Police v R Clavell, D Clavell & Charters - [2011] SASC 112

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v R CLAVELL, D CLAVELL & CHARTERS
[2011] SASC 112
Judgment of The Honourable Justice Duggan
14 July 2011
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - EVIDENCE AND COURSE OF TRIAL - GENERAL PRINCIPLES - NO CASE TO ANSWER
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - GENERALLY
Appeal against decision of a magistrate to acquit the respondents on the basis that there was no case to answer in relation to a charge of violent disorder pursuant to s 6A of the Summary Offences Act 1953 (SA) – whether the elements of the offence were made out against each of the respondents.
Held: Appeal allowed – a case to answer was made out against each respondent – acquittal entered in relation to each respondent set aside – matter remitted for hearing before the Magistrate in accordance with reasons given.
Summary Offences Act 1953 (SA) s 6A, s 6A(3), s 6A(7); Statutes Amendment (Public Order Offences) Act 2008 (SA); Public Order Act 1986 (UK) s 2; Crimes Act 1900 (NSW) s 93C, referred to.
Police v Abdulla (Unreported, Magistrates Court of South Australia at Berri, Magistrate O'Connor, 1 July 2010), distinguished.
R v W(N) [2010] 1 WLR 1426; R v Blackwood [2002] EWCA Crim 3102, considered.

POLICE v R CLAVELL, D CLAVELL & CHARTERS
[2011] SASC 112
Magistrates Appeal: Criminal

DUGGAN J: The respondents were charged with violent disorder following a disturbance which took place at the Port Augusta prison. The charge was laid pursuant to s 6A of the Summary Offences Act 1953 (SA) (“the SOA”). The complaint against each respondent stated that:
Between the 9^th day of October 2008 and the 11^th day of October 2008 at Port Augusta in the said State, [the respondent] took part in a violent disorder by being one of three or more persons present together who threatened unlawful violence and the conduct of them taken together was such that it caused a person of reasonable firmness present at the scene to fear for his personal safety.
The charge did not follow the wording of the section in one respect. It should have alleged that the conduct was such that it “would have caused” instead of “caused” a person of reasonable firmness present at the scene to fear for his personal safety. However, the case at first instance proceeded by reference to the wording of the section and no issue was taken as to the wording of the complaint.
At the conclusion of the prosecution case, which was presented before a Magistrate sitting at Port Augusta, it was submitted on behalf of the respondents that there was no case to answer. The Magistrate upheld this submission and acquitted the three respondents. The prosecution has appealed against the Magistrate’s decision and orders.
The disturbance took place in Bluebush Unit 3 (“Unit 3”), a cell block located on the ground floor of one of the prison buildings. There were approximately 39 prisoners in Unit 3 at the time of the disturbance. Although the disturbance took place over the period particularised in the complaint, the events relevant to the charges occurred in the early stages of the incident. It is alleged that the prisoners took control of the cell area and some adjacent areas in the Bluebush building, placing covers over the security cameras and smashing fittings. According to the prosecution case, the three respondents were armed with broken mop and broom handles. Eventually, the majority of the prisoners smashed their way out of the cell block through a glass partition in one of the areas of the Unit. This gave them access to open areas within the prison walls.
Section 6A of the SOA was enacted in 2008. It provides as follows:
6A—Violent disorder
(1)If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)It is immaterial whether or not the 3 or more persons use or threaten unlawful violence simultaneously.
(3)No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(4)An offence under subsection (1) may be committed in private as well as in public places.
(5)A person is guilty of an offence under subsection (1) only if he or she intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
(6)Subsection (5) does not affect the determination for the purposes of subsection (1) of the number of persons who use or threaten violence.
(7)In this section—
violence means any violent conduct, so that—
(a) it includes violent conduct towards property as well as violent conduct towards persons; and
(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct.
Example—
Throwing at, or towards, a person a missile of a kind capable of causing injury which does not hit, or falls short of, the person.
At the conclusion of the submissions of no case to answer, the Magistrate made the following short ruling:
I am at this stage required to make a ruling as to whether a prima facie case has been established.
Having heard all the evidence presented by the complainant and submissions by counsel, I find that the evidence does not establish a prima facie case to support the charge laid against the defendants.
I agree with the submissions by defence counsel. They are recorded and are available.
I note in particular therein reference to a decision of Magistrate O’Connor delivered on 1/7/2010 in Police v Abdulla, Newchurch, Rigney, Zielke and Abdulla and in the current matter I also do not consider the violent disorder charge was the appropriate charge to be laid against the defendants.
All defendants are acquitted.
Unfortunately, the basis of the ruling is not clear from these reasons. There is no indication of the Magistrate’s understanding of the elements of the offence or in what respect the evidence led by the prosecution failed to establish a prima facie case. It becomes necessary, therefore, to examine the nature of the offence and the effect of the evidence.
The offence of violent disorder was inserted in the SOA by the Statutes Amendment (Public Order Offences) Act 2008 (SA). It appears to have been based on similar provisions in s 2 of the Public Order Act 1986 (UK) and s 93C of the Crimes Act 1900 (NSW).
The offence provided for in s 6A of the SOA requires proof of the following elements:
1The accused must be present in a group of three or more persons.
2Those in the group must together use or threaten unlawful violence.
3The unlawful violence must be such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
4The accused must intend to use or threaten violence or be aware that his or her conduct may be violent or may threaten violence.
“Violence” is defined widely in s 6A(7) to include violent conduct towards property as well as towards persons. Any violent conduct will suffice, whether or not it causes or is intended to cause injury or damage.
In addition, s 6A(3) provides that no person of reasonable firmness need be or be likely to be present at the scene. It is apparent that the effect of the violent conduct must be judged objectively. The test is posited on the appreciation of a bystander of reasonable firmness if such a person were present at the scene. The test does not require the bystander to be terrified, but rather to be in fear for his or her personal safety.
I have said that the disturbance took place in Unit 3 which is a cell block located on the ground floor of a two storey building. A modified diagram of the cell block prepared from Exhibit P4 is attached to these reasons.
The cells are located on either side of a long corridor marked “8” in the diagram. There is a barrier between Area 8 and Area 7 which is a foyer leading to a stairway in Area 38. Area 38 is also a storage area.
There is a further barrier between Area 7 and Area 3. Area 4 is a station for prison officers and Area 5 is a room used for viewing activities in the prison yard. Area 1 is an entrance foyer to the building. Area 9 is a kitchen servery.
When the disturbance erupted, prison officers from various parts of the prison converged on Unit 3. In the early stages, a number of officers took up positions in Area 3. The barrier between Area 3 and Area 7 was locked at this stage. The prisoners had access to Area 7.
Several prison officers gave evidence at the hearing before the Magistrate. By about 4.00pm on the day of the incident, a large number of prisoners in Unit 3 were yelling and screaming out. Some had broom or mop handles in their hands. Officer Debra Matthews said that one of the prisoners was ramming the back door of Unit 3 which is located at the top of the diagram between Cells 22 and 23. Officers went to the outside of this door and used chains to make it more secure. Officer Matthews said she did not finish work until 8.00am the following morning and the prisoners had not surrendered by then. There was evidence that a number of cell doors were damaged so that they could not be locked.
It is apparent that, at a later stage in the incident, the prisoners went back into Area 8 and put a sheet over the barrier between Area 7 and Area 8. Closed‑circuit television cameras in the area were covered by the prisoners so that the cameras could not record what was happening in Area 8.
Officer Kevin McInnis said he saw Rodney Clavell coming out of Area 38 with mop or broom handles which he gave to other prisoners. He said Daniel Clavell and Scott Charters had brooms. He said he saw Scott Charters break the head from a broom and swing it around. Officer McInnis said that the prisoners were angry and aggressive. He said Daniel Clavell was hitting the broom against the barrier in front of the wing.
Officer Grantley Wilkin said the situation got out of control in a short time. He said a “lock down” took place. This involved locking prisoners in other areas of the prison in their cells. A large number of prisoners were housed on the upper floor. They were out of their cells when the disturbance commenced and did not take part in it. Officer Wilkin said that, eventually, all the prisoners got out of Unit 3 into the prison yard. This was at a later stage of the disturbance. It appears that access to the outside of the cell block was obtained by smashing a glass barrier in Area 7 which is adjacent to the area marked “Verandah” on the diagram. Officer Wilkin said in evidence that things became extremely volatile.
Officer John Horlor said he saw prisoners with broomsticks coming towards the officers. He said Daniel Clavell was swinging a broomstick “like a kung fu stick” and yelling “Get out, get out, it’s on”. He said a number of prisoners covered their heads with jumpers and t-shirts.
Officer Brenton Welsh said that when Rodney Clavell was handing brooms and mops out to prisoners, he said “Arm yourself up fellas, arm yourself up, this is it”. At this stage Rodney Clavell was in Area 7. Officer Welsh said that immediately prior to the handing out of the broom handles, he heard Daniel Clavell yelling “Shut the fuck up you fucking dogs, shut the fuck up”. He then took the broom from Rodney Clavell and smashed it against the inner barrier. These events took place while prisoners were in Area 7, only a short distance away from the officers who subsequently retreated from Area 3 into Area 1. Officer Lindsay Thomas said he saw the two Clavells waving broken broomsticks. A number of the witnesses stated that Rodney Clavell issued instructions to the other prisoners. The prisoners did considerable damage to property in Unit 3.
Officer Matthews gave evidence that Rodney Clavell was hitting the barrier in front of the unit calling out “Bring it on you cunts, bring it on you dogs”. She also gave evidence that she saw Daniel Clavell hitting the barrier and the servery door, through which access could have been gained to one of the officers’ stations, with a broomstick.
Officer McInnis said that all of the prisoners were yelling and screaming abuse at the officers “wanting us to go into the wing with them”. He said they were calling out “Come and get us”. Later in his evidence he said:
They wanted their yard time because they hadn’t been getting a lot of yard time. They wanted us to come into the wing, they will take us on, that sort of thing yeah, trying to bait us to get us in there I suppose you could say.
He said the prisoners appeared to be trying to get out through the fire exit at the far end of the Unit and that, eventually, they got out by breaking glass in another area of the Unit.
Officer Paul Taylor was asked what the prisoners were yelling and he said:
Lots and lots of different things. One thing I can recall is ‘scum dog maggots, come in here, we’ll break your necks’.
Officer Taylor said that Rodney Clavell was the leader. He said Rodney Clavell was “up the front of the barrier, he was organising the crew, he was giving orders”. According to Officer Taylor, Rodney Clavell was saying things like “Hold them back” and “Grab the mops”.
Officer Shannon Woolford went to Unit 3 when he saw that there was no vision from one of the cameras in that area. His evidence continued:
QThen what happened.
AThat was about it, everyone came and collected their meals, the billets dished out the meals, everyone went back to their cells and where-ever they went to have dinner, not long after that, probably 10 minutes after that, 15 minutes after that I had a phone call from control room saying they'd lost footage from the end camera.
QThen what happened.
AWent out into the wing, could see a piece of paper sitting over the camera, or what appeared to be a piece of paper, and I yelled out down the wing for someone to take it down.
QThen what happened.
ADaniel Clavell was approaching me, a few words were exchanged.
QWhat was he saying.
AIt sounded like, ‘Fuck you, you fuckin’ dogs’, but it was loud, so –
QThen what was said.
ASomething along the lines of ‘Take it off yourself’ or ‘Get it yourself’ or ‘Come and get it’ or -
QWhat did you observe about Daniel Clavell’s demeanour.
AHe appeared agitated.
Officer Woolford also gave evidence that he saw Scott Charters using a mop to hit an air conditioning unit.
I return to the elements of the offence. There is no dispute that the three respondents were present together in a larger group. In other words, they were “in the same place at the same time”.[1]
[1] R v W (N) [2010] 1 WLR 1426 at [19].
The next question is whether the respondents threatened unlawful violence. There is no suggestion that actual personal violence occurred.
In order to determine whether there was threatening conduct it is necessary to have regard to the circumstances which occurred during the early stages of the incident. In a case such as the present it is appropriate to regard the offence as being of a continuous nature. Furthermore, there is no reason why the principles of primary and secondary liability should not apply.[2]
[2] R v Blackwood [2003] All ER (D) 239 (Jan); [2002] EWCA Crim 3102.
In my view there was sufficient evidence to support a finding that Rodney Clavell threatened violence to the prison officers. He appears to have motivated others to act in this way, as well as becoming involved himself. He was instrumental in providing equipment which was capable of conversion to weapons and he shouted various comments to the prison officers which went beyond mere abuse and took on an intimidating and threatening character.
There is evidence that Daniel Clavell brandished the handle which he received from Rodney Clavell in a menacing fashion, hitting it against a barrier which separated him from the prison officers. I have referred to the evidence of Officer Horlor who said that Daniel Clavell came towards the officers swinging the broomstick as though it were a weapon and calling out “Get out, get out, it’s on”. After considering this against the background of the other evidence of incidents of abuse and intimidation, I am satisfied that this incident is capable of being construed as a specific threat of violence. In my view it is not a necessary requirement of such a threat that there is an obvious present capacity to carry it out.
The evidence against Scott Charters stands on a different footing. There is no evidence of a statement by him which could be construed as a threat. However, he accepted one of the broomsticks and modified and brandished it. According to the evidence, he was in close proximity to the prison officers during the early stages of the disturbance. He was in a position to be aware of the threatening remarks made to the prison officers which are set out earlier in these reasons and which were made by various prisoners, including the Clavells. The evidence supports the conclusion that he encouraged the other participants in the disturbance by taking part in the manner in which he did and with knowledge of the threatening behaviour of others towards the prison officers. Assuming that the other elements of the offence were proved, this would render him liable as an aider and abettor.[3]
[3] R v Blackwood [2003] All ER (D) 239 (Jan); [2002] EWCA Crim 3102 at [23]-[26].
The next question is whether the threats of violence relied upon by the prosecution were such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. As has been pointed out, such a person need not be actually present at the scene.[4]
[4] SOA s 6A(3).
Although no person of reasonable firmness need actually be at the scene, it is necessary to consider the effect of the relevant conduct on an hypothetical person placed there for the purpose of assessing the state of mind of that person. In my view, the circumstances of the present case render it appropriate to place the hypothetical person in the areas of Unit 3 occupied by the prison officers in the early stages of the incident, particularly Areas 1 and 3.
Counsel for the respondents placed particular emphasis on the fact that there was a locked barrier between Areas 7 and 3. This is undoubtedly a factor to take into consideration. However, it is necessary to take into account all aspects of the incident in assessing the objective element in the offence. A person in this position would be aware that a violent incident was taking place in the Unit. The prison officers were clearly outnumbered by a group of prisoners acting in a generally violent manner. I have referred to the evidence which is capable of establishing threats of violence to the prison officers. Furthermore, if the evidence is accepted, an attempt was made to break out of the Unit through the fire door. Although that attempt was unsuccessful, the glass barrier in Area 7 provided another way out of the Unit which was later used for that purpose. It is not the breaking out through this Area which is relevant for present purposes, but rather the potential for escape. Locks were being broken on cell doors. In my view, the hypothetical bystander would naturally consider whether there would be opportunities for the prisoners, or some of them, to come into contact with those in Areas 1 and 3, or even in the prison yard in the event that the persons in those Areas attempted to leave the Unit.

I am satisfied that it would be open for a court to conclude, on the evidence led by the prosecution, that the objective test has been satisfied in that the circumstances would have caused a person of reasonable firmness present at the scene to fear for his or her personal safety.
I have reached this conclusion without taking into account the evidence of a number of the police officers who testified as to the concern which they had for their own personal safety. Their feelings in this respect do not, in themselves, answer the requirements of the objective test. Although I have not relied upon them, I can see no reason why they should not be taken into account as one of the factors to be considered in determining whether the circumstances were such that the same concern would be entertained by an hypothetical bystander of reasonable firmness.
Finally, the offence requires proof that the accused intended to use or threaten violence or is aware that his or her conduct may be violent or may threaten violence.
If the prosecution evidence of the conduct of Rodney and Daniel Clavell is accepted, it is open to find that they intended to threaten violence or, at least were aware that their conduct may have threatened violence. If, in the case of Scott Charters, he knowingly encouraged the making of threats against the officers, then the same evidence would support a finding that he intended that others should threaten violence or that he realised the conduct he encouraged may result in threatened violence.
In my view, the judgment of the Magistrate in Police v Abdulla[5] relied upon by the Magistrate in the present case does not assist in the resolution of this case. Police v Abdulla turned on its own facts. It appears that the principal reason for the dismissal of the charges was the unreliable evidence, particularly the evidence of identification of the accused. The Magistrate in that case also concluded that, in the alternative, the charge of violent disorder was not an appropriate charge. Again, that conclusion was based on the particular facts of the case and the Magistrate’s view that an hypothetical person of reasonable firmness present at the scene would not have feared for his or her safety.
[5] Police v Abdulla (Unreported, Magistrates Court of South Australia at Berri, Magistrate O’Connor, 1 July 2010).
It follows from what I have said that a case to answer was made out against each respondent.
In these circumstances, the appeal will be allowed, the acquittal entered in relation to each respondent set aside, and the matter remitted for hearing before the Magistrate to be dealt with in accordance with these reasons.
Exhibit P4 – Cell Block, Ground Floor Bluebush Building