Bissaker v Ault - [2007] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BISSAKER -v- AULT [2007] WASC 162

CORAM: BLAXELL J

HEARD: 19 APRIL 2007

DELIVERED : 26 JULY 2007

FILE NO/S: SJA 1115 of 2006

BETWEEN: JAMES DARREN BISSAKER
Appellant
AND
TREVOR JOHN AULT
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A NICHOLLS
File No  :PE 20131 of 2006

Catchwords:

Criminal law - Appeal from Magistrates Court - Conviction for obstructing a public officer in the performance of that officer's functions - Whether or not the evidence was capable of sustaining the conviction beyond reasonable doubt - Turns on own facts

Legislation:

Criminal Code (WA), s 172(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J C Hammond
Respondent: Mr A A Liveris

Solicitors:

Appellant: Hammond Worthington
Respondent: State Director of Public Prosecutions

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

M v The Queen (1994) 181 CLR 487
Scarce v Killalea [2003] WASCA 81

BLAXELL J: This is an appeal from the decision of a Magistrate made in the Perth Magistrates Court on 3 November 2006 convicting the appellant of an offence of obstructing a public officer in the performance of that officer's functions (contrary to s 172(2) of the Criminal Code (WA)).
The essential facts as found by the Magistrate were that on 21 March 2006 the appellant was standing on the curb of Grantham Street, Wembley (in the vicinity of Wembley Primary School) holding up a sign and waving at vehicles travelling towards a police radar trap. Two police officers then approached the appellant and formed the view that what he was doing was dangerous. They asked the appellant to step back from the curb and he refused to do so. The police officers then physically removed the respondent from the side of the road as a result of which there was a struggle and he was arrested.
On 12 January 2007 the appellant was granted leave to appeal against the conviction on three grounds, which are effectively as follows:
(1)The Magistrate failed to have regard to the inherent unreliability of the prosecution evidence in that the testimony of the two police witnesses was so contradictory as to be unable to sustain a conviction beyond reasonable doubt.
(2)The Magistrate failed to give sufficient reasons "to explain the discrepancy between the evidence of Senior Constable Ault and Constable Brewer".
(3)The Magistrate erred in law in finding that the appellant had obstructed police in the carrying out of their duties in that:
(3.1)Constable Brewer and Senior Constable Ault were not acting in the execution of any police duty when they apprehended the appellant.
(3.2)The appellant was not in breach of any law or suspected of being in breach of any law by standing at the side of the road warning motorists to slow down.

The facts that are common ground

The trial before the Magistrate took place over two days (on 18 July and 12 October 2006), and it is clear from the transcript that the bulk of the relevant facts were uncontested.
In this regard, it was common ground that during the early morning of 21 March 2006 Senior Constables Ault and Brewer were carrying out traffic duties together by operating a radar gun in a "black spot" area and school zone near Grantham and Jersey Streets, Wembley. Grantham Street in that vicinity is a four lane carriageway with two lanes of traffic travelling in each direction.
While the appellant was travelling to work along Grantham Street he observed one of the police officers standing behind a lamp post with the radar gun. This prompted him to return home where he used a piece of cardboard and a white marker pen to make a sign reading "police radar". The appellant then returned to Grantham Street where he stood by the side of the road and held up the sign facing traffic that was travelling towards the school zone from the west. Because of obstructions along the edge of the road Senior Constables Ault and Brewer were unable to see the appellant from where they were operating the radar gun.
Not long afterwards, a member of the public telephoned the police operations centre to report that "a male person was creating a traffic hazard on Grantham Street, Wembley". The police officer at the operations centre who received that call then radioed Constable Brewer and requested that he investigate the matter. (The fact that a member of the public made this complaint is not of course evidence that the appellant was causing a traffic hazard. It is merely evidence of the reason why the appellant was subsequently approached by Senior Constables Ault and Brewer.)
Senior Constables Ault and Brewer then walked approximately 200 metres to where the appellant was still standing by the side of the road and holding up the sign. Although the appellant had his back towards the two police officers he was aware of their approach, but they did not realise this. The two police officers stopped approximately 3 or 4 metres away from the appellant (in order not to startle him) and Senior Constable Ault then yelled out "police, move back from the curb". The appellant responded by looking over his right shoulder at the two police officers, but he did not comply with Senior Constable Ault's request.
There was then a conversation between the three men in the course of which the police officers requested the appellant a number of times to step back from the curb and to stop holding up the sign. The appellant stated in response that he was entitled to do what he was doing and that the police officers could not stop him.
Senior Constable Ault then tried to remove the sign from the appellant's grasp and this resulted in a physical struggle following which the appellant was handcuffed and arrested.

The contested facts

There was conflicting evidence from the witnesses as to the precise position of the appellant in relation to the curb of Grantham Street, and as to whether the sign or any part of his body was projecting over the carriageway.
Senior Constables Ault and Brewer both testified to the effect that the appellant was right on the curb and leaning or "hanging out" on to the road with the sign (T 1/29, 1/33 and 2/5). The appellant's evidence was that he was standing not on the curb but on the grassed area of the verge. Neither he nor the sign were extending out over the road (T 2/47 ‑ 48).
There was also conflicting evidence as to the effect that the appellant's actions had on the movement of vehicles as they passed by. According to Senior Constable Brewer, while he was approaching the appellant's position (but before seeing the appellant) he saw cars moving closer to the middle of the road which he thought at the time to be "quite strange" (T 1/29). As he neared the appellant he noted that:
"… the vehicles closer to the curb were actually going a little bit over to where the broken line is and moving back, when they go past him, moving to the lane." (T 53).
While doing this, the vehicles were also "slowing down and then speeding up" (T 1/36).
Senior Constable Ault similarly testified that vehicles:
"… were passing quite close to him, probably within half a metre of his outstretched arm and vehicles were actually diverging so there was no contact." (T 1/57).
The traffic was also slowing down and speeding up in order to avoid [the appellant]." (T 2/5)
The appellant was adamant that vehicles did not move away from the curb or diverge in order to avoid him. Although he agreed that vehicles did slow down in response to his actions he denied that they then speeded up after they went past (T 2/36).
The police officers and the appellant all agreed in their evidence that some vehicles were tooting their horns as they went past.
As to the reasons why the police officers first asked the appellant to move away from the curb and then took physical action to remove him and the sign, Senior Constable Brewer's evidence was that he was responding to the complaint about a "traffic hazard" and in this regard:
"I think when he had his arm out … over the curb he could have … anything could have happened. He could have lost balance, he could have had a car go past that didn't see the sign. … so, our main concern was for his safety and other motorists. That's why he was told to move away from the curb." (T 1/39).
According to Senior Constable Ault:
"The fact he was causing a traffic hazard and a danger to himself was why he needed to be removed." (T2/4)
It was also Senior Constable Ault's evidence that during his conversation with the appellant he informed him that what he was doing was dangerous (T 1/59). However, the appellant denied that this was said and testified that he asked the police officers to state in what way he was breaking the law but did not receive any satisfactory reply (T 2/37 and 2/52).
There was extensive and conflicting evidence as to what happened during the physical struggle, but these matters went only to the credibility of the witnesses, and were not directly relevant to the question of whether or not the appellant had previously committed the offence alleged.
Senior Constables Ault and Brewer were also cross‑examined on the extent to which they had collaborated when preparing their statements of evidence, and there were significant conflicts in these aspects of their evidence. In this regard, the bulk of the cross‑examination of the police witnesses tended to focus on matters going to their credibility rather than on factual issues directly relevant to the question of whether the appellant had obstructed Senior Constable Ault in the performance of the latter's functions.

The Magistrates findings of fact

Following the trial, the Magistrate reserved his decision which was delivered on 3 November 2006. In convicting the appellant, his Honour's key findings of fact were as follows:
"Now, as to the actions of the accused, I find he was standing on the kerb near the line of traffic. He was leaning out with the sign over the road. He was waving the traffic with his right hand to slow down, in a motion which I saw in court and both the police prosecutor and Mr Hammond saw in court and I've seen, in a waving motion. His presence and where he was caused the vehicles to slow and diverge, and thereby he created a traffic hazard requiring the police to intervene, and they did so in the performance of their functions.
…
There are differences in detail between the versions given to the court by both the two police officers and also by the accused, but they are in my view not material. I accept the substance of what the police gave in their testimony and reject the accused's version insofar as it differed from the police in terms of its substance. That is for example he was on the kerb, … he wasn't just standing on the verge. The sign was held over the road, the traffic was diverging and responding to his conduct.
The police in my view were therefore justified and properly intervened in the performance of their functions to tell the accused to step back and put the sign down. The request was made at least twice, probably three times, and he failed to comply, and argued with the police that he was doing nothing wrong, and so the police acted. In my view it's a clear case of obstruction of Ault in the performance of his functions. …
I do reject any submission that was made by counsel that the police concocted their evidence. I accept that they did collaborate, conferred, and their witness statements are almost identical. But as to their testimony, I accept their testimony was in court both accurate and truthful in terms of its substance with respect to what happened, and therefore I find the prosecution have discharged the burden on them and find that the - - making a finding that the accused is guilty and propose therefore to convict him."

The merits of the appeal

It was not the prosecution's case that the appellant obstructed Senior Constable Ault by slowing down the traffic prior to it entering the radar trap thus preventing the apprehension of speeding motorists.
It is clear from the transcript that the prosecution's case was that the appellant's actions by the side of the road on 21 March 2006 created a traffic hazard which necessitated Senior Constable Ault's intervention to remove the danger. By refusing to comply with the requests to step back from the road and by continuing with the conduct which allegedly constituted the danger, it was said that the appellant had obstructed Senior Constable Ault in the performance of the latter's functions.
The two essential questions that the Magistrate was required to determine were whether or not at the material time Senior Constable Ault was acting in the performance of his functions, and whether or not the appellant obstructed the performance of those functions. The factual matters put in issue which were directly relevant to those questions were very limited and concerned only the precise position of the appellant in relation to the edge of the road at the time of waving the sign, and the effect that his conduct was having on the passing traffic.
If in fact the accused's actions were creating a traffic hazard or danger, then clearly there can be no question that it was a function of Senior Constable Ault (as a police officer engaged in traffic duties) to take reasonable steps to remove that danger. Such steps would include the requests that were made to the appellant to step away from the road and ultimately the physical action that was taken to restrain the appellant from continuing to cause a hazard to passing traffic. In those circumstances, the appellant's refusal to step away from the curb and his resistance to Senior Constable Ault's physical actions would obviously have obstructed the performance of the latter's functions.
It follows that the critical issue on appeal is whether or not the Magistrate was in error in finding that Senior Constable Ault was exercising a function of his office by first requesting the appellant to step away from the curb and then physically removing him from that position. This itself depends upon the correctness of the finding that the appellant's actions at the material time constituted a traffic hazard.
In my view, very little turns upon the precise position of the appellant in relation to the curb. On either version, he was close to the edge of the road, and in a position where he was in clear view of and attracting the attention of passing traffic. It is common ground that this had the effect of causing some vehicles to slow down and others to blow their horns. The Magistrate also found that the appellant's actions caused vehicles to diverge, and apart from the finding that the sign was held out over the road, this would seem to be the only significant finding of primary fact which is relevant to the issues on appeal.
In coming to that finding, the Magistrate accepted the substance of what the two police officers had testified. Notwithstanding that the two police officers had collaborated and conferred on their witness statements, his Honour accepted their testimony in Court as being "accurate and truthful in terms of its substance with respect to what happened".
The appellant contends that in coming to this conclusion, the Magistrate failed to have regard to the contradictory aspects of the police officers' evidence with respect to matters going to their credit. In this regard, the appellant particularly relies upon passages of the transcript of the police officers' evidence where there were significant discrepancies as to the circumstances in which their witness statements were prepared.
The approach to be taken by an appeal court when there is a challenge to findings based upon the credibility of witnesses is well established. A good summary of the relevant principles is to be found in the decision of McLure J in Scarce v Killalea [2003] WASCA 81 where at [25] ‑ [27] her Honour reviewed various authorities including M v The Queen (1994) 181 CLR 487 and stated as follows:
"[I]f the evidence upon the record itself contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the trier of fact there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based on that evidence.
…
However, an appellate court's role is limited where findings of fact are based on the credibility of a witness. In those circumstances, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding, which must stand unless it can be shown that the Judge has failed to use or has palpably misused his or her advantage, or has acted on evidence which was inconsistent with the facts incontrovertibly established by the evidence or which was glaringly improbable."
In the present instance, the evidence that the traffic diverged as a result of the appellant's actions is not an assertion that I consider to be glaringly improbable, or inconsistent with the surrounding circumstances which were common ground. Quite the contrary, and irrespective of the appellant's precise position in relation to the curb, it would be entirely consistent with common experience for traffic to behave in this way.
Furthermore in reaching his critical findings, the Magistrate specifically averted to the discrepancies between the police witnesses which were said to show that they had "concocted" their evidence. Notwithstanding this, his Honour accepted the truthfulness and accuracy of the "substance" of their evidence. His Honour had the advantage of hearing and seeing all of the witnesses, and in my view no basis has been established on which his findings based upon credibility can be interfered with. Accordingly, ground 1 of the appeal cannot succeed.
As to the second ground of appeal, it is my view that the Magistrate provided an adequate explanation as to why he accepted the substance of the police witness' evidence. In any event, his Honour made the observation (with which I respectfully agree) that the "differences in detail between the versions given to the court by both the two police officers and also by the accused" were "not material".
As to the third ground of appeal, I consider the Magistrate was correct in his finding that the appellant "created a traffic hazard requiring the police to intervene, and they did so in the performance of their functions". In my view, even on the appellant's version of events, his actions constituted a traffic hazard. This was because he was diverting the attention of motorists to the side of the road where he was standing instead of allowing them to concentrate their attention on the school zone which lay ahead.
For the above reasons the appeal will be dismissed.