KARL SLINK v COMMISSIONER OF POLICE [2024] SASC 31

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE PANDYA) MCPAD-22-1805 Appellant: KARL SLINK Counsel: MR B DOYLE KC WITH MR S JOYCE - Solicitor: TINDALL GASK BENTLY Respondent: COMMISSIONER OF POLICE Counsel: MR M HINTON KC DPP - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 31/01/2024 File No/s: SCCRM-23-033864 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SLINK v POLICE [2024] SASC 31 Judgment of the Honourable Justice Kimber 13 March 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT POLICE - RIGHTS, IMMUNITIES, POWERS, DUTIES AND LIABILITIES - IMMUNITY FROM PROSECUTION POLICE - OFFENCES BY POLICE - CRIMES This is an appeal against a finding of guilt by a Magistrate of an offence of Aggravated Assault Causing Harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation was that the appellant abused his position of authority as a police officer. On the prosecution case at trial, while arresting the complainant, the appellant delivered multiple blows which included blows to the face which caused harm. On the prosecution case, the blows which caused harm were deliberate and were not an honest act to which the immunity in s 65 of the Police Act 1988 (SA) (the Act) applied. At trial, as part of its case, the prosecution led an out of court statement of the appellant which, among other things, asserted that the conduct the subject of the charge was an honest act in the relevant sense. The appellant gave evidence at trial; denied that any blow which might have caused harm to the complainant was deliberate; and said that his conduct was an honest act. Evidence was given that the appellant was of good character. There are three grounds of appeal which advance the following complaints (among others): 1. The Magistrate erred in finding a case to answer at the conclusion of the prosecution case; 2. The Magistrate erred in her approach to more than one aspect of the evidence, including the good character of the appellant. An aspect of that approach was to direct that the good character could not bolster the claim of the appellant to the effect that the conduct the subject of the charge was an honest act which entitled him to the protection of the immunity in s 65 of the Act; and -- 1 of 23 -- 3. The evidence did not support a finding of guilt beyond reasonable doubt. Held, allowing the appeal, setting aside the conviction and remitting the matter for trial before a different Magistrate: 1. There was no error in the Magistrate finding a case to answer; 2. A use of good character evidence is in evaluating the credibility of an explanation of an accused for their conduct and/or their evidence on the same topic. Contrary to that approach, the Magistrate gave herself a direction the natural reading of which is that the good character of the appellant was not to be considered in evaluating the credibility of his claim that the conduct the subject of the charge was an honest act. The appeal must be allowed on that basis; and 3. On the whole of the evidence, it was open to find the appellant guilty beyond a reasonable doubt. Criminal Law Consolidation Act 1935 (SA) s 20(4); Police Act 1998 (SA) s 65; Magistrates Court Act 1991 (SA) s 42, referred to. O’Malley v Singh (2019) 133 SASR 291; Lumsden v Police (2019) 135 SASR 265; R v C, CA [2013] SASCFC 137; R v Trimboli (1979) 21 SASR 577; Melbourne v The Queen (1999) 198 CLR 1; Boyle v The King [2022] SASCA 50; Police v Rosales [2017] SASC 118; Marchesano v The State of Western Australia [2017] WASCA 177; Braysich v The Queen (2011) 243 CLR 434, applied. Nguyen v The Queen (2020) 296 CLR 299; R v Rudd (2009) 23 VR 444, considered. -- 2 of 23 -- SLINK v POLICE [2024] SASC 31 Magistrates Appeal: Criminal KIMBER J: 1 This is an appeal against a conviction after a trial in the Magistrates Court. The appellant was found guilty of Aggravated Assault Causing Harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation was that the appellant abused his position of authority as a police officer in committing the offence. 2 There was no dispute at trial that the appellant struck the alleged victim, Mr Ward, while arresting him and that the alleged conduct the subject of the offence was committed in the course of his duties as a police officer. On the prosecution case, the blow(s) the subject of the offence were blow(s) with a closed fist and/or knee to Mr Ward’s face with the blow(s) causing harm. 3 The appellant gave evidence at trial and evidence was given of his good character. In his evidence, the appellant admitted that, while arresting Mr Ward, he delivered blows to his body, but maintained that all blows were necessary in order to effect a lawful arrest of Mr Ward and denied that any blow which might have struck Mr Ward’s face was deliberate. 4 The appellant appeals his conviction on three grounds. The appellant contends that the Magistrate erred in finding a case to answer at the conclusion of the prosecution case (Ground 1); that the Magistrate erred in finding the prosecution had negatived the application of s 65 of the Police Act 1998 (SA) (the PA) (Ground 2); and that the evidence did not support a finding of guilt beyond a reasonable doubt (Ground 3). 5 For the reasons which follow, I dismiss Grounds 1 and 3. There was a case to answer at the end of the prosecution case and, on the whole of the evidence, it was open to the Magistrate to find the offence proven beyond a reasonable doubt. For the reasons which follow, I allow the appeal on Ground 2. The Magistrate misdirected herself as to the approach to be taken in relation to the appellant’s good character. More specifically, the Magistrate erroneously directed herself that the appellant’s good character could not be used in evaluating a vital aspect of the evidence relied upon by the appellant. That is, evidence of a claim by the appellant that he held a genuine belief that what he was alleged to have done was warranted by the exercise of his powers, functions or duties which then afforded him the immunity in s 65(4) of the PA. The conviction must be set aside and the matter remitted to the Magistrates Court for retrial before a different Magistrate. The grounds of appeal 6 The grounds of appeal are as follows: -- 3 of 23 -- [2024] SASC 31 Kimber J 2 1. The learned primary magistrate erred in failing to accede to a no case submission and declining to enter an acquittal. a. The evidence demonstrated that: i. the complainant Ward was a man of size and strength who was grossly intoxicated, and who had been hostile, aggressive and unpredictable; ii. Ward’s retreat into a shed (a confined space with no obvious means of escape) was a matter of concern to the police officers at the scene. b. The evidence led on the Crown case included: i. Constable Paige Purdie gave evidence that the wiggling and tensing of the complainant's arms was a sign that he was resisting and that was a problem because it prevented an arrest being affected [sic]. Constable Purdie gave evidence that a "distraction" or "refocusing" strike is a legitimate police technique that can be delivered with a closed fist. It is a technique that she has personally used before. ii. Constable Basso ascertained that the complainant's right arm was underneath his body, and he held an active concern that he may have a weapon under his body. He heard the defendant say words to the effect of "give me your arm" before he saw him deploy distraction/refocusing strikes to the arm/shoulder/head region. Constable Basso gave evidence that distraction strikes/refocusing strikes are permissible uses of force within SAPOL. He has used such strikes before. The strikes can be done with a closed fist. iii. Sergeant Ben Partington gave evidence that he witnessed the complainant refusing to bring his right arm out from under his body. He described the level of resistance by the complainant as very heavy. Sergeant Partington gave evidence that he witnessed the defendant deliver strikes to the upper body of the complainant and held no concerns about the use of force. c. The Crown case, taken at its highest, was incapable of negativing the reasonable possibility of the defendant's honesty. 2. The primary magistrate erred in finding that the prosecution had negatived the application of section 65 of the Police Act 1998 (SA). a. The primary magistrate erred in conflating a non-acceptance of the honesty of the defendant's evidence in Court with proof of the absence of an honest belief that his conduct was warranted by the exercise of a power of arrest). b. Further, or in the alternative, the primary magistrate erred in treating out of court statements and evidence in Court of the defendant as constituting positive evidence of the absence of an honest belief in the relevant issue sense: i. without directing herself that to avoid circular reasoning she needed to be satisfied based on independent evidence that the relevant statements were false and deliberately so (and/or without having a basis for such a conclusion); -- 4 of 23 -- [2024] SASC 31 Kimber J 3 ii. without directing herself that she needed to be satisfied that the deliberate untruth was not told for a reason consistent with innocence, such as out of panic or to forestall an unjust accusation (and/or without having a basis for such a conclusion); and iii. in circumstances where the prosecution had not identified the statement(s) said to be lies not fairly confronted the defendant in cross- examination with the proposition that the statement(s) were lies indicative of guilt. c. The primary magistrate erred in proceeding on the basis that the bruising and swelling to the eyes of the complainant were caused by blows administered by the defendant … in circumstances where the evidence did not permit the conclusion to be drawn and/or where there were inadequate reasons for such a finding. d. The primary magistrate failed to bring to bear on the question of honesty, the corroborative evidence of the other prosecution witnesses and the witness Romeo, including evidence of good character (and erred in proceeding on the basis that the evidence could not bolster the claim of a genuine belief that his conduct was warranted in connection with the arrest of Ward (PJ [76])). e. The magistrate erred (and misused her advantage as the trier of fact) by: i. proceeding on the basis that the endorsement from Basso fuelled the defendant’s confidence and ego with the result that he was keen to ‘go again’ despite it being increasingly clear that the exchanges were futile, when that proposition was not put to the appellant nor an available inference (PJ [103]); ii. criticising the defendant’s evidence on the footing that he untruthfully declined to accept that he was frustrated when that was not the effect of his evidence (PJ [104]); iii. finding that the defendant’s finding of Ward in the shed and instructions to him to come out must have in the defendant’s mind signalled a change in his risk assessment (PJ [116]) when such a finding ignored the evidence of other officers and was contrary to logic and natural inferences; iv. mischaracterising or misapprehending the defendant’s evidence as to his awareness of the presence of other officers in the shed at particular times and forming an adverse view about his evidence as 1contrary [sic] and treating this as an important starting point for considering the critical issues (cf. PJ [117]-[119] and [124]); v. mischaracterising or misapprehending the defendant’s evidence as to his observations of the shed and Ward’s hands (PJ [120], [124]); vi. finding that the manner and speed of his action in taking down Ward was telling (PJ [128]) when the appellant had given an explanation for it which was not shown to be unreasonable; -- 5 of 23 -- [2024] SASC 31 Kimber J 4 vii. finding that there was an irreconcilable inconsistency between the defendant’s notes and his evidence when that was not necessarily the case (PJ [133]); viii. unfairly criticising the defendant’s evidence and conduct in relation to the period of time between strikes (distraction strikes) (PJ [136]); ix. rejecting and criticising the defendant’s evidence that he believed Ward was reaching for a weapon from his waistband or a pocket and that he was not aware of Partington’s involvement (PJ [138]) and that there was no basis to believe Ward was capable of retrieving anything from his back pocket that might be a danger to police (PJ [139]); x. proceeding on the basis that it was ‘clear’ that the risk of firearms being present on the premises was ruled out (PJ [87], [139]) when that overstated the position and where the other officers agreed no such assumption was made by them; xi. proceeding on the basis that because there was ‘adequate lighting’ and the defendant was tasked only with securing one of Ward’s arms, the level of resistance was not extreme such that the defendant’s evidence must be untruthful (PJ [140]); f. The primary magistrate reasons were inadequate, in that: i. the reasons did not properly address the permissible use of statements said to be untruthful (lies); ii. the reasons did not properly explain the finding that the manner of the takedown was telling (PJ [128]); iii. the reasons did not explain the basis for the conclusion as to causation of the facial injuries (PJ [158]); iv. apart from observing that the judge did not find the appellant a truthful witness, the reasons did not explain the basis for rejecting as a reasonable possibility that he acted honestly in the relevant sense nor the basis upon which evidence in the prosecution case supportive of that conclusion was put to one side or overcome (PJ [156]). 3. The evidence did not support a finding of guilt beyond reasonable doubt A brief overview of the evidence at trial The prosecution case 7 Before turning to the grounds of appeal, I will give an overview of some of the evidence in the prosecution case. It is not necessary to give a comprehensive summary. 8 Mr Ward did not give evidence. The prosecution called five witnesses, all of whom were police officers who attended the house where the alleged offence occurred. The prosecution also tendered several exhibits which included copies of body camera footage from police officers who attended the house; documents -- 6 of 23 -- [2024] SASC 31 Kimber J 5 relevant to police training, including training undertaken by the appellant; notes made by the appellant after the incident in which the appellant had recorded what he said had occurred; photographs taken of Mr Ward about five hours after the incident showing bruising and swelling to both eyes; and agreed facts. Lead up to the incident 9 At about 6.25pm on 5 January 2022, police officers attended at the house at which Mr Ward was present after a report of a domestic disturbance. Constables Purdie and Basso were the first two police officers to arrive. Whilst driving to the address, they received a report that a male had come out of the residence saying he would shoot if anyone was to come in. Upon arrival, Constables Purdie and Basso spoke with a female at the front of the house. The female introduced herself as Mr Ward’s partner and said that Mr Ward had locked himself inside with their three-year-old daughter. She told the police officers that she was concerned for her daughter’s safety and that Mr Ward would not hand the child to her. Police were told that Mr Ward was intoxicated and there had been an argument which had resulted in Mr Ward slamming the door on her fingers. It was later determined that this might have been an accident. 10 Constables Purdie and Basso went to the front door and spoke with Mr Ward through the locked door. Mr Ward was holding the child, slurring his words and not making sense. Early in their interactions with Mr Ward, a view was formed that Mr Ward was a ‘sovereign citizen’ as he had refused to provide his name and address and attempted to refer to a right not to do so. The two police officers attempted to negotiate with Mr Ward for about half an hour, at which time Constable Collett and the appellant arrived. 11 When Constable Collett and the appellant arrived, they received information from Constables Purdie and Basso. The appellant commenced negotiations with Mr Ward through the screen door at the front of the house. The appellant used a more confrontational communication style in an apparent attempt to goad Mr Ward to come out of the house. There was evidence that this was a legitimate police tactic. 12 Mr Ward continued to be belligerent, hostile and verbally aggressive and persisted in his refusal to comply with directions to exit the house. There was evidence that the primary concern of police officers present was the welfare of the child and that the intoxication of Mr Ward was relevant to his risk of unpredictable behaviour. Constable Purdie gave evidence that there was a risk of a firearm being present due to the information police received en route about a shooting potential and that she regarded a sovereign citizen to be a further risk due to their general disrespect for the law. 13 About an hour and a half after the first two police officers had attended, Acting Sergeant Partington arrived with house breaking implements and Acting Inspector Quinn subsequently authorised forced entry. Constable Basso and the appellant broke through the fly screen and timber doors at the front of the -- 7 of 23 -- [2024] SASC 31 Kimber J 6 house and all officers entered. Mr Ward and the child were not inside. They were in a small garden shed in the backyard. Events in the shed 14 The alleged offence was committed in the shed. On the prosecution case, the body camera footage shows the shed to be small, well-lit and relatively free from both clutter and implements. 15 The appellant and Constable Collett were the first to enter the shed with Constable Basso and Acting Sergeant Partington entering almost immediately thereafter. Mr Ward was holding the child in his left arm. Constable Basso described the situation as intense, volatile and emotional and gave evidence to the effect that, after entering the shed, there was only a split second in which to make a further risk assessment. Constable Collett said that Mr Ward being in the shed presented a ‘particular problem’ because it gave rise to a risk that he could have armed himself with a tool as a weapon. 16 On the prosecution case, as the appellant entered, Mr Ward can be heard in the body camera footage referring to the child in his left arm and saying, ‘I’ll give her, I’ll give her. I’ve got no dramas, I’ve got no dramas’. The appellant took hold of the right arm of Mr Ward, while Constable Collett retrieved the child and left the shed with the child. Mr Ward had nothing in his right hand. Immediately after Constable Collett retrieved the child, the appellant took Mr Ward to the ground with considerable force. The body camera footage is consistent with that being done without warning from the appellant, without Mr Ward being told that he was being arrested and without Mr Ward obviously resisting or hostile to the presence of police at that moment. Mr Ward was then face down on the ground. Constable Basso attempted to take control of the left arm of Mr Ward and gave evidence of having difficulty in doing so. The appellant was attending to the right arm. Acting Sergeant Officer Partington took control of Mr Ward’s legs and feet. Constable Purdie also assisted. 17 After Mr Ward was taken to the ground, there was no dispute that the appellant delivered more than one blow to at least the upper body of Mr Ward. On the prosecution case, and consistent with what can be seen in the video footage, the blows commenced immediately after Mr Ward was taken to the ground. On the prosecution case, the blows commenced with blows with a closed fist but the appellant also later used his knee. On the prosecution case, those blows included at least two blows to the face given the harm alleged in the offence and the photographs later taken of Mr Ward which showed bruising and swelling to both eyes. As I understand the prosecution case, the blow(s) to the face was the conduct the subject of the alleged offence as injury to the face was the only potential harm caused to Mr Ward which might have been established on the evidence. 18 The police ultimately gained control of Mr Ward and he was handcuffed and removed from the shed. -- 8 of 23 -- [2024] SASC 31 Kimber J 7 Events after the shed 19 It is not necessary to attempt to summarise all that occurred after Mr Ward was removed from the shed. It is sufficient to record that after being taken to the police station, the photographs of Mr Ward’s face were taken approximately five hours after the incident in the shed and that the appellant made notes of what he said had occurred, including why he had delivered blows to Mr Ward. Those notes were tendered as part of the prosecution case and will be the subject of more detailed reference later. The defence case 20 The appellant gave evidence and called evidence of his good character. It will be necessary to refer to some of the key aspects of this evidence when addressing the grounds of appeal. Section 65 of the Police Act 1998 (SA) (the PA) 21 There was no dispute at trial that any relevant conduct by the appellant towards Mr Ward was done in the exercise or discharge, or purported exercise or discharge, of a power, function or duty as a police officer. It is therefore necessary to say something about s 65 of the PA which creates a protection for police officers from civil or criminal liability for conduct done in the circumstances applicable in this case. Section 65 provides: 65—Protection from liability for members of SA Police and police security officers (1) A member of SA Police or a police security officer does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law. (2) A liability that would, but for subsection (1), lie against a member of SA Police or a police security officer lies instead against the Crown. (3) A person (the injured person) who suffers injury, loss or damage as a result of the act or omission of a member of SA Police or a police security officer may not sue the member or officer personally unless— (a) it is clear from the circumstances of the case that the immunity conferred by subsection (1) does not extend to the case; or (b) the injured person brings an action in the first instance against the Crown but the Crown then disputes, in a defence filed to the action, that it is liable for the act or omission of the member or officer. (4) Where a question arises as to whether the immunity conferred by subsection (1) extends to the case and the member of SA Police or the police security officer claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member or officer. -- 9 of 23 -- [2024] SASC 31 Kimber J 8 (5) If a member of SA Police or a police security officer is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law— (a) unless the Crown is alleging that the member or officer is personally liable for the act or omission—the Crown must represent the member or officer; or (b) if the Crown does not represent the member or officer and the member or officer is found by the court not to have acted dishonestly—the Crown must indemnify the member or officer for legal costs properly incurred by the member or officer (but not exceeding 80% of the Supreme Court scale of costs applying at the time the case is determined). 22 In O’Malley v Singh (O’Malley),1 Stanley J summarised the purpose of s 65 in the following way, albeit in the context of civil liability:2 In my view, putting to one side the question of criminal liability, which is not at issue in this matter, the purpose of s 65, and, in particular s 65(3), is to protect police officers in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty legally conferred or imposed upon them, from being sued or found civilly liable for their acts or omissions. The purpose of conferring this protection is to prevent police officers from being inhibited or distracted in the course of the performance of their duties by a concern that in performing those duties they might be exposed to civil or, for that matter, criminal liability, where they have undertaken those duties honestly. The risk is that a police officer might hesitate or be inhibited in the performance of his or her duties by such concern. That would give rise to a conflict which is contrary to the public interest. 23 As set out in s 65(1), the statutory protection for police conferred by s 65 is only enlivened when the act or omission occurs honestly. As to that requirement, Stanley J held in Lumsden v Police (Lumsden)3 that: [t]he requirement that the act or omission by the member of SA Police be honest imports a subjective test. Section 65(4) imposes on the respondent the burden of proving that the appellant’s act or omission was not honest. The prosecution must prove that the police officer did not at the time have a genuine belief that what he or she was doing or refraining from doing was warranted by the exercise of the officer’s powers, functions or duties. In the context of determining whether a member of SA Police is immune from criminal liability, as opposed to civil liability, s 65(4) seems otiose. The prosecution bears the onus, where a police officer claims protection from criminal liability pursuant to s 65, of proving the officer is not entitled to that protection. Whether such a genuine belief did not exist at the relevant time is to be determined by a consideration of all the surrounding circumstances. The respondent must exclude the reasonable possibility that the officer’s acts or omissions were undertaken in the genuine belief that he or she was exercising or discharging, or purporting to exercise or discharge, a power, function or duty conferred or imposed on the officer by or under the Police Act or any other statute or law. 1 (2019) 133 SASR 291. 2 Ibid 298 [29]. 3 (2019) 135 SASR 265. -- 10 of 23 -- [2024] SASC 31 Kimber J 9 Ground 1 24 At the conclusion of the prosecution case the Magistrate rejected the submission of the appellant that there was no case to answer. The appellant contends that the finding of a case to answer was one which was not open to the Magistrate. 25 For the purposes of the appeal, the issue in Ground 1 is the immunity conferred by s 65 of the PA. More specifically, whether at the end of the prosecution case, taking the prosecution case at its highest and drawing all inferences favourable to the prosecution,4 the evidence was capable of excluding as a reasonable possibility that the conduct the subject of the offence was an honest act (i.e. – excluding as a reasonable possibility that the conduct was committed with a genuine belief that the conduct was warranted in the exercise of the power to arrest Mr Ward). The evidential burden 26 Given the approach of the parties on the appeal, it is necessary to say something about their respective submissions about whether the appellant bore an evidential burden as to the conduct being an honest act. The respondent submits that the immunity placed an evidential burden upon the appellant. On that premise, the respondent submits that the appellant had to adduce sufficient evidence to warrant consideration of that immunity and that such evidence did not exist at the end of the prosecution case. The appellant submits that s 65 of the PA should not be construed as imposing an evidential burden upon a defendant. The appellant submits, among other things, the text of s 65(4) is not consistent with the construction urged by the respondent. The appellant directs attention to the term ‘immunity’ rather than ‘defence’ and the use of the word ‘claims’ both of which it is submitted are more consistent with the immunity needing to be disproved without there being an evidential burden upon the defendant. 27 In advancing their respective positions, the appellant and the respondent both direct attention to the approach of the plurality in Braysich v The Queen (Braysich).5 28 The appellant in Braysich was charged with counts of creating a false or misleading appearance of active trading in securities on the stock market in contravention of ss 998(1) and 1311(1) of the Corporations Law (WA). Section 998(1) and (6) provided: 998—False trading and market rigging transactions 1. A person shall note create, or do anything that is intended or likely to create, a false or misleading appearance of active trading in any securities on a stock market or a 4 DPP Reference No 1 of 2017 (2019) 267 CLR 350, [56]–[57]; Doney v The Queen (1990) 171 CLR 207, 214–215. 5 (2011) 243 CLR 434. -- 11 of 23 -- [2024] SASC 31 Kimber J 10 false or misleading appearance with respect to the marker for, or the price of, any securities. … 6. In a prosecution of a person for a contravention of subsection (1) constituted by an act referred to in subsection (5), it is a defence if it is proved that the purpose or purposes for which the person did the act was not, or did not include, the purpose of creating a false or misleading appearance of active trading in securities on a stock market. 29 The plurality held that:6 It is an “elementary principle of the criminal law that unless express statutory provision to the contrary be made, the onus lies upon the Crown throughout to negative defences sufficiently raised”. The authority and responsibility of the judge to instruct the jury on questions of law requires the judge “to put to the jury every lawfully available defence open to the accused on the evidence even if the accused’s counsel has not put that defence and even if counsel has expressly abandoned it”. It may also require a direction to the jury that there is no evidence capable of supporting a particular defence to the charge and that they are not to consider that defence in their deliberations. In such a case the accused is said to have failed to meet the “evidential burden” necessary to raise the defence. Such a direction may be made in respect of a defence which, if open, the prosecution, bearing the “legal burden” of proof, would have to negative beyond reasonable doubt. It may also be made in respect of a statutory defence, such as that created by s 998(6), which by statute the accused is required to establish. The standard of proof necessary to discharge the legal burden imposed upon the accused in such a case is proof on the balance of probabilities. The distinction between the “legal burden” and the “evidential burden” has been explained in this Court as the difference between “the burden … of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt” and “the burden of proof in the sense of introducing evidence” (emphasis in original). It has also been explained in the eighth Australian edition of Cross on Evidence by reference to the distinction between the functions of judge and jury: “The concept of the evidential burden is the product of trial by jury and the possibility of withdrawing an issue from that body. Unlike the concept of the legal burden it is not a logical necessity of litigation about questions of fact: ‘If it were to be said of any issue, that it was not covered by an evidential burden, the only effect would be to remove the judge’s filtering power in respect of that issue.’” (footnotes removed) 30 I incline to the view that there was an evidential burden on the defendant. Nevertheless, in this case, it is not necessary to decide that question. Assuming that there was, in my view, it had been discharged at the end of the prosecution case. 31 In Braysich, the plurality held that an evidential burden could be discharged by evidence given in the prosecution case.7 In Marchesano v The State of Western 6 Ibid [32]–[33]. 7 Ibid [37]. -- 12 of 23 -- [2024] SASC 31 Kimber J 11 Australia8 it was held that, depending on the circumstances of the case, slender evidence may be sufficient to discharge an evidential burden.9 32 The particulars within Ground 1 are drawn from the evidence at the end of the prosecution case. For the purposes of the appeal, it can be accepted that there was evidence that Mr Ward was a man of size and strength, was grossly intoxicated, had been hostile, aggressive and unpredictable, and that his presence in the shed was a matter of concern to police officers at the scene. It may also be accepted that Constable Purdie, Constable Basso and Acting Sergeant Partington each gave the evidence summarised within the particulars. 33 Nevertheless, it is not necessary to decide whether the above evidence met any evidential burden which might have existed. In addition to the above, there was other evidence led in the prosecution case which, of itself, met any potential burden. This evidence was the out of court statement of the appellant recorded in the notes made by him which were tendered by the prosecution as part of its case.10 It was an agreed fact that the notes related to the arrest of Mr Ward.11 34 As to what occurred once the appellant arrived at the shed and saw Mr Ward, the appellant had recorded in his notes: I headed to the shed at the rear right of the yard. I opened the shed door and observed WARD standing at the back under a roof truss with [the child] in his arms who was crying. I immediately thought that WARD was going to seriously injure or kill [the child] as his demeanour seemed strange and was as if his life was over. I started walking towards him and was saying/directing him to come to me and ‘lets go’ while gesturing for him to come to me. As WARD is a large man and there was a great size disparity between him and I, I took hold of his right arm while Collett took [the child] and walked off. I felt WARD tense is right arm so I immediately took him to the ground [in order to] affect the arrest. WARD pulled his arms under his torso and remained tense, resisting the arrest. WARD was instructed that he was under arrest and to stop resisting on numerous occasions. I felt his right arm move to his left side (slightly further under neathe) [sic] and given the violent behaviour and threats to police, I believed on reasonable grounds that as we were now on WARD’s shed, that was trying to grab hold of a weapon underneath him either from his pockets or from the work bench to his left. Fearing for safety and that of BASSO/PARTINGTON, I delivered multiple strong side straight strikes with a closed first to his shoulder (right) and face (right) which appeared effective enough to be able to gain control of his right arm. No other tactical options were appropriate at the time. WARD continued to yell and moved his head on the ground, causing abrasions to the left of his head/face. Once both arms were free, BASSO used is handcuffs to restrain WARD and a short time later we picked WARD up and moved him to the grass area where he was searched and I waited for the cage to arrive. 35 The above account was both inculpatory and exculpatory and both aspects were part of the evidence at the end of the prosecution case.12 In relation to the 8 [2017] WASCA 177. 9 Ibid [90]. 10 P6. 11 P7. 12 Nguyen v The Queen (2020) 269 CLR 299, [23]–[24]; R v Rudd (2009) 23 VR 444, 453–5. -- 13 of 23 -- [2024] SASC 31 Kimber J 12 former, the notes are open to be viewed as containing admissions to the delivery of deliberate blows to both the shoulder and the face of Mr Ward with a closed fist. In relation to the latter, the notes were also evidence of why the appellant struck Mr Ward. Of particular relevance to any evidential burden, the appellant had recorded in his notes that having taken Mr Ward to the ground to effect an arrest, he struck Mr Ward because he ‘believed on reasonable grounds’ that Mr Ward was trying ‘to grab hold of a weapon’ and he feared for the safety of himself and others. It is difficult to construe those parts of the notes as anything other than an expression of a genuine belief that the blow(s) the subject of the alleged offence were warranted by the exercise of the powers, functions or duties of the appellant. 36 At least for the above reasons, if the appellant bore an evidential burden with respect to the relevant genuine belief, it was met. A case to answer 37 I have set out earlier the specific issue in Ground 1 and the test for a case to answer. 38 Consistent with the summary of evidence in the prosecution case set out earlier, the notes made by the appellant and the evidence summarised in the particulars of Ground 1 was not the only evidence led in the prosecution case. 39 Two important aspects of the evidence were the body camera footage from several police officers and the photographs of the injuries to Mr Ward. I have viewed the footage more than once, including those parts of the footage which show what occurred in the shed. The body camera footage of Acting Sergeant Partington in particular shows Mr Ward being taken to the ground by the appellant. Only about two seconds after that occurred, the same footage shows the appellant delivering the first strike to Mr Ward. That, and all other blows which can be seen in any footage, appear to have been delivered with considerable force. Bearing in mind that the footage shows that blows were delivered almost immediately that Mr Ward was on the ground, that it is open to infer those blows were with a fist and that the alleged conduct the subject of the offence was a blow(s) to the face of Mr Ward, the appellant had recorded in his notes that he delivered ‘multiple strong side straight strikes with a closed fist to [Mr Ward’s] shoulder (right) and face (right)’. At the end of the prosecution case, it was open to view those notes as admissions to deliberate strikes to the face and, given the footage, to find that the blows commenced immediately after Mr Ward was taken to the ground. Given the injuries shown in the photographs, it was also open to find that the deliberate strikes had caused harm. 40 Taking the prosecution case at its highest, and drawing all inferences open which are favourable to the prosecution, at the end of the prosecution case, the evidence was capable of establishing beyond a reasonable doubt that the appellant took Mr Ward to the ground without warning and when his behaviour was not as it had previously been, including that he was not resisting; and that the appellant then delivered at least two deliberate and forceful blows to the face which caused -- 14 of 23 -- [2024] SASC 31 Kimber J 13 harm. Given the immediacy with which the blows commenced upon Mr Ward being taken to the ground and that within those blows were blows to the face, at the end of the prosecution case, the evidence was capable of establishing beyond a reasonable doubt that the blows to the face were not an honest act in the relevant sense. It follows the Magistrate was correct to find that there was a case to answer. 41 In reaching this view, I have not overlooked the evidence emphasised by the appellant within the particulars within this ground, nor the balance of the evidence in the prosecution case. I make some observations about that evidence. 42 In considering whether there was a case to answer, the Magistrate was not obliged to accept as reliable every aspect of an eyewitness account of a dynamic event. As a matter of common sense, what can be seen and heard in the body camera footage might be said to be the most reliable evidence of what occurred in the shed, at least at the moments shown in the footage. The importance of the footage as a reliable record might also be illustrated by the fact that no witness called by the prosecution claimed to have seen any blow to the face of Mr Ward, notwithstanding what might be viewed as the admissions of the appellant to such blows and injuries which might be consistent with such blow(s). 43 Accepting that the evidence established the matters set out by the appellant in the particulars of Ground 1 (i.e. – the evidence about Mr Ward’s appearance and demeanour and what was a matter of concern to police officers at the scene), that evidence must be viewed in the context of how quickly Mr Ward was taken to the ground; how soon thereafter blows were delivered; and what could be inferred about at least two blows being deliberate and to the face. 44 As for the evidence of the three police officers summarised in the particulars, I make some further observations. 45 Constable Purdie did not give evidence of seeing any blow to the face of Mr Ward, nor did she see Mr Ward taken to the ground. The evidence of Constable Purdie about distraction strikes was that such blows were delivered to the arms. The relevant blows on the prosecution case were to the face. I note as well that Constable Purdie also gave evidence that she had no concerns about the behaviour of the appellant. If that evidence was admissible, which I need not decide, it fell to be evaluated mindful that Constable Purdie did not claim to have seen any blow to the face. And so, it was not an opinion about the conduct the subject of the charge. 46 As for Constable Basso, it might be doubted that his state of mind (i.e. – the ‘active concern’) could inform in any meaningful way, if at all, the state of mind of the appellant at the time he struck Mr Ward as Constable Basso did not give evidence that he had shared the ‘active concern’ with the appellant. Putting that aside entirely, what Constable Basso described, including what he heard the appellant say, had to be viewed in the context of the body camera footage I have earlier summarised. While the evidence of Constable Basso was that ‘refocusing’ -- 15 of 23 -- [2024] SASC 31 Kimber J 14 strikes could be delivered with closed fist and in a controlled way, he had also said that he was not certain that his training had been that such strikes were appropriate to the face. 47 As for the evidence of Acting Sergeant Partington, the aspects of his evidence emphasised by the appellant must be viewed given he had not been able to say how Mr Ward had been taken to the ground and the conclusion open based on the footage that the blows commenced almost immediately after that occurred. Further, if admissible, which I again need not decide, the evidence of Acting Sergeant Partington about an absence of concern about the conduct of the appellant, like the evidence of Constable Purdie, fell to be evaluated mindful that he did not claim to see any blow delivered to the face of Mr Ward. If admissible, it was not an opinion about the conduct the subject of the offence. As a matter of completeness, the same observation may be made about the evidence of Acting Inspector Quinn that he had no concerns about the conduct of the appellant. As with other witnesses, Acting Inspector Quinn did not give evidence of having seen any blow to Mr Ward’s face. 48 I dismiss Ground 1. Ground 2(d) 49 The appellant has two complaints in Ground 2(d): first, that the Magistrate failed to bring to bear the evidence of the good character of the appellant; second, that the Magistrate erred in proceeding on the basis that the evidence could not bolster the claim of genuine belief. 50 At trial, more than one witness gave evidence of the good character of the appellant. There was no objection to the evidence, some of which was given by prosecution witnesses during cross-examination. I will only summarise some aspects of this evidence. 51 As to the general reputation of the appellant, Constable Purdie said the appellant was known as a nice person; Constable Basso said the appellant was known as well liked, well regarded by his peers and honest. Constable Collett said the appellant was known as professional and calm. 52 In his case, the appellant called Senior Constable Romeo. He had known the appellant for more than a decade both in the army (prior to the appellant joining the police force) and as a police officer. The effect of the evidence of Senior Constable Romeo was that the appellant had a general reputation for honesty and integrity. The evidence of Senior Constable Romeo was also that the appellant had a general reputation as professional and having high standards. The approach of the Magistrate 53 The Magistrate accepted that the appellant was of good character. As to that evidence, the Magistrate directed herself: -- 16 of 23 -- [2024] SASC 31 Kimber J 15 [76] I bear in mind Slink’s good character when considering whether I am prepared to draw from the evidence the conclusion of his guilt. It is a factor affecting the likelihood of him committing the crime charged and I use it to assess the credibility of explanations given by him in his evidence as a witness. It is important to use the evidence of the [sic] Romeo and the other police officers when I come to a view as to the truthfulness or not of aspects of Slink’s evidence. Ultimately though his good character cannot, if the burden of proof is met, prevail against evidence of guilt and if the immunity is considered, it cannot be used to bolster his claim of holding a genuine belief whilst arresting Ward at North Haven on 5/1/22. (emphasis added) Good character — principles 54 As the Magistrate correctly identified, good character evidence is admissible for two purposes: first, to support the credibility of the explanation, or evidence, of an accused; second, as a factor making it less likely that an accused committed an offence charged.13 In R v C, CA, Kourakis CJ held with respect to directions to a jury:14 The proper directions to be given when an accused adduces evidence of good character were considered in R v Trimboli. In that case King CJ laid down the following propositions. 1. It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put. 2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness. 3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit. … The discretion allowed by King CJ as to the inclusion of a direction on the use of character evidence to support the credibility of an accused’s testimony is supported by the historical underpinning of the common law’s reception of character evidence. The evidence was admissible before an accused could testify in his own defence and the sole purpose of the evidence at that time was therefore to demonstrate the improbability that the accused committed the offence. Nonetheless, as White J observed in Trimboli, there is English 13 R v Trimboli (1979) 21 SASR 577, 578; Melbourne v The Queen (1999) 198 CLR 1, 14 [30]; R v C, CA [2013] SASCFC 137 [107] (R v C, CA). 14 [106], [108]–[109]. -- 17 of 23 -- [2024] SASC 31 Kimber J 16 authority that trial judges should direct juries to take into account character evidence when considering the credibility of an accused who has testified in his own defence. White J concluded that a direction on both aspects, improbability of offending and credibility, should be given. Mohr J agreed with both King CJ and White J. More recently in R v Edwards, this Court accepted that a trial Judge should give a direction on both the credibility, and improbability of guilt, uses of character evidence. (footnotes removed) Discussion 55 In this case, a proper direction as to the use of the appellant’s good character in evaluating the credibility of the explanation for his conduct given in his notes and in his evidence was vital. The explanation given in the notes is set out earlier and need not be repeated. The appellant’s evidence was open to be treated as having more weight than the exculpatory aspects of the notes.15 An aspect of the evidence of the appellant about what occurred after Constable Collett had control of the child; why he took Mr Ward to the ground; and why he had struck Mr Ward was the following:16 Q So just to be clear, at the time that you took the arm, was the child with Mr Ward. A Still with Mr Ward. Q Then what happened next. A Next I know that Constable Collett had somehow taken control of the child and as soon as she was free, or the child was out of his arms I took Ward to the ground. Q How did you do that. A I believe I had hold of his arm and essentially tried to sling him down onto the ground. Q To your understanding is that an approved technique. A Yes, I believe that was one of the first takedowns we’ve been taught at the academy. Q Is there a reason that you took him to the ground as opposed to attempting to take control of him while he was upright. A No. Q Once you got him onto the ground, what was the next thing that you did. A Once he was on the ground I was then trying to gain control – because I was on his right side, so I was then trying to gain control of that arm. Q At that stage was Mr Ward resisting. 15 Nguyen v The Queen (2020) 269 CLR 299 [24]. 16 T126.3–T128.17. -- 18 of 23 -- [2024] SASC 31 Kimber J 17 A He was resisting, yes. Q Can you tell Her Honour how he was resisting. A At that point immediately he had pulled his arms into his body so I was unable to gain control of that arm. Q Just pausing there, once if – is there any significance to you, in the context of effecting an arrest, when a subject puts their arms under their body. A Yes, that poses an even greater threat at that point. Q Why does that pose a greater threat. A Because quite often people will conceal items such as weapons in their waistband or pockets. Q Did you hold concerns. A I hold those serious concerns, yes. Q Why do you say you held them seriously. A Due to, again, this is all part of my threat assessment or my risk assessment and that the behaviour that he’d been displaying openly towards police and his ex-partner, the threats that he’d made prior, I still believed that he was going to carry out some kind of violent act. Q Did his arms move in a particular way when they were under his body. A I can’t say about his left arm, because I wasn’t on that side – Q Yes, sorry, I should’ve said arm, that’s my fault. A – but his right arm I know he’d pulled that, he pulled that underneath him and then it seemed to, he seemed to further pull his arm down – that’s hard to explain, further pulled his arm down into his body, like his hand was further down his torso towards his groin I guess, if that explains it. Q Did that give you any particular cause for concern. A Yes, as previously stated I believed that at that point, as he was still resisting, that he was going to reach for a weapon. Q So you’re on the right side, his hand is under his body, what then happened next. A He was – I don’t really recall what was happening with the rest of his body, I was concentrating on that right – Q In terms of what you were doing. A In terms of what I was doing, I was yelling at him or directing him to give me his arm and to stop resisting. Q Was that effective. -- 19 of 23 -- [2024] SASC 31 Kimber J 18 A That was not effective. Q Did his level of resistance change. A It increased, it felt that he had increased that. Q Can you just describe to Her Honour how he was resisting at that point. A He was – for my – for what I was dealing with, which was his right side and his right arm that was still pulling that arm under as I was trying to grab his arm. He was pulling that arm under and even harder and harder, so I had no chance of getting that arm out. Q What did you then determine to do in order to get the arm out. A I delivered a strike. Q How many do you recall. A I don’t recall the exact number but several strikes. Q Where did you deliver the strikes. A To his upper right shoulder. 56 Obviously enough, like the explanation given in the notes, the above evidence raised the immunity in s 65 of the PA. 57 Among the parts of the appellant’s evidence rejected by the Magistrate were that he believed that Mr Ward might have a weapon17 and that the strikes were necessary to meet the risk which he said he believed to exist.18 In the specific context of considering the immunity and whether the prosecution had proved that the conduct the subject of the offence was not honest in the relevant sense, the Magistrate referred to earlier findings about critical aspects of the appellant’s evidence not being truthful.19 58 In the first four sentences of the direction within [76] of her reasons, the Magistrate correctly directed herself with respect to the use of the evidence of good character. There is no error in the first part of the final sentence which I read as stating that a finding of guilt can still be made despite a defendant being of good character. 59 The respondent submitted that the second part of the final sentence could be viewed as the Magistrate restating the onus of proof and perhaps repeating the first part of the same sentence. However, on my reading, the Magistrate directed herself that the good character could not be used to bolster the appellant’s claim to having acted honestly in the relevant sense. As set out earlier, the appellant’s claim was based upon the appellant’s evidence and what he had recorded in his notes. With 17 Reasons [139]. 18 Ibid [140]. 19 Ibid [159]. -- 20 of 23 -- [2024] SASC 31 Kimber J 19 respect to the Magistrate, the natural reading of the final aspect of the final sentence of the direction in [76] is that the appellant’s good character was not to be considered in evaluating his evidence, nor the claim in the notes, to the effect that he had acted honestly in the relevant sense. 60 That natural reading is not altered when the balance of the reasons is considered. Having given herself the direction at [76], the Magistrate made no further reference to the evidence of good character. I do not suggest that, having directed herself at [76], the Magistrate was obliged to refer to the evidence again, nor do I suggest that the evaluation of that evidence lent itself to further analysis. Nevertheless, what is important is that having directed herself at [76] in the way she did, there is nothing in the balance of the reasons which alters the natural reading of the relevant aspect of [76]. I am unable to discount a real risk that the Magistrate failed to consider the appellant’s good character when evaluating the credibility of the appellant’s evidence and the explanation in his notes which were central to his claim to having the relevant honest belief when he struck Mr Ward. 61 In Boyle v The King,20 the Court of Appeal considered the effect of an error established on appeal under s 42 of the Magistrates Court Act 1991 (SA) and referred to, without criticism, the test stated by Peek J in Police v Rosales:21 … a court may determine, with appropriate caution, that although an error is otherwise made out, the charge was so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error. 62 The Court of Appeal went on to observe:22 In practical terms, there is probably little difference between the tests under the common form proviso and that suggested in Le Cornu. However, the question to be answered, on an appeal from the Magistrates Court, is whether the charge is so clearly proven that it is inevitable that the Magistrate would have found it proven irrespective of the error. 63 In my independent assessment of the evidence, I cannot conclude that the misdirection in [76] would not have made any difference to the outcome. As set out earlier, the appellant’s credibility was central to the determination by the Magistrate of the factual issues, including whether the prosecution had disproven the existence of the relevant honest belief. Had the Magistrate approached the good character evidence without having misdirected herself, it is by no means certain that the appellant would have been convicted. 64 For the above reasons, the appeal must be allowed and the conviction must be set aside. Subject to the determination of the balance of the grounds, the matter must be remitted to the Magistrates Court for retrial before a different Magistrate. 20 [2022] SASCA 50. 21 [2017] SASC 118 [95]. 22 Boyle v The King [2022] SASCA 50 [135]. -- 21 of 23 -- [2024] SASC 31 Kimber J 20 65 As the appeal must be allowed on Ground 2(d), it is not necessary to address in detail the balance of the matters particularised in that ground. Most, perhaps all, of the matters particularised are contentions about the reasoning process of the Magistrate and the adequacy of her reasons23 the upholding of which would not result in an order that the appellant be found not guilty. Ground 2(c) 66 In so far as Ground 2(c) might be read as, in part, advancing a contention that it was not open to the Magistrate to find that the appellant’s conduct had caused the harm the subject of the offence, if that contention is advanced, it must be rejected. As set out in Ground 1, it was open to regard the appellant’s notes as an admission to a deliberate blow(s) to the face and to regard the bruising and swelling shown in the photographs as having been caused by at least one such blow. While it may be accepted, as set out in the final part of the appellant’s evidence extracted above, that the appellant claimed in his evidence that any contact with the face of the appellant was not deliberate and also accepted that it was submitted that harm may have been caused by something other than a blow delivered by him, it was plainly open to the Magistrate to reject the appellant’s evidence about no blow to the face being deliberate and to find that the harm had been caused by at least one deliberate blow. Ground 3 67 In this ground, the appellant submits the evidence did not support a finding beyond a reasonable doubt. For the purposes of the appeal, the only issue is whether the evidence supported a finding beyond a reasonable doubt that the actions of the appellant were not honest in the relevant sense. 68 In the context of Ground 1, I have set out why there was a case to answer at the end of the prosecution case. I have also reviewed the appellant’s evidence and the balance of the evidence given in the trial, including the evidence of his good character. 69 Having conducted that review, I am satisfied that the evidence supported a finding of guilt beyond a reasonable doubt. Given the way the appellant took Mr Ward to the ground; the very short period of time which passed between that act and the first strike; what may be viewed as admissions within the notes to deliberate strikes to the face; and the injuries to Mr Ward’s face, notwithstanding the evidence of good character, it was open to the Magistrate to reject beyond a reasonable doubt the exculpatory aspects of the evidence of the appellant and the notes; to find beyond a reasonable doubt that harm was caused by at least one deliberate blow by the appellant; to find beyond a reasonable doubt the conduct of the appellant was not honest in the relevant sense; and to find that the offence had been established beyond a reasonable doubt. 23 Ground 2(a)–(c), (e)–(f). -- 22 of 23 -- [2024] SASC 31 Kimber J 21 70 I dismiss Ground 3. Orders 1. The appeal is allowed and the conviction set aside. 2. The matter is remitted to the Magistrates Court for retrial before a different Magistrate. 3. I will hear the parties as to any further orders. -- 23 of 23 --