Bloxham v Wyte
[2013] ACTSC 151
•5 August 2013
STEPHANIE BLOXHAM v JOANNE MARIE WYTE
[2013] ACTSC 151 (5 August 2013)
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – competence of appeal – availability of appeal to Supreme Court of finding of guilt made in Magistrates Court.
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against Government – hindering Territory public official – no physical element relating to property – effect of claim of right – whether offence arises necessarily out of the exercise of a proprietary or possessory right – claim of right does not excuse use of force – mistake of fact – whether public official was exercising the official’s functions as a public official – whether defendant can rely on uninformed assessment of nature and scope of legal obligations applicable to exercise of function concerned or of degree of compliance with such obligations – self-defence of property based on honest but incorrect belief in right to possession of property having no value to defendant or to officials concerned – no reasonable belief that response was necessary to protect property from unlawful appropriation.
CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – assault – self-defence of property – no reasonable belief that it was necessary in self-defence of property to do what defendant did.
Crimes Act 1914 (Cth) s 23L
Criminal Code 2002 (ACT) ss 11, 36, 38, 42, 58, 361
Crimes Act 1900 (ACT) ss 26, 375
Crimes (Sentencing) Act 2005 (ACT) s 17
Evidence Act 2011 (ACT) s 138
Human Rights Act 2004 (ACT) ss 22, 30
Legislation Act 2001 (ACT) Dictionary
Magistrates Court Act 1930 (ACT) ss 113, 114, 207, 208, 219B,
Supreme Court Act 1933 (ACT) s 20
Acuthan v Coates (1986) 6 NSWLR 472
Cobiac v Liddy (1969) 119 CLR 257
In the matter of an application for bail by Islam [2010] ACTSC 147
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Kelly v Apps (2000) 98 FCR 101
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
Schmidt v Box [2009] ACTSC 109
Thoroughgood v Greenup [2013] ACTSC 46
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Travini v Starczewski [2009] ACTSC 123
Upton v Cowling [2001] ACTSC 116
Walsh v Law Society of New South Wales (1999) 198 CLR 73
Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
Butterworths Australian Legal Dictionary (1st ed, Butterworths, 1997)
Odgers S, Principles of Federal Criminal Law (2nd ed, Thomson Reuters, 2010)
Ian Leader-Elliott, The Commonwealth Criminal Code, A Guide for Practitioners (Commonwealth Attorney-General’s Department, March 2002)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 43 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 5 August 2013
IN THE SUPREME COURT OF THE )
) No. SCA 43 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
STEPHANIE BLOXHAM Appellant
AND:
JOANNE MARIE WYTE Respondent
ORDER
Judge: Penfold J
Date: 5 August 2013
Place: Canberra
THE COURT ORDERS THAT:
(a)The appeal is dismissed.
(b)The Magistrate’s findings and sentence orders are confirmed.
Introduction
Stephanie Bloxham was found guilty of two charges in the Magistrates Court, being one of hindering a Territory public official and one of common assault. No convictions were recorded, but Ms Bloxham has appealed against the findings of guilt.
The incident giving rise to the charges began when, on 4 July 2010, Constable Joanne Wyte and another police officer went to Ms Bloxham’s home and knocked on the door. Ms Bloxham indicated that she did not want to speak to them, and shut the door. The police officers then began to remove the number plates from a car associated with Ms Bloxham that was parked on the nature strip outside her house. Ms Bloxham’s counsel conceded that the police officers had a right to remove the number plates, for reasons apparently associated with the length of time that the car had been unregistered, but said that Ms Bloxham was not aware of that at the relevant time.
Ms Bloxham confronted the police officers and sought to retrieve the number plates, which had been put into the police car. There was a struggle over the plates, which turned into a physical confrontation between Ms Bloxham and two police officers, in the course of which, it was alleged, Ms Bloxham kicked one of the police officers in the stomach.
Ms Bloxham was taken into custody and charged.
Ms Bloxham defended the charges in the Magistrates Court. In that court, the prosecutor particularised the offences as follows:
(a)the hindering offence consisted of obstructing police in giving effect to their seizure of the number plates;
(b)the assault was the kick to Constable Wyte’s stomach.
Before me, counsel for the respondent Director of Public Prosecutions said that the hindering offence involved not just the initial attempt to remove the number plates from the police car but also the struggle over the plates. This appeared to be conceded by Ms Bloxham’s counsel in submissions quoted at [72] below.
The appeal
This appeal raises a number of separate issues:
(a)Is this appeal competent at all?
(c)As to the hindering offence:
(i)Was Ms Bloxham’s action justified by a claim of right (s 38 of the Criminal Code 2002 (ACT))?
(ii)Should Ms Bloxham have avoided criminal responsibility because of a mistake of fact (s 36(1) of the Criminal Code)?
(iii)Was Ms Bloxham acting in self-defence (s 42 of the Criminal Code)?
(d)As to the assault offence, was Ms Bloxham acting in self-defence (Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645)?
Is the appeal competent?
I note first that neither counsel wished to argue the jurisdictional point, and made their brief submissions only because I raised the matter. This does not seem to me to be a proper approach to fundamental questions of jurisdiction.
Appeals are, as is well recognised, creatures of statute (Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [50]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [57]). There must be a legislative basis for an appeal.
Sources of appellate jurisdiction
The Magistrates Court Act 1930 (ACT) provides for appeals in criminal matters in Divisions 3.10.2 and 3.10.3, and the relevant jurisdiction extends “to the hearing and deciding of [those] appeals and to no others” (s 207(1) of the Magistrates Court Act).
Other criminal appeals (provided for in Division 3.10.2A) are reference appeals that may be brought by the Attorney-General or Director of Public Prosecutions; they are accordingly not relevant in the current case.
The relevant provisions, ss 208 and 219B of the Magistrates Court Act, as in force when this appeal was filed on 19 May 2011, are set out in the Appendix to this judgment. In short, s 208 provides for appeals from:
(a)fitness to plead decisions (s 208(1)(a));
(b)convictions in the Magistrates Court for offences dealt with summarily under the Magistrates Court Act or the Crimes Act 1900 (ACT) (s 208(1)(b));
(c)orders made under s 113 or 114 of the Magistrates Court Act on persons proceeded against by information (such orders being alternatives to conviction after a defendant has not sought to defend, or has unsuccessfully defended, the information) (s 208(1)(c));
(d)sentences or penalties imposed on a person convicted in the Magistrates Court in specified circumstances (s 208(1)(d));
(e)orders made by the Magistrates Court under any of Parts 3.2 to 3.6 of the Crimes (Sentencing) Act 2005 (ACT); these include non-conviction orders made “if an offender is found guilty of an offence” (s 17, Crimes (Sentencing) Act), but do not on the face of it include the actual finding of guilt (s 208(1)(e)); and
(f)orders amending or discharging good behaviour orders (s 208(1)(f)).
That is, apart from fitness to plead decisions and orders amending or discharging good behaviour orders, which are clearly irrelevant here, appeals are available from:
(a)convictions (s 208(1)(b));
(b)orders made after conviction (s 208(1)(d) and (e)); and
(c)orders made as alternatives to conviction (s 208(1)(c)).
Section 219B provides for review appeals from:
(a)orders dismissing an information under Part 3.6 or 3.7 of the Magistrates Court Act or under s 375 of the Crimes Act (s 219B(1)(a));
(b)convictions in the Magistrates Court for offences dealt with summarily under the Magistrates Court Act or the Crimes Act (s 219B(1)(b));
(c)orders made under s 113 or 114 of the Magistrates Court Act on persons proceeded against by information (such orders being alternatives to convictions after a defendant has not sought to defend, or has unsuccessfully defended the information) (s 219B(1)(c));
(d)decisions not to commit people to the Supreme Court for sentence (s 219B(1)(d));
(e)decisions of the Magistrates Court to dispose of a case summarily under s 375(6) or (7) (s 219B(1)(e)); and
(f)sentences or penalties imposed by the Magistrates Court under specified provisions of the Magistrates Court Act or the Crimes Act (s 219B(1)(f)).
That is, apart from committal decisions and decisions to deal with cases summarily, which are clearly not relevant here, appeals are available under s 219B from:
(a)orders dismissing informations (s 219B(1)(a));
(b)convictions (s 219B(1)(b));
(c)orders made as alternatives to convictions (s 219B(1)(c)); and
(d)sentences or penalties (s 219B(1)(f)).
The possibly relevant provisions of ss 208 and 219B permit appeals from:
(a)convictions, orders made after convictions, and sentences or penalties;
(b)orders made as alternatives to convictions; and
(c)orders dismissing informations.
None of the matters identified above clearly includes a finding of guilt as such.
I note first that the Magistrate dealing with Ms Bloxham’s matter, having found the hindering offence proved, dismissed the charge, but “under section 17”, which appears to be a reference to s 17 of the Crimes (Sentencing) Act rather than to any of the provisions mentioned in s 219B(1)(a).
In any case, dismissing an information appears to be separate from, and a consequence of, a finding that an offence is not proven, while a dismissal under s 17 of the Crimes (Sentencing) Act is available on a finding of guilt (although it is not itself a finding of guilt).
Similarly a conviction, sentence or penalty, or another order made as an alternative to a conviction, seems to require a finding of guilt as a pre-requisite, but does not seem to be a finding of guilt, especially since it seems that there can be a finding of guilt without a conviction or any other kind of order specified in the appeal provisions.
Consideration in earlier cases
In Travini v Starczewski [2009] ACTSC 123, Refshauge J suggested that “conviction” as used in provisions creating appeals from the Magistrates Court could probably be read as including a finding of guilt even if no conviction was recorded.
His Honour was considering the meaning of “order” in the context of whether an appeal lay against a decision by the Magistrates Court to reduce a period of licence disqualification from the “default” period specified by the legislation. His Honour made the following remarks:
52.Thus, it seems to me that the general approach, namely that appeals against conviction are different from appeals against sentence, is retained in s 208 of the Act.
53.That, however, does not conclude the matter, for if an appellant wishes to contend that the proper judgment of the court was a non-conviction order under s 17 of the Sentencing Act, then one basis for such an appeal would appear to be under s 208(1)(b) of the Magistrates Court Act; no other paragraph applies.
54.While the challenge would not be to the determination of guilt, the meaning which I suggest the term bears, I do not see why the paragraph should not be wide enough to include the formal act which has an element of sentence about it in the context of a provision such as s 17 of the Sentencing Act. Thus, where an offender who is convicted of an offence seeks, on appeal, that a non-conviction order be substituted, they should appeal against conviction to make it clear what is being challenged.
55.I am reinforced in this interpretation of that paragraph by the need to construe it conformably with s 22(4) of the Human Rights Act 2004 (ACT) which gives a person convicted of a criminal offence a right to have “the conviction and sentence” reviewed by a higher court. To exclude such a construction, when it is available, would not be consistent with the courts’ duty under s 30 of the Human Rights Act 2004 (ACT).
56.I pause to note that this approach would probably extend to include an interpretation of “conviction” in the paragraph to include merely a finding of guilt preparatory to the imposition of a non-conviction order, even though there is no actual conviction recorded, for otherwise a person who had been found guilty of an offence but not convicted, though sentenced to a non-conviction order, would have no right to challenge the finding of guilt.
As his Honour noted, [56] is clearly obiter. I assume that the reference to “the paragraph” in [56] is a reference to s 208(1)(b) (referred to in [53] of the judgment), and that his Honour was suggesting that, having regard to s 30 of the Human Rights Act 2004 (ACT), s 208(1)(b) (and by implication s 22(4) of the Human Rights Act) should be read as if “conviction” meant something along the lines of “conviction or a finding of guilt that would have permitted the court to record a conviction that it nevertheless chose not to record”.
Section 22(4) of the Human Rights Act is as follows:
(4) Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.
I am concerned about adopting an interpretation of s 208(1)(b) that requires so much extra content to be read into that paragraph, and especially one that relies on first reading that extra content into s 22(4) of the Human Rights Act in order to justify the extended reading of s 208(1)(b). In In the matter of an application for bail by Islam [2010] ACTSC 147, I referred to the comments of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 about the desirability of avoiding strained interpretations of statutes or interpretations that “depart markedly from their ordinary meaning”, as follows:
62.The proposition that strained interpretations of legislation are undesirable is supported by the comments of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [42]:
The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning.
63.Those comments were made in the context of determining constitutional validity rather than compatibility with human rights. The distinction between validity and human rights-compatibility has a broader significance in considering the operation of the Human Rights Act, which will need to be considered later (see [152] to [199] below).
64.For the moment, however, I note that it could be argued that strained interpretations are more legitimate to protect human rights than to protect the validity of legislation that is on the brink of unconstitutionality, although the converse could also be argued. I am not, however, convinced that strained interpretations are a desirable or sustainable way of protecting human rights, and I consider French CJ’s comments, in particular his Honour’s references to the accessibility of the law and the accountability of Parliament to the electorate, to be equally applicable in the human rights context.
Apart from the comments of Refshauge J already mentioned, the issue of whether an appeal lies from a finding of guilt has been mentioned in several ACT cases.
Upton v Cowling [2001] ACTSC 116 was in form an appeal by the offender against orders made under s 556A(1) of the Crimes Act (the predecessor of s 17 of the Crimes (Sentencing) Act), but the real challenge was to the factual findings of guilt by a Magistrate, rather than to the particular orders made by the Magistrate discharging the appellant and imposing a good behaviour order and costs.
Miles CJ noted at [4] that:
The appellant’s case is that he is entitled to have the adverse finding of an offence proved against him overruled, regardless of the decision of the Magistrate not to record a conviction. If he is so entitled, the Magistrate’s orders will be set aside.
His Honour did not explore further the scope for such an appeal although, having said that an appeal ground that a finding was “unsafe and unsatisfactory” was inappropriate to an appeal from a Magistrate by way of rehearing, he did note at [6] that:
These above remarks are subject to the anomalous provisions of s 20 of the Supreme Court Act 1933 which give the Supreme Court all appellate jurisdiction necessary to do justice in the Territory; see Kelly v Apps (2000) 98 FCR 101. However, nothing was said about that case in the present appeal and I do not propose to say anything more about it in this judgment.
In the end, His Honour found no merit in the appeal and dismissed it.
In Schmidt v Box [2009] ACTSC 109 (3 September 2009), Higgins CJ noted at [38] that convictions had been recorded by the Magistrate “to meet a prosecution submission that no appeal was competent until such an order, at least, had been made”. His Honour then made the following comments at [39]:
Although in this case it makes no difference, in many cases a defendant may well be aggrieved by a finding of guilt even if followed by a non-conviction order. It would be unjust if such a finding could only be addressed by judicial review rather than an appeal on the merits. Before the Crimes (Sentencing) Act 2005 (ACT) was introduced, s 208 of the Magistrates Court Act 1930 (ACT) provided for an appeal by the person charged, not only against a conviction but also against a decision made under s 556A of the Crimes Act 1900 (ACT) as it then was, later s 402. That provision has now been replaced by a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005. The point may be made that, notwithstanding that provision, the repeal or narrowing of a basis for an appeal from the Magistrates Court, the provisions of s 48A of the Australian Capital Territory (Self Government) Act 1998 (Cth) may render such a provision invalid. That, however, is not a question upon which I am required to rule. If indeed the amendments to the Magistrates Court have had that effect. The matter should be urgently remedied.
In Thoroughgood v Greenup [2013] ACTSC 46 (15 March 2013), Nield AJ in an ex tempore judgment on an appeal against a finding of guilt that had been dealt with under s 17 of the Crimes (Sentencing) Act, said at [3], but without reference to any legislative basis for the entitlement he referred to:
the appellant, being dissatisfied with the Magistrate’s finding of guilt, appealed, as he was entitled to do, to this court.
That is, several Judges of this Court appear to have assumed that an appeal lies to this Court against a Magistrate’s finding of guilt as such, but the only one to have considered the basis for any such appeal (Refshauge J) has had to resort to reading substantive words into the legislation to justify the availability of such an appeal.
Counsel for the respondent referred me to Cobiac v Liddy (1969) 119 CLR 257 in relation to the significance of a finding of guilt and the meaning of “conviction”. In that case Windeyer J considered historical uses of “convict” and its grammatical variations, citing various cases in which a finding of guilt has been described as a conviction and others in which it is recognised that “conviction” may refer simply to a finding of guilt or may cover that finding and the judgment or sentence (at 271-273). However, his Honour then noted that what was in question in that case was the words of the legislature, that in the applicable legislation the legislature had distinguished between a charge being proved and the accused being convicted, and that the Magistrate concerned had been within his powers in declining to record a conviction despite the charge being proved (at 275).
Is a finding of guilt an “order”?
Apart from reading references to convictions as including findings of guilt unaccompanied by convictions, the only scope for appeals from findings of guilt seems to be found in the references in ss 208(1)(c) and 219B(1)(c) to orders made under s 113 or 114 of the Magistrates Court Act, which in turn provide respectively for the court to make an order “against” or “on” the defendant as alternatives to convictions.
I turn to consider, then, whether a finding of guilt can be treated as an order made against or on a person under s 113 or 114 of the Magistrates Court Act.
Sections 113 and 114 of the Magistrates Court Act are as follows:
113 Proceeding at hearing on defendant’s confession
If the defendant is present at the hearing, the substance of the information must be stated to the defendant, and the defendant must be asked if the defendant has any cause to show why the defendant should not be convicted or why an order should not be made against the defendant, and if the defendant has no cause to show, the court may convict the defendant, or make an order against the defendant accordingly.
114 If defendant does not admit the case
(1) This section applies if the defendant does not admit the truth of the information.
(2) The court must hear—
(a) the informant and the informant’s witnesses (if any); and
(b) if the defendant wants to give evidence—the defendant; and
(c) the defendant’s witnesses (if any); and
(d) if the defendant has given evidence other than about the defendant’s general character—the informant’s witnesses in reply (if any).
(3) Having heard each party and the evidence, the court must decide the information and do 1 of the following as justice requires:
(a) convict the defendant;
(b) make an order on the defendant;
(c) dismiss the information.
Section 113 does not mention the court’s initial decision on the information, presumably because it deals with cases where there is a plea of guilty. Under s 114, however, where the proceedings are defended, it is clear that the court must “decide the information”, that is, decide whether or not the offence is proved or the defendant is guilty, as a pre-requisite to exercising any of the specified powers, including not only the power to dismiss the information or to convict the defendant but also the power to “make an order on the defendant”.
It is hard as a matter of language to interpret the phrase “order made [against or on] a person” under s 113 or 114 as including the finding that the person committed a specified offence that is apparently the pre-requisite to making any such order.
Counsel for the appellant submitted that an order was anything that affects a defendant’s rights or legal status, and therefore included a finding of guilt, but he was unable to cite any authority for this submission.
I have not found any definitions of “order” applicable to that word when used in the Magistrates Court Act. The Supreme Court Act 1933 (ACT) defines order as including “a judgment, decree, direction or decision”; there is no reference to “finding”. Having regard to the relatively narrow extension provided by the Supreme Court Act definition and the apparent absence of any attempt to extend the meaning of the word in the Magistrates Court Act, I would hesitate to interpret “order” as used in the Magistrates Court Act to include things that are not even included in the extended definition set out in the Supreme Court Act.
The natural meaning of “order” also does not seem to cover a finding.
Butterworths Australian Legal Dictionary (1st ed, Butterworths, 1997) defines “order” as “a command or direction issued by a court or tribunal” (at 824).
The Macquarie Dictionary Online ( @919FF82, viewed 9 July 2013) gives, relevantly, the following meanings for “order”:
1. an authoritative direction, injunction, command or mandate;
3. Also, court order. Law a direction given by a court, judge or minister of the crown.
That is, “order”, absent any extended meaning given by a definition, seems to require something that, in very general terms, requires or causes something to be done or to happen – something more than a mere finding that certain things are the case.
I understand Refshauge J’s view that there ought to be scope for appealing a finding of guilt even where no conviction is recorded, but I am not convinced that this provides a basis for inferring such an appeal right from provisions that do not appear to describe such a right, whether those provisions refer to “convictions” (which is clearly used in relevant ACT legislation to mean something different from findings of guilt) or “orders” (which in its natural meaning as well as in legal use seems also to mean something different from findings).
Finally, I note that counsel for the appellant referred to the Supreme Court’s general jurisdiction to do justice in the ACT, although without specifically referring to Kelly v Apps (2000) 98 FCR 101 (also mentioned by Miles CJ in Upton v Cowling, quoted at [29] above). In Kelly v Apps, the Full Federal Court appears to have held that s 20(1) of the Supreme Court Act 1933 (ACT) conferred on the Supreme Court effectively unlimited jurisdiction to hear appeals from the Magistrates Court or, at least, such appeal jurisdiction as is necessary “to enable justice to be done by the Supreme Court” (at [22]). Section 20(1) is as follows:
(1)The court has the following jurisdiction:
(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;
(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.
Wilcox J, with whom Gallop and Marshall JJ agreed, said:
21 Subsection (2) is important in the present context because it specifically states that nothing in Pt XI limits the operation of any other Act. This of course, must include the Supreme Court Act, which makes provisions with respect to the appellate jurisdiction of the Supreme Court.
22 Division 2 goes on to itemise the matters that may go to the Supreme Court by way of appeal and Div 3, which contains s 219B already mentioned, deals with orders to review. The important point for present purposes, it seems to me, is that there is a broad general jurisdiction conferred under s 20(1)(a) of the Supreme Court Act and the Magistrates Court Act specifically states that nothing in Pt XI is to cut down jurisdiction conferred under other legislation. I see no reason for the Court to construe s 20(1)(a) in a narrow way. It is obviously intended as a salutary provision to enable justice to be done by the Supreme Court.
23 If, indeed, it is the case that there is no jurisdiction under s 219B of the Magistrates Court Act, in relation to an order for costs following a dismissal, then this is par excellence an example of the utility of s 20(1)(a) of the Supreme Court Act. In my view, the Court should hold that the Chief Justice did have jurisdiction in this matter in relation to costs.
I express no views about the correctness of Wilcox J’s conclusions when they were articulated. However, having regard in particular to the comments of the High Court and earlier comments of other courts (noted at [9] above) about the need for a statutory basis for an appeal, and the repeated indications by the High Court and other courts that the nature of an appeal must, and can only, be determined by reference to the details of its statutory foundations (eg Lacey v Attorney-General of Queensland at [57]; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [27]; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-8), a general conferral of “appellate jurisdiction” (albeit an apparently statutory conferral), does not seem to me an adequate basis from which to infer the availability of a particular appeal. This is especially the case given that the introductory words of s 207(1) of the Magistrates Court Act (set out in the Appendix to this judgment) are as follows:
The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrates Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others. (emphasis added)
Section 207(2) is as follows:
This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court.
Whatever s 207(2) is intended to achieve, I am not convinced that it is intended to permit the overriding of the explicit limitation in s 207(1) by a provision at the level of generality of s 20 of the Supreme Court Act.
Conclusions
On the basis of the material and arguments discussed above, my present view is that the Magistrates Court Act does not provide for appeals to this court against findings of guilt where no conviction is recorded. However, since the question was only raised at the hearing and I did not hear considered submissions about it, I propose to address the substantive matters raised on appeal as well.
Factual issues
Before considering the challenges to the Magistrate’s findings, it is necessary to set out evidence relevant to those findings.
Prosecution evidence – Constable Wyte
In the prosecution case, Constable Wyte gave the following evidence about how the incident developed after the licence plates were removed:
MR WILLIAMSON: So after you’ve taken those photographs, Constable, what have you done next? ---Your Honour, after taking the photographs my partner and I removed the registration plates from the vehicle.
Being specific, which number-plates did you remove? ---I removed the rear number plate I believe.
And what did your partner do? ---He removed the front number plate, your Honour.
And once those plates had been removed what, if anything, was done with them? ---I handed the plates, or my plate, to my partner and they were placed in the rear of the police vehicle.
Whilst this was happening was the defendant doing anything? ---After I had removed the rear registration plate the defendant came out of the house again.
Okay, so she’s come out of the house. Where has she gone once she’s exited the house? ---She’s come up to us at the front of the property, your Honour.
And when she’s come up to you at the front of the property did she say anything to you? ---Yes, your Honour. She was - - -
What did she say? ---She said to me, “What are you doing to my car? What are you doing with my plates?”
Did you respond to that? ---I did, your Honour.
...
MR WILLIAMSON: As best as you can recall, exactly what did you say to the defendant? ---“I’m seizing the registration plates because the vehicle is unregistered and uninsured. They will be returned to the motor registry.”
Did she say anything in response to that? ---Yes, your Honour.
What did you say? ---She was yelling at me that I couldn’t, she yelled at me, “You can’t do that. You can’t come onto my property without a warrant. Put those plates back or I’ll call the police ombudsman.”
And did you say anything in response? ---I did, your Honour.
What did you say? ---I said. “I can take the plates. The vehicle is unregistered and uninsured and they will be returned to the motor registry.”
Whilst you were having this conversation with the defendant how would you describe her demeanour? ---She was extremely agitated, your Honour. She was very angry, aggressive. Her face was red and she was screaming at me at the top of her lungs, shouting in my face. She came right up to me so that she was very close to me and I could see spittle flying from her lips she was so angry, your Honour.
When you say she came close to you, how close did she get to you?---About 40 centimetres away, your Honour.
And you’ve told his Honour that she was angry? ---Yes.
Why do you say that? ---She was screaming at me, your Honour. Just her body language, her demeanour, the level of her voice all went to her being extremely angry.
After this exchange did the defendant do anything? Did she - so you’ve - the defendant has challenged you, said words to the effect you can’t take the numberplates. You’ve said words to the effect that yes, you can. What has happened then? ---Because she was screaming at me, your Honour, I saw that there was no point in trying to explain and I told her to go back inside and that we were leaving, and I went towards the police vehicle to get into it.
Did the defendant go back inside? ---She didn’t, your Honour. She walked ---
What did she do? ---She walked back towards - she took steps back towards the front of the property and I turned to go towards the police vehicle so I can’t say exactly what she did, your Honour.
And what have you done at that point in time?---I got into the front of the police vehicle. As I was - that’s the passenger side, your Honour. As I was about to close the door I saw the defendant come towards the police vehicle.
And so she’s come up right next to the police vehicle, has she?---Well, she came up to the rear of the police vehicle. She opened the rear of the police vehicle and was rummaging in the back and I got out of the police vehicle by which time she had retrieved the registration plates, your Honour.
So you were in front of the police vehicle at this time, were you? ---I was about to put - yes, yes I was.
And do you say that she’s got into the back and rummaged around and remove the number-plates?---That I had seized, yes, that’s correct, your Honour.
And what have you done at this point in time?---I got out of the police vehicle and went to the rear passenger side door which was where the defendant was, and I said, “You are hindering police now. Give me the plates.”
What if anything, has the defendant done in response to that?---Your Honour, she looked directly at me and she said, “No, I don’t care”, hugged the plates to her chest and then leaned back into the police vehicle and kicked me.
Where did she kick you?---She kicked me on the lower right hand side of my abdomen, about the lower hip area.
Did you feel anything at that point in time?---Yes, your Honour, I did. It hurt.
HIS HONOUR: Well, what did you do?---When she kicked me, your Honour, I had to step back and I exhaled because she’s kicked me so hard, your Honour.
MR WILLIAMSON: When you say she kicked you, do you recall where she was looking at the time that you say she kicked you? ---Yes, your Honour, she was looking straight at my face.
Where were her feet immediately before you say she kicked you?---She turned around into the police vehicle so that her back was towards the vehicle, and they’d been on the ground and she rocked back and she lashed out at me, your Honour.
And what have you done in response to that?---After being rocked backwards from the kick I’d stepped back in again and taken hold of the registration plates, your Honour.
Did you remove the registration plates from Ms Bloxham?---At that - eventually, your Honour, yes, but it took a bit of time.
Why did it take a bit of time? ---She hugged the registration plates into her body. My partner came around. He was on my left hand side. He’s taken hold of - he’s helped take hold of the defendant and we’ve taken her out of the car but she turned around, shrugged us off and hugged into the side of the police vehicle so we had to try and get her turned around before we could remove the plates from her.
So what’s happened when you finally have removed the plates from Ms Bloxham? ---There was a further struggle to place her under arrest. She had to be taken to the ground, your Honour.
In cross-examination, Constable Wyte gave further evidence about the process of removing the number plates:
When you looked at the registration label you thought this car is probably unregistered?---That’s right.
You wouldn’t have been certain at that point without conducting a check?---That’s correct.
You conducted a check?---Yes.
And found out yes, it is in fact unregistered?---That’s right.
And at that point decided that it was a good idea to remove the number plates?---Yes, that’s right, your Honour.
So that they might be returned to the motor registry?---That’s correct.
But that process was not something that had been communicated to Stephanie Bloxham before hand?---That’s correct, your Honour.
She wasn’t on notice that you were going to be removing the plates from the car?---Not by me no, your Honour.
Nor by your partner?---No, that’s right.
And was it after you had finished removing the plates that she came outside?---That’s correct, your Honour.
Now, when she came outside she communicated to you that she didn’t think you had any right to do what you were doing. Is that a fair summary?---Yes, your Honour.
You, of course, were confident that you had the right to remove those plates?---Yes, your Honour, that’s correct.
And were of the belief that in her asserting that you had no right she was clearly wrong?---That’s correct, your Honour.
And when Ms Bloxham first started speaking to you after coming out of the front door, did you observe her mood to be agitated?---Yes, your Honour.
Did she appear upset to you?---She appeared angry, your Honour.
Did she also appear upset?---Not initially, no.
So what you call anger would have been communicated to you by a loud voice?---Yes, your Honour.
And I think that you described a redness in her face as well?---As she was speaking yes, your Honour, she became red in the face.
And those two things communicated to you anger?---In conjunction with the tone of her voice, her clenched fists, the way that she was leaning forward at me yes, your Honour, it did.
You have said that there were some words exchanged between the two of you at that point about the removal of the number plates?---Yes, your Honour.
And your evidence was that Ms Bloxham said to you words to the effect, “What are you doing to my car, my plates?” Is that roughly right?---After she said, “You can’t come onto my property without a warrant” yes, your Honour, we did have a conversation about that.
And was that – maybe if we backtrack. Was the first thing that she said to you, “What are you doing to my car? You’d better put those plates back right now or I’ll be calling the police ombudsman.” Was that the first thing that she said to you or do you have difficulty recalling now, officer?---No, she came out. She came out saying, “You can’t touch the car and I’ll call the police ombudsman,” and then, “You can’t come on to my property without a warrant. You can’t take my things without a warrant.” I said, “Yes, I can,” and then she kept on talking over me while I was explaining why I could.
All right. Did you prepare a statement on the same day that this incident occurred?---I started the statement on that day yes, your Honour.
In starting the statement did you record in that statement on that day what had been said?---Yes, your Honour. I took it from my notebook.
And did you record in your statement, “I looked towards the sound and saw the defendant exiting her house. She started yelling at me as she approached. I also saw a small white dog exit the house” ?---Yes, I did, your Honour, yes.
And did that accurately reflect your memory at the time?---Yes, your Honour.
Did you then record that Ms Bloxham had said to you, “What are you doing to my car? You’d better put those plates back right now or I’ll be calling the police ombudsman”?---Yes, your Honour.
And did you infer from that that Ms Bloxham was asserting some sort of right in relation to the car, that it was her car?---At the time, your Honour, I just inferred that she was incorrect as to her knowledge of the vehicle and that’s what I tried to explain.
Did you try and explain by saying, “The vehicle is unregistered and has been since March so the plates will be returned to the motor registry”?---Yes, amongst other words as well, your Honour, yes.
Did you say other words as well, did you?---When she was talking over me I attempted to explain but it was all in relation to the status of the vehicle and why they needed to be returned to the motor registry.
Did that come a little bit later?---No, it was during that – the exchange took place and we had that conversation at that time.
Did the exchange take place, or did you record in your statement the exchange taking place this way, “What are you doing to my car? You’d better put those plates back right now or I’ll be calling the police ombudsman”?---Yes, your Honour.
So that’s the first thing that she said to you?---As she’s approaching, yes.
Then you have responded, “I said the vehicle is unregistered and has been since March so the plates will be returned to the motor registry?---Yes.
Did you record her as becoming visibly more agitated at that point?---Yes, yes.
And did she say to you, “You have no right to take my things without a warrant”?---Yes, she did.
Did you then record yourself as saying, “Yes, I do”?---I did, yes.
And then you attempted to explain but she’s walked up to you within 40 centimetres from your face and shouted loudly in your face, “Well where is it? Where’s your warrant”?---Yes, yes, your Honour.
So the explanation wasn’t able to come out - - - ?---Because she’s talking over me, that’s correct.
And did you then say to her, “I don’t need a warrant to seize plates from an unregistered vehicle in a public area”?---Yes, I did.
And did she appear to yell and shout at you about the registration plates belonging to her?---Yes, she did, your Honour.
Did you have any sense that she was taking in what you were saying?---Well, she responded enough when I said yes, I – she said, “You can’t come and take it without a warrant” and I said, “Yes, yes I do” and was trying to explain and she reacted to that so yes, she was paying attention to what I was saying but she worked herself up into - - -
My question was did you get any sense that she was taking in what you were saying?---Yes, because she responded to some of the things that I’d said.
Officer, don’t you record her as saying, “You have no right to take my things without a warrant.” That you said, “Yes, I do.” and she shouts over the top of you, “Well where is it? Where’s your warrant”?---That’s right. So she understood part of that conversation.
Isn’t she simply repeating the first thing that she has said, “Where’s the warrant”?---Well, I took it that she was listening to me because she said, “You have no right” and I said, Yes, I do” and then she responded to that comment by me and kept going.
So your point was you didn’t need a warrant, you had a right anyway?---That’s correct.
And she kept asking for the warrant?---Well, she asked several times and then she started screaming.
You at that point formed a view that there was going to be no worthwhile communication between yourself and Ms Bloxham?
HIS HONOUR: sorry, there was going to be no what?
MR GILL: Worthwhile communication?---That’s correct, your Honour.
Did you form that view because she didn’t appear to be listening to what you were saying?---That’s right.
Or prepared to listen to what you are saying?---That’s correct, yes.
And that she simply continued shouting?---That’s correct, your Honour.
So even when she tried to explain something you were unable to do so?---Yes, your Honour.
So the view that you formed from your interaction with her is there’s no point talking to this woman anymore, she’s simply not listening to what I’m saying?---Yes, your Honour.
And she is unable to understand my point of view?---Well, she wasn’t getting it, yes your Honour.
And you told her to go back inside?---Yes, I did your Honour. I asked first, then I told her.
Did you tell her to do that because you thought that would be a useful way of diffusing [sic] the situation?---For us to leave, yes your Honour, that’s correct.
At that point of the exchange between yourself and Ms Bloxham the registration plates had been put into the rear seat of the police car?---That’s correct, your Honour.
And then you were getting into the - sorry, after you told her to go back inside you went to get back, you went to get into the police car?---Yes, your Honour.
Ms Bloxham went to take hold of the number plates?---She went to the back of the police car, went into the police car and took the plates, yes your Honour.
Can I suggest to you that at that point the rear door of police car was still open?---It was closed, your Honour. It was most definitely closed.
As she took hold of the number plates you took hold of her?---No, your Honour. That’s not correct. She’d already got the plates and was in the rear of the police vehicle when I ran around and I grabbed the, I got the plates.
I’m sorry, can you explain it again?---Yes. I was in the front passenger seat of the police vehicle. It was parked with the passenger side towards the property. So I was getting in. I had one, my left leg was out, my right leg was in. I was getting in to close the door. She’s come up to the rear of the police vehicle, opened the closed door, reached in over the back seat to get it. I’ve seen what she is doing. It’s highly unusual for someone to come and open a closed police door to the vehicle. I got up out of the front, went around to the back by which time she was leaning over and I said, “Give them to me. Now you’re hindering police.” She turned around to face me so that her back is towards the police vehicle, clasped the plates to her chest so the plates are underneath her chest, and I grabbed the corner of the plates. That’s when she kicked me and I’ve lost hold of the plates, your Honour.
So you don’t think that you took hold of her while she was still in the police vehicle?---After that I took hold of her to bring her out of the police vehicle, that’s correct.
But from the description you’ve just given the first physical interaction between the two of you is wrestling over the plates, have I understood that correctly?---I touched the plates, she kicked me, but I went back in and got hold of her with my partner to bring her out, yes.
The first physical interaction is she’s holding the plates?---Yes.
And you tried to remove the plates physically from her?---Yes. Yes that’s correct, your Honour.
And it’s at that point that there’s a struggle between the two of you?---Yes.
And it’s at that point that you say that you were kicked?---Yes, your Honour.
The struggle doesn’t stop there?---No, because I’ve kicked back and I go in again and then it just keeps going, your Honour.
And the struggle continued until the point that she was taken down?---No. Then she continued to struggle and it just stopped after she was handcuffed, your Honour.
So the struggle continued until she was taken down and handcuffed?---That’s correct.
When she was handcuffed was she pinned down to the ground for the handcuffs to be applied?---Yes, yes she was.
And at some point in that she wee’d herself?---Yes, your Honour.
Throughout the process she was yelling and screaming?---Yes, and flailing and kicking.
Did some of that yelling and screaming involve something about hurt?---Yes, your Honour. She said that she had a neck injury.
Now - excuse me, your Honour. Sorry, some of it involved a neck injury?---Yes.
But not all of it was intelligible to you?---That’s correct, your Honour.
Excuse me, your Honour. And then it’s after she’s been taken down and handcuffed and then I think you said put into the seat position that you commenced recording what we listened to a few moments ago?---That’s correct, your Honour, yes.
In that recording there’s crying?---Yes.
I take it that’s Ms Bloxham?---Yes, that’s correct.
And shrieking?---Yes.
I take it that’s Ms Bloxham as well?---Yes that’s correct, your Honour.
And at times sobbing. I take it that’s Ms Bloxham as well?---Yes, your Honour, that’s correct.
And those were the sorts of behaviour she was engaged in before the recording took place as well, was it?---On the ground, yes your Honour.
One of the things that seems to be contained in that recording is Ms Bloxham saying, “How can you do this to me? I’ve done nothing. I’ve done nothing”?---Yes, your Honour.
Was during the recording the first time that she’d said that or had she said that earlier as well?---No, that was the first time your Honour.
And do you agree that as you approached - I’m sorry, let me take a step back. You are saying that Ms Bloxham leaned into the rear of the police car to get the plates?---Yes.
You said that you got out of the police car and approached Ms Bloxham?---Yes.
As you approached her she was still leaning into the police car?---Yes.
And at least initially as you approached her you were approaching her from her behind?---Yes.
Defence evidence – Ms Bloxham
The appellant also gave evidence. She described events from the end of her initial conversation with the police officers at her front door:
So you saw the police walked towards their car. What did you do at that point?---I closed the door, locked the screen, closed the front door, locked the front door and went back in to finish my lunch.
What was your next awareness of the two police officers?---I heard a noise out the front. I opened the front door.
What did you see when you opened the front door?---The police hovering around the Daewoo. I wasn’t aware of what they were doing. I asked from behind the screen door, “What are you doing?” and they just continued to manoeuvre with what they were doing and didn’t respond.
What did you do then?---I walked out because they didn’t respond.
And when you walked out did either you or the police say anything?---I again asked them what they were doing, why were they removing my personal possessions.
HIS HONOUR: Why were they removing what?---My personal possessions.
MR GILL: What did you think they were removing?---I wasn’t aware of what they were doing. I had not been informed that they were going to do anything. I was under the understanding that they had left the premises.
As you got closer to the police what did you see?--That they were actually removing it appeared like the number plates and I don’t know if they removed anything else. I didn’t get a chance to see.
When you saw those number plates being removed what did you think?---I felt - what did I think? I wondered why they were removing the number plates without notifying me or giving me some sort of explanation as to what they were doing before they actually initiated removing my property.
Was there any words passed between you and the police?--Yes. I said, “What are you doing?” and they were - I was told they were removing the number plates, I believe it was the female officer. And she, and I said, “You’re supposed to have paperwork or some legislation to do that,” and she says, “We don’t need any paperwork.” Something about if the vehicle’s expired and I said, “Well don’t you have a duty of care to notify me that you removing my personal property?” because I believed, and based on information from Canberra Connect that the number plates belong to the car until such time as 12 months had expired.
So who did you think the number plates belonged to?---Myself, and my car. The car was fully comprehensively insured, it just wasn’t registered.
What was your, what you think your mood was like as you went towards the police officers?---I felt betrayed.
Were you displaying any sort of upset towards the police officers?---The fact that they wouldn’t respond to me is why I was getting upset.
HIS HONOUR: Were you displaying any upset towards them?---Upset?
That’s the question you were asked?---I was asking over and over again why they were taking my belongings.
MR GILL: What I am asking, Ms Bloxham, is in terms of your manner towards the police. You’ve heard them describing you to be angry - - -?---My voice may have been a little raised but not on a - just purely because I wasn’t getting a - I was being ignored.
Excuse me, your Honour. What did you see happen with the number plates?‑‑‑They, as we went into discussions about what was going on and the muddleness of the discussion because neither party seemed to be hearing one another and I got the impression that I wasn’t allowed to say anything about what they were doing. And the number plates, as I walked past, as I walked up to the top I saw the number plates on the back seat. I reached into grab them. I believed they were mine.
So why did you grab them?---Because I believed they were my property and I was told that by Canberra Connect.
Now, what happened when you reached in to grab the number plates?---I was grabbed by the female officer from behind.
And do you remember how you were grabbed?---No, because all I was concerned about was getting my number plates back.
When you were grabbed what did you think?---We ended up in a, we ended up struggling over the number plates, like just, like children over a toy.
How did that struggle happen? Are you able to describe it in any more detail to his Honour?---I had one side of the numberplates and she had the other.
Where was the struggle taking place in relation to the car?---Initially inside the door of the car, then alongside of the car. And then she finally managed to take them out of my reach and then it was after that point that, yes.
Now, one of the constables gave evidence that she was kicked by you. Is it possible that you kicked her during the struggle?---We struggled. I have no idea what happened. We struggled.
Once the police officer took hold of you in the car why did you keep struggling?---I was trying to hold on to the number plates was the only, was my only, is my only answer to that. I was just trying to regain what I believed was honestly mine.
In cross-examination, the appellant said:
MR WILLIAMSON: Ms Bloxham, when the police, when you saw the police remove those number plates you thought they needed a warrant, didn’t you?‑‑‑I believed they needed some form of paper work or legislation. I didn’t believe they were a law unto themselves and the way they spoke to me was absolutely disgusting
You yelled to them words to the effect, “Where’s your warrant? Where’s your warrant”?---Yes, because they wouldn’t respond to me when I asked them from my front porch politely on two occasions.
So you thought then that they were taking those plates unlawfully?---Yes. Yes, I did.
You thought they didn’t have a warrant and they were taking plates unlawfully and you were upset about that, weren’t you?---I thought - no.
You weren’t upset about that?---No. I just believed that they should have been able to show me something to justify it and I could have rationally understood that. There was no rationality. There wasn’t a legislation covering what they did. They showed me no paper work.
You say they showed you no paper work. That made you mad, didn’t it, that they showed you no paper work?--I asked them for paper work and to provide some paper work and to leave the number plates until they could.
They didn’t do that, did they?---No, they were a law unto themselves.
So you’ve asked them for a warrant and they haven’t given you a warrant. You thought they were acting unlawfully. You’ve asked them for paper work that haven’t given any to you - - -?---And they also - - -
By then you would have been mad, wouldn’t you?---Well, when they turned around and said, “We can do as we wish” yes, at that point I did get agitated but not to hurt anybody, just to get my number plates back.
I suggest to you that they never said, “We can do what we wish.” They said, “We can take these plates” or words to that effect?---That’s not what I recall.
You were angry with them because you thought they were acting unlawfully and they weren’t responding to you, isn’t that right?---No.
And that’s why you threatened to go to the ombudsman?---I wanted to see something in legislation and their duty of care to me to - - -
MR WILLIAMSON: And they didn’t show it to you?---Justify what they were doing. Pardon sir?
HIS HONOUR: I’m just telling Mr Williamson to wait.
MR WILLIAMSON: And they never showed you anything in legislation, they never showed you any paper work, did they?---No.
You must have been pretty frustrated?---No. They have a duty of care to the community to do the right thing and they weren’t doing the right thing.
I am not asking about their duty of care, I’m asking you whether you were frustrated?---No.
You weren’t frustrated?---No. Disheartened, distressed but not - - -
You raised your voice with them but, you admitted that to my friend didn’t you?---Pardon?
You raised your voice with them, didn’t you?---When I was being arrested, yes. Not prior to that.
And you raised your voice almost as discussions with the police near your car started, isn’t that right?---That’s incorrect. I asked politely on two separate occasions from my porch what they were doing. Now, if that’s not giving them the opportunity to address my concern.
They actually told you that they had the power to take your number plates - - -?---They ignored me when I was on my porch. They waited for me to come into free rein.
Once they told you that that made you angry and you started to yell over the top of them, didn’t you?---I responded to the way I was spoken to. That’s the only way I - - -
You yelled at them?---If they were yelling at me I was yelling back.
And you were yelling at them because you were angry with them?---I wasn’t angry with them.
Well, you were frustrated with them, weren’t you?---No, I wasn’t frustrated with them. I wanted the duty of care that they should be showing as civil servants.
So do you often yell at people when you’re not angry with them and your’re not frustrated with them? Do you?---No.
But you did here and you said in your own evidence you did on this occasion?---When I was arrested is when I got highly distressed.
Now, they just proceeded to take those plates notwithstanding your protest and they put them in their police car, didn’t they?---That’s where they were when I saw them, yes.
That must have really made you mad. You’ve told them they can’t do that. You’ve asked for a warrant. You’ve asked for the paper work and they’ve shown you none of it, they just took the plates and put them in their car. By that point you must have been really upset?---No, I just grabbed the – no, I just thought they had no right to take them and just wanted my property returned.
So you took it upon yourself to open the door to the police car and lean into the vehicle and take them back yourself, didn’t you?---The door was open. I just leant in and grabbed them at which point your female officer leant in over me.
You are not a police officer, are you?---I beg your pardon?
You are not a police officer, are you?---I am unemployed.
So you had no right to enter a police vehicle?---It was open.
It doesn’t matter. You had no right to lean into that police vehicle, did you? You knew that?---I am not aware of my rights regarding that. I’ve never been told.
So then for all you know you didn’t have the right to lean in there and do that?---I can’t answer that question. I’m not aware of my rights regarding that.
But you agree that you did lean in there and you did take those plates back into your possession?---The door was open.
So you agree that you did lean into the vehicle and you did take those plates back into your possession, do you agree with that?---They were on the seat. I retrieved them.
So you did lean into the vehicle and take the plates back into your possession?---I didn’t lean in. They were on the seat near the door.
So you took the plates which were in the police vehicle into your possession. You would agree with that, wouldn’t you?---I picked up the plates.
So the answer to my question is yes then?---I picked up the plates.
HIS HONOUR: Which were in the police car?---The, on the seat.
They were in the police car?---On the seat and the door was open.
In the police car?---Yes.
MR WILLIAMSON: And then Constable Whyte came over and tried to get them back once you’d that, didn’t she?---I don’t know. I had my back to her.
Now, when you tried to get those plates, or when you did pick those plates up from the seat of the police car your purpose was to stop the police taking those plates away, wasn’t it? That’s way you did it?---I believed they were my possession.
Yes?---I believed that.
So believing that they were your possession you’ve taken those plates out of the car, the police car, to stop the police seizing them and taking them away that day?---Well there was no reason, there is no just reason for them to be removed.
So your purpose in taking the plates out of the vehicle was to stop the police taking them that day, is that correct?---I requested some paper work.
I’m not asking what you requested. I’m asking what your purpose was in leaning into the back of the police vehicle?---To retrieve my property, my personal property.
And it was your purpose in doing so to stop the police from taking those plates that day, that’s correct isn’t it? It is or it isn’t?---I believed the plates were my property, sir. And I was told that by Canberra Connect at the time.
Now, after you had taken those plates, after you had regained possession of those plates from the back of the police vehicle you would have been extremely annoyed when you saw Constable Whyte behind you trying to take them back?---Yes, they both grabbed me because I’d taken it upon myself to - - -
So you would have been really annoyed that they were about to take them back after you have taken those plates off the back of the police, off the back seat of the police vehicle?---No, they both grabbed me.
I’m not asking if they grabbed you. I’m asking if it made you really annoyed that - - -?---No, I wasn’t annoyed.
You weren’t annoyed at all?---No, just I wanted to retain what I believed was rightfully mine.
I am suggesting that you were very annoyed?---Well, you’re wrong.
And it was out of that annoyance – well in fact you were more than annoyed, you were angry with them, weren’t you?---No.
I suggest that you were. You were angry, weren’t you?---No, I wasn’t angry. I was upset by their behaviour and their lack of duty of care.
It was out of anger and to use your words the fact that you were upset that caused you to lash out and kick Constable Whyte?---No.
In the - - -?---No, she was struggling with me. She was grabbing me.
You did kick her, didn’t you? Do you accept that?---No, we were struggling ‑ ‑
You said that - - -?---Over the plates.
HIS HONOUR: Just a moment, Mr Williamson.
MR WILLIAMSON: Did you not say in response to an answer that my friend asked you, a question that my friend asked you, that you possibly could have kicked her, or words to that effect?---I’m not sure what you’re referring to, I beg your pardon.
HIS HONOUR: When Mr Gill was asking you questions as to whether you kicked the Constable - - -?---I do not recall.
Listen to me?---Sorry, sir.
Listen to me. When Mr Gill asked you a question as to whether you kicked the Constable you said that you don’t know, you don’t recall what was happening?---That’s correct, sir.
And you were fighting or you were struggling and you don’t know what happened. That’s what you said, is that right?---That’s correct.
MR WILLIAMSON: You did kick Constable Whyte, didn’t you?---No. There were struggling.
And in the course of that struggle you kicked Constable Whyte, didn’t you?‑‑‑I don’t recall kicking anybody. I don’t recall hitting anybody. I don’t recall swearing at anybody. We were just struggling.
If you can’t recall it then, if I was to put it to you that you did you couldn’t disagree with it because you can’t remember. Do you accept that?---No.
So you’re saying that you never kicked Constable Whyte?---We were struggling over the plates.
HIS HONOUR: Is it possible that you kicked Constable Whyte?---I do not recall.
Is it possible that you kicked Constable Whyte?---Anything is possible. Anything was possible.
MR WILLIAMSON: You were in an extremely agitated state by this point in time, by the time you were having the struggle with Constable Whyte, weren’t you?--When you’ve got two heavy weights pulling you are apart and hurting you.
You were extremely agitated at this point in time, weren’t you?---No, I was hurt. I was protecting myself.
But you were extremely agitated, weren’t you?---No. I was being bullied.
Magistrate’s decision
After hearing evidence and submissions, his Honour gave a decision in the following words:
HIS HONOUR: In relation to this matter the defendant was charged with two offences arising out of an incident that occurred at her premises on 4 July 2010. The first offence in time is that of hindering a public official in the exercise of her function as a public official.
The function was being exercised under section 30 of the Road Transport (Vehicle Registration) Act which provides that a constable may seize a number plate attached to a registrable vehicle, which is misspelt in the Act, if the registration of the vehicle has expired more than 15 days earlier or is cancelled. The evidence before me is that this registration had expired back in March, I think it was. It was certainly outside the period of time. Therefore the constable was authorised under the Act to seize the number plates.
It is a moot point, although I think it is quite clearly established, that apart from possession number plates never become the property of the person to whose motor vehicle they are attached.
The second offence relates to the assault of Constable Joanna Wyte, which is an offence brought under section 26 of the ACT Crimes Act, not being anything to do with the execution of her duty.
The defence is one of a claim of right in relation to the hinder under the Code, together with a self-defence of property under section 42. Section 38 requires that a person is not criminally responsible for an offence that has a physical element relating to property, which this does, if when carrying out the conduct required for the offence the person is under a mistaken belief about a proprietary or possessory right, and the existence of the right would negate a fault element re a physical element of the offence. It is said that the mistaken belief about a proprietary right is that the number plates belonged to the victim, and the existence of that would negate a fault element re a physical element of the offence in that without a warrant or otherwise the constable would have no power to seize that property.
The mistaken belief that the defendant is said to possess is that the number plates relate to her. The constables in their evidence indicated, firstly through Constable Wyte, that “You can’t come onto my premises without a warrant. I can and I will return them”, referring to the number plates, “to the motor registry. She was angry, screaming and came close to me and was screaming at me. She was extremely angry and I saw there was no point trying to explain and told her to go back inside as we were leaving.”
The section 38 claim of right doesn’t have anywhere within it an element of reasonableness, except the prosecution seek to rely upon subsection (2) that a person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
The prosecution’s submission was not quite accurate, in my view. Is not responsible for any other offence arising necessarily under the exercise of a proprietary right. The prosecution submission is that the hinder doesn’t necessarily arise out of the exercise of that proprietary right. That is, the protection of it. I am against that submission.
In relation to section 42, the person carries, a person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence. A person carries out conduct in self-defence only if to protect property from unlawful appropriation, destruction, damage or interference. And (b), the conduct is a reasonable response in the circumstances.
I am against you on the reasonableness of the response in the circumstances. There was no dispassionate, reasoned discussion in relation to this matter. The defendant in her evidence in chief said that she sought to discover what they were doing.
She never really indicated that it was her honest and reasonable belief, not that that is required under the defence, that what they were doing was removing her property. She said, “I wondered why they were removing them without telling me why they were doing it. You are supposed to have paperwork. You are supposed to have a legislative basis. Didn’t you have a duty of care to tell us why you were removing them? I felt betrayed. Neither party seemed to be hearing each other. I saw the number plates on the back of the seat and I went to get them. I believed they were mine. I was told by Canberra Connect.” But I have no idea what Canberra Connect have got to do with this or what she was told and why she had a belief.
“But I was trying to hang on to the number plates. I was trying to regain what I honestly believed was mine.” That was the basis of her honest belief, she said. I am against that. I am not satisfied that she had an honest belief. She may have had a belief and there was no belief in the circumstances that the conduct was necessary to protect her property from unlawful appropriation.
She was unaware as to how or why the constables were taking them. She believed they were her property, but it is not conduct if the conduct was necessary, the person believed the conduct was necessary, to protect it from unlawful appropriation. There were other means available and she mentioned one of them herself, to report the police to the police ombudsman. In my view section 42 does not apply. The defence does not apply in this case.
As to the claim of right, that the hinder is not proven because the prosecution has not negatived the defence of claim of right under section 38, I am against the submission on the basis that I am not satisfied that there is a belief about the proprietary or possessory right for the same reasons I gave in relation to section 42. The defendant kept maintaining, “You tell me why you are taking it. Why are you taking it?” In my view section 38 has not been properly grounded. I am against the defence in both of those cases.
The common assault in relation to the protection of property, in my view there are no reasonable grounds for the belief and I am against the defence as set out in Zecevic in that case. I find the offences proved.
Magistrate’s remarks about facts
Counsel for Ms Bloxham submitted that his Honour appeared to have made a mistake in describing the facts in the following part of his reasons:
The constables in their evidence indicated, firstly through Constable Wyte, that “You can’t come onto my premises without a warrant. I can and I will return them”, referring to the number plates, “to the motor registry. She was angry, screaming and came close to me and was screaming at me. She was extremely angry and I saw there was no point trying to explain and told her to go back inside as we were leaving.”
The Magistrate in these remarks may have been suggesting that Ms Bloxham had said she would return the number plates to the motor registry; alternatively, this transcript may simply have been wrongly punctuated, and his Honour may have been quoting an exchange properly punctuated as follows:
[Ms Bloxham:] “You can’t come onto my premises without a warrant.”
[Constable Wyte:] “I can, and I will return them [the number plates] to the motor registry.”
Certainly, as far as I can see, the only suggestions that the plates would be returned to the motor registry appear to have been made by Constable Wyte, who gave evidence that she said to Ms Bloxham twice that the plates would be returned to the motor registry.
However, even if his Honour rather than the transcript editor was in error about who said that the plates would be returned to the motor registry, that error would seem to be immaterial, and possibly even in Ms Bloxham’s favour.
As to the significance of Ms Bloxham’s references to Canberra Connect, I note that Canberra Connect is described in ACT Government material as “an integrated service provider connecting the ACT community with the Government of the Australian Capital Territory for information, payments, services and emergency support” ( viewed 25 July 2013).
Issues in the appeal
Although some details of the confrontation were the subject of conflicting evidence from the police officers and Ms Bloxham, most of the real issues in this appeal relate to the interpretation of relevant legislation and its application in the circumstances of this case.
Hinder Territory public official
The hindering offence is created by s 361(1) of the Criminal Code 2002 (ACT), which is as follows:
361Obstructing territory public official
(1)A person commits an offence if—
(a)the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and
(b)the person knows that the public official is a public official; and
(c)the public official is a territory public official; and
(d)the functions are functions as a territory public official.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2)Absolute liability applies to subsection (1) (c).
(3)Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official.
(4)In this section:
function—
(a)in relation to a person who is a public official—means a function that is given to the person as a public official; and
(b)in relation to a person who is a territory public official— means a function given to the person as a territory public official.
It was and is not in dispute that the police officers were territory public officials (see paragraph (i) of the definition of “territory public official” in s 300 of the Criminal Code and the definition of “police officer” in the Dictionary to the Legislation Act 2001 (ACT)), that Ms Bloxham knew that they were territory public officials (in this case, that she knew they were police officers), and that the function the police officers were exercising was in the relevant circumstances a function exercisable by them as police officers. The issue is whether there was any relevant “defence” to, or other applicable form of exemption from criminal responsibility for, the offence.
Claim of right
The first possibility raised was that Ms Bloxham was exercising a claim of right. The Criminal Code contains the following provision:
38Claim of right
(1)A person is not criminally responsible for an offence that has a physical element relating to property if—
(a)when carrying out the conduct required for the offence, the person is under a mistaken belief about a proprietary or possessory right; and
(b)the existence of the right would negate a fault element for any physical element of the offence.
(2)A person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
(3)This section does not negate criminal responsibility for an offence relating to the use of force against a person.
Operation of s 38(1)
In the Magistrates Court, the Magistrate considered the impact of s 38, and said:
Section 38 requires that a person is not criminally responsible for an offence that has a physical element relating to property, which this does, if when carrying out the conduct required for the offence the person is under a mistaken belief about a proprietary or possessory right, and the existence of the right would negate a fault element re a physical element of the offence. It is said that the mistaken belief about a proprietary right is that the number plates belonged to the victim, and the existence of that would negate a fault element re a physical element of the offence in that without a warrant or otherwise the constable would have no power to seize that property.
...
The section 38 claim of right doesn’t have anywhere within it an element of reasonableness, except the prosecution seek to rely upon subsection (2) that a person is not criminally responsible for any other offence arising necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believes to exist.
The prosecution’s submission was not quite accurate, in my view. “Is not responsible for any other offence arising necessarily under the exercise of a proprietary right.” The prosecution submission is that the hinder doesn’t necessarily arise out of the exercise of that proprietary right. That is, the protection of it. I am against that submission.
...
As to the claim of right, that the hinder is not proven because the prosecution has not negatived the defence of claim of right under section 38, I am against the submission on the basis that I am not satisfied that there is a belief about the proprietary or possessory right for the same reasons I gave in relation to section 42. The defendant kept maintaining, “You tell me why you are taking it. Why are you taking it?” In my view section 38 has not been properly grounded. I am against the defence in both of those cases.
His Honour’s conclusion about s 38 is not as clear as it might be, but it does appear that his Honour was considering the operation of s 38(1), and found that the hindering offence included a physical element relating to property.
The phrase “physical element” as used in s 38(1) is a technical term in the Criminal Code; s 11(1) provides that “An offence consists of physical elements and fault elements”. Section 38(1) does not refer to offences that might in some circumstances happen to have a particular physical aspect, such as the physical confrontation involved in the incident as a result of which Ms Bloxham was charged with hindering. The parties agreed that s 38(1) was not applicable in relation to the hindering offence, since that offence (at [65] above) has no physical element relating to property.
Counsel for Ms Bloxham submitted, however, that s 38(2) was applicable in the current circumstances, and meant that Ms Bloxham was not criminally responsible for her attempt to retrieve the number plates. Counsel for the respondent said that s 38(3) applied to overcome any negation of criminal responsibility that might have operated under s 38(2), because of the force used by Ms Bloxham in pursuing her claim of right.
Counsel for Ms Bloxham said:
...the hinder, we say, is effected by my client taking the numberplates and resisting Constable Wyte as she sought to remove those numberplates from her in the tug-of-war that she’s described. We say that that is not the use of force against a person, that is the act of hindering and so subsection (3) does not come into play.
Counsel for Ms Bloxham submitted that Ms Bloxham’s initial action in trying to remove the number plates was “innocuous”. I accept that her action did not initially involve violence, or force directed at the police officers, while noting counsel’s concession that Ms Bloxham did take part in the subsequent “tug-of-war”. However, I do not accept that attempting to recover items deliberately seized by police, and known to have been deliberately seized by police, can legitimately be described as “innocuous” in any sense that is relevant to the offence of hindering such officials.
The real question to be considered, then, is not whether Ms Bloxham’s initial actions were “innocuous” but whether s 38(2) applies to the offence with which Ms Bloxham was charged. That is, did that offence arise “necessarily out of the exercise of a proprietary or possessory right that the person mistakenly believe[d] to exist”, and if so, did s 38(3) exclude the negation of Ms Bloxham’s criminal responsibility by s 38(2)? The answer to that latter question depends on the further question whether s 38(3) applies to:
(a)offences as to which the use of force is an element of the offence as created; or
(b)offences that, as committed, happen to have involved the use of force.
Operation of s 38(2)
In Odgers S, Principles of Federal Criminal Law (2nd ed, Thomson Reuters, 2010) there is consideration of the provisions of the Model Criminal Code (Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapters 1 And 2, General Principles Of Criminal Responsibility, December 1992) that provided the model for s 38 of the ACT Criminal Code. The view is put that “necessarily” in s 9.5(2) of the Model Criminal Code (the equivalent of s 38(2)) does not raise the issue of whether the commission of the other offence was necessary to enforce the claim of right, but whether the other offence was committed in the course of exercising the right mistakenly believed to exist:
The words of the provision are “arising necessarily out of the exercise of the ... right”, not “necessarily committed in order to exercise the ... right”. The better view is that it is not appropriate to assess whether other “tactics” might have been chosen in pursuit of exercise of a proprietary or possessory right. Rather, the question is whether, in the course of exercising the (mistakenly believed) proprietary or possessory right in the way chosen, the person also committed some other offence. To use the language of MCCOC (p 61), the provision provides a defence for “other offences committed in the course of exercising the claim of right”. The sole qualification is s 9.5(3). Section 9.5(2) will not provide a defence if the offence involved violence.
I agree that “necessarily” is not intended to raise the question whether the offence was necessary to enforce the claim of right. It seems to me rather to ask whether the exercise of the right of itself would in the circumstances necessarily amount to, or be part of, the conduct or circumstances constituting the other offence. For instance, if a person hinders police by removing an item from a crime scene believing it to belong to him or her (thereby rendering the item unavailable to investigating police), the hindering is arguably an inherent or necessary consequence of exercising the right; removing the item in the exercise of the right may itself constitute the hindering. In contrast, striking a police officer who tries to prevent removal of the item may be the method chosen to enforce the claim of right, but it is not inherent in enforcing the claim of right.
Operation of s 38(3)
As to the operation of s 9.5(3) of the Model Criminal Code (equivalent to s 38(3) of the ACT Criminal Code), Principles of Federal Criminal Law at p 117 quotes the MCCOC commentary that s 9.5(3):
precludes claim of right in relation to the use of force against the person. In an armed robbery where D had a claim of right in relation to the goods taken, D would be still be [sic] convicted of the armed assault.
The author of Principles of Federal Criminal Law expresses the view that the reference to an offence “relating to” the use of force should be read as a reference to an offence “involving” the use of force. He says:
this provision will only have a limited impact on offences where mistake as to the existence of a proprietary or possessory right would negate a fault element for any physical element of an offence. The reason, as explained above, is that s 9.5(1) is superfluous. It does not add anything to the application of s 3.2. If a fault element is required in respect of a physical element of the offence, and the prosecution is not able to prove the existence of that fault element (because of a mistake made by the defendant as to the existence of a proprietary or possessory right), then the defendant cannot be found guilty. Section 9.5(3) cannot affect that position. For example, s 132.2(1) creates an offence of robbery, providing that a “person is guilty of an offence if the person commits theft and ... immediately before committing theft, the person ... uses force on another person ... with intent to commit theft or to escape from the scene”. If the person does not commit theft (defined in s 131.1) because he or she is not “dishonest” (mistakenly believing that he or she is legally entitled to the property in question), then the person cannot be guilty of robbery. On the other hand, as MCCOC noted, it is possible that the person could be convicted of some kind of assault offence.
I understand this to be suggesting that s 38(3) and its equivalents do not exclude the relevance of a claim of right for every offence for which the use of force is an element (for instance where, as in the example of robbery, the effect of a claim of right may be to exclude another element of the offence being established), but that the relevant provisions do not permit direct reliance on a claim of right to avoid liability for the use of force as such (for instance where force is used in asserting the claim of right, as in the example of assault).
However, Leader-Elliott I, The Commonwealth Criminal Code, A Guide for Practitioners (Commonwealth Attorney-General’s Department, March 2002) says at 217:
The concluding provision can be taken to evince an intention to deny recourse to the section in any offence which includes a physical element involving the use of force.252
252Note, in this connection, the difference between the formulation of the s 9.5(3) exception in the Model Criminal Code provision, 309 Claim of right and its counterpart in Chapter 2 of the Criminal Code. MCC: “This section does not negate criminal responsibility for the use of force against a person”: Code: “This section does not negate criminal responsibility for an offence relating to the use of force against a person.” (Italics added).
The MCCOC explanation quoted at [77] above, that the provision “precludes claim of right in relation to the use of force against the person”, is in my view apt to describe offences that in fact involve the use of force rather than only offences in which the use of force is inherent. Mr Leader-Elliott’s conclusion that the equivalent to s 38(3) only applies to offences that have a physical element involving the use of force does not seem to have any particular basis in either the words of the provisions or the commentary; indeed the contrast between the reference in s 38(1) and its equivalents to “an offence that has a physical element relating to property” (emphasis added) stands in sharp contrast to the reference in s 38(3) and its equivalents to “an offence relating to the use of force” (emphasis added).
Furthermore, a general policy of not permitting a claim of right to be used to justify the use of force to commit an offence (except where self-defence might arise) makes more sense than a policy of excluding reliance on a claim of right in relation to offences with a physical element relating to the use of force but permitting reliance on a claim of right in relation to offences the commission of which happens in a particular case to involve the use of force.
Accordingly, I find that s 38(2) may in general terms be applicable to a hindering offence, but that because of s 38(3), s 38(2) does not excuse hindering police through the use of force.
Conclusion
On that basis I find that, in the circumstances of this case, s 38(3) excludes reliance on a claim of right to negate Ms Bloxham’s criminal liability for the hindering offence under s 38(2).
Mistake of fact
Consideration
Counsel for Ms Bloxham submitted orally that if Ms Bloxham could not rely on a claim of right, there was a fall-back argument to the effect that she was acting under a mistake of fact. That is, he said, she mistakenly believed that the police officers were not exercising functions as public officials, and that therefore the first element of the hindering offence (s 361(1)(a)), relevantly that the accused hindered a public official in the exercise of her functions as a public official, could not be established by the prosecution.
Section 361(3) states that strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official. Section 36 of the Criminal Code therefore applies; it is relevantly as follows:
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if—
(a) when carrying out the conduct making up the physical element, the person considered whether or not facts existed, and was under a mistaken but reasonable belief about the facts; and
(b) had the facts existed, the conduct would not have been an offence.
Section 58(2) of the Criminal Code applies to require the accused in such a case to satisfy an evidential burden, that is, to present or point to evidence that suggests a reasonable possibility of the existence of the matter (the mistake of fact on Ms Bloxham’s part). Because this matter was only raised by counsel orally and in passing, there was no identification of evidence said to satisfy the appellant’s evidential burden.
Having looked carefully at Ms Bloxham’s evidence, I can say that she gave a lot of evidence of her belief that the police officers should have provided her with some documentation before removing the plates, and that they had some sort of duty of care towards her (a potentially dangerous assumption).
At most, however, this evidence identified a belief that there were inadequacies in the procedure adopted by the police officers. It is a very different proposition to say that when attempting to recover the number plates, Ms Bloxham had considered whether the police officers were acting “in the exercise of their functions as public officials” and had formed a mistaken but reasonable belief that they were not. Whatever belief Ms Bloxham might have formed (based on her dealings with Canberra Connect or otherwise), to the effect that the police officers should have produced paperwork to justify their actions, I can identify no evidence suggesting that that was a reasonable belief, and some evidence, including that from Constable Wyte, that undermines the claim that Ms Bloxham had a reasonable belief about the matters she asserted. The relevant evidence was Constable Wyte’s evidence that she had not only assured Ms Bloxham that she (Constable Wyte) was empowered to take the number plates but had sought to explain why she had that power.
Furthermore, there is a question in my mind about the scope of the requirement in s 361(1)(a) that the public official is acting “in the exercise of his or her functions as a public official”. There are various circumstances in which a failure of strict or indeed any compliance with a particular procedural requirement imposed on police officers may be excused for particular purposes, leaving the police officer’s actions valid and effective for those purposes (eg s 138 of the Evidence Act 2011 (ACT)), or where a statutory requirement may have a built-in set of exemptions or dispensations at the discretion of the police officer concerned, a superior police officer, or a judge (eg s 23L of the Crimes Act 1914 (Cth)). Given that the validity or propriety of particular police actions (at all or for particular purposes) may depend on such discretionary assessments, it does not seem to me that the reference in s 361(1)(a) to the exercise of functions as a public official permits a person to rely on a mistake of fact defence on the basis of an entirely uninformed assessment (however honest) of the nature and scope of the legal obligations applicable to the exercise of a particular function or of whether police are complying with those obligations to an adequate degree.
Conclusion
Ms Bloxham did not satisfy the evidential burden in relation to the possibility that she was acting under a mistaken but reasonable belief that Constable Wyte was not exercising functions as a territory public official.
Self-defence
Consideration
Counsel for Ms Bloxham said that self-defence was also relevant to Ms Bloxham’s conduct, in that she had hindered the police officers in the defence of what she believed to be her property, that is, to protect it from “unlawful appropriation” as provided for by s 42 of the Criminal Code, which is relevantly as follows:
42Self-defence
(1)A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in self-defence.
(2)A person carries out conduct in self-defence only if—
(a)the person believes the conduct is necessary—
...
(iii)to protect property from unlawful appropriation, destruction, damage or interference;
...
and
(b)the conduct is a reasonable response in the circumstances as the person perceives them.
(3)However, the person does not carry out conduct in self-defence if—
...
(b)the person is responding to lawful conduct that the person knows is lawful.
(4)Conduct is not lawful for subsection (3) (b) only because the person carrying it out is not criminally responsible for it.
First I note that I have found that there was no evidence pointed to by Ms Bloxham, or found by me on examination of the Magistrates Court transcript, sufficient to satisfy an evidential burden in relation to a mistake of fact about whether Constable Wyte was exercising her official functions. On the other hand, despite Constable Wyte’s evidence, it would have been hard to make a finding that Ms Bloxham “knew” that Constable Wyte was acting lawfully, which means that s 42(3)(b) does not exclude reliance on self-defence.
Counsel for Ms Bloxham set out his s 42(2) argument in the following way in written submissions:
Section 42 of the Criminal Code sets out the operation of the Code concept of self defence. The relevant requirements of self defence are a belief that the conduct is necessary to protect property from unlawful appropriation or interference. The belief must be a reasonable response in the circumstances as the person perceives them.
As each of these operate as an exception to criminal liability, all each requires is the discharge of an evidential burden, either by virtue of the prosecution evidence or otherwise (section 58). Section 58(7) of the Code defines evidential burden as follows:
Evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
The evidential burden is discharged by virtue of the continued assertions (both at the time of the incident and in evidence in court) by the Appellant that the police were not entitled to interfere with her property, being the number plates. Such an assertion raises the issue of a belief in the need to exercise a proprietary right, along with the issue of a belief of the need to protect property from unlawful appropriation or interference.
Once the evidential onus is discharged, it is for the prosecution to discharge the legal burden of establishing that the exceptions to legal liability do not apply.
In order to disprove each of the exceptions, the prosecution was required to prove the following:
For self defence in relation to the hinder charge:
(1)That the Appellant did not hold a belief that her conduct in removing the plates from the police vehicle was necessary to protect the property from unlawful appropriation or interference. In essence this means a disproof of the Appellant’s assertions as to the police having no right to take the items, both at the time of the incident and in court;
(2)That the removal of the plates from the police vehicle was not a reasonable response in the context of the circumstances perceived by the Appellant (ie that the police had unlawfully taken what was hers, despite remonstrations by her).
I note first that the prosecution was not required to prove both of the matters identified by counsel in the quoted submission – self-defence is available where the appellant had the necessary belief and her action was a reasonable response in the circumstances as she perceived them, so the prosecution is only required to disprove one of those matters beyond reasonable doubt in order to exclude self-defence.
Next, I note that counsel’s submission was that Ms Bloxham’s evidence satisfied the evidential burden by raising the issue of:
a belief in the need to exercise a proprietary right, along with the issue of a belief of the need to protect property from unlawful appropriation or interference.
This seems, however, to be two descriptions of the belief required to be held by the appellant, and does not address the second limb of the statutory test, namely whether the appellant’s response was a reasonable response in the circumstances as she perceived them.
The appellant’s belief in the need to protect her property from unlawful appropriation or interference arising from the circumstances as she perceived them does not establish (or indeed even claim) that such a belief is reasonable. It is not clear to me that counsel has addressed that second issue for the purpose of asserting that the appellant had met the evidential onus applicable to self-defence, but I shall assume an implied submission that Ms Bloxham’s belief that she needed to exercise a proprietary right and to protect her property from unlawful appropriation or interference was also sufficient to satisfy the evidential burden of pointing to evidence suggesting a reasonable possibility that a matter (being, in this case, that the conduct was a reasonable response in the circumstances as Ms Bloxham perceived them) existed. Presumably the implied submission is that Ms Bloxham’s belief about the need to protect her property from unlawful appropriation also reflected a perception of the circumstances that would have rendered her response reasonable.
Whether that implicit submission should be accepted is another matter.
The difficulty for Ms Bloxham is that her response to the police behaviour was not in my view a reasonable response to the objective circumstances facing her. The Magistrate also seems to have taken this viewing, saying “I am against you on the reasonableness of the response in the circumstances”. Satisfying the evidential burden as to the objective aspect of the self-defence test thus seems to require that Ms Bloxham point to evidence suggesting a reasonable possibility that her response was reasonable in the circumstances as she perceived them.
However, nothing was put before me that identified any difference, between the circumstances as Ms Bloxham perceived them and the objective circumstances, that would have rendered her conduct a reasonable response to those perceived circumstances even if it was unreasonable in relation to the objective circumstances.
For present purposes I accept that Ms Bloxham genuinely believed as a result of her dealings with Canberra Connect (whether because she was given incorrect information or misinterpreted correct information) that she had a proprietary right to the number plates, and I also accept that she was suffering a variety of physical problems including chronic pain.
No submissions were made, before the Magistrate or before me, that there was anything special about the particular number plates. As far as I can see, the only value retaining the number plates could possibly have had to Ms Bloxham was in saving her the inconvenience, and possibly some kind of administrative charge, arising from having to recover the plates, or obtain new ones, when she re-registered her car.
Whatever Ms Bloxham believed she had learned from Canberra Connect, there is no suggestion in her evidence that she believed that the police officers would do anything other than return the plates to the motor registry.
There was no suggestion that Ms Bloxham’s beliefs included a belief that police had an improper motive for removing her number plates, only a belief that they were not authorised to do so.
There was no suggestion that Ms Bloxham believed that she was about to lose a valuable possession that would not be able to be recovered if police were permitted to remove it.
There was no suggestion that Ms Bloxham believed that as a result of police confiscation of the plates she would somehow be liable for the disappearance of the plates.
There was no suggestion that Ms Bloxham believed that her entitlement to the plates included an entitlement to use the car carrying the plates.
It was clear from Ms Bloxham’s evidence that she was aware of official channels for complaining about police action, and not at all clear that there was any good reason for her to object to the particular police actions except for the somewhat abstract “entitlement” that she believed she had to retain possession of the number plates.
It is possible to imagine situations in which it might have been reasonable for Ms Bloxham to believe that she needed to protect her property from an immediate threat.
For instance, if this incident had involved an altercation between neighbours over a disputed garden tool, Ms Bloxham might have perceived that if she lost possession of the item to her neighbour she might have found it difficult later to establish her claim to it, or to discover its whereabouts. If the incident had involved a person trying to remove a particularly beloved child’s toy, Ms Bloxham might have perceived that the distress that would immediately be suffered by the child required an immediate, active response from her.
However, this incident involved an altercation over property of no inherent value to Ms Bloxham, being removed by police officers for whom the property also had no inherent value. Any effect on any rights or interests of Ms Bloxham that were represented by possession of the number plates would have been able to be resolved independently of, and indeed appear to have been unrelated to, possession of the particular pieces of metal that had been removed from Ms Bloxham’s car.
I note the submission of counsel for Ms Bloxham that the availability of other avenues of redress (such as the police ombudsman mentioned by Ms Bloxham herself during the altercation) “doesn’t bring that perceived trespass to an end”. Even if the threat of perceived unlawful appropriation of or interference with the number plates is properly referred to as a trespass, and even if it is correct that the availability of an alternative remedy for resolving the right to possession of the plates did not of itself address the immediate threat perceived by Ms Bloxham, this does not mean that Ms Bloxham’s response was therefore reasonable.
In general, then, I cannot identify (either from Ms Bloxham’s evidence or from counsel’s submissions) the content of a perception of the circumstances, being a perception that could have been produced by either or both of Ms Bloxham’s mistaken belief about her right to possession of the plates, and her chronic pain and other physical problems, that would have made Ms Bloxham’s response to the police actions a reasonable response in those perceived circumstances.
What this means is that Ms Bloxham did not as far as I can see satisfy the evidential burden of proof by pointing to evidence suggesting how her perception of the circumstances made her response to the police action reasonable. Accordingly, I cannot see any basis on which to conclude that the Magistrate ought to have found that the evidence available to him did not, beyond reasonable doubt, exclude self-defence.
The Magistrate in his initial comments about self-defence held against the appellant on the basis that her response was not reasonable. His Honour then went on to discuss Ms Bloxham’s claims in a way that might be read as having reversed the onus of proof (for instance in saying “I am not satisfied that she had an honest belief” when in fact he needed to have been satisfied beyond reasonable doubt that she did not have an honest belief, if the lack of an honest belief was the basis on which self-defence could be negatived). However, since he also based his rejection of self-defence on the lack of reasonableness of Ms Bloxham’s response, I cannot see that his careless reference to the proof of whether Ms Bloxham had an honest belief undermines his conclusion that self-defence was not available.
Neither the Magistrate’s unfortunate reference to whether Ms Bloxham had a particular belief, nor the fact that I would have reached the same conclusion as the Magistrate, being that self-defence was not available, on somewhat different grounds, is a basis for overturning his Honour’s finding on this matter.
Conclusion
I do not consider that the Magistrate, in rejecting the proposition that Ms Bloxham was not guilty of the hindering offence because she was acting in defence of her property as permitted by s 42, reached a conclusion that was not available to him on the evidence.
Assault
The assault offence arose under s 26 of the Crimes Act 1900 (ACT), as follows:
26Common assault
A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.
The assault is particularised as kicking Constable Wyte in the stomach. The common law in relation to self-defence applies to that offence. That was set out by Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661 (Zecevic), as follows:
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
Self-defence is a matter that must be negated by the prosecution once it has emerged as a possibility. To negate self-defence, the prosecution needs to prove either:
(a)that Ms Bloxham did not believe that it was necessary in self-defence to do what she did; or
(b)that there were no reasonable grounds for her to hold such a belief.
His Honour’s comments about the assault were short:
The common assault in relation to the protection of property, in my view there are no reasonable grounds for the belief and I am against the defence as set out in Zecevic in that case. I find the offences proved.
Counsel for Ms Bloxham submitted that this explanation was inadequate.
I note first that kicking Constable Wyte in the stomach involves a significantly higher level of violence than engaging in the earlier “tug-of-war” over the plates, and it would accordingly be easier to find that the kick was not a reasonable response to anything done by the police officers than it would have been in relation to the conduct constituting the hindering offence.
The Magistrate was operating in a “busy magistrate’s court”, as described by Kirby P when he said, in relation to the NSW Local Courts (Acuthan v Coates (1986) 6 NSWLR 472 at 479), that it would be an error for an appeal court to:
[examine] this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
His Honour had already found that Ms Bloxham’s initial response to the police removal of the number plates was not done in self-defence. In those circumstances, even the application of a slightly different test for common law self-defence did not need to be the subject of lengthy reasons. The Criminal Code and Zecevic tests are expressed differently, but at least in this case they require consideration of essentially the same evidence and the same kinds of questions. I do not accept that his Honour’s comments, although brief, were insufficient to the extent that his Honour erred in dealing with this issue.
Finally, I note the comments of Wilson, Dawson and Toohey JJ in Zecevic at 663-664 (with which Mason CJ at 654 and Brennan J at 666 agreed) that:
It is, however, only in an unusual situation that an attack which is not unlawful will provide reasonable grounds for resort to violence in self-defence.
For the reasons set out above, in his Honour’s place I would not have been satisfied that Ms Bloxham did not believe that it was necessary in defence of her property to do what she did, but I would not have accepted that the evidence raised the possibility that there were any reasonable grounds for such a belief.
I have already found in relation to the hindering offence that the evidence does not raise the possibility that Ms Bloxham’s attempt to retrieve the number plates was a reasonable response to the police action in the circumstances as Ms Bloxham perceived them. Even adding the effect on Ms Bloxham of the police engaging in a physical struggle for possession of the plates, and even noting the remarkable brevity of his Honour’s reasons about self-defence in relation to the assault, I cannot see any reason why the Magistrate should not have been satisfied (as his Honour clearly was) that there were no reasonable grounds for Ms Bloxham to believe that kicking Constable Wyte in the stomach was necessary in defence of the right she believed she had to possession of the number plates.
The claim that Ms Bloxham was acting in self-defence does not provide a basis for setting aside the Magistrate’s finding of guilt in relation to the assault charge.
Conclusions
In summary:
(a)I consider that there is a real doubt whether this appeal is competent; but
(b)on the assumption that the appeal is competent, I find that there was no error in the Magistrate’s approach or his Honour’s conclusions, because:
(i) the defence of claim of right was not available to Ms Bloxham in relation to the offence of hindering police;
(ii) the appellant’s evidence did not raise the possibility that s 36 of the Criminal Code applied to protect Ms Bloxham from criminal responsibility as a result of a mistaken belief that Constable Wyte was not performing a function as a territory public official; and
(iii) in relation to each offence, the prosecution had negatived self-defence of property, to the extent that it was raised by Ms Bloxham’s evidence about her belief that she was entitled to retain possession of the number plates and that her actions were necessary to do so and by the evidence of her health problems, in accordance with the test for self-defence applicable to the offence concerned.
Orders
The appeal is accordingly dismissed, and the Magistrate’s findings and sentence orders are confirmed.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 5 August 2013
| Counsel for the appellant: | Mr S Gill |
| Solicitor for the appellant: | Nicholl & Co |
| Counsel for the respondent: | Mr K Lee |
| Solicitor for the respondent: | ACT Director of Public Prosecutions |
| Date of hearing: | 13 February 2012 |
| Date of judgment: | 5 August 2013 |
Appendix – Magistrates Court Act 1930 (ACT) as in force 19 May 2011
Part 3.10Criminal appeals
Division 3.10.1 Criminal appeals—jurisdiction of Supreme Court
Jurisdiction of Supreme Court
(1)The appellate jurisdiction of the Supreme Court in relation to decisions of the Magistrates Court under this Act (other than chapter 4 (Civil proceedings)) extends to the hearing and deciding of the following appeals and to no others:
(a)appeals to which division 3.10.2 (Appeals in criminal matters) applies;
(b)reference appeals under division 3.10.2A (Reference appeals in criminal matters);
(c)review appeals under division 3.10.3 (Review appeals in criminal matters).
(2)This part does not limit the operation of any other Act that makes provisions in relation to the appellate jurisdiction of the Supreme Court.
Division 3.10.2 Appeals in criminal matters
Appeals to which div 3.10.2 applies
(1)Each of the following appeals is an appeal to which this division applies:
(a) an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead):
(i)the person whose fitness to plead was decided;
(ii)anyone who appeared at the proceeding in which the decision was made;
(iii)anyone else with the leave of the court;
(b) an appeal, by the person convicted, from a conviction for an offence dealt with by the Magistrates Court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 375;
(c) an appeal, by the person against whom the order is made, from an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 375;
(d) an appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section 375, whether or not the person appeals against the conviction in relation to which the sentence or penalty was imposed;
(e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:
(i)part 3.2 (Sentences of imprisonment);
(ii)part 3.3 (Non-custodial sentences);
(iii)part 3.4 (Non-association and place restriction orders);
(iv)part 3.5 (Deferred sentence orders);
(v)part 3.6 (Combination sentences);
NoteOrders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16).
(f) an appeal from an order of the court under the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders—amendment and discharge).
Division 3.10.3 Review appeals in criminal matters
219BDecisions subject to review appeal
(1)Each of the following is a decision of the Magistrates Court from which an appeal by way of review (a review appeal) may be made in accordance with this division:
(a) an order of the Magistrates Court dismissing an information dealt with by that court under this Act, part 3.6 (Proceedings for offences punishable summarily) or part 3.7 (Service and pleading by post for certain offences) or under the Crimes Act, section 375;
(b) a conviction by the Magistrates Court for an offence dealt with by that court under this Act, part 3.6 or part 3.7 or under the Crimes Act, section 375;
(c) an order made under this Act, section 113 or section 114 in a proceeding dealt with by the Magistrates Court under this Act, part 3.6 or under the Crimes Act, section 375;
(d) a decision of the Magistrates Court not to commit a person to the Supreme Court for sentence under section 92A;
(e) a decision of the Magistrates Court to dispose of a case summarily under the Crimes Act, section 375 (6) or (7);
(f) a sentence or penalty imposed by the Magistrates Court for an offence dealt with by that court under this Act, section 90A, part 3.6 or part 3.7 or under the Crimes Act, section 375.
(2)In subsection (1) (f):
sentence or penalty includes a sentence or penalty imposed by an order of the Magistrates Court under—
(a) any of the following provisions of the Crimes (Sentencing) Act 2005:
(i)part 3.2 (Sentences of imprisonment);
(ii)part 3.3 (Non-custodial sentences);
(iii)part 3.4 (Non-association and place restriction orders);
(iv)part 3.5 (Deferred sentence orders);
(v)part 3.6 (Combination sentences); or
NoteOrders under the Crimes Act 1900, pt 18 (Conditional release of offenders) are taken to be orders under the Crimes (Sentencing) Act 2005 (see Crimes (Sentence Administration) Act 2005, ch 16).
(b) the Crimes (Sentence Administration) Act 2005, part 6.6 (Good behaviour orders—amendment and discharge).
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