Trevor William Hirschausen v Karen Michelle Brady No. SCRG 92/2723 Judgment No. 3823 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 3823

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT PORT LINCOLN COX J

CWDS
Criminal law and procedure - particular offences - offences against public order - Appellant found guilty of disorderly behaviour, resisting arrest and assaulting police - New Year's Eve disturbance outside restaurant - marked conflict of evidence between prosecution and defence - whether appellant defending his wife - credit of police witnesses impugned - whether Magistrate fully considered issues - appeal allowed.
Summary Offences Act, 1953 5.7 and Criminal Law Consolidation Act 5.15.

HRNG ADELAIDE, 25 January 1993 #DATE 4:3:1993
Cousel for appellant:     Mr J A Richards
Solicitors for appellant: Aboriginal Legal Rights Movement
Counsel for respondent:     Ms J G Olsson
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 COX J The appellant and his wife were two of a fairly large group of people who were on the footpath outside a restaurant in Port Lincoln in the early hours of 1 January 1992 trying to get inside. Obviously the place was full and the bouncers were keeping the doors shut. The police arrived. Constable Borlaise tried to work his way through the crowd to the doors. There was some sort of scuffle between him and the appellant. Exactly what led to it is in dispute. Borlaise attempted to arrest the appellant who put up a struggle, and it took a number of police officers to get him into the police van. He was charged with three offences - disorderly behaviour, constituted by his shouting obscenities to the police and grabbing Borlaise by the tie (Summary Offences Act 1953, s.7); resisting arrest, namely, struggling with Borlaise and other police officers who were arresting him for the disorderly behaviour (ibid. s.6); and assaulting Borlaise by striking him in the forehead with his clenched fist while Borlaise was trying to make the arrest (ibid. s.6). The appellant pleaded not guilty to each count. There was a lengthy hearing before a stipendiary magistrate. He found the three charges proved. He imposed a global fine of $250, with costs, without proceeding to record convictions. The appellant has appealed against the finding of guilt in each case on the ground that it cannot be supported having regard to the evidence and is unsafe. I heard argument on the matter and reserved my decision. 2. The transcript of evidence runs to more than 200 pages. I do not think it necessary to describe the evidence in detail. Briefly, the respondent's case was that Borlaise was trying to get to the restaurant door when he encountered the appellant who told him, with obscenities, to go away. Borlaise told him to keep his language down and, when the appellant repeated it, told him that if he persisted he might be arrested. The appellant did persist. Borlaise took hold of his arm and told him he was under arrest for offensive language and disorderly behaviour. The appellant's wife grabbed Borlaise from behind and he shrugged her off. The appellant was struggling to get away. He grabbed Borlaise's tie. Mrs Hirschausen took hold of Borlaise again and he pushed her and she fell over. The appellant became very agitated and he and Borlaise fell struggling to the ground. Other police officers came to Borlaise's assistance. The appellant was struggling very violently. He struck a number of blows at the police. Borlaise had to use his baton in order to get the appellant into the cage car. Finally they got him in and drove him to the police station. He complained of certain injuries and was taken to hospital. He was kept there overnight for observation. The police case was supported by Borlaise and four other police officers. The appellant's account was different in important respects. He said that Borlaise stood in front of him and appeared to be "checking me out." 3. His wife approached Borlaise and said that the people waiting should be allowed into the restaurant because they had paid their money, whereupon Borlaise called her a slut and shoved her backwards and she went flying through the air. His evidence continued -
    "Q. When your wife, you say went flying through the air, did
    you try to assist her in any way?
    A. Well as this all happened and as I say it was all in a - this
    happened in a few seconds like instantaneously she got pushed.
    Whether she got shoved backwards as she went flying like she put
    her arm out and her hand touched my arm, my right arm and as she
    went back I could see her going back and I swung around like
    instantaneously and took a swing at the person who had pushed
    her.
    Q. She pushed your arm back and you then straight away swung
    forwards?
    A. As she went flying backwards my arm was taken with her and
    then it came like forwards yes.
    Q. Why did you do that?
    A. Well it took me by surprise. As well as my wife we couldn't
    believe it. Like I say it was all a split second but it was -
    it was just an instant reaction to do what I did because my wife
    just went flying through the air maybe two metres up to two
    metres landed bodily on her backside and landed on her backside
    and elbows on the ground. Like on the footpath next to the
    gutter and well it was just so quick I just reacted to my for my
    wife.
    Q. What happened then?
    A. That was where is all happened. It couldn't have taken -
    well it happened - everything happened so fast from there when I
    had like swung at Borlaise next minute I was overcome by police
    officers. Like how can you say they were like flies to a dead
    fish just all over me." 4. He said that he struggled with the police officers although he did not fall to the ground. He resisted being put into the cage car. He was struck several times with a baton. In cross-examination he denied having used offensive language to Borlaise before Borlaise pushed his wife over. He was asked about his striking Borlaise and said -
    "When I went from back here when my wife took my arm I swung
    in the direction knowing as I collected him I knew I hit a
    police officer yes but as I was swinging I was swinging on to
the person who pushed my wife over." 5. He could not remember striking out at one of the police officers during the struggle at the cage car, though it was possible. Mrs Hirschausen also gave evidence - indeed, at that stage of the trial she was also defending a charge of hindering the police which was being heard at the same time - and so did two other persons who were present and said they saw some part of what happened. 6. The learned Magistrate reserved his decision at lunchtime on the last day of trial and gave judgement the following day. In brief, he accepted the evidence of the police witnesses. He found that the appellant used the obscene language attributed to him and that this constituted disorderly behaviour for which he was justifiably arrested by Borlaise. He resisted that arrest and in doing so assaulted Borlaise. He rejected the appellant's submission that the force that he used was necessary to defend his wife (Criminal Law Consolidation Act, s.15); the appellant's striking of Borlaise was by way of retaliation, not self-defence. He observed that the documentary medical evidence put in by the appellant tended to cast some doubt upon the accuracy of the police evidence as to the blows the appellant received, but he thought that this bore only to a limited degree on the credit of the police. By the time the disputed blows were struck the appellant had committed the three offences with which he was charged. He therefore found all three charges proved. However he was satisfied that the appellant's motivation was not to escape the police or to cause them any harm but to go to the aid of his wife when she was pushed to the ground, and he took that into account when imposing sentence. 7. So far, then, it seems to be a typical dispute on the facts with the result depending substantially upon the Magistrate's impression of the witnesses. The appellant, however, argues that there is more to the case than that. 8. Mr Richards attacked the adverse findings of the learned Magistrate on the ground that on a proper analysis they were not supported by the evidence. I was invited to review the evidence and conclude that the case against the appellant had not been made out. 9. There are features of the learned Magistrate's reasons for judgement that are, in my opinion, disquieting. The reasons began in the following way -
    "On 9 March 1992 when this matter was first set for trial, the
    court file was endorsed for trial on count 1 and the disputed
    facts on counts 2 and 3. When it came on for trial in August I
    questioned why there was not a plea of guilty to counts 2 and 3.
    I was told the earlier endorsement was wrong. After three days
    of hearing, I can now see that the information supplied by Ms
    Burrows was a correct assessment of the defendant's position.
    He denied having behaved in a disorderly manner but admits
    having assaulted Constable Borlaise and resisting Constables
    Borlaise, Hannah, Senior Constable Kempster and Sergeant Joseph.
    There is in fact little dispute between the parties. Why it has
    been necessary for this matter to be stretched out as it has by
    minute dissection of the recollections of each witness I do not
    know. It seems to have served little purpose other than to show
    that all witnesses are human and subject to the vagaries of
    memory. None of the witnesses were present for the purpose of
    recording the intricate detail of the night out at Can-do's that
they have been expected to remember by Mr Richards." 10. The first paragraph is misleading to the point of inaccuracy. The appellant admitted having struck Borlaise in the onset of the fracas but he claimed to have done so in the course of defending his wife against Borlaise's assault upon her. He relied upon the new defence of self-defence in s.15 of the Criminal Law Consolidation Act. If the appellant had in fact a good defence under that section he was not guilty of having assaulted Borlaise and it would not be correct to say that he had admitted having assaulted him. Similarly, his defence to the third count challenged the validity of his purported arrest by Borlaise and it was therefore not correct to imply that he was admitting the resisting charge - the only footing upon which there could be a mere disputed facts hearing on that count. So, with respect to the learned Magistrate, the reasons did not get off to a good start. 11. As for the second paragraph, I think it quite inaccurate to say that there was little dispute between the parties. The prosecution and defence cases were at arms length on a good number of issues. Borlaise said the contretemps began with the appellant's swearing at him very loudly, Borlaise telling him to keep his language down, the appellant repeating the obscenities, Borlaise warning him, the appellant offending again and then Borlaise taking hold of his arm and arresting him. After that, according to Borlaise, someone took hold of him from behind and Borlaise shrugged the person off and then the appellant grabbed his tie. According to the appellant, there were no obscenities at all and the first thing that happened was that his wife told Borlaise that the people should be allowed into the restaurant because they had paid, whereupon Borlaise swore at her and shoved her backwards a nd she landed heavily on the footpath. The appellant was adamant that up to this point he had neither spoken to Borlaise nor touched him. He did not admit having grabbed Borlaise's tie. It is hardly too much to say that the parties were in dispute with respect to practically every aspect of the disorderly behaviour charge and the evidence that the police led in support of it. 12. Then there is the matter of self-defence. The learned Magistrate examined the evidence. He thought it quite clear that the reason why the appellant struck Borlaise was because of what he saw as rough treatment of his wife by Borlaise, but this was not a defence under s.15. He was acting by way of retaliation, not self-defence. Of course, there is a clear and important distinction between retaliation and self-defence and it is often necessary to keep this steadily in mind when self-defence is raised. It is noteworthy, however, that the learned Magistrate evidently accepted the genuineness of the appellant's professed concern about his wife - "He was striking back at a person who had, in his view, wronged his wife and his evidence makes that quite clear." Certainly the appellant did not speak of "defending" his wife or use the language of s.15. However, it is plain from reading his evidence that he is an unsophisticated man of no great formal education. He was also a man of 31 with only one minor conviction. It was necessary in considering the s.15 defence to have regard to the substance of his evidence and not merely the words in which it was expressed. I do not think that the evidence of the appellant that I have quoted earlier in these reasons is inconsistent with a defence under s.15 that he was defending his wife. It is true that he took a swing at Borlaise when he saw him push his wife away, but that is not necessarily inconsistent with a belief that this is what the defence of his wife necessarily and reasonably required. I do not think the Magistrate was right when he said,
     "No evidence has been put before me to raise the possibility
    that the force used by the defendant was necessary to defend his
    wife. Any application of force to Mrs Hirschausen had been
    completed, there was no suggestion of the application of further
force to her." 13. The general test under s.15 looks not so much to what is necessary and reasonable but to the defendant's belief on the subject. On the appellant's case all of this happened before any attempt was made to arrest him, so sub-s.(3)(a) of s.15 did not apply. I am not satisfied from the learned Magistrate's reasons that he addressed his mind fully to all the implications of the s.15 defence. 14. There is also the matter of the appellant's head injury. It is clear enough that the police had a difficult job getting the appellant into the cage car. He put up a vigorous and prolonged struggle. Borlaise used his baton and he may well have been justified in doing so. There is a question, however, as to where he struck the appellant. He denied having hit him about the head. It is pretty clear that by the time the appellant got to the police station he needed medical treatment. His injuries included a cut above the eye and the wound must have been bleeding freely. The medical evidence and the photograph taken the next day support that inference. I need not go into the evidence of the various witnesses that support the conclusion that the appellant received the head injury before he was secured in the cage car, and almost certainly got it as a result of a blow from Borlaise's baton, because the learned Magistrate found that the medical evidence "tends to cast some (doubt upon the) accuracy of the police evidence as to what blows were struck to the defendant." Any such blow to the head must, I think, have been struck by Borlaise. Even allowing for the excitement and confusion of this sort of skirmish, I do not think that Borlaise is likely to have struck the appellant above the eye with his baton without remembering it afterwards. Presumably the learned Magistrate thought so as well, because he considered that this "had some bearing to a limited degree on the credit of the police witness as to a precise detail." I think, with respect, that this was taking too benign a view of the matter. If Borlaise was unreliable on this subject - not to put too fine a point on it, if he was lying about it - then it was very important to consider whether he might have been lying about other parts of his evidence as well. Nor does the finding that the learned Magistrate made on the matter leave the credit of the other police witnesses unaffected. If Borlaise did strike the appellant severely above the eye with his baton as he was being put into the cage car, it is hard to believe that none of the police officers who were assisting him saw it and remembered it. 15. While these were not ex tempore reasons I suspect that they were given from notes and, as Miss Olsson for the Crown argued, they should not be treated like a conveyancing document. I appreciate, too, that there was plenty of evidence here to support the prosecution case on all three counts. Perhaps there were some improbabilities about certain aspects of the prosecution case, but there were more such difficulties with the defence. In the end, it was a case depending on the creditworthiness and reliability of the witnesses. It was for the prosecution to prove its case. I have read the evidence twice and I have carefully considered the learned Magistrate's reasons. I have said enough, I think, to explain why I am uneasy about these findings. I think, with respect, that the learned Magistrate took too simple a view of the issues. It would wrong to allow the decision to stand. 16. In my view, it would be oppressive in the circumstances to send the case back for another trial. 17. The appeal will be allowed and the findings of guilt and consequent orders set aside. The complaint will be dismissed.