Thomas John Pye v SA Police No. SCGRG93/1701 Judgment No. 4333 Number of Pages 4 Criminal Law and Procedure

[1993] SASC 4333

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Criminal law and procedure - miscellaneous offences - charges of disorderly behaviour, hindering police and refusing to state full name and address found proved but no convictions or fines imposed - appellant ordered to pay total of $357 in costs and levies - conflict in evidence between appellant on the one hand and police and lay witnesses on the other hand - appellant disbelieved by Magistrate.

HRNG ADELAIDE, 9 December 1993 #DATE 14:12:1993
Appellant in person
Counsel for respondent:     Mr S Gupta
Solicitors for respondent:    Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 MATHESON J The appellant was charged with a number of offences arising out of an incident at Schaefers' Shell Service Station, Main North Road, Smithfield on 14 April, 1993 after he returned a horse float that he had hired. The police were called. The appellant was subsequently arrested and charged on complaint for that:
    "(1) On the 14th day of April 1993 at SMITHFIELD in the
    said State (he) stole three tyre rims together of the value of
    $90.00 the property of Shell Service Station, Main North Road,
    SMITHFIELD. Section 131 of the Criminal Law Consolidation Act,
    1935. This offence is a designated Summary Offence.
     2. On the 14th of April, 1993, at SMITHFIELD in the said
    state (he) behaved in a disorderly manner in public place namely
    Shell Service Station, Main North Road, SMITHFIELD. Section 7
    of the Summary Offences Act, 1953.
     3. On the 14th of April, 1993, at SMITHFIELD in the said
    state (he) hindered members of the police force in the execution
    of their duty. Section 6 of the Summary Offences Act, 1953.
     4. On the 14th of April, 1993 at SMITHFIELD in the said state
    being a person reasonably suspected by a member of the police
    force of having committed an offence namely disorderly behaviour
    and upon being required by that member of the police force to
    state his full name and address (he) refused without reasonable
    excuse to comply with such requirement. Section 74(a) of the
    Summary Offences Act, 1953. 2. The appellant pleaded not guilty in the Magistrates Court before his Honour Mr. P. M. Liddy, SM. His Honour dismissed the first count, but found counts 2, 3 and 4 proved. Without proceeding to a conviction or imposing fines, his Honour ordered the appellant to pay a total of $307 on count 2 for court fees, a criminal injury compensation levy and witness fees. On each of counts 3 and 4, he imposed a levy of $25. His Honour allowed the appellant six months to pay the total of $357. 3. The first witness called by the prosecution was Lynette Jones. She hired the horse float out to the appellant on 7 April, 1993, and was present at the service station when he returned it on 14 April. She said the appellant was upset because he had had three blow outs, and had to replace three tyres on the horse float. His contract stated that any damage to the vehicle is the liability of the hirer. The prosecution also called Mr. George Birbas, the proprietor of the service station, to whom the appellant complained. Mr. Birbas suggested that the appellant speak on the telephone to the owner of the horse float, Mr. F. H. Schaefer, which the appellant then did. Mr. Schaefer drew his attention to the relevant condition of the contract. According to the prosecution, the appellant then got angry, went to the horse float, and proceeded to take three of the wheels off. Birbas then walked towards him to tell him to stop doing what he was doing, and the appellant swung an iron bar at him. It was apparently a tyre lever or some sort of jack handle. Birbas said he waved it in the air, and he was "like a mad man". The police were then notified, but by the time they arrived the appellant had already removed the tyres and placed them in the boot of his car. 4. Mrs. Birbas was also called as a witness and she corroborated her husband's evidence. Either she or Lynette Jones telephoned the police. Constables Hayter and Tobiasen arrived at the service station together, and Constable Latimer and Woman Police Officer Leeman also arrived, as I understand it, in another vehicle. When Hayter and Tobiasen arrived, the appellant was driving out of the service station. They motioned to him to stop which he did. Hayter had a conversation with Birbas, and then went to the appellant's car. He saw that there were three tyres in the boot of the car which was merely tied down with string. He undid the string and began to remove the tyres from the boot. He removed two, and as he removed the last one the appellant ran over to where he was, and shouted and waved his arms around. He would not let Hayter pass to put the third tyre down. Hayter said in evidence:
    "I tried to push past him to put it down. He then chested
    me. I told him to stop his behaviour and move back. He was
    still continuing to yell and shout so I then pushed past him to
    put the wheel down on the ground and his behaviour still
    continued then so I just said to him 'you are under arrest for
    disorderly behaviour." 5. The appellant was then handcuffed and placed in one of the police vehicles. He had apparently already been given "his rights" by Tobiasen, and when Hayter started to question, him he said: "I have been read my rights. I am not answering any questions". Hayter told him he was required to give his name and address under the Summary Offences Act. The appellant said: "I'm not answering any questions", and refused to give his name and address. He was conveyed back to the police station. He did give his name and address to the charging sergeant. 6. In an extempore judgment, his Honour said:
    "I am not satisfied beyond all reasonable doubt that Mr
    Pye had any felonious intent at the time of taking the tyres -
    it is clear that he had a grievance over the issue of having had
    tyres blow out and having to replace them and the evidence of
    the civilian witnesses to whom he spoke demonstrates that he was
    asserting some form of claim of right to the tyres. He clearly
    had no claim of right to the rims, but he has asserted that he
    asked Mr Birbas to take the tyres off the rims so he, the
    defendant, could take the tyres and that Mr Birbas refused. Mr
    Birbas has testified that he cannot remember if the defendant
    asked this. The defendant has asserted that he was intending to
    take the tyres and rims to the police station so that the matter
    could be resolved while his tyres were safely in neutral hands.
    The fact that he called out 'stop stealing my tyres' when the
    police attempted to remove them from his boot does not disprove
    his claimed intention because it would have been apparent that
    the police were removing them in order to leave them with the
    service station rather than removing them to take to the police
    station. The service station had the defendant's name and
    address on the hire contract and all of his actions were
    performed in full view of the service station staff - hardly
    circumstances conducive to proof of felonious intent. I find Mr
    Pye not guilty on the charge of larceny. In relation to the
    remaining charges, the evidence of all witnesses, both civilian
    and police is opposed to Mr Pye's evidence and I accept it.
    There is no evidence supportive of Mr Pye's version. The police
    had reasonable grounds to act as they did in relation to the
    tyres - Mr Pye was not entitled to take the rims, whatever the
    position was with the tyres. The police acted properly in
    removing them from his boot. His behaviour which followed
    clearly constituted disorderly behaviour and a hindering of the
    police by way of making their task substantially more difficult
    to perform. I am similarly satisfied beyond all reasonable
    doubt that he refused to provide his name and address when
    requested and that although he had been told he need not answer
    any questions he was also told that this was unless required by
    law to do so. For all that, it is apparent that Mr Pye, no
    doubt as a consequence of his agitated and excited state,
    considered that he was entitled to refuse to answer as a result
    of his comprehension of portion of the caution which had been
    administered to him. I do not regard the offences as serious -
    they all emanated from an asserted claim of right, albeit
    inappropriately sought to be put into effect." 7. The appellant's evidence conflicted in many respects with the prosecution case. I will refer to some of the conflict. The appellant said it was his son who removed the tyres and put them in the boot. He denied he waved an iron bar at Birbas. He said Hayter struck his daughter. He said Hayter pushed his head into the boot lid. 8. His Honour disbelieved the appellant, and having listened carefully to the appellant, who appeared in person to argue his appeal, I am not persuaded that I should interfere with his Honour's findings of guilt. It must also be remembered that he took the lenient position of not recording convictions or imposing fines. I have hesitated about the fourth count, bearing in mind that the appellant had already told Tobiasen that his name was "Mr. Pye", and that he subsequently gave his full name and address to the sergeant in charge of the police station to which he was taken. However, it appears to me that he was technically guilty of this offence also. 9. The appeal is dismissed.