10 June 2024


International Cases

MAJOR v. POWELL

Australia

03.03.2020

Criminal

Inconsistencies and imperfections in evidence of prosecution witnesses cannot justify finding of no case to answer at law

In present case, on 7 August 2019, following a trial in the Magistrates Court, the Respondent was acquitted of one charge of obstructing a security officer in the course of her duties, contrary to Regulation 40 of the Public Transport Authority Regulations, 2003. The Appellant seeks leave to appeal against the acquittal. The ground of appeal relied on by the Appellant is that, the magistrate erred in law in finding that, the Respondent had no case to answer in circumstances where the evidence, taken at its highest, was capable of establishing the offence charged. The Appellant seeks an order that there be a new trial before a differently constituted court.

Section 65(4) of the Act permits a security officer to use any force reasonably necessary to remove from Authority property, a person who has been warned under Section 65(3) that they may be removed if they fail to comply with the direction, and who has still not complied with the direction. There was no dispute that, Officers Major and Cocks were security officers and authorised persons, and the train and station were Authority property.

Inconsistencies and imperfections in the evidence of prosecution witnesses cannot justify the finding of no case to answer at law. In a case that depends on circumstantial evidence or inferences, the test is the same as that depending on direct evidence. The magistrate misdirected herself by asking the wrong question in the context of considering whether Officer Cocks had reasonable grounds to believe that the respondent was abusive.

There was evidence capable of establishing that the respondent had been directed that he must leave Authority property and that if he did not leave he would be physically removed. There was evidence from the officers that the respondent did not comply with directions to leave the train or the station. There was also evidence from both officers that they took the respondent by the arms and removed him from the train onto the platform. Accordingly, there was evidence capable of establishing that the respondent had not complied with the direction to leave Authority property and that Officer Major used reasonable force to remove him from the train and platform.

Inconsistencies or imperfections in the evidence relied upon by the prosecution cannot justify a finding of no case to answer unless the inconsistencies or imperfections are of such a nature that they destroy all probative value that might otherwise have been derived from the material relied on so that it can no longer be considered evidence. The inconsistencies or imperfections relied upon by the respondent are not of that nature and they are not sufficient to justify the conclusion that he has no case to answer.

The magistrate made an error of law in determining that there was no case for the Respondent to answer. The Appellant has made out the ground of appeal. Present Court grants leave to appeal and allow the appeal and direct that the matter be remitted to the Magistrates Court for a new trial before a different magistrate.

Tags : Acquittal Legality New trial

Share :