Police v Slobodian
[2008] SASC 69
•11 March 2008
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 Offences Act 1953 (SA) s 6(2) and s 17A(1); Magistrates Court Act 1991 (SA) s 42; Criminal Code Act 1899 (Qld), referred to.
Hunter v Walsh [1928] SASR 336; Smith v Samuels (1976) 12 SASR 573; Taylor v Hayes (1990) 53 SASR 282; Carlson v King (1947) 64 WN (NSW) 65; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247; Fleming v R (1998) 73 ALJR 1; Waterways Authority v Fitzgibbon (2005) 221 ALR 402; Semple v Mant (1985) 39 SASR 282; King v Police (2007) 247 LSJS 406; Walden v Hensler (1987) 163 CLR 561; Barker v The Queen (1983) 153 CLR 338, considered.
POLICE v SLOBODIAN
[2008] SASC 69Magistrates Appeal
GRAY J.
This Crown appeal raises important questions concerning the offence of trespass. The appeal also raises for consideration the adequacy of findings of fact in a reserved decision following lengthy contentious evidence.
Michael Slobodian, the defendant and respondent, was charged with trespassing on premises contrary to section 17A(1) of the Summary Offences Act 1953 (SA). He was further charged with resisting a police officer in the execution of her duty, contrary to section 6(2) of the same Act. Both charges were disputed. The trial Magistrate dismissed both charges.
Appellate review has been difficult, due to the absence of findings of fact on a number of relevant issues raised in the trial. However, my review of the evidence has satisfied me that a conviction should be recorded on the charge of trespass. On the charge of resist police, the order of dismissal should be set aside.
The Trial
It was the prosecution case that police were called to city premises of Centrelink as a consequence of the defendant’s disruptive behaviour. The defendant had been acting in an inappropriate and disorderly manner. The Magistrate made the following observation:
Much of the difficulty occasioned to [the defendant] could have been avoided had his attitude towards the two police constables been more temperate. However that fact that he chose to assert his rights aggressively and rudely does not ultimately bear upon the issue of his guilt or innocence.
The police officers who attended to address the disturbance at Centrelink gave evidence that following an initial discussion, the defendant, on several occasions, was told to leave the building and not return for 24 hours. One police officer acknowledged that it was possible that during her initial discussion, the defendant was informed that he could stay to conclude his discussion with a Centrelink officer and to collect his papers before leaving. The police officer was clear that the subsequent directions given to the defendant that he was to leave and not return for 24 hours were not in any way qualified.
Within minutes of being escorted by the police from the Centrelink premises, the defendant approached the premises with the apparent intention of re-entering. The police warned the defendant not to re-enter. He ignored this warning and entered the building.
The defence case was that the defendant had not been informed by the police that he could not return to the premises within 24 hours. His reason for returning was to collect documents belonging to his girlfriend. His defence to the charge of trespass was that he honestly believed that he was entitled to re-enter the premises to collect the documents. He claimed he had conditional permission to return to collect the documents. He denied that he had been informed on three occasions that he was not permitted to return within 24 hours. He denied that he was so informed on any occasion. On his account he was not escorted from the premises by the police. He claimed to have left quickly and voluntarily believing that he had all the papers. He then discovered that he did not, and returned to collect the papers. He did not hear any warning not to re-enter the building.
The Magistrate found that the defendant was lawfully directed to leave the Centrelink premises and it may be inferred that he found that the defendant was escorted by the police from the premises:
It was not contested that [the defendant] was lawfully required to leave Centrelink on the day of the alleged offences and I so find. The evidence also establishes beyond reasonable doubt that constables Chadbourne and Wortheim were requested to escort [the defendant] from Centrelink’s premises.
With respect to the charge of trespass, the Magistrate, in reserved reasons, concluded:
If [the defendant] believed that he was entitled to return to Centrelink to collect the rest of his documents, then he did not intend to trespass when he re-entered the building. I suspect that [the defendant] did have such a belief. I do not have to decide whether in fact, once [the defendant] realised that he did not have his partner’s statements, he was lawfully entitled to re-enter Centrelink’s building. I have a reasonable doubt, based on [the defendant’s] evidence, that he intended to re-enter the building as a trespasser.
[emphasis added]
A primary contention on appeal was that the Magistrate misapplied the statutory provisions concerning the charge of trespass. It was submitted by the police that it was necessary for the Magistrate, in resolving the issues at trial, to identify the elements of the offence of trespass and consider and assess the evidence in determining whether each element had been established beyond reasonable doubt. It was submitted that this process was not followed through by the Magistrate.
The defendant was arrested on his return to the building. The police gave evidence that the defendant resisted their attempts to handcuff him prior to his being transported to the City Watch House. This led to the charge of resisting the police. The defendant denied resisting arrest. He said that he was attempting to avoid what he perceived to be an unlawful assault upon him by the arresting police officers.
The Magistrate reached the following conclusion on the charge of resisting a police officer in the execution of her duty:
[The defendant] relied on the defence prescribed by Section 15(1) of the Criminal Law Consolidation Act 1935 as qualified by subsection (4). I do not think he was being arrested at the relevant time. That occurred minutes earlier when the two female police officers took [the defendant] into their custody and escorted him from the building for a second time. The police were however, exercising an ‘other power of law enforcement.’ They were in the process of transporting [the defendant] to the watch house.
In my view, the video footage provides at least some support for the suggestion that the police officers processing [the defendant] were using excessive force and that [the defendant] was defending himself. If the effect of subsection (4) is that [the defendant] must establish that, on the balance of probabilities, he genuinely believed on reasonable grounds, that the police were using excessive force then I find that he has done so. I make this finding on the basis of his oral evidence to me and on the basis of the video of the struggle. The prosecution have not disproved the Section 15(1) defence beyond reasonable doubt. The second charge will be dismissed.
On this charge, there were material disputes of fact between the evidence of the defendant and that of a number of prosecution witnesses. The Magistrate did not resolve these disputes, did not make findings as to credit, and did not make material findings of fact. The disputes were the subject of extensive evidence, occupying a significant part of the trial. It was further submitted by the police that the Magistrate misunderstood the prosecution case in regard to this charge.
Preliminary Observations
The Nature of the Appeal
An appeal from a magistrate is regulated by section 42 of the Magistrates Court Act1991 (SA), which relevantly provides:
(4)On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b) it may remit the case for hearing or further hearing before the Magistrates Court;
(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
(6)Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.
Section 42 provides for a hearing de novo. The appeal is a rehearing. The precursors to section 42, in substantially similar terms, have been the subject of extensive discussion in earlier authorities.[1]
[1] Hunter v Walsh [1928] SASR 336 at 339-340; Smith v Samuels (1976) 12 SASR 573 at 587-588; Taylor v Hayes (1990) 53 SASR 282 at 291.
On an appeal from a magistrate, this Court is to make an independent review of the evidence and to form its own view of the case. Due weight is to be given to the advantage of the Magistrate in having seen and heard the witnesses. Providing due weight is given to this consideration, this Court may, if it takes a different view on the evidence, substitute its view for that of the Magistrate. Alternatively, if this Court is satisfied that it is proper to do so, it may remit the matter for rehearing. As the Court is concerned with an appeal from a summary matter, it is important that if justice permits, a robust approach be taken to reach finality.
The Adequacy of Reasons
In Waterways Authority v Fitzgibbon,[2] the High Court considered that the failure of a primary judge to give “sufficient” or “adequate” reasons was an error of law. Hayne J, following Carlson[3] and Pettitt,[4] explained:[5]
Reference was made in argument to the “sufficiency” of the primary judge’s reasons. When it is said that a judge did not give “sufficient” reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer “to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision”. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
In the present case, however, reference to the “sufficiency” of the primary judge’s reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.
…
… The Court of Appeal is bound to rehear the case and the court, in doing that, may draw inferences and make findings of fact.
[emphasis added]
In the present proceeding, the Magistrate failed to make necessary findings of fact to enable the proper resolution of the issues arising on the trial. As earlier observed, the absence of relevant findings has made the task of appellate review difficult.
[2] Waterways Authority v Fitzgibbon (2005) 221 ALR 402.
[3] Carlson v King (1947) 64 WN (NSW) 65 at 66.
[4] Pettitt v Dunkley [1971] 1 NSWLR 376 at 382.
[5] Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [129]-[130], [132] (Hayne J) (footnotes omitted).
As will be discussed later, the Magistrate, with respect to the charge of trespass, appeared to have regard to asserted beliefs held by the defendant concerning his right to re-enter the building. It is unclear from the reasons as to what precise use the Magistrate made of this observation. He may have been addressing a defence of claim of right. Both counsel approached the appeal on this basis. This gives rise to important considerations under the statute, and in particular whether a claim of right can arise at all.
The Magistrate adopted the approach of recording what the defendant asserted in evidence about his belief, and then concluding that a reasonable doubt arose. It is not possible to discern the factual basis on which the Magistrate proceeded. If the Magistrate reached conclusions about the credibility of witnesses, he has not allowed a reviewer to understand and assess those conclusions. In regard to the charge of resist police, this is of particular significance. The defendant raised grave allegations of police misconduct that required careful and close consideration.
The Charge of Trespass
Before coming to discuss the submissions on appeal, it is important to review the relevant statutory provision, and to discuss the fault element that arises and whether a claim of right defence may arise.
The Statutory Provision
Section 17A of the Summary Offences Act provides:
(1) Where—
(a) a person trespasses on premises; and
(b) the nature of the trespass is such as to interfere with the enjoyment of the premises by the occupier; and
(c) the trespasser is asked by an authorised person to leave the premises,
the trespasser is, if he or she fails to leave the premises forthwith or again trespasses on the premises within 24 hours of being asked to leave, guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
...
(3) In this section—
authorised person, in relation to premises, means—
(a) the occupier, or a person acting on the authority of the occupier;
(b) where the premises are the premises of a school or other educational institution or belong to the Crown or an instrumentality of the Crown, the person who has the administration, control or management of the premises, or a person acting on the authority of such a person;
occupier, in relation to premises, means the person in possession, or entitled to immediate possession, of the premises;
offensive includes threatening, abusive or insulting;
Section 17A is contained in that part of the Summary Offences Act which is concerned with public order. Its focus is not the commission of an initial trespass, but the failure to leave or to return and trespass again within 24 hours after an initial trespass of a particular kind has been committed – one which interferes with the enjoyment of premises. Premises is widely defined. If a defendant commits an initial trespass of the kind defined, no criminal sanction follows unless he or she disobeys the direction to leave or returns within 24 hours. Section 17A does not criminalise the initial trespass, it criminalises a failure to leave premises following a trespass, or a return to trespass again within 24 hours thereafter.
In Semple v Mant,[6] the Court discussed the history to section 17A:[7]
Section 17a was inserted into the Police Offences Act by Act No. 53 of 1984. It joined s. 17, which was itself the subject of amendment in 1984. In essence, that section punishes people for being on premises for an unlawful purpose, or without lawful excuse. In Samuels v. Nicholson, this Court held that the test of the absence of lawful excuse within that section was whether the conduct of the person charged went beyond a mere matter of civil compensation and should be treated as a crime deserving punishment. In contrast to s. 17, the supply of a test is not called for by the language of s. 17a. By its terms, Parliament has prescribed the kind of trespass and trespasser who is to be “deserving of punishment”. Parliament has said that he who trespasses on premises commits an offence if, being asked to leave, he fails forthwith to leave provided that the nature of the trespass is of a certain kind. Not all trespassers are punished, but only those whose trespass is “such as to interfere with the enjoyment of premises by the occupier” ((b) of (1)), and who are “asked by an authorized person to leave the premises” ((c) of (1)).
[6] Semple v Mant (1985) 39 SASR 282 at 287 (footnotes omitted).
[7] At that time the section was numbered 17a.
In Semple v Mant[8] it was held that there must be a mental element established in a prosecution under section 17A. The defendant must know that he or she is trespassing, either at the time the trespass is commenced or when the person is asked to leave and fails to do so:[9]
Some reference was made in argument to what needs be proved under (a) of (1) of s. 17a. I think the structure of the section is such that one may trespass on premises, either initially, or after any implied licence is revoked. For this offence, mens rea is required: Barker v. The Queen. It is obvious in this case that the defendants knew, when they first went on to the leased land this night, that they were trespassers, or at least, were reckless as to the existence of facts making them trespassers. In any event, they were duly informed, by authorised persons, as to that fact before the activities identified with the trespass occurred, so that any doubt about trespass before then disappeared. I would not construe s. 17a as requiring the trespass to have preceded any request to leave. In this case I see no situation of implied licence of the kind considered or referred to in Halliday v. Nevill.
[8] Semple v Mant (1985) 39 SASR 282.
[9] Semple v Mant (1985) 39 SASR 282 at 287 (footnotes omitted).
It was submitted by counsel for the police that in King[10] Doyle CJ correctly identified the fault element for a breach of section 17A of the Summary Offences Act – that is, the defendant knowing that any implied permission has been revoked or was reckless as to the existence of facts making him a trespasser, failed to leave within 24 hours. It was not to the point in that case that the defendant may have held an honest belief that he was entitled to remain.
[10] King v Police (2007) 247 LSJS 406.
It is to be observed that both Semple and King involved a refusal to leave premises following the revoking of an implied permission. In this situation it is difficult to see how any claim of right could arise. The elements of the offence are the revoking of permission and the failure to leave. The relevant state of mind of the accused involves an awareness of those two matters.
The circumstance of a re-entry offence involves the further element that the defendant “again trespasses”. The section, on its express terms, requires there to be the further trespass. As observed in the earlier extracted passage in Semple, the prosecution must establish a relevant mens rea.[11]
[11] Semple v Mant (1985) 39 SASR 282 at 287 (footnotes omitted).
A Claim of Right Defence
The elements of the offence of trespass in issue in the present case involved the knowing or reckless entry by the defendant onto Centrelink’s premises within 24 hours of his removal from those premises following an earlier trespass. Those elements may be tabulated as follows:
-an initial trespass of such a nature as to interfere with the occupier’s enjoyment of its premises;
-an authorised person asking the defendant to leave;
-the defendant leaving but trespasses again within 24 hours of being asked to leave;
-the second trespass must be an entry by the defendant knowing that permission has been revoked or reckless as to the existence of facts making him a trespasser.
In Walden v Hensler,[12] the High Court discussed the question of intent and mistakes of fact and claims of right in the context of the Criminal Code Act 1899 (Qld). The Code provision bears a close relationship to the common law. Deane J observed: [13]
The phrase “honest claim of right” has no defined meaning for the purposes of the Code. Its connotation in s. 22 must be determined in the context of the opening provision of that section that ignorance of the law does not of itself afford any excuse for an action or omission which would otherwise constitute an offence and against the background of general common law principle to that effect. Plainly, the fact that a person can honestly say that he thought he was entitled to do the relevant act because he was unaware that it was proscribed by the criminal law does not suffice to provide him with a defence of honest claim of right under s. 22. Nor does an honest belief of some special entitlement to do the particular act with respect to property necessarily constitute such a defence. An honest belief of a special entitlement to do the act with respect to the property, such as belief of ownership, will only constitute a defence under s. 22 of the Code if that entitlement would, if well founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know …. In other words, it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.
...
It should be apparent from the foregoing that the answer to the question whether an honest belief of entitlement to act in a particular way with respect to property constitutes a defence of honest claim of right under s 22 of the Code can only be ascertained by reference to the elements of the alleged offence. If actual knowledge of criminality is an element of the offence, a defence of claim of right will be available to negate that element of the offence if the claim of right results in the absence of such knowledge. In the ordinary case where knowledge of the criminal law is assumed however, a defence of claim of right will not be well founded unless what was claimed or believed would, if it were the fact, have negatived an element of the actual offence or provided a good defence to it.
[emphasis added]
[12] Walden v Hensler (1987) 163 CLR 561.
[13] Walden v Hensler (1987) 163 CLR 561 at 580-581.
Dawson J noted that it was always necessary for the prosecution to prove the intent which forms the ingredient of a particular crime, and pointed out that any honestly held belief, whether reasonable or not, which is inconsistent with that intent, will afford a defence.[14] His Honour then discussed a wider principle – the existence of any state of mind, however limited, which is an element of a crime, may be negated by an honest and reasonable belief in the existence of circumstances which, if true, would make the impugned act innocent. Dawson J then discussed the defence of claim of right, and noted:[15]
It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner — to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs, per Lord Westbury. ...
In Reg. v Pollard, a claim of right was raised in answer to a charge of unlawful use of a motor vehicle. Gibbs J. observed that it was not to the point that the accused had no right to take the vehicle — a claim of right need only be honest and need not be reasonable — and observed that if he “honestly believed that he was entitled to take it, or if the jury had a reasonable doubt whether he had such a belief, he should have been acquitted, however wrong his belief may have been, and however tenuous and unconvincing the grounds for it may seem to a judge”. His Honour was not, however, referring to a belief on the part of the accused in an entitlement to behave as he did, that is to say, in the mere absence of a prohibition, but to a belief on his part that he was exercising a claim of right, that is to say, a legal entitlement to the vehicle arising under civil law which would negate the criminal intent involved in the offence with which he was charged, namely, unlawfully using a motor vehicle without the consent of the owner and without the consent of any person in unlawful possession thereof …
[emphasis added]
[14] Walden v Hensler (1987) 163 CLR 561 at 591.
[15] Walden v Hensler (1987) 163 CLR 561 at 592-594 (footnotes omitted).
The Court’s attention was drawn by counsel for the police to the High Court decision in Barker.[16] It was suggested that there was a possible conflict between observations in Barker and the authorities of this Court. However, it was further suggested that an analysis of Barker demonstrated that that case was distinguishable as a result of the different legislation under consideration.
[16] Barker v The Queen (1983) 153 CLR 338.
In Barker, Brennan and Deane JJ, when dealing with a statute which deemed it to be burglary for a person to enter a building as a trespasser with intent to steal, held that such a person could not be convicted unless “he knew or was reckless to the existence of the facts which made him a trespasser and that he did not enter in assertion of an honest claim of right to do so”.[17] These remarks were supported by Dawson J.[18]
[17] Barker v The Queen (1983) 153 CLR 338 at 366.
[18] Barker v The Queen (1983) 153 CLR 338 at 370.
The police submitted that if the fault element for the offence in Barker were to be applied to section 17A, it would make the section, if not unworkable, very difficult to apply. For example, the defendant in King could not have been convicted if he believed honestly, however erroneously, that he was entitled to disseminate information on the grounds of the University concerned. It appears clear from the submission made by the appellant in King that he believed he was entitled to attend at the University concerned and disseminate information – which would explain his refusal to leave and his subsequent arrest. However Doyle CJ concluded that once the defendant knew that he no longer had permission to stay, and refused to leave, he was guilty of the offence.
Counsel for the police submitted, however, that Parliament could not have intended that, to prove guilt of a section 17A offence, it must be proved not only that a defendant knew of all of the facts which made what he did a trespass, but also that he did not genuinely believe that he had the right to be on the premises, however ridiculous or wrong-headed that belief might be. Irrational, awkward or potentially violent individuals who create disturbances on private property would be immune provided they purported to hold a genuine belief as to their right to do what they were doing. These considerations, given that section 17A is concerned with public order, invite the conclusion that once a trespass of the particular kind specified occurs, it need only be proved that a defendant knew of the facts which made his actions a trespass of that kind and failed to leave, or, alternatively, left but returned and trespassed again within 24 hours.
It is difficult to understand the role a claim of right defence could have in the present case. The fact that the defendant may have believed that property to which he was entitled was still on the Centrelink premises did not give a right to re-enter the building. A reasonable and honest claim to retrieve property in the manner and circumstance in which the defendant sought to retrieve the property did not preclude a finding of trespass. An honest belief in a special entitlement to property does not necessarily constitute a defence – it would only do so if the entitlement would preclude what was done from constituting a breach of the relevant criminal law which the defendant was assumed to know. In other words, it is not the point to establish an honest belief of a special relationship with property, which even if it existed, would not constitute an answer to the offence charged.
The Present Case
The Magistrate’s finding that the defendant was lawfully required to leave and the inferred finding that he was escorted from the premises are significant. The findings appear to follow from an acceptance of the prosecution evidence about the directions given to the defendant to leave the premises and the fact that he was escorted from the premises. The defendant had caused a disturbance, was required to leave and was then escorted from the premises. To suggest that, at that time, the defendant was told that he could return at any time to collect his belongings, would appear to be inconsistent with this earlier finding.
The evidence led by the prosecution was sufficient to establish:
-an initial trespass by the defendant causing an interference with Centrelink’s enjoyment of its premises;
-that a police officer, an authorised person, directed the defendant to leave;
-that this direction was given on several occasions and was accompanied on each occasion with the further direction that the defendant was not to re-enter the premises within 24 hours or an offence would be committed;
-that the defendant was escorted from the premises by two police officers; and
-that the defendant knowingly and deliberately re-entered the premises within 24 hours.
The evidence to support the above was overwhelming.
The defendant, following the lawful directions to leave the premises, well knew that he had been informed that he was no longer permitted to remain on the premises. The mens rea, or fault element, that must be proved by the prosecution in this case was that the defendant knew, or was reckless, that he was a trespasser.
The lawful direction to leave was given, according to the evidence, in clear terms. As earlier observed, the Magistrate found that there had been a lawful direction to leave. It follows that the defendant knew, or was recklessly indifferent to the fact, that his permission to be on the premises had been revoked. His belief that despite that revocation he was still entitled to return to the premises for a particular purpose, was not a defence. He was made aware that his implied permission to be on the premises had been revoked. On his return to the premises within 24 hours of being removed from the premises, he again trespassed.
The Magistrate was in error in finding that the defendant did not intend to trespass. It was sufficient that the defendant knew that the occupier had revoked his permission to be on the premises and, with that knowledge, deliberately re-entered the premises and trespassed again.
As earlier noted, it was suggested that the Magistrate had misunderstood the prosecution case and had failed to address the principal issue. The Magistrate treated a suggested initial conversation as the central issue without giving consideration to the later directions given by the officer to the defendant.
The Magistrate in this respect observed:
On the basis of [the defendant’s] evidence and having regard to the evidence of Constable Chadbourne I have just referred to I have reasonable doubt that [the defendant] intended to trespass on Centrelink’s premises when he returned. It is clear that Centrelink staff delegated to the police the authority to require [the defendant] to leave. The requirement given was in qualified terms. The qualification was that [the defendant] had to leave but only after the completion of his business or alternatively the return of all of his paperwork. It is not necessary for me to make a precise finding as to whether the direction given to [the defendant] was the direction he deposed to or whether it was given in the terms suggested by Constable Chadbourne in re-examination. [The defendant’s] business with Centrelink was not complete until his partner’s documents had been returned to him. On any view of the evidence, the initial requirement for [the defendant] to leave was conditioned upon him receiving his partner’s paperwork.
If [the defendant] believed that he was entitled to return to Centrelink to collect the rest of his documents, then he did not intend to trespass when he re-entered the building. I suspect that [the defendant] did have such a belief. I do not have to decide whether in fact, once [the defendant] realised that he did not have his partners statements, he was lawfully entitled to re-enter Centrelink’s building. I have a reasonable doubt, based on [the defendant’s] evidence, that he intended to re-enter the building as a trespasser.
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.
Counsel for the police on the appeal submitted that video footage of the encounter by the defendant with the police prior to his being taken to the City Watch House showed a number of police attempting to subdue the defendant, who was clearly resisting the police efforts. This evidence, together with the evidence of the police officers concerned, and the evidence of the behaviour of the defendant within the premises of Centrelink earlier that day, was said to be sufficient to disprove any assertion by the defendant that his resistance was for a defensive purpose, and that, furthermore, he genuinely believed, on reasonable grounds, that the police were acting unlawfully.
The police submitted that there appeared to be no dispute that the defendant resisted the police when they attempted to handcuff his arms behind his back. The video footage showed, it was said, that the defendant resisted efforts to handcuff him and place him in the rear of a police vehicle. When assessing the defendant’s credibility, it was said to be relevant for the Magistrate to consider his behaviour toward Centrelink staff and to the police prior to the alleged resistance of the police.
The Magistrate’s reasons with respect of the charge of resisting police were perfunctory. In addition to the two paragraphs earlier referred to, the Magistrate reasoned:
As I have already indicated the events giving rise to the second charge occurred after [the defendant] was escorted from Centrelink for the second time. A tape of closed circuit television footage was viewed during the course of the trial and tendered in evidence. The tape shows [the defendant] standing quietly outside Centrelink with Constables Chadbourne and Wortheim. After a few minutes a cage car arrives and [the defendant] presents his hands extended in front of himself for handcuffing. Quite a bit of what subsequently occurred takes place behind the cage car and is obscured by it. [The defendant’s] evidence was that when he was taken behind the cage car, and as he attempted to get in to it, his head was pushed into the back of the cage car and his arms pulled back over his shoulders causing him to cry out in pain. [The defendant] claims that he was stunned by the hit on the head. The apparent struggle which subsequently ensued is explained by [the defendant’s] attempting to relieve the pressure on his arms so as to ease the pain the pressure was causing.
Constable Chadbourne said that as the police attempted to handcuff [the defendant], [the defendant] lifted his knees almost to his chest so as to make the police officers bear his weight. [The defendant] then had to be placed on the ground. The closed circuit television footage does not show such an event.
The evidence of Theodore Paul Damboudis, a security guard, provided an independent account of the events during which the defendant claimed to have had his head pushed into the back of the police vehicle. The substance of Mr Damboudis’ evidence was that, prior to the defendant being removed from the Centrelink premises, he had to physically restrain another customer from attacking the defendant because of the defendant’s behaviour. He then witnessed the altercation between the defendant and the police at the entrance to the Centrelink premises. His recounting of events was consistent with the police evidence. He gave evidence that he did not see the defendant assaulted in the way alleged. The Magistrate does not appear to have given consideration to this evidence.
This was a case that called for a careful analysis of the extensive oral evidence given by the police officers, the defendant and importantly, an independent eyewitness. Allegations of police misconduct are serious matters and should be the subject of careful consideration.
A review of the Magistrate’s reasons discloses that he did not address the critical question of whether the defendant resisted the police officers’ attempts to handcuff him. The Magistrate addressed the question of the broader struggle. The Magistrate did not make findings of credit or clear findings of fact. For example, as earlier noted he said:
In my view the video footage provides at least some support for the suggestion that the police officers processing [the defendant] were using excessive force and that [the defendant] was defending himself.
A difficulty with this observation is that the Magistrate does not identify the parts of the video footage that provided support to the defendant’s account of events. Critically, the suggestion that the defendant’s head was pushed into the cage car received no support from the video footage.
Having reviewed the video footage, I have reached the conclusion that it is difficult to find any material support for either the account of the witnesses for the prosecution or that given by the defendant. It may be possible to discern some support for the police account that the handcuffing process was the subject of some resistance. However, the camera that recorded this footage was mounted in a permanent position. Much of what occurred was obscured. There was undoubtedly a struggle but beyond that little can be said.
The Magistrate was required to address the issues arising on the charge of resist police. If possible, findings of fact on disputed issues should have been made. Where necessary, conclusions on the credibility and reliability of witnesses should have been reached. The Magistrate did not attend to these matters. He should have done so. In these circumstances, the dismissal of the charge of resisting a police officer in the execution of his duty should be set aside. It is not possible on the hearing of the appeal to reach conclusions concerning the credibility and reliability of the witnesses and accordingly the matter will need to be reheard.
Conclusion
I make the following orders:
-The orders of the Magistrate dismissing the charges of trespassing on premises and resisting a police officer in the execution of her duty, are set aside. The order of the Magistrate that the police pay the defendant’s costs and expenses fixed at $6,050 is set aside.
-The defendant is convicted of the offence of trespassing on premises contrary to section 17A of the Summary Offences Act. The defendant is remitted for sentencing to a differently constituted Magistrates Court.
-The charge of resisting a police officer in the execution her duty contrary to section 6(2) of the Summary Offences Act is remitted to a differently constituted Magistrates Court for re-hearing.
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