Wilson v Police No. Scciv-03-282

WILSON v POLICE
[2003] SASC 168
Magistrates Appeals: Criminal

PERRY J. The appellant appeals against the conviction entered against him in the Magistrates Court sitting at Murray Bridge on a charge that on 9 September 2001 at Mannum he assaulted Paul Frederick Woods, a member of the police force acting in the execution of his duty, contrary to s 6(1) of the Summary Offences Act1953.
As well, the appellant appeals against the sentence imposed upon him following his conviction for that offence. The sentence appealed from is that the appellant be imprisoned for a term of one month, suspended upon his entry into a bond in the sum of $300 to be of good behaviour for a period of 15 months.
The complaint filed in the Magistrates Court alleged three counts, all arising out of an incident which occurred on 9 September 2001.
Count 1 alleged that the appellant had unlawfully damaged the wall of a house, contrary to s 85(3) of the Criminal Law Consolidation Act 1935.
Count 2 is the count upon which the appellant was convicted.
Count 3 alleged that the appellant had resisted Paul Frederick Woods, a member of the police force, in the execution of his duty contrary to s 6(2) of the Summary Offences Act 1953.
The hearing before the trial magistrate proceeded as to all three counts, which were heard together. After the completion of the evidence for the complainant, the magistrate found that there was no case to answer as to the first count.
The appellant thereupon elected not to give or call evidence.
After hearing submissions, the magistrate dismissed the third count, but entered a conviction on count 2. He gave ex tempore reasons.
At the commencement of the hearing before the magistrate, Mr Grahame Lang, who appeared for the appellant, took a preliminary point of law.
The point has its origin in the fact that in an information dated 7 February 2002, which is some six months before the complaint was filed in the Magistrates Court, the appellant was charged with seven counts. All of the counts related to the incident now in question.
A copy of the information was put before me on the hearing of the appeal. Count 6 on the information was in the same terms as count 1 in the complaint, and counts 4 and 5 on the information were in the same terms as counts 2 and 3 in the complaint. Other counts included two charges of major indictable offences.
The inclusion of the major indictable charges resulted in all of the counts on the information coming before the Magistrates Court by way of a committal hearing.[1]
[1] Summary Procedure Act s 102 and s 105.
Following a plea of not guilty by the appellant to all seven counts, he was committed for trial in the District Court.
On 27 May 2002, before the appellant had been presented for trial in the District Court, the Director of Public Prosecutions signed a certificate pursuant to s 276(2) of the Criminal Law Consolidation Act 1935 to the effect that he declined to file an information in the District Court with respect to the charges upon which the appellant had been committed to that court.
Subsequently, on 14 August 2002, the complaint was taken out which resulted in the convictions which are the subject of the appeal.
Put shortly, the point taken by Mr Lang before the magistrate at the commencement of the hearing of the complaint, and repeated on the hearing of the appeal, was that having regard to the certificate given by the Director of Public Prosecutions pursuant to s 276(2), the magistrate should have dismissed the complaint as incompetent, or, in his discretion, stayed proceedings on the complaint indefinitely as an abuse of process.
Before dealing with his argument, it is convenient to set out the terms of s 276:
“(1)Subject to subsection (2), in every case in which any person has been lawfully committed for trial at any criminal sessions, it shall be the duty of the Director of Public Prosecutions to present, or cause to be presented, an information against that person.
(2)If on examining the depositions taken in any case the Director of Public Prosecutions is of the opinion that there is no reasonable ground for putting the person committed for trial upon his trial for any offence, he may so certify, in the form contained in Schedule 1, to the judges or the Supreme Court or the District Court, any one of whom may, if the accused person is in prison, thereupon, by warrant in the form contained in Schedule 2, direct the Director of Correctional Services, or the gaoler in whose custody the person is, immediately to discharge him from imprisonment in respect of the offence mentioned in that warrant and, where the person mentioned in the certificate is on bail, the recognizances of bail taken from him and his sureties shall, on the Director of Public Prosecutions so certifying, become void.”
In this case, the certificate executed by the Director of Public Prosecutions is in the following terms:
“IN THE DISTRICT COURT OF SOUTH AUSTRALIA
CRIMINAL JURISDICTION
This is to certify that I decline to file any information against TARKA JAMES WILSON, a person lawfully committed for trial at the criminal sessions to be held at Adelaide upon the charges of Assaulting a Family Member, Threatening Life (2), Assaulting Police, Resisting Police, and Damaging Property (2).
Given under my hand this 27^th day of May 2002
P.J.L. ROFE QC
Director of Public Prosecutions”
Mr Lang, who appeared for the appellant both at first instance and on the hearing of the appeal, contended that the complaint was “inherently defective” in that it purported to lay charges which he submitted had “already [been] committed to the District Criminal Court”.
In advancing his argument, he submitted that the fact that under s 276(2) the Director of Public Prosecutions must first reach the opinion “that there is no reasonable ground for putting the person committed for trial upon his trial for any offence” before giving a certificate under the section, was tantamount to an adjudication upon the merits. Although he did not say so expressly, Mr Lang seemed to be suggesting that the formation by the Director of Public Prosecutions of the opinion required by the subsection should be regarded as equivalent to a judgment having the effect of res judicata.
In my opinion, the argument cannot be sustained. The reaching of the opinion referred to and the furnishing of a certificate pursuant to the subsection are purely administrative acts which cannot be regarded as having the status of a judicial determination.
The appropriate analogy is with the entry of a nolle prosequi.
It is clearly established that the entry of a nolle prosequi does not support a plea of autrefois acquit and does not create a bar to further proceedings in the same cause. Authorities which make that clear are referred to by Debelle J in his judgment, with which Mullighan and Nyland JJ agreed, in Question of Law Reserved on Acquittal (No 3 of 1995).[2]
[2] (1996) 66 SASR 450.
In the course of his judgment in that case, Debelle J observed:[3]
“7.The entry of a nolle prosequi is no more than a statement than (sic) that the prosecution is unwilling then to proceed with the prosecution. It is not in law or in fact an official act by the executive amounting to a promise or representation that the accused will not be presented again on the same charge: R v Swingler. It is not tantamount to an acquittal: Davis v Gell.[4] It is a termination of the proceedings without an adjudication and it neither creates a bar to a subsequent suit nor will it support a plea of autrefois acquit: Broome v Chenoweth;[5] Poole v The Queen.[6] See also R v Ridpath[7] where it was held that entry of a nolle prosequi did not bar a fresh indictment charging the same offence. Thus, it is possible to bring a fresh information and for the Attorney-General or Director of Public Prosecutions to proceed ex officio on a fresh information: R v Mitchell.[8] To like effect, see Gilchrist v Gardner.”[9]
[3] Ibid 458.
[4] (1924) 35 CLR 275 at 287.
[5] (1946) 73 CLR 583 at 599 per Dixon J.
[6] [1961] AC 223.
[7] (1712) 10 Mod 152 at 153; 88 ER 670 at 671.
[8] (1843) 3 Cox CC 93.
[9] (1891) 12 LR (NSW) 184.
Mr Lang sought to draw some support for his contentions from the decision of the Full Court in R v Hackett.[10] In that case, various driving offences were charged on an information filed in the Magistrates Court. The information contained an admixture of major indictable offences and summary offences. The appellant was committed to the District Court for trial on all counts in the information.
[10] (1996) 185 LSJS 156.
A separate information was then presented to the District Court upon which the appellant proceeded to trial by judge alone. After the appellant had been convicted of certain of the charges, he contended that the filing of the information in the District Court was the institution of proceedings which, having regard to relevant limitation periods under the Motor Vehicles Act (1959) and Road Traffic Act (1961), were out of time.
The court held that the information filed in the Magistrates Court having been filed within the relevant limitation period, the proceedings in the District Court should be regarded as within time. In reaching that view, the court rejected the argument that in the relevant sense the proceedings in the District Court should be regarded as separate proceedings.
The decision in Hackett throws no light on the question now at issue, namely whether the giving of a certificate under s 276(2) by the Director of Public Prosecutions precludes the issue of further proceedings alleging the same charges.
Of course, any further proceedings, whether by way of complaint in the Magistrates Court, as is the position here, or by information in the District Court, would have to be issued within any relevant limitation period. But there is no suggestion in this case that the proceedings now in question were issued out of time.
It follows that, in my view, the issue of the complaint which resulted in the conviction now under appeal was competent.
I am further of the view that no grounds were demonstrated which could properly have justified an order that proceedings on the complaint should have been stayed.
I accept that the Magistrates Court has inherent jurisdiction to prevent an abuse of process, if necessary by an order staying proceedings.[11] But the power to grant a permanent stay of proceedings, whether civil or criminal, should be exercised “sparingly, and with the utmost caution”.[12]
[11] See Wunsch v SA Police (1995) 64 SASR 203 cf: R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219.
[12] Jago v District Court of NSW and Ors (1989) 168 CLR 23 per Gaudron J at 76.
It must be accepted that there will occasionally be cases where the laying of a fresh charge where previous proceedings in the same cause have been discontinued, for example, by the entry of a nolle prosequi, may properly be regarded as an abuse. But such cases will necessarily be rare.
The observations of the Court of Appeal of Victoria in R v Swingler[13] are apposite:
“There is no case of which we have been made aware in which it has been held to be an ‘oppressive use of the court’s process’ that the Crown has presented a person for trial for an offence in respect of which a nolle prosequi has been previously entered. .........
It would, in our view, place an intolerable fetter on the exercise of this valuable power (ie the prosecutor’s power to enter a nolle prosequi) if the court were readily to accede to an application that its processes were being abused for no reason other than that an accused was re-presented on a charge in respect of which a nolle prosequi had previously been entered.
We do not say that there can never be a case where the exercise of the power to make presentment on a charge in respect of which a nolle prosequi has previously been entered will amount to an oppressive exercise of prosecutorial power and thus an abuse of the court’s process. The categories of ‘abuse cases’, as has often been said, are never closed. We are not, however, satisfied that this is such a case.”
[13] [1996] 1 VR 257 at 265-266.
It is true that Mr Lang at one stage suggested during the course of his argument that there was an unfairness in the re-presentation of his client for trial in that a video taken in the watch house was, by the time the matter came on for hearing, no longer available. But, quite fairly, he conceded, when directly questioned by me during the course of his argument, that when the evidence of the destruction of the video emerged, he did not at that stage suggest to the magistrate that for that reason his client could not have a fair trial and that the proceedings should no longer be entertained.
Both in the Magistrates Court and on the hearing of the appeal, the argument that the proceedings in question were either incompetent or should be stayed in the exercise of the court’s discretion, proceeded on the basis of the technical arguments associated with s 276.
For the reasons which I have given, in my view, the trial magistrate’s rejection of those arguments was correct.
In his notice of appeal, the appellant also complains that the finding of guilt by the trial magistrate was “unsafe and unsatisfactory, or alternatively against the weight of the evidence”.
Although this ground was but faintly argued by Mr Lang, in deference to the fact that this point was taken, I have reviewed the evidence and considered whether or not the conviction should, on that evidence, be upheld.
Appeal against conviction
The complainant called two witnesses: Senior Constable Woods, who was alleged to have been the victim of the assault the subject of count 2, and the officer to whom the offence of resisting the subject of count 3 applied. Senior Constable Woods’ evidence was that at about 1.30 am of 9 September 2001, he was stationed at Mannum Police Station when he received a phone call from a woman known as Lynette Bartsch, also known as “Sunshine”. She said that there was a disturbance at 18 Bretag Street, Mannum, as a result of which Senior Constable Woods attended on his own in a police car at that address.
Upon his arrival, he saw the appellant lying on the footpath across the road from 18 Bretag Street. With whom was a woman Danielle Rathjen.
Senior Constable Woods stopped the police car and had a conversation with them. The appellant was very abusive and did not wish to speak to the police officer.
Both the appellant and Ms Rathjen walked off. The police officer then had a conversation with the appellant’s brother, Toobeah Wilson, in the course of which he inquired as to the cause of what he described as a “huge hole” in the front wall of premises of 18 Bretag Street, through which one was able to see into the main bedroom.
After obtaining a statement from Toobeah Wilson, Senior Constable Woods walked onto a tennis court at the rear of the premises at that address, the tennis court forming part of the grounds of the Mannum High School which backs on to 18 Bretag Street. On the tennis court he had a conversation with Danielle Rathjen, following which he heard a voice coming from the darkness over near a school building. He shone his torch in the direction of the voice, which illuminated the appellant at a distance of 25 to 50 metres away.
Senior Constable Woods ran after the appellant, and the latter ran off. Eventually he caught up with him. Senor Constable Woods informed the appellant that he was under arrest for the assault of his brother Toobeah Wilson.
According to Senior Constable Woods’ evidence:
“A.I grabbed him on his left arm and we walked down the stairs into the tennis court. He then pulled away his left arm from me and then he went to elbow me in the nose but stopped about an inch before but close enough that I could feel the wind made by his arm motion. I took hold of his left arm again and told him not to be so stupid and then he pulled away again and then head butted me in the face.
Q.Now when he first pulls his left arm away from you and you say swings it back stopped near your face was there any exchange of words by him at that point of time.
A.Yes, there was.
Q.What did he say.
A.‘Almost got you Woodsy’.
Q.What did you say in response to that.
A.I said ‘don’t be so stupid’.
Q.You say you took hold of his left arm again and again he pulled away from you is that the case.
A.Correct, yes.
Q.Did he say anything after he pulled it away the second time.
A.No.
Q.After he pulled it away the second time what was the very next thing that happened.
A.As soon as he pulled his arm away he head butted me in the face.
Q.You were holding his left arm with which of your hands.
A.With my right hand.
Q.Where were you positioned in relation to him whilst you were walking through the tennis courts.
A.I was on his left hand side.
Q.Were either of you in front of one or the other.
A.He may have been a fraction in front of me.
Q.When you say he head butted you where did his head strike.
A.Hit my top lip and my nose.
Q.Did that have any effect on you.
A.Yes, it did.
Q.What.
AIt made me very upset.
Q.Did it cause pain.
A.Yes, it did.
Q.Did it have any other effect on you.
A.It momentarily made me see stars.
Q.And what did you do in response to that.
A.I hit him twice in the face and threw him face down on to the ground and then handcuffed him.”
The police officer’s evidence was that subsequently, while the appellant was lying on the ground, he kicked the police officer in the back. Senior Constable Woods then tried to walk the appellant to his police car, but the appellant kept dropping his legs so that his body moved forward. After a time, Senior Constable Woods radioed the Murray Bridge Police Station and called for assistance.
Before doing so, and while Senior Constable Woods was trying to walk the appellant to the police car, the appellant is alleged to have said, “I will fuckin’ kill you, Woodsy’. Eventually another officer, Constable French, arrived with a cage car. They took the appellant to the cage car where he was seen to butt his head on the rear of the cage car before he was put into it, following which the appellant started yelling and kicking the inside of the cage car.
The appellant was taken to the casualty section of the Murray Bridge Hospital where Senior Constable Woods was examined by a doctor. The doctor attempted to examine the appellant, but the appellant became violent, and head butted the wall in the casual department, which was taken as a refusal of treatment. He was then taken to Murray Bridge Police Station where he was charged.
Senior Constable Woods was cross-examined closely by Mr Lang, but in substance adhered to his account of the matter.
The other police officer who had attended, Constable French, also gave evidence as to the course of events when he arrived.
In his written reasons for decision, the trial magistrate summarised the evidence at some length, and correctly identified the onus of proof on the prosecution. He concluded as to count 2:
“28As regards to witness Woods I accept and find that he was on the occasion in question a police officer. There is no contest about that element of the charges. I accept and find that his attendance at 18 Bretag Street, Mannum was in the cause of his duty as a police officer. I accept and find that after his arrival at those premises he came into possession of material that caused him to believe that the defendant had committed an offence entitling him to arrest the defendant. There is no issue with respect to that matter as I understand counsels comments during the course of the trial. I accept and find that he did tell the defendant he was under arrest and sought to secure him by taking hold of his left arm and to place him into a police vehicle for transfer to be dealt with according to the legal obligations that then arose. To that extent I find that the police officer was acting in the course of his duty. I accept and so find that the defendant did head butt the police officer in the manner alleged by the police officer and that that blow was an intentional and unlawful application of force. I reject any suggestion that such contact was accidental. I accordingly find each element of count two proved beyond reasonable doubt and I find the defendant guilty of count two.” (emphasis added)

The conclusions reached by the trial magistrate, and his finding of guilt, were clearly open on the evidence. I would reach the same conclusions.
The contentions that the conviction was unsafe and unsatisfactory or against the weight of evidence are not made out.
The appeal against sentence must likewise be dismissed. Assaults against police officers acting in the course of their duty are rightly treated as serious offences. Police officers are necessary exposed to the risk of physical injury and when that risk materialises they are entitled to the protection of the courts. Any interference with the discharge by police officers of their duties must be treated seriously.
The appeals against conviction and sentences are dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1.    Summary Procedure Act s 102 and s 105.
2. (1996) 66 SASR 450.
3.    Ibid 458.
4. (1924) 35 CLR 275 at 287.
5. (1946) 73 CLR 583 at 599 per Dixon J.
6. [1961] AC 223.
7. (1712) 10 Mod 152 at 153; 88 ER 670 at 671.
8.    (1843) 3 Cox CC 93.
9. (1891) 12 LR (NSW) 184.
10. (1996) 185 LSJS 156.
11.    See Wunsch v SA Police (1995) 64 SASR 203 cf: R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219.
12.    Jago v District Court of NSW and Ors (1989) 168 CLR 23 per Gaudron J at 76.
13. [1996] 1 VR 257 at 265-266.

[2003] SASC 168

6 June 2003