Tazroo v Police - [2004] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAZROO v POLICE
Judgment of The Honourable Justice White
7 July 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - FRESH EVIDENCE - AVAILABILITY AT TRIAL; MATERIALITY AND COGENCY
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - GENERALLY
Appeal against conviction on two counts - Circumstances in which fresh evidence could be admitted not present - Magistrate considered relevant evidence and submissions - No requirement for corroboration - Magistrate made comments indicating that she had subsconsciously reversed onus of proof - Insufficient evidence to support finding of guilt on one count - No retrial ordered on that count - Retrial ordered on other count.
Magistrates CourtAct 1991 (SA) s 42; Summary Offencs Act 1953 (SA) s6, s 41; Criminal Law Consolidation Act 1935 (SA) s 131; Supreme Court Rules r 96C, referred to.
R v McIntee (1988) 38 SASR 432; Darling v Police (2003) 228 LSJS 59, applied.

TAZROO v POLICE
[2004] SASC 196
Magistrates Appeal
WHITE J:
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Courts Act 1991, against conviction.
On 23 May 2003, the appellant was charged on complaint with five offences, each of which was alleged to have occurred on that day. The first two counts alleged larceny contrary to s 131 of the Criminal Law Consolidation Act 1935. The appellant pleaded guilty to those charges and was sentenced for them some time ago. Those counts do not form part of the present appeal.
The charge on the third count was that of unlawful possession of a bracelet, contrary to s 41(1) of the Summary Offences Act 1953. That charge was withdrawn by the prosecution on 10 March 2004.
It is the fourth and fifth counts which give rise to the present appeal. The fourth count alleged that the appellant had, on 23 May 2003, at Adelaide, assaulted Philip Walsh, a member of the Police Force whilst in the execution of his duty, contrary to s 6(1) of the Summary Offences Act. The fifth count alleged that the appellant had, on 23 May 2003, at Adelaide, resisted Philip Walsh, a member of the Police Force in the execution of his duty, contrary to s 6(2) of the Summary Offences Act.
The appellant pleaded not guilty to those charges. The trial took place before a Magistrate on 10 March 2004. The appellant was found guilty on both charges. The appellant appeals against the decision of the Magistrate finding him guilty of both offences.
The Notice of Appeal was filed on 1 April 2004. Thus, an extension of the time fixed by Supreme Court Rule 96C.02 is required. The grant of an extension of time was opposed by the respondent but only on the ground that the appeal was, in the respondent’s submission, without merit. In those circumstances, it was agreed that I would hear the submissions on the appeal. If I consider that there is merit in the grounds, then it would be appropriate to grant the extension of time sought. On the other hand, if I consider that the appeal is without merit, then it would be appropriate to refuse the extension of time.
The appellant had legal assistance at the time the appeal was instituted. However, on the hearing of the appeal, he was unrepresented. English is not the first language of the appellant and he had some difficulty in making submissions on his own behalf. In considering the appeal, I have had regard not only to what the appellant said in the course of his oral submissions, but also to the grounds contained in the Notice of Appeal, and to the matters deposed to in the affidavit of the appellant’s former solicitor, Ms Matson, sworn on 1 April 2004. In addition, a reading of the transcript of the hearing before the Magistrate reveals the matters relied upon by the appellant at that time by way of defence.
Application to Tender Fresh Evidence
On the hearing of the appeal, the appellant requested that I receive some further evidence. His first request was that he be permitted to adduce evidence from a Group 4 officer, known to the appellant only by his first name, Mark. The Group 4 officer was present in the City Watch-house at the time the events which form the basis for counts 4 and 5 are said to have occurred. The Group 4 officer was not available to give evidence at the time of the hearing of the appeal. If I had decided to grant the application, the hearing of the appeal would have had to have been adjourned so that the Group 4 officer could be subpoenaed. I refused the appellant’s application. I did so because I was not satisfied, on the basis of what I was told by the appellant, that the Group 4 officer would be able to add, in any significant way, to the evidence given at trial about what had occurred in the Watch-house and for the further reason that a satisfactory explanation for the failure to adduce evidence from that officer at the trial had not been provided.
In the course of his submissions in reply, the appellant also sought to adduce fresh evidence by tendering a copy of an apprehension report made by Constable Walsh. I declined to receive that apprehension report by way of fresh evidence. That apprehension report had been available to the appellant’s counsel at trial and indeed, counsel had sought to tender the report but did not persist with that tender in the light of a comment from the Magistrate. In those circumstances, it did not seem to me that the circumstances in which fresh evidence might be admitted existed: R v McIntee (1988) 38 SASR 432.
The Factual Circumstances
On 23 May 2003, at approximately 10.30 am, the appellant was arrested by two police officers, Constables Walsh and Bailey, in Grenfell Street, Adelaide in relation to the conduct which became the subject of count 2. He was taken to the City Watch-house. At approximately 11.30 am that same day, the appellant was taken to a room in the Watch-house to be interviewed. The interview was conducted by Constable Walsh, with Constable Bailey assisting. The interview was videotaped.
The videotape was tendered and shows clearly enough that the appellant did not wish to be interviewed and wished instead to be taken before a court as soon as practicable. In the words of the appellant’s counsel at trial, the appellant “wasn’t very cooperative” and the interview was not a calm process. The Magistrate concluded that the appellant was agitated by reason of the fact that the interview was continuing, despite his protest that it stop and his request to be taken into court.
The conduct found by the Magistrate to comprise the offences in counts 4 and 5 occurred very shortly after the interview ceased. Constable Bailey attended to stopping the videotaping and marking tapes. Constable Walsh held the appellant in, what he called, the “escort” position, preparatory to leaving the interview room.
Constable Walsh described the escort position in this way: he stood to the left of the appellant, slightly behind him holding the appellant’s left wrist with his left hand and the appellant’s upper left hand with his right hand. He then walked with the appellant to the door of the interview room. When they reached the door, Constable Walsh says he released his right hand from the appellant’s left upper arm and reached, with that arm, around the appellant to the door handle. It is unclear to me, both on the evidence and on the Magistrate’s findings, whether he reached around the back, or across the front, of the appellant.
Constable Walsh says that as he took hold of the door handle, the appellant’s left hand brushed his left thigh. Constable Walsh responded by pushing it away. He said in evidence that the appellant then tensed, and as he (Constable Walsh) was opening the door, the appellant grabbed (with his left hand) “a full handful” of his (Constable Walsh’s) genitals, squeezed them and twisted them for five or six seconds. This caused “slight discomfort”. Constable Walsh says he asked the appellant to let go to which the appellant responded by relaxing the pressure but without releasing his hold altogether.
Constable Walsh then completed opening the door, took hold again of the appellant’s upper left arm with his right hand and then pushed the appellant’s left arm away, thereby breaking the appellant’s grip on his genitals.
Constable Walsh and the appellant then moved through the door (“half a step, out of the door”) when the appellant threw his left arm back again. However, Constable Walsh says that he was prepared this time and pushed against the appellant’s left arm. The appellant then turned, a struggle ensued and Constable Walsh “took [the appellant] to the ground”.
As to this evidence of Constable Walsh, the Magistrate said:
“… I find that he [Constable Walsh] was a reliable witness and his evidence was clear about the events as he related them to me”.
Later the Magistrate said:
“The defendant protests his innocence loudly but I have accepted the evidence of the prosecution and I have not been persuaded that the assault as described by Constable Walsh (and the evidence of Constable Bailey is consistent with that) did not occur.”
The Magistrate found that the taking hold of Constable Walsh’s genitals was an assault of him as alleged in count 4. The Magistrate found that the tensing by the appellant of his left arm after he and Constable Walsh had moved through the door amounted to a resisting of Constable Walsh in the execution of his duty as alleged in count 5.
The appellant’s account was that when the interview ended, he had been taken by Constable Walsh in the escort position to the door. After the door had been opened, and whilst he was standing at the door, he looked over his shoulder to see what Constable Bailey was doing, and at the same time said to Constable Walsh, “Told you not to waste our time, I got nothing to say to you”. There upon, he was pushed out of the interview room, Constable Walsh said, “Don’t touch me on the penis”, put him in a headlock and took him to the ground.
Constable Bailey had a limited view of what occurred. She was behind the appellant and Constable Walsh. Unlike the appellant and Constable Walsh, Constable Bailey said that Constable Walsh was standing to the right of, and slightly behind, the appellant and holding his right arm in the escort position. The Magistrate considered that Constable Bailey was mistaken about this. Because she was behind the two men, Constable Bailey could not see precisely where the appellant’s arm was in relation to Constable Walsh’s groin. Constable Bailey said that at one stage Constable Bailey said words to the effect of “let go”.
The Magistrate received two videotapes into evidence. The first was the tape of the interview and was taken wholly in the interview room. This tape confirms that the appellant was agitated, did not wish to participate in the interview, and wished to be taken into court. It did not reveal anything of the alleged assault or resistance of Constable Walsh.
The second tape was taken in the Charge desk area. It shows the appellant and Constable Walsh after they had exited the interview room. I have watched this tape several times. It shows Constable Walsh holding the appellant’s left arm and then suddenly putting the appellant in a headlock and taking him to the ground.
Although at one stage the Magistrate said “[i]t is the events as Constable Walsh described them after he had taken the defendant through the door of the interview room which is [are] shown on the tape”, later she said “I do not believe any issue that falls to be decided by me is one that is influenced in any way by the tapes …”. Although the first passage just quoted may be construed as indicating that the Magistrate regarded the tape (Exhibit 2) as providing corroboration of the particular conduct described in evidence by Constable Walsh, which is the subject of count 5, I think, read in context, that the Magistrate was doing no more than describing in a general way what it was which was contained on the tape. I think the second passage describes the view which the Magistrate took of the utility of the tape. Having watched the tape several times I agree generally with that view.
In substance, the appellant’s case on appeal is that the Magistrate should not have concluded that the charges were made out. There are eight grounds of appeal, the eighth being added by leave at the commencement of the hearing of the appeal. I will consider each in turn.
Ground One
First, it is said that the Magistrate erred in failing to take into account a prior inconsistent statement of the complainant. Constable Walsh agreed that in a statement (apparently made shortly after 23 May 2003 – the precise date was not disclosed in evidence) he had said:
“Constable Bailey was on the right-hand side of Tazroo both slightly to the rear of him. I’m not sure whether Bailey had hold of Tazroo, but we entered the doorway. Bailey was not holding Tazroo. I turned Tazroo slightly so that he could go through the doorway with his right side leading which put his left side onto the front [of my] body. Bailey was behind me to my right as I moved Tazroo through the door. The method in which I was holding on to Tazroo in that escort position placed his left arm close to the front of his torso and his left hand near my groin region.”
It was put by the cross-examiner to Constable Walsh that his account in evidence to the effect that the appellant grabbed his genitals at a time when he was reaching to the door handle was inconsistent with his earlier statement that the incident occurred as he was moving the appellant through the door. Constable Walsh said that he regarded the words “moving him through the doorway” as encompassing the whole motion of opening the door and moving through it. He therefore denied any inconsistency.
Mr Powell, who appeared for the respondent, submitted that in his original statement, Constable Walsh was describing a continuous movement, whereas in his oral evidence, he described more particularly the various steps which had occurred during that continuous movement. In short, Mr Powell submitted that there was no inconsistency, just different levels of detail given in the two accounts. I consider that there is substance in that submission.
The Magistrate did not refer to this alleged inconsistency at all in her reasons. On one view, that is a little surprising given that the allegation of inconsistency appears to have been at the forefront of the appellant’s case at trial. On the other hand, it has to be remembered that the Magistrate gave an ex tempore decision after a short trial, with the whole of the evidence having been given on the same day.
In relation to ground 1, therefore, I am not satisfied that there was a relevant inconsistency between the prior statement of Constable Walsh on the one hand, and his oral evidence on the other. Furthermore, I am not satisfied that the Magistrate failed to consider the submission of the appellant that there was such an inconsistency.
Ground Two
The appellant alleges that the Magistrate erred in finding that the surveillance video corroborated the complainant’s allegations. I have read the Magistrate’s reasons carefully. The Magistrate did not make the finding which forms the basis of Ground 2. I repeat what I have said above about the Magistrate’s reasons with respect to the videotapes.
Ground Three
This ground alleges that the Magistrate erred in finding that the complainant, Constable Walsh, was a credible witness. It was open to the Magistrate to make this finding. She had the advantage of seeing and hearing Constable Walsh, as well as Constable Bailey and the appellant. The alleged inconsistency relied upon by the appellant to impugn Constable Walsh’s credibility has been dealt with above.
In addition, the appellant argued that the fact that he had been charged with unlawful possession of a bracelet (count 3), when Constable Walsh must have known that the bracelet was in his possession well before his arrest at 10.30 am on 23 May 2003, indicated bad faith by Constable Walsh, or at least some animus by him towards the appellant. I do not accept that submission. The circumstances in which the appellant came to be charged with unlawful possession of the bracelet were not fully explored in the evidence. In those circumstances, I do not think the Magistrate has erred in failing to draw any adverse inference against Constable Walsh.
However, the reaction reported by Constable Walsh to the assault which he described in the evidence has given me some pause. Based on his description of a “full handful” of his genitals having been grabbed, squeezed and twisted for 5 to 6 seconds, one might have expected more than the apparently laconic report of “slight discomfort”. Further, one might have expected an instinctive and abrupt movement by Constable Walsh to break the appellant’s grip rather than the apparently polite request made by Constable Walsh to the appellant “to let go”. These considerations have, as I say, given me some pause. However, in view of the conclusion to which I have come in relation to count 6, it is unnecessary, and probably inappropriate, for me to address these concerns further.
Grounds Four and Five
It is convenient to consider these two grounds together. Ground 4 alleges error by the Magistrate in failing to consider the lack of corroborative evidence to support her finding. Ground 5 alleges error by the Magistrate in failing to place any weight on the evidence of Constable Bailey, which in a material respect contradicted Constable Walsh.
There is of course no legal requirement for corroboration for offences of this kind. It is true that by reason of her position in the interview room, Constable Bailey was not able to provide corroboration of the actual evidence of assault or resisting of Constable Walsh. The Magistrate accepted that her evidence (with one exception) was generally consistent with that of Constable Walsh, but correctly, in my opinion, did not attach any greater significance to it than that.
The exception to which I have just referred formed the basis for Ground 5. Constable Bailey gave evidence that Constable Walsh was standing to the right of the appellant rather than to his left. Constable Bailey was wrong about that. Each of the appellant and Constable Walsh said that Constable Walsh was standing on the appellant’s left. The Magistrate concluded that little turned on this mistake by Constable Bailey. I agree. If the evidence of Constable Bailey had gone beyond providing support in only a general way to the evidence of Constable Walsh, this mistake may have been more significant. As it happens however, the Magistrate regarded her evidence as being of only limited utility.
I therefore do not consider that Grounds 4 and 5 have been made out.
Ground Six
This ground alleged that the Magistrate had erred:
“in implying to defence counsel in closing submissions that unless the defence can prove the complainant disliked the defendant and had a motive to concoct the allegations Her Honour would find that the complainant was telling the truth thereby shifting the burden of proof upon the accused”.
Taken literally, there is no substance in this complaint. The appeal is against the Magistrate’s finding of guilt, not against any comment that may have been made during the course of final submissions, still less against an implication which may arise from such a comment.
However, this ground was argued on a slightly different basis which has more substance. That is that the Magistrate unconsciously reversed the onus of proof. I refer again to the passage in the judgment where the Magistrate said:
“The defendant protests his innocence loudly but I have accepted the evidence of the prosecution and I have not been persuaded that the assault as described by Constable Walsh (and the evidence of Constable Bailey is consistent with that) did not occur”.

Taken in isolation, that is a clear error as to where the onus of proof lay. However, the Magistrate had twice, elsewhere in the reasons, correctly identified the onus of proof. In [1] the Magistrate said:
“The defendant has pleaded not guilty and by his plea of not guilty has put everything in issue and it is the responsibility of the prosecution to prove the whole of its case against him in relation to the charges. The defendant does not have to give evidence and he does not have to prove anything”.
Later, in [14] the Magistrate said:
“I repeat what I said at the outset and that is that the defendant does not have to prove anything and I add that it is not simply a case of me saying at this point whose evidence do I prefer. The defendant has no onus. It is the prosecution that must prove the case beyond reasonable doubt. I also note that this is in accordance with the principles enunciated … in the case of The Queen v Calides (1983) 34 SASR 355. I approach my task then from that perspective”.
Mr Powell submitted that in the light of these two passages, the statement by the Magistrate that she had not been persuaded that the assault as described by Constable Walsh did not occur should be regarded as a slip of the tongue, and as no more than an unfortunate manner of expression in what was an ex tempore judgment. There is force in that submission. However, I am left with the sense that whilst the Magistrate enunciated the correct principle as to the onus, when it came to reasoning her conclusions through, she did, unconsciously, reverse the onus.
I am satisfied that the appellant has made good this ground of appeal.
Ground Seven
This ground alleged that the Magistrate’s finding of guilt was unsafe because it was based on “significant errors of fact”.
Insofar as the errors of fact were said to consist of the failure to have regard to the alleged inconsistencies in Constable Walsh’s evidence, or the Magistrate’s acceptance of the evidence of Constable Walsh, this ground is not made out. I repeat what I have said above in respect of those matters.
However, there is one additional matter affecting the finding of guilt on count 5, ie, the charge of resisting Constable Walsh in the execution of his duty. The conduct found by the Magistrate to constitute the resisting of Constable Walsh was the “tensing” by the appellant of his left arm as he was being escorted by Constable Walsh after leaving the interview room. Such tensing of the arm could not have lasted more than 1 to 2 seconds. This is confirmed by the video (Exhibit 2). That fact alone gives rise to a question of whether the appellant’s conduct amounted to a resisting of Constable Walsh. In addition, a mere tensing in the arm is not necessarily indicative of resistance of the police officer. Whether holding the arm limply or tensed, the appellant was still complying with Constable Walsh’s directions and control. Again, so much is confirmed by the video (Exhibit 2). In these circumstances, I am not satisfied that the evidence relied upon by the Magistrate for count 5 was sufficient to support her finding. I uphold this ground of appeal insofar as it complains that the finding of guilt on count 5 was unsafe.
Ground Eight
Ground 8, added at the hearing of the appeal, complained that the Magistrate erred in not considering the whole of the evidence.
It was a generalised complaint. The appellant did not argue any matter additional to those argued in support of Grounds 1 – 7 in support of this ground.
In my opinion this ground is not made out. The Magistrate did consider the whole of the evidence. She delivered a careful ex tempore judgment shortly after the conclusion of the evidence when the whole of that evidence was fresh in her mind. Apart from the matters to which I have referred in these reasons, I do not consider that the decision-making process has otherwise miscarried.
Conclusion
As I consider that the appeal does have merit, and that the appellant has a reasonable explanation for the appeal not having been instituted in 14 days, I extend the time for the filing and service of the appeal to 1 April 2004.
I uphold the appeal. I set aside the findings of guilt on counts 4 and 5.
In relation to count 5, I do not propose to order a retrial. I have found that the evidence in relation to that count insufficient to support the finding of guilt. It is therefore inappropriate to order a retrial: Darling v Police (2003) 228 LSJS 59.
In relation to count 4, having regard to my findings with respect to the reversal of the onus of proof, and the matters concerning Constable Walsh’s reaction to the alleged assault, I order a retrial.
I will hear the parties as to further orders.