Wilson v Police No. Scgrg-98-30 Judgment No. S6683

[1998] SASC 6683

WILSON v POLICE

Williams J:

This is an appeal against convictions by a Magistrate sitting at Murray Bridge on 12 December 1997 in respect of offences occurring on 7 February 1996.  The appellant was charged with the following:

Count 1     Behaving in a disorderly manner at Murray Bridge Primary School

Count 2     Assaulting RA Caunce, a member of the Police Force in the execution of his duty.

Count 3     Assaulting BD Howson, a member of the Police Force in the execution of his duty.

Count 6     Resisting RA Caunce, a member of the Police Force in the execution of his duty.

She resisted being searched at the Murray Bridge Police Station.

The appellant pleaded not guilty to each of these counts and the matters proceeded to trial before a Magistrate.  There were two further charges:

Count 4     Assaulting BD Howson, a member of the Police Force in the execution of his duty (by biting him at Murray Bridge Police Station); this count was dismissed.

Count 5     Assaulting C Cooper, a member of the Police Force in the execution of her duty; the Magistrate found that there was no case to answer upon this charge.

On 7 February 1996 Police Officers Caunce and Howson went to the oval at Murray Bridge Primary School where the appellant was observed with two other people at about 6pm.  The question of an outstanding warrant of commitment for non-payment of fines was canvassed by the police.  The appellant did not immediately have funds at hand.  She was placed (with difficulty) in a police cage vehicle and conveyed to Murray Bridge Police Station.  She was searched whilst she was in a highly emotional state and struggled violently throughout this procedure which was forcibly carried out by four police officers.  The appellant was placed in a padded cell after being stripped to her underwear.  She remained in the cells until early the following day.  Arrangements were made for the payment of the outstanding fines ($307) and the appellant was released.

The grounds of appeal are that the convictions are against the weight of the evidence and that the convictions are unsafe and unsatisfactory ("dangerous" to use the words of the notice of appeal).

The essence of the appellant’s argument is that having regard to the reservations which the Magistrate had concerning the prosecution evidence (and his rejection of a significant body of that evidence) it is difficult to see how the Magistrate could pick a pathway through the remainder of the prosecution case so as to be able to rely upon it to the point of being satisfied beyond reasonable doubt as to the guilt of the appellant.

There were significant differences between Constables Howson and Caunce as to the circumstances of the appellant’s arrest at the Murray Bridge Primary School.  The reason why the Constables approached the appellant is far from clear.  Whether they approached the appellant because she was a member of a group dallying in the vicinity of parked cars, or whether they approached the appellant regarding the outstanding warrant is a matter of dispute between the police.  The appellant maintains that she has a poor relationship with the police and has been subjected to on-going harassment.

Whilst the Magistrate found that the appellant had been taken into custody upon the warrant the appellant’s case is that the police acted in a high-handed way.  It does seem curious that when the whole matter settled down at the Police Station arrangements were made for the appellant to get together the funds which then lead to her release.  I can only speculate as to why calm action at the outset of the confrontation at the oval could not have resolved the problem.  There is reason to doubt whether the appellant was given any real opportunity to meet the peremptory demand made of her at the oval and exactly when in the course of conversation the police mentioned the warrant.

The warrant (exhibit P1) is before me.  The warrant was issued on 28 January 1996 - only 10 days before the incident.  The warrant was expressed in the following terms:

"...You the Commissioner of Police and members of the police force are directed to execute this warrant upon the defendant, and unless the defendant pays forthwith the amount in respect of which the warrant was issued (together with the costs of issuing and executing this warrant), to convey the defendant to a correctional institution.  And you, the Executive Director of the Department of Correctional Services, are directed to receive and detain the defendant for the period due in respect of the amount unpaid as shown on this warrant, unless the defendant at any time pays the amount then due to extinguish this warrant."

The warrant required the appellant to "pay forthwith" the amount. Section 79 of the Summary Offences Act 1953 provides as follows:

1. A member of the police force may, without a warrant, take into custody a person whom the member has reasonable cause for believing or suspecting to be a person for whose apprehension or commitment a warrant has been issued by a justice.

1. If a member of the police force, without a warrant, takes into custody a person whom the member has reasonable cause for believing or suspecting to be a person for whose committal a warrant has been issued by a justice, that member must forthwith deliver that person into the custody of the member of the police force in charge of the nearest police station and must, as soon as conveniently may be, produce or cause to be produced to the person taken into custody the warrant of commitment (if any), whereupon that person must be dealt with as required by the warrant."

The evidence of Police Officer Caunce appears to be consistent with him having acted directly under the warrant to make demand and then to take her into custody pursuant to the terms of the warrant.  If this was the basis for police action I am not satisfied that the actions of the police are supported by the terms of the warrant.  A proper opportunity to make payment forthwith was required and I very much doubt whether this was given.

If the police acted under s79 then upon arriving at the Murray Bridge Police Station the warrant should have been produced "as soon as conveniently" and the police should then have proceeded "as required by the warrant" (see s79(2)). There should have been an immediate opportunity and facility provided to enable the appellant to discharge her obligation - as in fact occurred some hours later. The Magistrate has not addressed the difficult question as to the lawfulness of the police actions.

The appellant’s conduct at the oval must be judged in the light of the events which immediately preceded and gave rise to her violent reactions.

There has been some independent check upon the police evidence as to events at the police station in terms of a video film - which in several important respects did not support the police evidence.  In view of the discrepancy between the police as to the circumstances of the appellant’s arrest I consider that it would be unsafe to base a conviction upon the police evidence.

The appellant says that she was sitting on the oval drinking "Scotch" when police officers walked towards her group alleging a trespass.  She attempted to walk off but was grabbed by the hair by a constable who said - "You are not going anywhere you cheeky black bitch".  Further police started arriving and some minutes later the question of the warrant was mentioned.  The lawfulness of the ensuing struggle and the appellant’s conduct must be judged against the background of the events immediately preceding her apprehension.  She says that she was taken to the police station and dealt with in a humiliating fashion.

In my opinion there is here available a reasonable hypothesis consistent with innocence.  I am far from satisfied with the prosecution version of events.  The appellant was "tipsy" as she conceded.  The police maintain that she was argumentative and abusive and did not calm down until about 10.45pm when she was moved to a conventional cell and her clothes returned to her.

The "divergence" noted by the learned special Magistrate between the police evidence should have been enough in my view to secure the acquittal of the appellant whatever shortcomings there may have been in her evidence.

The Magistrate had the advantage of seeing the witnesses but there is sufficient upon the face of his reasons for my conclusion that I must interfere.

I accept the submission of the respondent that:

1. Divergent reasons for attendance and discrepancies in the recollections of the police officers as to which officer first stated: "You are under arrest" - will not:

(a)     automatically disturb a finding as to credibility

(b)     taint all of the evidence given by one or the other officer

(c)     disturb findings central to the charges viz. Attendance, the existence of the warrant, arrest pursuant to the warrant and the subsequent assaults and resist.

1. An officer may be mistaken as to precise details and sequences of events in the absence of malice, motive or an intention to lie."
            After bringing the respondent’s submission to account I am still left in the position where I do not consider that the Magistrate should have been satisfied beyond reasonable doubt as to the essential facts.  There are such shortcomings in the prosecution case that the charges should be dismissed.  This observation should not be treated as criticism of any particular witness.

The appeal will be allowed and the convictions will be set aside.  In lieu thereof I direct that verdicts of acquittal on all counts be substituted.