Ali v Hodges - [2022] WASC 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ALI -v- HODGES [2022] WASC 40
CORAM:   SOLOMON J
HEARD:   28 JANUARY 2022
DELIVERED          :   10 FEBRUARY 2022
PUBLISHED           :   11 FEBRUARY 2022
FILE NO/S:   SJA 1130 of 2019
BETWEEN:   WAJID ALI
Appellant
AND
EMMA HODGES
Respondent

ON APPEAL FROM:
For File No:   SJA 1130 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R YOUNG
File Number            :   CI 45 of 2017

Catchwords:

Criminal law – Appeal against conviction – Causing harm to a Commonwealth public official – Statutory defence of self-defence – Objective reasonableness

Legislation:

Criminal Appeals Act 2004 (WA), s 7, s 8, s 9(1), s 10(3)
Criminal Code Act 1995 (Cth), s 10.4, s 10.4(4), s 147.1(1)

Result:

Leave to appeal denied on both grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	N Sinton
Respondent	:	K Heslop

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Commonwealth Director of Public Prosecutions

Case(s) referred to in decision(s):

Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203
Strahan v Brennan [2014] WASC 190

SOLOMON J:

Introduction

In November 2017, the appellant Mr Wajid Ali, was a detainee at the Christmas Island Immigration Detention Centre. On 13 November 2017, Mr Ali was involved in an incident at the detention centre as a result of which he was charged with one count of causing harm to a Commonwealth public official, pursuant to s 147.1(1) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code).
Mr Ali pleaded not guilty to that charge. On 7 November 2018, Mr Ali remained a detainee and stood trial in the Perth Magistrates Court. On the same day Mr Ali was found guilty of the charge.
It is now over four years since the incident and over three years since the trial. Mr Ali remains a detainee in detention. This application is his appeal against the conviction.
Mr Ali is entitled to appeal his conviction by reason of s 7 of the Criminal Appeals Act 2004 (WA) which provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.
It is important to point out at the outset, what this application is not about. Although the circumstances of the offence for which Mr Ali has been convicted relate to his treatment in detention, this application has nothing to do with why or whether he should have been, or why or whether he should remain, in detention. It is not about the various other proceedings in which Mr Ali has been involved. Nor is it about whether different factual inferences or conclusions should have been drawn from the evidence than those drawn by the learned magistrate – there is no challenge to the facts found by the learned magistrate other than in relation to Mr Ali's state of mind at the relevant time, as will be explained.
The application is limited to the question of whether the learned magistrate made an error, or errors, of law, in the application of the statutory provision relating to self-defence. That is the sole basis for the application advanced under s 8 of the Criminal Appeals Act.
The circumstances of the offence as found by the learned magistrate, were as follows.
The 'Serco' group of companies is a well-known facility services management provider. Serco provides facility management services at the Christmas Island Detention Centre. Lewis Taikato was a Serco officer working at the detention centre in November 2017. On 13 November 2017, Mr Taikato told Mr Ali that he was to be relocated from one compound to another within the detention centre. Mr Ali expressed his opposition to the move. Mr Taikato then raised Mr Ali's objection with his supervisor. Mr Taikato was told that the decision was final, and that Mr Ali was to be moved.
Mr Taikato then went to inform Mr Ali of the final decision that he was to be moved. He went with another officer and four members of what was called the 'Emergency Response Team' (ERT) as Mr Taikato was concerned at the prospect of some difficulty, because, correctly as it happens, he thought Mr Ali might not respond well to the news. At that stage, Mr Ali was sitting in the dining area at a table next to another official.
The learned magistrate heard evidence from the Serco officers involved and an officer of the Australian Federal Police; seven witnesses in total. The learned magistrate also reviewed CCTV footage of the incident and body-cam footage taken in the immediate aftermath of the incident. Mr Ali did not give evidence. However, his record of interview conducted through an interpreter was tendered in evidence.
Having reviewed and considered the evidence, the learned magistrate found that as Mr Taikato was conveying the message to Mr Ali, he was cut off mid‑sentence by Mr Ali who launched himself out of his seat and punched Mr Taikato in the face.[1]
[1] Transcript, Western Australia Police v Ali, Magistrates Court of Western Australia at Perth, 7 November 2018, 54.
In his record of interview, Mr Ali said he reacted to a threat of attack that he perceived by the group of Serco officers and the uniformed and gloved members of the ERT. The appellant's counsel directed attention to the following comments of Mr Ali (through the interpreter) in the interview:
(a)'the officers ordered me in a – in a way that felt like a – like in an attacking manner asked me to come here, told me to come ‑ ‑ ‑';
(b)'to come and they had, well they attacked me, they attacked me – sorry, they – they told me in an attacking manner to – to come here, like yelled at me';
(c)'ERT officers, Lewis, Manager, you know hand gloves. When the police put hand gloves, take someone, you lock up someone you know by force there is like this - -';
(d)'the officers who approached me who called me in an attacking manner, the one that have gloves in their hands, and when I was busy communicating with my family I was scared of him and so I acted on self-defence so – so I was frightened of him';
(e)'when they attacked me I acted on self-defence and so he says ...(indistinct)... the guy – the guy ...(indistinct)... to me like on my nose and on the nail and onto the head';
(f)'the officers involved in that incident have – have done it in the past to the other detainees';
(g)'some of the detainees I just defended myself like not to be – not to be prejudice or and I haven't neither like ...(indistinct)... beaten them, I have done nothing. Yes, I defended myself nothing wrong by that';
(h)'the officers involved in that incident have been involved in misbehaving, misbehaviour against the other detainees, they have injured some of the detainees in the past and I have the ...(indistinct)... like being injured ...(indistinct)... I just defended myself';
(i)'yeah, in self-defence, self-defence because I – I didn't want – want to be harmed, I didn't want to be injured so in self-defence I will try to – to defend myself';
(j)'I was scared, I was scared for my ...(indistinct)... that I would be injured, or they would – they would ...(indistinct)... they would harm me so I was ...(indistinct)…';
(k)'he mention that one officer...(indistinct)... but ...(indistinct)... permission ...(indistinct)... did not give him permission to attack a detainee, to attack someone';
(l)'so they do not have the permission, the right, they don't have the right to – to relocate someone by force';
(m)'I was threatened, I was – and I was scared ...(indistinct)... when they shout, they were shouting ...(indistinct)... to me to be removed ...(indistinct)... shout I was ...(indistinct)... and I was just – just scared ...(indistinct)... self‑defence';
(n)'the body camera – body cameras on the officers, they should have a recording of this, so when – when I got up I think I was not sure ...(indistinct)... but when I saw them I saw them with their gloves and they were coming towards me and I was punched ...(indistinct)... my finger as well, but you can see – you can see because of those cameras, body cameras ...(indistinct)... the camera on the officers' body you will have to put it on what happened on the incident so you can see the proof ...(indistinct)…';
(o)'well when – when the ...(indistinct)... happened I cannot recall exactly ...(indistinct)... first, but it was when I was ...(indistinct)... I was scared';
(p)'they were coming towards me so I cannot recall exactly who did throw the first punch';
(q)'when they – when they shout, when they shout me (sic) they are running ...(indistinct)... walking…';
(r)'towards me and ...(indistinct)... I went to – I went towards them to talk to them, to talk to them so then because I was scared, ...(indistinct)... but I was – I was scared I might, I might be injured, I might be harmed by them, so they have the gloves on and they were prepared';
(s)'no, I don't have the permission – I don't have the permission to – to attack someone. Neither does Taikato have the right to – to do what he has done to – to come and attack me and, so, he don't have the permission or the right to do so';
(t)'okay, in the detention centre …(indistinct)… the detention centre, okay, …(indistinct)… to move me to another compound and who did give – who did give him the right to attack me'.
In light of those remarks, Mr Ali defended the charge on the basis that he was acting in self-defence to a perceived threat.
After hearing the evidence and reviewing the CCTV and body‑cam footage the learned magistrate's express findings included the following:
(a)the group of Serco officers approached Mr Ali in a manner that was entirely innocuous;[2]
[2] ts 7 November 2018, 54.
(b)the learned magistrate accepted Mr Taikato's denials that he approached Mr Ali in an aggressive way;[3]
[3] ts 7 November 2018, 55.
(c)the learned magistrate accepted Mr Taikato's denials that he said words to the effect of 'fucking Ali';[4]
[4] ts 7 November 2018, 55.
(d)there was no evidence from any other witness (that is, apart from the version in Mr Ali's interview which the learned magistrate rejected) that any of the officials approached Mr Ali in an aggressive or untoward manner, or that Mr Ali was addressed in a discourteous manner;[5]
[5] ts 7 November 2018, 55.
(e)the group approached Mr Ali in a perfectly innocuous fashion and there was nothing in the way they approached or their body language which suggested anything untoward;[6]
[6] ts 7 November 2018, 56.
(f)the suggestion that the group approached aggressively or spoke discourteously or formed a perimeter around Mr Ali, was incorrect;[7]
[7] ts 7 November 2018, 57.
(g)Mr Ali simply reacted violently to receiving the news of his move, and did so out of anger;[8]
[8] ts 7 November 2018, 55.
(h)all the Serco officers were in uniform, and Mr Ali must have been aware that they were there to convey to him the decision that he was required to move;[9]
(i)it must have been apparent to Mr Ali that the Serco officers approached him to perform the duty of moving detainees;[10]
(j)Mr Ali was aware that the officers were there to escort him from one place to another and that was their duty that they were entitled and authorised to discharge;[11]
(k)Mr Ali's version of events was not tenable;[12]
(l)Mr Ali was aware that the officers were there to move him and that was a duty they were authorised to perform;[13]
(m)Mr Ali's account of what happened was not given on oath, not able to be tested in cross-examination and was in any event, an extremely vague account as to why he felt he was under attack or threatened;[14]
(n)there were no grounds for Mr Ali to have the belief that he 'purported' to have held;[15]
(o)Mr Ali's account of the incident was 'wholly implausible';[16]
(p)the suggestion that Mr Ali was going to be forcibly moved whether he cooperated or not was 'untenable';[17] and
(q)Mr Ali's record of interview where it was suggested that he thought he was under attack, was self-serving and without foundation.[18]
[9] ts 7 November 2018, 55.
[10] ts 7 November 2018, 57.
[11] ts 7 November 2018, 58.
[12] ts 7 November 2018, 58.
[13] ts 7 November 2018, 59.
[14] ts 7 November 2018, 59.
[15] ts 7 November 2018, 59.
[16] ts 7 November 2018, 59.
[17] ts 7 November 2018, 59.
[18] ts 7 November 2018, 59.
On the basis of his findings, the learned magistrate found Mr Ali guilty of the offence.

Leave to appeal

Section 9(1) of the Criminal Appeals Act provides that leave of this court is required for each ground of appeal. I shall deal with leave in respect of each ground in turn.

Extension of time

Section 10(3) of the Criminal Appeals Act provides that an appeal against a decision cannot be commenced later than 28 days after the date of the decision, unless the Supreme Court orders otherwise. That means the appeal ought to have been commenced in early December 2018.
Mr Ali did not lodge an appeal notice until 13 October 2019. The appeal then appears to have languished without much progress. An amended appeal notice was filed on 13 April 2021. A further amended appeal notice containing the grounds now relied upon was filed on 22 November 2021.
Mr Ali swore an affidavit dated 15 October 2019 in support of his application to extend time. A further affidavit was sworn more recently, on 25 January 2022.
The affidavits are rather sparse and do not provide much by way of detail or particularisation to explain the delay. Nevertheless, it is tolerably clear that Mr Ali began to seek legal advice in relation to an appeal by 27 November 2018, and made efforts to obtain representation and advice thereafter until he lodged an application in October 2019. In his affidavits, he refers to the constraints of being in detention and his limited command of English. There can be no doubt that Mr Ali faced those constraints.
The respondent opposed the extension of time. However, counsel for the respondent sensibly conceded that if the substance of the appeal had merit, then in the circumstances of Mr Ali's detention and limited English, the delay ought not to stand in the way of a successful appeal. However, as the respondent contended there was no merit in the appeal itself, it maintained its objection to the extension of time.
In my view, Mr Ali has provided sufficient reasons to extend time. In the interests of justice, I would be prepared to extend time to allow Mr Ali to lodge his appeal on 13 October 2019.

Grounds of appeal

Both grounds of appeal concern the statutory defence of self-defence. The self-defence provision in s 10.4 of the Commonwealth Criminal Code provides:
10.4Self-defence
(1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury:
(a) to protect property; or
(b) to prevent criminal trespass; or
(c) to remove a person who is committing criminal trespass.
(4) This section does not apply if:
(a) the person is responding to lawful conduct; and
(b) he or she knew that the conduct was lawful.
However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.
In Egitmen v The State of Western Australia, Mitchell JA observed:
Under this provision, the first element of self-defence is entirely subjective. The question is whether the accused subjectively believes the conduct is necessary to defend a person irrespective of the reasonableness of that belief. The second element has a subjective and an objective component. The objective component is that the accused's conduct is 'a reasonable response in the circumstances'. However, the reasonableness of the response is to be assessed by reference to the circumstances as the accused subjectively perceives the, irrespective of the reasonableness of that perception.[19]
[19] Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203 [251].
It is for at least one good reason that the state of mind grounding the first element of self‑defence is entirely subjective. People of different experience and circumstance respond differently in any given situation. A person who has come to Australia by surviving and escaping the travails of persecution and is then detained for years on end in an institutional facility, dislocated from the love and affection of family and the security of a familiar environment, is bound to perceive threats more readily than someone whose life has unfolded in the relative stability and tranquillity of Australian suburbia. It is therefore a fair and sound policy not to subject self‑defence to the objective assessment of a calm and clinical courtroom.
The second element of the defence requires that the response be objectively reasonable in the circumstances of the subjective perspective of the accused.
There can be no doubt that the objective reasonableness of the accused's own perception is irrelevant to the defence. However, the accused is still required to demonstrate that he or she in fact believed the conduct was necessary to defend himself or herself. The perception must be genuinely held at the time. If it was not, then the defence is not available even if, objectively, such an apprehension might appear to have been reasonable. The learned magistrate was therefore required to consider and decide whether Mr Ali, in fact, believed his conduct in assaulting Mr Taikato was necessary in order to defend himself.

First ground of appeal

The first ground of appeal contends that the learned magistrate misapplied s 10.4 of the Commonwealth Criminal Code by requiring that Mr Ali's belief that his conduct was necessary to defend himself, was objectively reasonable.
Mr Ali's counsel pointed to two passages in the learned magistrate's comments that it was submitted, manifested that error.
First, the learned magistrate, in the course of an exchange with defence counsel, said:
So where does he say he thought he was going to be moved in an unlawful fashion, by way of being – instead of escorted, dragged essentially is what you seem to be saying - - - and why is that belief reasonable in the circumstances?[20]
[20] ts 7 November 2018, 51.
The second passage said to embody error was that in the course of giving his decision, the learned magistrate said:
I fail to see how wearing protective gloves – we're not talking boxing gloves here, obviously; we're talking about protective gloves – gives, in some way, reasonable grounds to believe that there's going to be something untoward occurring, and as I've said previously, nothing in their demeanour or manner of approach suggested any threat.[21]
[21] ts 7 November 2018, 59.
Although these comments in isolation might indicate that the learned magistrate was applying an objective test to Mr Ali's belief as to his conduct, in my view, when consideration is given to the learned magistrate's comments as a whole, there was no such error.

It is first necessary to make the oft‑repeated observation that it is important not to scrutinise the learned magistrate's comments with an eye for error. As was pointed out by Martin CJ in Strahan v Brennan, magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day.[22] Accordingly:
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.[23]
[22] Strahan v Brennan [2014] WASC 190.
[23] Strahan v Brennan [90].
Turning to the specific passages relied upon by counsel for Mr Ali, the first of the comments was made in the course of an exchange with counsel. The comments do not reflect the learned magistrate's concluded view. In isolation, the comments say very little – if anything – about the learned magistrate's conclusion and could not reflect the asserted error.
In contrast, the learned magistrate's further comments upon which counsel for Mr Ali relied, were part of the reasoning by which the learned magistrate reached his conclusion.
The learned magistrate's conclusion was not framed simply as a rejection of the objective reasonableness of Mr Ali's conduct. There can be no doubt that the learned magistrate rejected the account of Mr Ali and concluded that Mr Ali did not in fact hold the belief that his conduct was necessary to defend himself from harm. Rather, Mr Ali 'simply reacted violently to receiving the news of his move and did so out of anger'.[24] That is, the learned magistrate rejected Mr Ali's version of the events and concluded that Mr Ali's conduct was motivated by his anger, not by his genuine belief that he needed to defend himself from harm.
[24] ts 7 November 2018, 55.
Counsel for Mr Ali appeared to accept that the learned magistrate concluded that Mr Ali did not in fact hold the requisite belief. However, Mr Ali's counsel contended that the inference drawn by the learned magistrate was itself, based fundamentally on an objective assessment of Mr Ali's perception. That is, the learned magistrate reasoned that Mr Ali did not in fact hold the belief, or could not have held the belief, because the belief was not objectively reasonable. Thus, although the learned magistrate did not accept that Mr Ali held the requisite belief, that conclusion was entirely the product of the learned magistrate's objective assessment of the circumstances. That is, although framed as a rejection of Mr Ali's subjective state of mind, in substance, the learned magistrate's reasoning applied an objective test because, it was submitted, the learned magistrate reasoned his way to Mr Ali's subjective state of mind entirely on an objective assessment of the circumstances.
There is no doubt that the objective unlikelihood of Mr Ali's belief formed part of the learned magistrate's reasoning. That does not reflect error. It is perfectly permissible to assess the truth of a person's subjective state of mind by reference to an objective assessment of the circumstances. Whether someone in fact did, or believed something, is commonly determined by reasoning that includes the inherent probability of that having occurred by reference to an objective assessment of the circumstances. There is no error in that approach.
Here the learned magistrate plainly adopted that line of reasoning. In addition, the learned magistrate based his assessment of Mr Ali's actual belief on his review of the CCTV footage, his evaluation of the witnesses to the event and his assessment of Mr Ali's interview. As is apparent from the findings set out at [14] above, the learned magistrate rejected the suggestion that Mr Ali genuinely held a belief that his conduct was necessary in order to defend himself. On the basis of all the evidence before him, the learned magistrate found Mr Ali's version of events wholly implausible and found that Mr Ali's conduct was the product of anger, not fear. Having considered the evidence, including the record of interview, the learned magistrate concluded that Mr Ali's contention that he thought he was under attack 'was self‑serving and without foundation'.[25] There was no error in the learned magistrate's reasoning or his application of the statutory provision.
[25] ts 7 November 2018, 59.
In the circumstances, in my view, the first ground of the appeal has no prospect of success and I therefore decline to grant leave in respect of that ground.

Second ground of appeal

The failure of the first ground of appeal means that it is not strictly necessary to consider the second ground. The defence of self‑defence was not made out on the facts and so it is immaterial whether the learned magistrate erred as to whether the statutory provision was applicable. Nevertheless, Mr Ali is in difficult circumstances. It is understandable that he should pursue any avenue available to him to advance his position. In deference to that predicament, I shall deal with the submission made on his behalf.
By his second ground, Mr Ali contends that the learned magistrate erred in law by excluding self‑defence on the basis that the complainant's actions were lawful without considering the second limb of s 10.4(4) of the Commonwealth Criminal Code, which only excludes the defence where an accused person is responding to lawful conduct and he or she knew that the conduct was lawful.
That is, Mr Ali complains that the learned magistrate excluded the application of a defence under s 10.4 simply on the basis that the conduct of the Serco officers was lawful, whereas the statutory defence is only excluded where that conduct is lawful and the offender knew that the conduct was lawful. Mr Ali does not challenge the lawfulness of Serco's conduct but asserts that the evidence shows he did not know it was lawful. In particular, by his statements in his interview, Mr Ali expressed the view that the officers did not have the right (as he claims to have perceived it), to attack him. Counsel for Mr Ali submitted on that basis that in effect, he therefore did not know their conduct was lawful. The learned magistrate therefore wrongly excluded the application of the statutory defence.
Counsel for Mr Ali pointed to passages in the transcript which were said to demonstrate this error.
In the course of an exchange with counsel, the learned magistrate said: '[i]f the – if their conduct was lawful, then the defence doesn't arise'.[26]
[26] ts 7 November 2018, 53.
Mr Ali's counsel contended that the learned magistrate repeated this error in the course of his reasons, stating that 'if the actions of the officers were lawful – and I'm satisfied that they were – then no notion of self‑defence can arise in any event'.[27]
[27] ts 7 November 2018, 60.
The respondent in its written submissions also directed attention to the following exchange:
His Honour: … what part of their behaviours do you say was not lawful? I mean, even if you – even if you assume, for the sake of argument, that the force was – sorry, the numbers were unnecessary, I mean, there's no evidence as to that… But even if we assume that the numbers were somewhat unusual, and that Mr Ali felt intimidated by the approach by five people, in what way do you say their conduct was not lawful?
Farate, Ms: Your Honour, I can't take that point further.
His Honour: But if it –
Farate, Ms: Because there's evidence that has been put by the Commonwealth to state that the officers were public officials, that - - -
His Honour: Isn't that fatal to the defence? If the – if their conduct was lawful, the defence doesn't arise.[28]
[28] ts 7 November 2018, 53.
As I have observed, there is no challenge to the lawfulness of Serco's conduct in moving Mr Ali from one compound to another. Moreover, there was no evidence that the officers had applied any force at all to Mr Ali prior to him engaging in the conduct that formed the basis of the charge. The actions of the Serco officers in approaching Mr Ali and talking to him about moving to a different compound fell within the scope of their lawful duties. I note that it was not suggested otherwise.
The only issue therefore is whether the learned magistrate considered whether Mr Ali knew that conduct was lawful. Again, the learned magistrate's comments need to be understood as a whole and read without zealous scrutiny for error, rather than by reference to isolated extracts of his remarks.
The learned magistrate's remarks include the findings referred to in subparagraphs (h), (i), (j), (k), and (l) of [14] above. Those remarks and findings make it clear that the learned magistrate concluded that Mr Ali knew that the Serco officers were acting within the scope of their lawful duties. The learned magistrate's comments must be read in that context.
Accordingly, in my view there was no error in the learned magistrate's decision as alleged in the second ground and I decline to grant leave to appeal in respect of that ground.

Conclusion

In the circumstances, the appeal must be dismissed.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
11 FEBRUARY 2022