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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bissaker v Ault

Details

AGLC: Bissaker v Ault [2007] WASC 162
Case: [2007] WASC 162
Decision Date: 26 JULY 2007

CaseChat Overview and Summary

The matter of Bissaker v Ault was an appeal against a conviction by the Magistrates Court. The appellant, Bissaker, was convicted of obstructing a public officer in the performance of their duties. The nature of the dispute centred around the sufficiency of the evidence presented at the trial to establish the appellant's guilt beyond reasonable doubt. The appeal was heard in the higher court which was tasked with reviewing the decision of the lower court and determining whether the evidence was sufficient to support the conviction.

The court was required to consider whether the evidence presented at the trial was capable of sustaining the conviction. Specifically, the court had to assess whether the evidence was sufficient to establish that the appellant intentionally or recklessly obstructed a public officer in the performance of their duties. The court also needed to examine whether the evidence established that the appellant's conduct was an obstruction to the officer's functions and whether the officer was acting in the course of their duties when the obstruction occurred.

In reaching its decision, the court examined the evidence presented at the trial and considered the relevant legal principles. The court found that the evidence was capable of sustaining the conviction beyond reasonable doubt. The court determined that the evidence established that the appellant intentionally obstructed a public officer in the performance of their duties. The court also found that the officer was acting in the course of their duties when the obstruction occurred and that the appellant's conduct was an obstruction to the officer's functions. As a result, the court upheld the conviction and dismissed the appeal.

The final orders of the court were that the appeal be dismissed and the conviction of the appellant be upheld. The appellant remained convicted of obstructing a public officer in the performance of their duties. The court's decision confirmed the sufficiency of the evidence presented at the trial to establish the appellant's guilt beyond reasonable doubt.

Orders