HAIFAWI v POLICE No. SCGRG-00-3 [2000] SASC 19

The charges arose out of an incident which took place outside The Planet nightclub in the city on 14 February 1999. Constables Trickett and Rowe were on uniform mobile patrol in the vicinity of the nightclub when they heard the sounds of a disturbance outside the club. According to the prosecution case Constable Trickett got out of the police car and walked towards the appellant who was with a group of people outside the club. Constable Trickett gave evidence that, as he approached, the appellant immediately swung around and punched him. Constable Trickett then took hold of the appellant's arm and the appellant began struggling with him. The appellant was told he was under arrest but he continued to struggle.

The learned magistrate summarised the evidence of the other police officer, Constable Rowe, in the following passage:

"Constable Rowe said the defendant was told to stop and he walked angrily past the police car but didn't, Constable Trickett approached the defendant and said something he couldn't hear. The defendant then punched Trickett who moved back. In cross-examination he added it was possible Trickett had put his hand on the defendant's shoulder which the defendant had tried to remove."

The appellant gave evidence at the trial. He denied punching the police officer. He said he went to the nightclub with his girlfriend and an argument developed between the two while they were outside the club premises. He said he decided to walk off and, as he did so, a police car drove into the laneway. He said that as he was walking towards his car someone grabbed his left arm in the vicinity of the shoulder. At first he thought it was his girlfriend and he turned around. The learned magistrate described the appellant's movements in the manner in which the appellant demonstrated them to the court:

"The defendant turned his body with his arms out almost parallel with his shoulder but at a slight angle towards the floor, and his fingers were half clenched."

The appellant did not concede that contact was made between his hand and the police officer at this stage of the incident.

The magistrate then summarised the evidence of the other defence witnesses:

"Elizabeth Rallis, the sister of the defendant's girlfriend, heard a police officer say 'is everything all right' and then the driver of the police car walked towards the defendant, grabbed his right shoulder, tried to turn him around and as he did so, the defendant's arm swung but she did not see his arm connect with the police officer. She said she would have seen if the defendant's arm had come into contact with the police officer and in cross-examination she said his arm swung at the same time as the defendant's body was swung. Peter Najjar saw the police officer grab the left arm or the shoulder area of the defendant, but he kept on walking, and the police officer seemed to try to turn the defendant round. He said if the defendant had punched the police officer he would have seen the punch. Jason Haifawi told the court he saw the driver of the police car get out of the vehicle and try to grab the upper arm of the defendant who shrugged his shoulders. He also said he would have noticed a punch if it had occurred because he was only two metres away."

The learned magistrate resolved the conflicts in the evidence of the prosecution and defence witnesses in the following passage of his reasons for decision:

"Constable Trickett was adamant the defendant punched him and the defendant was equally adamant that he did not. I think there is a reasonable possibility that when the defendant was swung round with his arms outstretched at shoulder level, one arm came into contact with the police officer's shoulder area accidentally so that the defendant did not realise or can not now recall contact being made. The defendant was quite impressive as a witness and so was Constable Trickett and an officer with his experience would not make up that contact had been made, if in fact it had not, with the number of prospective witnesses in the near vicinity. However, on my findings the contact although with a half clenched fist was accidental and therefore without intention and I must dismiss the charge of assault police."

It appears from this passage that the magistrate was not prepared to accept beyond reasonable doubt that there was the clear and unmistakable assault deposed to by the two police officers. He found that it was a reasonable possibility that contact was made "when the defendant was swung round" and that the contact was accidental. This was an acceptance (at least on the basis of a reasonable possibility) of the major part of the appellant's version. It was only on the issue of contact that the magistrate went further than the appellant's version. The appellant did not expressly concede contact in his evidence, but, in any event, the magistrate found that the contact may well have been accidental.

Although the findings which are recorded above were mainly favourable to the appellant, his counsel Mr Nitschke criticised the reasoning which led the magistrate to conclude that the police officer was correct in saying that contact had taken place. It was argued that the learned magistrate erred when he took into account in his assessment his view that an officer of Constable Trickett's experience would not have made up the version that contact had taken place bearing in mind the number of potential witnesses in the near vicinity.

Mr Nitschke referred to Cremer v SA Police (1994) 61 SASR 594 at 598 and the cases cited therein. In Cremer's case the learned magistrate posed the question as to whether the police officers would risk their careers by telling lies to implicate a defendant. It was held in Cremer's case and the other cases referred to therein that such reasoning has a tendency to deflect the court's attention from a proper consideration of the issues in the case.

I think the comments made by the magistrate in the present case were intended to do no more than suggest that it was unlikely that an experienced officer such as Constable Trickett would be foolish enough to make up a story which could be contradicted by a number of people who were present at the time of the incident. So considered, I do not agree with the submission that this reasoning had the effect of placing police officers in a favoured category as witnesses. The question as to whether a witness would make up a false story about an incident in circumstances where it would be very foolish to do so and where the witness must have known that the truth might very well come to light eventually is a consideration which is sometimes taken into account when deciding whether the witness is telling the truth.

Nevertheless I think there were dangers in overemphasising the considerations referred to by the magistrate. Whereas it might not be altogether immaterial to consider whether the police officer would invent a story which could be readily rebutted by a number of other eye witnesses, I think it was wrong to proceed on the generalisation that an experienced officer "would not" do so.

The wording of the learned magistrate's reasons for decision suggests that this consideration might have been decisive in his assessment of the competing versions on the issue of contact. However, in the light of my view as to the merits of the second ground of appeal, it is unnecessary to decide whether the comments which I have been discussing are sufficient, of themselves, to vitiate the decision.

In relation to the second ground of appeal the appellant contends that it was not open for the learned magistrate to convict the appellant on the charge of resisting a police officer in the execution of his duty in the light of the findings of fact in relation to the assault charge. The fact that a charge of assaulting a police officer in the execution of his duty is dismissed in a case in which the charges of assaulting police and resisting a police officer are charged in respect of the same incident does not necessarily bar a conviction on the charge of resisting arrest. (Police v Walsgott (31 March 1994, unreported) and cf Normandale v Rankine (1972) 4 SASR 205 at 209). Whether or not the charge for the alleged offence which led to the arrest can be proved or has been proved is strictly irrelevant. It is sufficient if the police officer had reasonable cause to suspect that an offence had been committed. (Summary Offences Act 1953 s 75). If he did, then the arrest is lawful and the police officer is acting in the execution of his duty.

However the argument on this ground was directed towards the process of reasoning whereby the learned magistrate decided that Constable Trickett had reasonable cause to suspect that there had been assault. I have pointed out that the magistrate was not prepared to accept Constable Trickett's version in all respects. He formed a favourable impression of the police officer as a witness, but he found that it was a reasonable possibility that the appellant hit the officer accidentally as the appellant was being swung round. It is not altogether clear from his Honour's reasons as to whether he went on to make a positive finding that contact was made in this way. However he seems to have used the version which he accepted as a reasonable possibility as the factual basis for his finding that Constable Trickett had reasonable cause to suspect that he had been assaulted. The question which presents itself is whether such a finding could be justified on this factual basis.

The versions of the police officers on the one hand and that of the appellant on the other were far apart. According to Constable Trickett's version he called out to the appellant "Just stop there, I want to talk to you". The appellant then said "Fuck off". According to the police officer the appellant then turned and punched him. The appellant's version was that when the police officer took hold of him he was swung round with his arms at shoulder level. It was in the course of this action that the magistrate found, as a reasonable possibility, that accidental contact took place.

Section 75 of the Summary Offences Act 1953 provides as follows:

"A member of the police force, without any warrant other than this Act, at any hour of the day or night, may apprehend any person whom the member finds committing, or has reasonable cause to suspect of having committed, or being about to commit, an offence." (emphasis added)

It is apparent from the wording of the section that it is the police officer's suspicion which is relevant. The emphasis is on the facts as known to, or apprehended by, the police officer. The belief can be formed on the basis of information received from other persons. (Felman v Buck [1966] SASR 236). However, in the end, it is what is in the police officer's mind and whether such knowledge provides reasonable cause to suspect that an offence has been committed which must determine the matter.

This was the approach taken by the House of Lords in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 289 in construing s 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984 which provides:

"... a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of the Act applies; ..."

"This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances. This approach to the wording of s 12(1) of the 1984 Act is consistent with authority. In Dallison v Caffery [1965] 1 QB 348, which preceded the enactment of section 2(4) of the Criminal Law Act 1967, the arrest had been effected in the exercise of the common law power. Diplock LJ's description, at p 371, of the test to be applied does however provide a useful starting point for the examination of the power which has been given by the statute. What he said was: 'The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause.'"

In agreeing with this approach Lord Steyn said (293):

"The rationale for the principle in such cases is that in framing such statutory provisions Parliament has proceeded on the longstanding constitutional theory of the independence and accountability of the individual constable: Geoffrey Marshall and Barry Loveday, 'The Police Independence and Accountability' (see Jowell and Oliver, The Changing Constitution, 3rd ed. (1994), pp 295 et seq.). and Christopher L Ryan and Katherine S Williams, 'Police Discretion' [1986] Public Law 285, 305. This case must therefore be approached on the basis that under section 12(1) the only relevant matters are those present in the mind of the arresting officer."

In my view the same approach should be taken when construing s 75 of the Summary Offences Act. However, the difficulty which arose in the present case was that the learned magistrate appears to have accepted as a reasonable possibility that the contact took place as the appellant was swung around. There will be cases in which there is a fine line between distinguishing deliberate contact in an assault case and accidental contact. However I have referred to the significant differences between the police officer's version and the facts as found by the learned magistrate. I hasten to add that these findings were not made on the basis that the police officers were deliberately untruthful.

The learned magistrate's approach to the issue of Constable Trickett's belief is revealed in the following passage in his reasons for decision:

"If Constable Trickett had a reasonable suspicion an offence had been committed or was about to be committed he is entitled to arrest the defendant for the offence which he believes has occurred. In the heat of the moment I think it is placing a too high an onus on Constable Trickett to have thought that contact may have been accidental. Contact having been made, I find the constable had a reasonable suspicion an offence, namely assault, had been committed and therefore was entitled to arrest the defendant. In fact it was his duty to do so and the defendant however wrongful he might have genuinely thought the police officer's actions, is not entitled in law to resist the police officer in the execution of his duty."

It was not open to the magistrate to use Constable Trickett's version of the incident as the factual basis for a belief that an assault had taken place. As I have pointed out, the magistrate did not accept that version of the facts. Nor was it open, in my view, to base a finding as to the police officer's belief on the facts as found by the magistrate. Constable Trickett rejected that version of the incident in his evidence. A set of facts which the police officer denied could not be used as the factual basis for a finding that he entertained the necessary suspicion. The existence or otherwise of the suspicion, as opposed to the further requirement of reasonableness, is determined by a subjective enquiry. The mere fact that contact was made was insufficient, by itself, to provide the basis for a finding as to the existence of the relevant suspicion and that it was based on reasonable grounds.

In the absence of an appropriate factual basis for a finding that the police officer had reasonable cause to suspect that an offence had been committed, the charge of resisting arrest could not be sustained.

The appeal will be allowed and the conviction for resisting arrest will be set aside.