so with only one hand. Hoy noticed the respondent looking at him closely – seemingly at his equipment belt – and then looking over to Clifton as well. They were both yelling directions at him. The respondent’s right hand was still obscured. Then the respondent stepped away from the vehicle, at which point Hoy saw he had a jemmy bar raised at shoulder height and another item in his other hand. Hoy yelled at the respondent to put the weapon down but the respondent “kept coming”. Hoy said by this stage he had drawn his firearm and levelled it at the respondent. Clifton had drawn his taser, and the bright light of it was prominent. At that point the respondent threw both items out in front of him. Hoy said that he believed that there was an imminent threat to Clifton’s life.
The respondent neither gave nor called any evidence. Counsel made submissions. It was argued by defence counsel at the trial that the ingestion of drugs made it difficult to discern the respondent’s motives and that it was not proved that the respondent had intentionally threatened the officers.
The Magistrate then delivered an ex tempore ruling. While the delivery of an ex tempore judgment is to be commended, the reasons delivered lacked a certain degree of structure which has made the determination of the appeal more difficult than it otherwise might have been. For instance, although the Magistrate recounted the evidence of the two witnesses and described their actions as “professional” and their evidence as “very clear”, he did not in terms accept the evidence of either, or make any findings about precisely what occurred leading up to the alleged assaults. Although the evidence of the two officers bearing on the respondent’s conduct contained inevitable variances, the Magistrate did not deal with the differences, or prefer one or the other. Importantly, there was no finding to the effect that the respondent moved towards Clifton with the jemmy bar raised. Nor was there any finding on the basis of Hoy’s evidence that having been told to put the weapon down, the respondent “kept coming”.
In addition, the charges plainly required separate consideration. They did not necessarily stand or fall together. Examining the evidence going to each might have elucidated the strengths and weaknesses of the case.
The Magistrate said “I am not entirely sure what the defendant’s intent was when he exited the car with the weapons … At most he held a jemmy bar at shoulder height so the bar went above his head”. Two paragraphs near the end of the Magistrate’s reasons encapsulate the subject matter of the appellant’s complaint. The Magistrate said:
After considering all submissions and all of the evidence and I really want to stress the entirely professional approach by police, nevertheless, where I consider the prosecution have failed in this case is that they have not convinced me beyond reasonable doubt that the defendant intended the threat by way of his conduct.
The conduct must be intended and it must be intended to be taken seriously and I refer to Lunn’s Commentary [5115.3A] that a defendant must not be merely “sounding off”.
Arguments on appeal
It is convenient to set out those parts of s 20 of the Criminal Law Consolidation Act 1935 (SA) which contain the offence of assault:
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.
(2)     However—
(a)     conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b)     conduct that is justified or excused by law cannot amount to an assault.
…
Mr Soetratma, for the appellant, argues that the form of the offence described in s 20(1)(c) does not require proof that the defendant intends by his conduct to cause the victim to apprehend violence, or the real possibility of violence. Rather, counsel argues that the subparagraph requires only proof that the respondent did something which was reasonably interpreted by the victim to amount to a threat; and must satisfy the other components of the subparagraph.
Counsel argues that s 20 does more than codify the common law. Counsel puts that, whereas in subparagraphs (a), (b), (d), and (e) there is a requirement to prove an act which is accompanied by an intention to apply force or make contact or accost or impede, in subparagraph (c) the defendant’s acts need not be accompanied by any intention at all. Rather, the defendant’s liability is measured by reference to the victim’s reasonable belief as to the defendant’s intention.
Analysis
The use of the verb ‘to threaten’ in s 20(1)(c) tells against the appellant’s argument. The Shorter Oxford English Dictionary on Historical Principles, (CT Onions, 3^rd ed, Clarendon Press, Oxford) gives the following definitions for the word ‘threaten’:
To try to influence (a person) by menaces; to utter or hold out a threat against; to declare (usually conditionally) one’s intention of inflicting injury upon; to menace … to hold out or offer (some injury) by way of a threat; to declare one’s intentions of inflicting … to give ominous indication of (impending evil); to presage, portend 1611 … to appear likely to do some evil 1780; to utter or use threats; to declare one’s intention of injuring or punishing in order to influence …
All these definitions connote an act which is calculated to declare or communicate or hold out danger, often with a view to influencing the other’s conduct. Such an interpretation is reinforced by the words which follow in subsection (1)(c), namely ‘to apply force’. Again, the use of the verb ‘to apply’ connotes a deliberation about the conduct. It would be a misuse of both verbs to allow that a threat to apply force could consist of, for example, an extravagant hand movement made by one without any thought of the impact it might have on the other. Had Parliament intended that the conduct element would be satisfied by any movement by a defendant which could reasonably give rise to the relevant beliefs, then it could have said so by omitting the words “threatens … to apply force” and simply basing the offence on the performance of an act which was reasonably interpreted by the victim in that way.
That it was not Parliament’s intent to widen the ambit of the common law offence of assault is reinforced by reference to the second reading speech dealing with the bill containing the amendment: South Australia, Parliamentary Debates, House of Assembly, 22 October 2003, 585-591. In introducing the Statutes Amendment and Repeal (Aggravated Offences) Bill the Honourable MJ Atkinson (Attorney-General) said that the Bill fulfilled some important government promises relating to criminal penalties. He set out four things which the Bill addressed. The third of those was said to be a reconstruction of the offences of assault and kidnapping in a way which was consistent with the new causing harm offences also contained in the Bill, and a new aggravated penalty structure. Then, when dealing with the offence of assault at 587, the Attorney‑General said:
The new offence of assault reflects the case law on what constitutes assault. It retains existing penalties for the basic offence and includes an aggravated penalty provision.
It can be seen that there was no suggestion that the Government had in mind that the common law offence of assault was inadequate in its ambit. Nor is there any indication that the new offence of assault did anything more than codify the common law. The second reading speech only confirms the view I take based on the text of s 20.
Consequently, the appeal must fail.
Before leaving the matter I would add that, on my reading of the transcript, the prosecution case in respect of Brevet Sergeant Clifton was very strong. Perhaps the police officers could have been led in a little more detail as to the actions of the respondent when first addressed and upon leaving the vehicle. I cannot help but feel that, had the Magistrate taken a little more time and crystallised his findings about the respondent’s actions, the result might have been different.
Conclusion
For these reasons the appeal is dismissed.