Police v Hunt - [2013] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HUNT
[2013] SASC 178
Judgment of The Honourable Justice Kelly
15 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - MISCELLANEOUS OFFENCES AND OTHER MATTERS
Appeal against dismissal of count two, the complaint that the respondent without reasonable cause refused to provide his personal details to a police officer. The respondent, who was on foot with two others in the early hours of the morning on 18 November 2012 was approached by a solo police officer on the basis of his suspicion that the respondent had committed the offence of using offensive language. The respondent was subsequently charged with using offensive language, refusing to provide his personal details to a police officer and resisting a police officer in the execution of his duty. The Magistrate found that each offence had not been proved beyond reasonable doubt and dismissed the complaint.
Whether the Magistrate erred in concluding that because he was not satisfied beyond reasonable doubt that the respondent used offensive language or resisted police, he could therefore not be satisfied beyond reasonable doubt of matters needed to convict on the second count of failing to provide personal details.
Held: Allowing the appeal.
(1) The Magistrate erred in his approach to the assessment of whether the police officer had reasonable cause to suspect the respondent had committed an offence.
(2) It was not necessary for the prosecution to prove that the facts on which the police officer based his suspicion were in fact true.
(3) The evidence was sufficient to establish the matters necessary for proof of the second count.
(4) The order of the Magistrate dismissing count two is set aside.
(5) The respondent is convicted of refusing to provide his personal details.
Summary Offences Act 1953 (SA) s 6(2), s 7(1)(c), s 74A(3)(a), s 75, referred to.
Haifawi v Police [2000] SASC 19; Cooper v Police [2006] SASC 339, applied.

POLICE v HUNT
[2013] SASC 178
Magistrates Appeal: Criminal
KELLY J.
Introduction

The respondent, Timothy James Hunt, was charged with three offences contrary to the Summary Offences Act 1953 (SA) (“the Act”), the first, using offensive language contrary to s 7(1)(c) of the Act, the second, refusing to provide his personal details to a police officer contrary to s 74A(3)(a) of the Act, and third, the offence of resisting a police officer in the execution of his duty contrary to s 6(2) of the Act.
In the early hours of the morning on 18 November 2012 at Willunga a police officer, Sergeant Clifton, approached the respondent on the basis of his suspicion that the respondent had committed the offence of using offensive language. The respondent’s response to Sergeant Clifton gave rise to the second and third charges. The Magistrate found that each offence had not been proved beyond reasonable doubt and dismissed the complaint.
This appeal relates only to the dismissal by the Magistrate of the second count, namely the complaint that the respondent without reasonable cause refused to provide his personal details to the police officer contrary to s 74A(3)(a) of the Act.
The issue on appeal is whether the Magistrate erred in concluding that because he was not satisfied beyond reasonable doubt that the respondent used offensive language, or that he did resist the police officer in the execution of his duty, he could not therefore be satisfied beyond reasonable doubt of the matters which needed to be established before a conviction could be recorded on the second count of failing to provide his personal details.
Magistrate’s reasons
After summarising the evidence of the respective prosecution witnesses Sergeant Clifton and his offsider Sergeant Tulloch, together with the evidence given by the respondent and his partner Ms Waye, the Magistrate concluded:
On the material before me I am not satisfied that the [respondent’s] evidence should be completely rejected. I consider the evidence of the prosecution witnesses to be strong but I am not persuaded on the strength of that evidence to totally reject the [respondent’s] evidence. I am left with a doubt as to where the truth lies given the competing accounts. On the [respondent’s] account he used no offensive language and did not struggle after arrested. Furthermore, on his account Sgt Clifton had no reasonable cause to suspect him of committing an offence hence no basis for demanding his name and address. I cannot completely reject that as a possibility. Accordingly I am not satisfied that each offence has been proven beyond reasonable doubt.
[emphasis added]
The appellant’s submission that the passage highlighted above discloses error must be accepted. The Magistrate determined the issue of whether there was reasonable cause to suspect the respondent used offensive language on the basis of the respondent’s version of events. The correct approach requires consideration of whether there were sufficient facts present to induce in the mind of a reasonable person a suspicion that the respondent used offensive language and that the police officer (Sergeant Clifton) in fact formed that suspicion. That issue is to be determined on the basis of what the police officer knew and saw at the time and that is a conclusion to be reached on the basis of all of the evidence.
It is significant that the Magistrate found that the evidence of the prosecution witnesses was “strong”. His Honour concluded that the prosecution and defence accounts of what occurred in the early hours of the morning of 18 November 2012 are irreconcilable. The Magistrate postulated as a likely explanation for the difference between the respondent’s account and that of the police, the fact that the respondent and his partner Ms Waye were significantly affected by alcohol at the time which is turn affected the reliability of their recollection. However, the Magistrate was not prepared to reject the respondent’s evidence completely because he did not consider it fair to draw that conclusion in the absence of cross-examination of both the respondent and Ms Waye on their state of inebriation.
It was on that basis that the Magistrate was not satisfied that the respondent’s evidence should be completely rejected, even accepting that the evidence of the prosecution witnesses was strong.
It is plain from the Magistrate’s reasons that he did not reject the account given by the prosecution witnesses Sergeant Clifton and Sergeant Tulloch. Sergeant Clifton gave clear evidence about his observations on the night and his state of mind and in particular why he formed a suspicion that the respondent had used offensive language. That evidence was not rejected by the Magistrate. Furthermore, that Sergeant Clifton requested that the respondent provide his name and address, and the respondent’s refusal to do so, was not disputed. In these circumstances the Magistrate ought to have recorded a conviction on the second count.
This same point arose in Haifawi v Police[1] and Cooper v Police.[2]In Cooper the charges were offences of failing to comply with a reasonable direction given by an authorised person and of resisting police. In concluding that the conviction for failing to comply with a reasonable direction should be set aside while the conviction on the charge of resisting police should stand, Gray J observed:[3]
[1] [2000] SASC 19.
[2] [2006] SASC 339.
[3] Cooper v Police [2006] SASC 339 at [29]-[31].
It is well established that a charge of resist police may be maintained even in circumstances where the charge relating to the incident giving rise to the arrest is not proved. In Haifawi v Police, Duggan J observed:
The fact that a charge of assaulting a police officer in the execution of his duty is dismissed in a case in which the charges of assaulting police and resisting a police officer are charged in respect of the same incident does not necessarily bar a conviction on the charge of resisting arrest. (Police v Walsgott (31 March 1994, unreported) and cf Normandale v Rankine (1972) 4 SASR 205 at 209). Whether or not the charge for the alleged offence which led to the arrest can be proved or has been proved is strictly irrelevant. It is sufficient if the police officer had reasonable cause to suspect that an offence had been committed. (Summary Offences Act 1953 s75). If he did, then the arrest is lawful and the police officer is acting in the execution of his duty.
In order to establish that a police officer conducting an arrest acted in the exercise of his or her duty, it is only necessary that the officer had reasonable cause to suspect subjectively that an offence had been committed, even though this suspicion was not objectively correct. If the situation were otherwise, police would be hampered in the exercise of their duty to enforce the law and protect the public. This concern was addressed in Normandale v Rankine, where Walters J observed:
The power given to a member of the police force by s 75 of the Police Offences Act to arrest without warrant may be exercised where there is cause to suspect, on reasonable grounds, that an offence has been, or is about to be, committed by the person who is apprehended. The power to arrest for drunkenness, without any warrant other than the Act, may be justified if a constable reasonably suspects a man is drunk, even though eventually a magistrate dismisses the charge (cf Barnard v Gorman, per Lord Wright at pp.394-395). … it seems to me that if the reasoning of the Special Magistrate were correct, a constable could justify, under s.75 of the Act, his arrest of a person whom he had reasonable cause to suspect of being drunk in a public place and he could also justify, under the same section, his requirement that that person give his name and address, yet because a court of summary jurisdiction, either on fresh materials altogether or on the same materials as gave rise to the constable’s reasonable suspicion, was not satisfied that the person apprehended was drunk at the relevant time, dismissal of charges of resisting arrest and of refusing to give a full name and address would inevitably follow. If the opinion entertained by the Special Magistrate were right, I venture to suggest that a constable would hesitate to arrest a drunken person, or to require him to state his full name and address, unless he first wholly satisfied himself that the man was drunk. I therefore do not think it correct to construe s.75 of the Act in such a way as to warrant the conclusion reached by the Special Magistrate, namely, that the second and third counts fell with the dismissal of the first count.
In forming his view, Walters J had obvious regard to the following remarks of Lord Wright in Barnard v Gorman:
The power to arrest depended on the particular acts done or conduct exhibited. It was a power (inter alia) to arrest without a warrant every person found drunk while in charge of any carriage on a highway. While I do not wish to express any final opinion on a case not now before me, I am not prepared to dissent from the actual decision of the Court of Appeal that the arrest was justified if the constable reasonably believed that the man was drunk, even though eventually the magistrates dismissed the charge. As at present advised, I think that “drunk” in that context means “apparently drunk.” The constable must act on what he sees at the moment, and should be held to be justified if the man’s appearance and behaviour are those of a drunken man. Instant action is demanded by the needs of public safety which would be endangered if an intoxicated person were left in charge of a vehicle on the road. Swinfen Eady LJ said that the nature of the offences specified required the construction that the authority to apprehend applied where the circumstances were such as to enable an honest belief on reasonable grounds to exist that the offence was being committed by the person being apprehended.
[footnotes omitted]
The very same point had been made earlier by Duggan J in Haifawi:[4]
It is apparent from the wording of the section that it is the police officer’s suspicion which is relevant. The emphasis is on the facts as known to, or apprehended by, the police officer. The belief can be formed on the basis of information received from other persons. (Felman v Buck [1966] SASR 236). However, in the end, it is what is in the police officer’s mind and whether such knowledge provides reasonable cause to suspect that an offence has been committed which must determine the matter.
[4] Haifawi v Police [2000] SASC 19 at [17].
Although Duggan J was referring to an offence under s 75 of the Act, the state of mind of the police officer necessary to establish an offence under s 75 is the same as that necessary to establish the offence under s 74 of the Act.
It can be seen that in order to establish the matters necessary for a conviction in relation to count two, it was not necessary for the prosecution to prove that the facts on which the police officer based his suspicion were in fact true. The question was whether what the officer believed provided reasonable grounds for the suspicion he entertained. The dismissal of the charges of using offensive language and resisting a police officer in the execution of his duty did not necessarily bar a conviction on the charge of failing to provide personal details contrary to s 74(A)(3)(a) of the Act.
Having read the whole of the Magistrate’s reasons, and in particular his conclusions about the prosecution evidence including that of Sergeant Clifton, I am satisfied that the evidence was sufficient to establish the matters necessary for proof of the second count of failing to provide personal details.
I have vacillated on the question whether the matter should be remitted back to the Magistrates Court for hearing and determination of the second count according to law. However, as I consider that the evidence establishes beyond reasonable doubt the matters required for proof of count two, I shall adopt the course of setting aside the acquittal recorded by the Magistrate and I find the respondent guilty of count two.
The formal orders I make are:
1Appeal against dismissal of count two is allowed.
2The order of the Magistrate dismissing count two is set aside.
3The respondent is convicted of refusing to provide his personal details contrary to s 74(A)(3) of the Summary Offences Act 1953 (SA).
I will hear the parties as to the appropriate sentence.