Police v Rose - [2023] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v ROSE
[2023] SASC 151
Judgment of the Honourable Justice Bampton
19 October 2023
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appeal against the respondent’s acquittal by a Magistrate of assault by accosting contrary to s 20(1)(e) of the Criminal Law Consolidation Act 1935 (SA) – where Magistrate found respondent was entitled to obtain the details of the driver of a motor vehicle enforcing the driver’s “obligations under the Australian Road Rules” – whether Magistrate’s reasons were adequate – whether the respondent’s alleged conduct was justified under the Australian Road Rules.
Held: Appeal allowed – acquittal set aside in respect of count 2 – trial of count 2 remitted to Magistrates Court for rehearing before another Magistrate.
Criminal Law Consolidation Act 1935 (SA) ss 85(4), 20(1)(e), 20(2), 5B; Magistrates Court Act 1991 (SA) s 42; Domestic Violence Act 1995 (NZ); Joint Criminal Rules 2022 (SA) rr 2.2(5), 185.1; Australian Road Rules (SA) rr 287, 287(3)(b), 287(2), 287(3), 287(4); Road Traffic (Road Rules - Ancilliary & Miscellaneous Provisions) Regulations 2014 (SA) reg 39, referred to.
Baird v New Zealand Police [2001] NZHC 448; Police v Baker (2015) 123 SASR 468; Weinel v Rojas Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994; Semple v Williams (1990) 156 LSJS 40; Director of Public Prosecutions (Commonwealth) v Brown (1994) 72 A Crim R 527; Theophilus v Police (2011) 110 SASR 420; Nasr v Police [2017] SASC 138, considered.

POLICE v ROSE
[2023] SASC 151
Magistrates Appeal: Criminal

BAMPTON J: On 13 December 2022, Norman Rose was acquitted of two offences charged on a Magistrates Court Information arising out of what the trial Magistrate referred to as “a road rage incident”.
By count 1, Mr Rose was charged with threating to damage the property of Jane Kronitis (“Ms Kronitis”) on 24 August 2020 without lawful excuse and being recklessly indifferent as to whether a fear that the threat would be or was likely to be carried out was aroused, contrary to s 85(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). By count 2, Mr Rose was charged with assaulting Ms Kronitis on 24 August 2020, contrary to s 20(1)(e) of the CLCA.
On 10 January 2023, the Commissioner of Police (“the Commissioner”) filed a notice of appeal against the acquittal in respect of count 2 only.
Mr Rose was legally represented during the Magistrates Court trial. As Mr Rose was unrepresented on appeal, the hearing of the appeal was adjourned on 5 April 2023 to allow Mr Rose the opportunity to seek legal advice and obtain representation. Mr Rose appeared unrepresented at the adjourned hearing on 28 July 2023.
A preliminary point
Before I discuss the grounds of appeal, I will deal with…

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 Rose

Details

AGLC: Police v Rose [2023] SASC 151
Case: [2023] SASC 151
Decision Date: 19 October 2023

CaseChat Overview and Summary

The case of Police v Rose involved an appeal by the Commissioner for Police against the acquittal of the respondent, Mr Rose, on a charge of assault. The appeal was heard by the Supreme Court of South Australia. The primary issue before the court was whether the Magistrate’s decision to acquit Mr Rose was correct in law, specifically whether the Magistrate erred in concluding that Mr Rose’s conduct was justified or excused by law.

The court examined whether the Magistrate made the necessary findings about the events in the Park Holme Shopping Centre carpark, which were critical to determining if Mr Rose’s conduct was lawful. The court found that the Magistrate did not adequately address the conflict in the evidence between Mr Rose and the prosecution witnesses. Additionally, the court noted that the Magistrate failed to explain how he resolved this conflict and reached the conclusion that Mr Rose’s conduct was justified or excused by law. The court also considered whether Rule 287 of the Acts and Regulations Rules conferred on Mr Rose a right to compel compliance in a manner that could constitute a criminal offence. The court concluded that Rule 287 did not confer such a right, and therefore the Magistrate’s finding that Mr Rose’s conduct was justified or excused by law was in error.

Based on these findings, the court allowed the appeal, set aside the acquittal, and remitted the trial of count 2 to the Magistrates Court for rehearing before another Magistrate. The court's decision highlighted the importance of the Magistrate making clear and reasoned findings when determining the justification or excuse for conduct under the law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Rose maintained the appeal was out of time. He asserted the Magistrate got it right and that Ms Kronitis lied. He said he did not agree one bit with the submissions of the Commissioner’s counsel and if the matter was sent back for a retrial he could prove the evidence of the prosecution witnesses to be false. Conclusion Ms Duncan gave evidence in cross-examination that there was no incident involving Mr Rose’s van being hit by Ms Kronitis’ car. She said Ms Kronitis stepped out of her car, did not open another door of her car, and walked straight to the post office. This evidence is inconsistent with Mr Rose’s account to police. As submitted by the Commissioner, considering this conflict in the evidence, it was incumbent on the Magistrate to make a finding about what occurred in the carpark as it was a necessary antecedent to the possibility of lawful justification or excuse. The Magistrate’s reasons do not discuss whether r 287 of the ARRs conferred on Mr Rose a right to compel compliance with the rule in a manner that could otherwise constitute a criminal offence. I accept the submission that, even if it was accepted Ms Kronitis had been involved in a crash and had left the scene without providing particulars in accordance with r 287(2) of the ARRs, Mr Rose was not entitled to enforce Ms Kronitis’ obligation by accosting her in a threatening manner. As submitted, the law may not prohibit a person asking another person for their personal details in response to a crash. However, the law plainly restricts how such information can lawfully be obtained. This includes the prohibition of the extraction of that information by means of assault. The grounds of appeal have been made out. There was no finding about what occurred in the Park Holme Shopping Centre carpark and whether a crash occurred, which was a necessary antecedent to the possibility of the defence under s 20(2) of the CLCA. Further, the Magistrate did not explain how he resolved the conflict between the evidence of the prosecution witnesses and Mr Rose, nor did he explain how he reached the conclusion that Mr Rose’s conduct was justified or excused by law. Rule 287 of the ARRs does not confer a right to compel compliance with the rule in a manner that could otherwise constitute a criminal offence. Accordingly, the finding that Mr Rose’s conduct was justified or excused by the law was in error. The prosecution appeal should be allowed for the purpose of correcting error. I therefore make the following orders:1.I allow the appeal. 2.I set aside the acquittal in respect of count 2. 3.I remit the trial of count 2 to the Magistrates Court for rehearing before another Magistrate.

Ratio Decidendi

Legal Principle Established

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