Police v Slobodian - [2008] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SLOBODIAN
[2008] SASC 69
Judgment of The Honourable Justice Gray
11 March 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
Crown appeal against decision of magistrate dismissing charges of trespass (section 17A(1) Summary Offences Act 1953 (SA)) and resist police (section 6(2) Summary Offences Act) – charges arose as a consequence of respondent’s disruptive behaviour at Centrelink office and his subsequent arrest – prosecution claimed that respondent unlawfully re-entered the premises following his direction by police to leave and not return within 24 hours – primary issue at trial concerned terms of police direction, and the manner in which respondent left the premises – respondent denied that express direction to leave was given and claimed “honest claim of right” defence to trespass charge – respondent denied that he was escorted by police from premises and claimed he left voluntarily – respondent claimed that he honestly believed that that he was entitled to re-enter the premises to collect documents belonging to his partner, and that he had conditional permission to re-enter the premises for this purpose – respondent denied resisting police and claimed self-defence to a perceived unlawful assault by police – dispute arose at trial between evidence of respondent and prosecution witnesses – magistrate did not resolve dispute or make material findings of fact and credit – consideration of nature of appeal under section 42 of Magistrates Court Act 1991 (SA) – consideration of obligation of primary judge to make material findings of fact – consideration of scope and purpose of section 17A – consideration of requisite fault element for section 17A offence – consideration of availability “honest claim of right” defence – whether magistrate erred in finding that prosecution had not established fault element for trespass offence beyond reasonable doubt – whether magistrate erred in finding that prosecution had not disproved respondent’s defence of self-defence beyond reasonable doubt.
Held (allowing the appeal): conviction recorded on trespass charge – fault element for section 17A offence is knowing or reckless re-entry with an awareness that permission to be on premises has been refused – prosecution evidence established that respondent was lawfully directed by police to leave premises – prosecution evidence established section 17A fault element beyond reasonable doubt – “claim of right” defence not available to trespass charge – dismissal of resist police set aside – magistrate failed to make inadequate findings of fact with respect to resist police charge – not possible on appeal to make findings with respect to resist police charge.
Summary…

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 Slobodian

Details

AGLC: Police v Slobodian [2008] SASC 69
Case: [2008] SASC 69
Decision Date: 11 March 2008

CaseChat Overview and Summary

The appeal in Police v Slobodian concerns the Crown's appeal against the decision of a magistrate who dismissed charges of trespass and resisting police. These charges arose from the respondent's disruptive behaviour at a Centrelink office and his subsequent arrest. The primary issues at trial were the terms of the police direction given to the respondent and the manner in which he left the premises. The respondent denied receiving an express direction to leave and claimed an "honest claim of right" defence to the trespass charge, asserting that he left the premises voluntarily and believed he was entitled to re-enter to collect documents belonging to his partner. He also denied resisting police, claiming self-defence against an alleged unlawful assault. The magistrate did not resolve the factual disputes between the respondent's and prosecution's evidence, nor did they make material findings of fact and credit.

The legal issues before the court involved the obligation of the primary judge to make material findings of fact, the requisite fault element for the section 17A offence, and the availability of the "honest claim of right" defence. The court examined whether the magistrate erred in finding that the prosecution had not established the fault element for the trespass offence beyond reasonable doubt and whether the magistrate erred in finding that the prosecution had not disproved the respondent's defence of self-defence beyond reasonable doubt. The court held that the magistrate erred in law by failing to address the issues in dispute and make relevant findings. The fault element for the section 17A offence is knowing or reckless re-entry with an awareness that permission to be on the premises has been refused. The prosecution evidence established that the respondent was lawfully directed by police to leave the premises and that the section 17A fault element was met beyond reasonable doubt. The "claim of right" defence was not available to the trespass charge. The dismissal of the resist police charge was set aside due to the magistrate's failure to make adequate findings of fact.

The Supreme Court of South Australia allowed the appeal and set aside the magistrate's order dismissing the charge of trespass, finding that the magistrate had erred in law. The court concluded that the magistrate's failure to make relevant findings and address the disputed issues meant a retrial was necessary to avoid a risk of miscarriage of justice. The court also set aside the dismissal of the resist police charge due to the magistrate's failure to make adequate findings of fact on this charge.

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

GRAY J

It is relevant that the Magistrate concluded that he did not have to decide whether the direction given to the defendant was the direction deposed to, or whether it was given in the terms suggested by Constable Chadbourne in re-examination. However, this was not the primary issue. The primary issue related to whether subsequent unequivocal directions had been given to the defendant on three occasions that he was not to re-enter the premises for 24 hours and that if he did so he would commit an offence. Conclusion on Trespass The above reasons lead to the conclusion that the Magistrate’s order dismissing the charge of trespass should be set aside. The Magistrate erred in law. The Magistrate failed to address the issues in dispute and to make relevant findings. The question arises as to whether there should be a retrial. As earlier observed, there is a need, where possible, for a court on the hearing of a magistrate’s appeal to be robust. Such an approach, however, must not give rise to a risk of a miscarriage of justice. As earlier observed, the Magistrate concluded that the police had lawfully required the defendant to leave the premises. Again, as earlier observed, the evidence of the police officers of this requirement, as supported by the Centrelink officers, was overwhelming. There was also overwhelming evidence that the police escorted the defendant from the premises. There was also a substantial body of circumstantial evidence to support the Magistrate’s conclusion. The whole point of having the police attend was to ensure that the defendant was removed from the premises. The police were requested to provide an escort. To allow the defendant the right to return to collect papers was inconsistent with the purpose of calling the police and the terms of the instructions given to them. The statements made to the defendant by the police were clear in their terms and were uttered when the defendant was in close proximity. The statements were made directly to the defendant. The statements would have left the defendant in no doubt that he was not to re-enter the premises for 24 hours. It was also clear that if the defendant chose to ignore the direction he would be liable to be arrested for the offence of trespass. The effect of the statements was reiterated to the defendant immediately prior to his return to the premises. The Magistrate’s finding that the defendant held a belief that he was entitled to return to collect his partner’s papers did not provide any defence. No claim of right could arise from this belief. The relevant mental element was the knowing re-entry with an awareness that permission had been refused. In these circumstances the Magistrate should have convicted the defendant of the charge of trespass.Resist a Police Officer in the Execution of Duties During the course of the prosecution opening, the Magistrate was informed that the charge of resisting the police officer related to and was restricted to the conduct of the defendant in tensing his arms and holding his arms in a way that precluded the officers’ attempts to handcuff him. The later struggle was not the subject of the resist charge.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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