POLICE v THOMPSON No. SCGRG-98-1675 Judgment No. S138

POLICE v THOMPSON
[1999] SASC 138

Magistrates Appeal
Nyland J

This is a Crown appeal against the dismissal of a charge of hindering the police. The respondent, (whom I will continue to refer to as the defendant), was charged on complaint that on 20 July 1998, at Tailem Bend, he hindered Ian Lewis Gibbons, a member of the police force in the execution of his duty, contrary to s6(2) of the Summary Offences Act 1953. The matter came on before a stipendiary magistrate on 27 November 1998 at Murray Bridge. The defendant, who was represented by Ms Abbott of counsel, pleaded not guilty.
The facts giving rise to that charge were that Constables Gibbons and Dridan and Senior Constable Woods, had gone to the defendant’s home to locate a man by the name of Donald Morris who was wanted for criminal damage. The police officers had previously searched the premises unsuccessfully at about 10pm. After noticing a car parked outside the premises about an hour later, the police officers returned and asked to search the premises again. Gibbons proceeded to a shed at the rear of the house, where he encountered the defendant standing in the doorway. Gibbons testified that as soon as he opened the shed door, the defendant said:
“‘What the fuck are you doing?’.
I said ‘I am searching for Donald Morris. Have you seen him?’.
He said ‘No. I am just here. No-one else is here’.
I said ‘I have permission to search the rear yard. Excuse me’.
He said ‘Yes, okay’.”
Upon searching the shed, Gibbons located Morris, took him by the arm and escorted him towards the shed door, at which time he encountered the defendant standing in the doorway with a large Rottweiler dog. Gibbons testified that the following conversation then ensued between he and the defendant:
“Thompson said ‘Let him go’.
I said ‘Get out of the way. He is under arrest’.
He said ‘Get out of the way’.
I said ‘Get out of the way and get the dog away’.
He said ‘I will when you let him go’.
I said ‘You are hindering me. Get out of the way’.
He said ‘No, let Don go and I will’.”
During this conversation, the dog was uncollared and the defendant was holding it by the scruff of the neck. Gibbons said
“The dog was going absolutely berserk at that stage, going troppo. Thompson was pushing and pulling at the dog. That seemed to rile the dog up even more. It was just going ballistic. The dog was lunging forward at me and the other offender. I was scared, really scared at that stage.”
Nevertheless, it was agreed that the dog did not get out of control or break free from the defendant’s grip at all during the whole incident. The dog did, however, bite Morris while it was still under the control of the defendant. At that point, Gibbons said “If you don’t get rid of the dog I will shoot it”, to which the defendant replied “No-one threatens to shoot my dog.” Gibbons told the defendant to “get out of the way or you will be arrested”. He then called for help from Woods and Driden. The defendant eventually took the dog from the shed. Gibbons denied that this was after the situation had calmed down somewhat. After having placed Morris in the police car, Gibbons returned to the house and advised the defendant that he was under arrest for hindering police.
The evidence of Driden was that, during the second search of the premises, he entered the rear yard of the house to observe Gibbons conversing with someone in the doorway of the shed. At this time the dog was locked up in the laundry. He said he saw Gibbons proceed to search the shed and observed the defendant walk out of the shed and back to the laundry. Driden said that, in due course, he saw the defendant walk back to the doorway of the shed, holding a Rottweiler dog by the scruff of the neck. His testimony as to the ensuing events was largely consistent with Gibbons’ testimony. The notable discrepancy between the evidence of these two witnesses was that Gibbons testified that the defendant repeatedly pushed the dog towards him and Morris and then pulled it back again, whereas Driden said that the dog was attempting to lunge forward before being pulled back by the defendant.
Woods testified that during the second search of the premises, he was inside the house when he heard a commotion consisting of yelling and barking. He proceeded to the rear yard. His evidence as to the incident in the shed doorway was also consistent with that of Gibbons, with the exception that he, like Driden, said that the dog lunged forward and was pulled back by the defendant.
At the conclusion of the prosecution case, the transcript records that Ms Abbott made submissions “re no case to answer”. There is, however, no record of the specific submissions made by Ms Abbott on the defendant’s behalf. Immediately thereafter the magistrate delivered his judgment in which he found that there was “no case to answer”. In making that finding the learned Magistrate noted that none of the police officers was able to say how the dog got outside the house again and appeared near the door with the defendant. He found that none of their evidence could be taken as inconsistent with the defendant attempting to restrain the dog. The learned Magistrate said:
“[T]he actions of the defendant as described must be taken or can certainly be taken as consistent with a person endeavouring to restrain the dog, that cannot be excluded by the prosecution. The mere presence of the defendant with a savage dog and occupying the door area of the small shed in my view cannot of itself amount to an overt act constituting interference with the efforts of the police to deal with the man, Morris. The evidence I think remains equivocal.”
Mr Ahern who appeared for the appellant on the hearing of the appeal submitted that the approach taken by the magistrate amounted to an error of law. The appropriate question to be posed in order to determine whether there is a case to answer is that set out by King CJ in R v Bilick and Starke (1984) 36 SASR 321 wherein he said (at 337):
“On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused.”
King CJ further elaborated on this matter in Question of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1 at 5 where he said:
“If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be”.
Applying those principles to the present case, if the magistrate was purporting to find that there was, as a matter of law, no case to answer, then I agree with the appellant that the magistrate was in error. While the evidence may be tenuous, it seems clear that, if the evidence of the police officers, and particularly that of Gibbons, is taken at its highest then it can be construed as capable of proving the elements of the offence set out in s6(2) of the Summary Offences Act 1953. That section provides: “A person who hinders or resists any member of the police force in the execution of the member’s duty is guilty of an offence”. Gibbons’ was clearly attempting to execute a duty in his capacity as a police officer and, if his testimony is accepted, then it would appear that the defendant hindered him in the execution of that duty. However, accepting that as a matter of law there was a case to answer, the issue then arises as to whether this would have been an appropriate case for the Magistrate, sitting in his dual capacity, to, as it were, give himself a Prasad direction. R v Prasad (1979) 23 SASR 161 is authority for the validity of adopting that approach in courts of summary jurisdiction. King CJ said (at 163):
“I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts.”
I therefore turn to consider whether the evidence was such that a Prasad direction would have been appropriate in this case. The learned Magistrate found that:
“[O]n the evidence of the prosecution witnesses, none of them is able to say how the dog got outside the house again and appeared near the door with the defendant. ... The evidence of Dridan and certainly Woods is also such as not to exclude the dog having unintentionally on the part of the defendant got out of the laundry as the defendant returned to the shed. Dridan became aware of the defendant again near the door of the shed holding the dog.”
I accept Mr Ahern’s submission that this was a somewhat misleading summary of the evidence, given that Driden purported to explain how the dog got back to the doorway of the shed. He testified that the defendant “returned very shortly after leaving the shed and he was holding the Rottweiler dog by the scruff of the neck and walked back towards the doorway of the shed” (Tr 25).   However, I reject Mr Ahern’s submission that Dridan gave clear evidence with respect to this issue. During cross-examination, Driden said that he saw the defendant walk out of the shed towards the back door. He was then asked (Tr 33):
“Q.    Didn’t you look behind?
A..... I saw the defendant walk towards the laundry door. I then directed my observations back to Gibbons.
Q.    What happened thereafter behind you don’t know.
A.    No.”
The other factors which I consider to be relevant are, firstly, the discrepancy in the evidence as to whether the dog was being pushed towards Gibbons by the defendant or whether it was lunging forward of its own accord, as highlighted earlier. Secondly, it appears that the visibility at the time of the incident was poor. It was after 11 o’clock at night, the lighting around the shed was “fairly poor” (Tr 39) and the evidence of the police officers was not clear with respect to whether they were carrying torches or not. Thirdly, there was some inconsistency in the evidence as to whether the defendant took the dog away from the shed at a point when the yelling and barking had died down, or whether he removed the dog following Gibbons’ threat to shoot it. It is clear that defence counsel was attempting to establish the former during cross-examination, presumably in order to support the argument that the defendant was merely trying to restrain the dog and that when it ceased barking he was able to lead it away.
In my opinion, therefore, it was open to the magistrate to find that the evidence of the police officers did not exclude explanations consistent with the defendant’s innocence.
At the hearing of this appeal, Mr Ahern conceded that “[i]t is not difficult to understand that there would frequently be cases in front of magistrates, that notwithstanding that the prosecution is able to jump that first hurdle and demonstrate that there is evidence that could prove every element of the case, even so, there are significant problems with that evidence viewed as a whole”. In my opinion, having carefully considered the evidence, this was one of those cases.
Although the magistrate expressed himself in the terms of no case to answer it must be remembered that these were ex tempore remarks delivered by an experienced magistrate who would have been well aware of the two stage approach to a consideration of the evidence of the prosecution witnesses. As the trier of fact he was entitled to reach a decision at the close of the prosecution case that, notwithstanding there was a case to answer, the evidence was so weak that it would not justify a conviction. In any event, even if the magistrate did in fact dismiss this case on the basis that there was no case to answer and thus erred in law, I do not think that any miscarriage of justice has occurred as a result.
In view of the reasons of the magistrate in support of his findings, it is highly likely that an acquittal of the defendant would follow should the matter be remitted to the Magistrates Court, to be heard by a magistrate who properly instructed himself as to the strength of the prosecution case. In my opinion, therefore, the appeal should be dismissed.

[1999] SASC 138

8 April 1999