Caratti v Potts
[2015] WASC 86
•13/03/2015
CARATTI -v- POTTS [2015] WASC 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 86 | |
| 13/03/2015 | |||
| Case No: | SJA:1112/2013 | 14 OCTOBER 2014 | |
| Coram: | PRITCHARD J | 13/03/15 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALLEN BRUCE CARATTI ANTHONY MICHAEL POTTS |
Catchwords: | Obstructing officer in exercise of powers Power of seizure Suspicion that item may afford evidence of offence Whether reasonable grounds for suspicion Sentencing Aggravating factor Proof of aggravating factor beyond reasonable doubt |
Legislation: | Environmental Protection (Unauthorised Discharges) Regulations 2004 (WA) Environmental Protection Act 1986 (WA), s 92A(1)(b), s 93(a) |
Case References: | Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Gullello v The State of Western Australia [2011] WASCA 261 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hussien v Chong Fook Kam [1970] AC 942 HWE Mining Pty Ltd v Robertson [2015] WASCA 26 Hyder v Commonwealth of Australia [2012] NSWCA 336 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Manonai v Burns [2011] WASCA 165 O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 Police (SA) v Leo [2006] SASC 144 Potts v Caratti (Unreported, WAMC, 3 September 2013) Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Strahan v Brennan [2014] WASC 190 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : CARATTI -v- POTTS [2015] WASC 86 CORAM : PRITCHARD J HEARD : 14 OCTOBER 2014 DELIVERED : 13 MARCH 2015 PUBLISHED : 13 MARCH 2015 FILE NO/S : SJA 1112 of 2013 BETWEEN : ALLEN BRUCE CARATTI
- Appellant
AND
ANTHONY MICHAEL POTTS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
Citation : POTTS -V- CARATTI
File No : AR 5799 of 2012
Catchwords:
Obstructing officer in exercise of powers - Power of seizure - Suspicion that item may afford evidence of offence - Whether reasonable grounds for suspicion - Sentencing - Aggravating factor - Proof of aggravating factor beyond reasonable doubt
Legislation:
Environmental Protection (Unauthorised Discharges) Regulations 2004 (WA)
Environmental Protection Act 1986 (WA), s 92A(1)(b), s 93(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T Percy QC
Respondent : Mr N van Hattem
Solicitors:
Appellant : Torrens Legal
Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Gullello v The State of Western Australia [2011] WASCA 261
House v The King [1936] HCA 40; (1936) 55 CLR 499
Hussien v Chong Fook Kam [1970] AC 942
HWE Mining Pty Ltd v Robertson [2015] WASCA 26
Hyder v Commonwealth of Australia [2012] NSWCA 336
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Manonai v Burns [2011] WASCA 165
O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286
Police (SA) v Leo [2006] SASC 144
Potts v Caratti (Unreported, WAMC, 3 September 2013)
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Wilson v The State of Western Australia [2010] WASCA 82
- PRITCHARD J:
Introduction
1 On 3 September 2013 Mr Caratti was convicted of an offence against s 93(a) of the Environmental Protection Act 1986 (WA) (the EP Act), for obstructing Mr Dale Stanton, an inspector and authorised person under the EP Act, while in the exercise of his powers under the EP Act. Mr Caratti was fined $7,500 and ordered to pay the prosecutor's costs. Mr Caratti now appeals against both his conviction and the sentence imposed by the learned Magistrate.
2 The prosecution case, in summary, was that the obstruction occurred while Mr Stanton was investigating the possible commission of the offences of causing pollution, contrary to s 49 of the EP Act,1 or the offence of burning timber which was treated with preservatives, contrary to reg 4(1) and sch 2 to the Environmental Protection (Unauthorised Discharges) Regulations 2004 (WA),2 following a report of a fire on a development site in Byford. Mr Stanton and another inspector, Ms Griffiths, attended at the site to inspect the smouldering remains of the fire. Mr Caratti was the director of the company which was developing the site. He was present at the site when Mr Stanton and Ms Griffiths attended to investigate the fire. Mr Caratti was driving a utility, and in the tray of the utility was a fuel can. After speaking with Mr Caratti, Mr Stanton decided that he should obtain a sample of the fuel from the can as he suspected that it may afford evidence of the commission of the offences he was investigating. The prosecution case was that when Mr Stanton placed his hands on the fuel can, there was a brief 'tug of war' between him and Mr Caratti over the can. Mr Caratti then struck Mr Stanton in the chest with a closed fist, causing him to fall backward. Mr Caratti then left the site, taking the fuel can with him.
3 The learned Magistrate accepted that Mr Caratti obstructed Mr Stanton from obtaining a sample of the fuel, and in the course of doing so, struck Mr Stanton. In sentencing Mr Caratti for the offence, the learned Magistrate took into account, as an aggravating factor, the fact that Mr Caratti struck Mr Stanton in the course of the obstruction.
4 There were three grounds of appeal and Mr Caratti requires leave to appeal in respect of each ground of appeal. His application for leave to appeal was referred to the hearing of the appeal itself. For the reasons set out below, leave to appeal on ground 1 should be refused, as in my view it did not have a reasonable prospect of success.3 Leave to appeal should be granted on ground 2, but the appeal against conviction should be dismissed. Leave to appeal on ground 3 should also be refused as it had no reasonable prospect of success.
The factual circumstances
5 Evidence at the trial was given by Mr Stanton and Ms Griffiths, by Mr Caratti and by a Mr Mignacca, who was a contractor who had been engaged to undertake some work on the site, and who was with Mr Caratti when the obstruction was alleged to have occurred. The factual matters about which the learned Magistrate was satisfied4 are set out below.
6 Mr Stanton was an employee of the Department of Environment and Conservation, with a Bachelor of Science degree. At the date of the offence, he had been an officer of the Department for more than six years, and had experience as an inspector under the EP Act for two years. That experience involved attending approximately 20 incidents that required an assessment of fire, including fires where fuel had been used as an accelerant.
7 On the evening of Friday 28 May 2010, Mr Stanton received a telephone call to alert him to a fire burning on a residential development site in Byford. The next morning, he went to the site to investigate the fire. He was accompanied by Ms Griffiths.
8 The development site comprised a number of hectares. It was bounded on one side by a school, and on another side by houses. There were puddles of water on the site, as there had been recent heavy rain.
9 Mr Stanton and Ms Griffiths saw the smoking remnants of a fire on the site. Mr Stanton initially decided to investigate a possible offence of burning vegetation on a development site in a restricted area.
10 When Mr Stanton and Ms Griffiths inspected the remains of the fire, they found that the footprint of the fire was at least five to 10 metres in diameter. The remnants of the fire included vegetation, comprising substantial trees and earth that had been gathered in the process of clearing the site and preparing it for earthworks. The fire's remnants also included the burnt remains of treated logs, which Mr Stanton believed were of the kind that may have been treated with chromium or arsenic, unpainted wooden pallets of the type used to transport building materials such as bricks, and metallic strips of the kind used to hold building materials in place during transportation.
11 Mr Stanton believed that the fire had saved the site developer the cost of transporting and disposing of the vegetation, treated logs and building materials from the site, and that this constituted a motive for the developer to burn those items.
12 Given the proximity of the site to houses and a school, Mr Stanton decided to investigate whether further offences had been committed, namely the offence of causing pollution, or the offence of burning timber which was treated with preservatives.
13 Mr Stanton and Ms Griffiths saw a white utility some distance away on the other side of the site. The utility was being driven by Mr Caratti. Mr Caratti was the managing director of the company carrying out the development on the site. Mr Mignacca was in the car with Mr Caratti.
14 When Mr Stanton and Ms Griffiths first saw the utility it was moving short distances at a time. Mr Stanton thought the movement of the utility was suspicious and believed that its occupants may have been trying to observe the inspectors.
15 After a little while, the utility drove over to where Mr Stanton and Ms Griffiths were standing. Everyone introduced themselves. (In doing so, both Mr Caratti and Mr Mignacca gave a false name, although as the learned Magistrate noted, Mr Stanton did not know this at the time, and that fact, quite correctly, played no part in the learned Magistrate's determination of whether the offence was proved.5) Mr Caratti told Mr Stanton he was the manager of the company which was developing the site. Mr Caratti said that he was determining the condition of the site to determine its suitability for earthworks in the following week, given the recent heavy rain. When Mr Stanton told them he was investigating the fire, Mr Caratti suggested that the fire may have been lit by children.
16 After this conversation Mr Caratti and Mr Mignacca left, and drove to a location closer to the fire. Mr Stanton saw them get out and have a short conversation, during which they gestured towards the ground and towards the contents of the tray of the utility. They then got back into the utility and drove towards the site boundary. Mr Stanton believed that they had not taken sufficient time to properly ascertain the condition of the site.
17 As Mr Caratti and Mr Mignacca drove past, Mr Stanton noticed that there were some building materials in the tray of the utility, including a wooden pallet, some material strapping, and a small fuel can.
18 Mr Stanton recalled the presence of the wooden pallet and the strapping in the fire's remnants. He believed that an accelerant was likely to have been involved in starting the fire, and that unleaded petrol was a better accelerant in a fire than diesel. He also believed that forensic testing was capable of establishing whether there was any association between samples of fuel and samples of debris from the fire.
19 With all this in mind, Mr Stanton requested that Mr Caratti stop the utility. Mr Stanton then asked Mr Caratti about the fuel can in the tray of the utility. Mr Caratti told Mr Stanton that the can contained diesel and was his emergency supply for the utility. Mr Stanton took the lid off the can and smelled the contents. Based on the odour, he believed the can contained unleaded petrol. Ms Griffiths also smelled the contents and agreed that the can contained unleaded petrol.
20 Mr Stanton's evidence was that he said that he wanted to take a sample of the contents of the fuel can, and asked Ms Griffiths to go to the car and bring back the equipment necessary to take a sample.
21 While Ms Griffiths was doing so, Mr Caratti continued to maintain that the fuel can contained diesel. He took the can and started to pour some of the contents onto the ground, telling Mr Stanton that the yellow colour of the fuel demonstrated that it was diesel.
22 Mr Stanton then grabbed the fuel can, at which point Mr Caratti pushed Mr Stanton away.
23 Mr Caratti then took the fuel can and he and Mr Mignacca drove away from the site.
24 For completeness, it is appropriate to note that in his evidence, Mr Caratti denied any involvement in the lighting of the fire and any knowledge about its origins.6 Mr Caratti has not been charged with any offence relating to the fire.
25 As I have mentioned, Mr Caratti's evidence was that he was visiting the site on the Saturday in question to check on its condition to determine what work could be undertaken the following week, in view of the recent heavy rain. He said he visited his development sites every weekend to plan the following week's work.7
26 Mr Caratti was asked why Mr Stanton and Ms Griffiths initially saw the utility moving only short distances around the site. Mr Caratti's explanation was that when he first drove onto the site he stopped at a compound where equipment was stored, and then drove a short distance away to discuss the location of some retaining walls with Mr Mignacca.8
27 Mr Caratti's evidence was that the fire was inconvenient and financially disadvantageous for him because ordinarily he would mulch vegetation and timber from the site for use in the development, so as to save on the cost of purchasing that material,9 and that wooden pallets were valuable items that they used every day.10
28 Mr Caratti also gave evidence that the strapping Mr Stanton saw in the fire was completely different from the strapping in the tray of his utility.11
29 Mr Caratti denied that he had deliberately poured the fuel out of the can to ensure Mr Stanton could not take a sample of it.12 Mr Caratti's evidence was that he did not remember Mr Stanton saying that he wanted to take a sample of the contents of the fuel can.13 His evidence was that he was simply trying to demonstrate that the fuel was diesel. Mr Caratti's evidence was that diesel was yellow in colour whereas unleaded fuel was reddish in colour.14
30 Mr Caratti denied that the contact he made with Mr Stanton was intentional.15 He said that he touched Mr Stanton on his upper body, but denied that that contact caused Mr Stanton to reel backwards, as Mr Stanton and Ms Griffiths had described.16 Mr Caratti's evidence was that as he poured some of the fuel out of the can to show Mr Stanton its colour, he was crouching down, and suddenly saw:
two hands come towards here and as a reaction, I've just put my left hand up and pulled back.
… I saw the figure lunging towards me, and these hands appear, and then as a reaction, I then lifted my head, pulled back and put my hand up.
… [T]here was just a natural reaction, a hand going up like that. There was no punch.
…It was only a defensive thing. I was - my head's down. These arms come towards me, and my - I just see these hands, and I just - it's just a natural defensive reaction.17
31 Mr Caratti denied that he had intended to obstruct Mr Stanton in the execution of his duty. He said that he had been co-operative and answered all Mr Stanton's questions, and let him look at the fuel can. He said:
I never obstructed him from doing anything. The only time I did was when he lunged at me, and he got me angry for jumping at me … .18
The learned Magistrate's findings which are the subject of the appeal against conviction
32 Section 93(a) of the EP Act provides that a person who obstructs an inspector or authorised person in the exercise of any of his powers under the EP Act commits an offence.
33 The learned Magistrate was satisfied that as at the date of the alleged offence, Mr Stanton was an inspector under the EP Act. The learned Magistrate was also satisfied that by refusing to relinquish possession of the fuel can, Mr Caratti obstructed Mr Stanton from seizing a sample of the fuel. No challenge is made to either of these findings on the appeal.
34 In order to establish the offence under s 93(a) of the EP Act it was also necessary for the prosecution to prove beyond a reasonable doubt that Mr Stanton was acting in the exercise of his powers when Mr Caratti obstructed him from seizing the fuel can to obtain a sample of fuel from it. The powers conferred upon an inspector by the EP Act include power under s 92A(1)(b) of the EP Act which relevantly provides:
(1) An inspector may seize any thing that the inspector suspects on reasonable grounds -
...
(b) may afford evidence of the commission of ... an offence.
36 The learned Magistrate did not accept that all of Mr Stanton's beliefs which had contributed to his suspicion (and which are outlined in the factual narrative above) would be of probative value to a reasonable person who was determining whether the fuel may afford evidence of the commission of the offences the subject of the inspectors' investigation. The learned Magistrate held that a reasonable observer would conclude that there were benign explanations for Mr Caratti's driving movements near the compound and his inspection of the ground at the site of the fire. He also noted that there was no evidence that Mr Stanton's belief that the fire saved Mr Caratti the cost of transporting the vegetation and building materials away from the site was based on any training or experience. Having regard to Mr Caratti's evidence, the learned Magistrate held that a reasonable person would be required to consider the real possibility that the fire did not serve the financial interests of Mr Caratti.19
37 However, the learned Magistrate found that Mr Stanton did have reasonable grounds for that suspicion.20 It is to that finding that the appeal against conviction is directed. The learned Magistrate was satisfied of the following matters:21
Mr Stanton, with his experience as an environmental officer, his tertiary qualifications and his experience of attending fires, reasonably believed that:
(a) Unleaded petrol had recently been used as an accelerant to light a fire in which logs treated with chromium or arsenic had been burned;
(b) Mr Caratti had possession of a can of unleaded petrol on the site a relatively short time after the fire had been lit and Mr Caratti lied to Mr Stanton about the contents of the can. Mr Stanton may have been wrong about the fuel being unleaded and he may have been wrong about unleaded petrol being a better accelerant than diesel. Mr Caratti states that the fuel was diesel and diesel is a better accelerant than petrol. I am not required to make a finding other than that I am satisfied Mr Stanton reasonably believed that the fuel was unleaded petrol and that it was a better accelerant than diesel. Mr Stanton was entitled to rely upon his experience of attending fires and of fuel odour. He was entitled to draw comfort from Ms Griffiths agreeing with him that the fuel was unleaded petrol. Mr Stanton did not have the time or the means to verify the claim of Mr Caratti that the colour of the fuel was significant.
(c) Mr Caratti, with links to a site developer, had a (financial) motive to set fire to the treated logs. Unlike the vegetation and the wooden pellets, there was no evidence to suggest that disposal of the treated logs would present as anything other than a cost to the site developer.
(d) Forensic testing would establish whether there was any association between the fuel in the possession of Mr Caratti and the fire in which treated logs had burned.
38 The learned Magistrate concluded that these reasonable beliefs were:
sufficient to induce in the mind of a reasonable person a 'positive feeling of actual apprehension' that the contents of the fuel afforded evidence of the commission of the offences of causing pollution and burning timber that had been treated with preservatives.22
39 Accordingly, the learned Magistrate found that Mr Stanton was validly exercising the powers of an inspector when the obstruction occurred.23
The appeal against conviction
40 It is convenient to deal with grounds 1 and 2 together, as they both pertain to the appeal against conviction and there is some overlap between them.
Grounds 1 and 2 of the grounds of appeal
41 Ground 1 alleges an error of fact by the learned Magistrate. An error of fact may be the subject of an appeal to this court.24 Ground 1 is in the following terms:
1. The learned Magistrate erred in fact by finding that the witness Stanton had formed the view that the fire the subject of his investigation had been:
(a) Ignited using an accelerant;
(b) The accelerant was unleaded petrol; and
(c) The fire had been ignited comparatively recently to the Appellant attending at the scene.
PARTICULARS
(1) There was no evidence before the Court as to how the fire had been started;
(2) The evidence before the Court was to the effect that the fire had not started proximately to the appellant visiting the scene on the 29th May and had been burning since around 6.00pm the previous day;
(3) The witness Stanton did not assert that he had formed the affirmative view that the fire had been started by using an accelerant, only that this may have been a possibility;
(4) There was no evidence that the fire had been started with the assistance of unleaded petrol and the Magistrate's finding in that regard was erroneous.
42 Ground 2 of the grounds of appeal is also directed to Mr Caratti's conviction of the offence. In effect it alleges a mixed error of law and fact. An error of that kind may be the subject of an appeal to this court.25 Ground 2 is in the following terms:
2. The learned Magistrate's finding that the witness Stanton had 'reasonable grounds to suspect' that the unleaded petrol in the Appellant's possession might afford evidence of the offence under investigation was not reasonably open on the evidence.
PARTICULARS
(1) Without there being any evidence the subject to challenge in Ground One there was no basis for the finding that Stanton at the relevant time reasonably held the required belief;
(2) Alternatively, if there was any admissible evidence of the kind referred to in Ground One before the Court, the finding was in any event not reasonably open.
43 Grounds 1 and 2 are thus directed to the absence of evidence for the Magistrate's factual findings and to his conclusion that Mr Stanton's suspicion was based on reasonable grounds.
Principles in relation to reasonable grounds for a suspicion
44 The principles in relation to what constitutes reasonable grounds for a suspicion are well established. The starting point is that it must be borne in mind that statutory provisions which permit the seizure of material suspected of affording evidence of an offence necessarily permit an interference with property rights.26 Section 92A of the EP Act gives primacy to the criminal law over a person's property rights, but an unqualified intrusion into such rights is not permitted. The criterion in s 92A - that an inspector must suspect on reasonable grounds that the item seized may afford evidence of the commission of an offence - is intended to give a measure of protection to the citizen against arbitrary interference with his or her property rights.27
45 There are two aspects to the qualification on the exercise of the power to seize in s 92A. The first is that the inspector must 'suspect' that the item seized may afford evidence of the commission of an offence. A suspicion is a 'state of conjecture or surmise where proof is lacking',28 and 'more than a mere idle wondering … it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence"'.29
46 Secondly, that suspicion must be based on 'reasonable grounds'. The existence of a suspicion based on 'reasonable grounds' requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.30
47 The application of the objective test of whether the suspicion was reasonable requires the court to look at the grounds which were in the officer's mind at the relevant time.31 Whether those grounds were reasonable is not determined according to the subjective views of the officer, but will be judged objectively,32 and thus will be judged against what was known, or reasonably capable of being known, by the officer, at the time.33 The question whether the information considered by the officer provided reasonable grounds for the suspicion will thus depend on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it.34
The finding that Mr Stanton believed that unleaded petrol had recently been used as an accelerant to light the fire
48 In so far as ground 1 contends that the learned Magistrate erred in making a finding of fact that Mr Stanton reasonably believed that unleaded petrol had recently been used as an accelerant to light the fire, when he did not assert in his evidence that he had formed that affirmative view, I do not accept that contention.
49 At par [10(a) - (d)] of his reasons, the learned Magistrate made findings about what Mr Stanton 'believed' and then concluded that he was satisfied that these beliefs constituted reasonable grounds for Mr Stanton's suspicion that a sample of fuel from the fuel can may afford evidence of the commission of the offences Mr Stanton was investigating. Although the learned Magistrate expressed himself to be satisfied that Mr Stanton 'reasonably believed' that unleaded petrol had recently been used as an accelerant to light the fire, the context suggests that the learned Magistrate in fact meant that Mr Stanton reasonably suspected that unleaded petrol had recently been used to light the fire. That conclusion is supported by three considerations.
50 First, Mr Stanton did not profess to know how the fire had been started or what accelerant (if any) had in fact been used. His evidence concerned his experience, what he saw at the site, what views he formed about how the fire may have been started, and about why he thought a sample of the fuel may afford evidence of the offences he was investigating. Although Mr Stanton said he 'believed' the fuel can may have been used in an offence under the Regulations, it is abundantly clear that he meant that he 'suspected' that the fire had been deliberately lit using an accelerant, and that he suspected that that accelerant was unleaded petrol.35
51 Secondly, the prosecution case very clearly was that at the time of the obstruction, Mr Stanton suspected that the fire had been started using an accelerant, possibly unleaded petrol, and he suspected that a sample of the fuel may afford evidence of the commission of the offences he was investigating.36 It is apparent from the learned Magistrate's reasons, when read in their totality, that he appreciated the nature of the prosecution case and the matters about which he needed to be satisfied for that case to be made out.37
52 Thirdly, the conclusion that his Honour's findings as to what Mr Stanton 'believed' should properly be understood as findings as to what Mr Stanton suspected is also supported when the balance of his Honour's reasons is taken into consideration. It is clear from his judgment that the learned Magistrate intended all of his reasons to be read together.38 In setting out the matters about which he was satisfied on the evidence, and on which his ultimate findings about the elements of the offence were based, the learned Magistrate found that 'Mr Stanton believed that an accelerant was likely to have been involved in starting the fire'39 (emphasis added). Clearly, his Honour was in fact satisfied that Mr Stanton suspected that the fire had been started using an accelerant.
53 In my view, the learned Magistrate's reference to Mr Stanton's reasonable beliefs as to the cause of the fire, as opposed to Mr Stanton's suspicions, reflects an infelicitous use of language, rather than an erroneous finding of fact. It is well recognised that Magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Although that observation is especially apt in the context of reasons for decision delivered ex tempore, it is also applicable in the context of written reasons for decision delivered by Magistrates.40 Appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language.41
54 When understood as a finding that Mr Stanton suspected that the fire had recently been started using unleaded fuel as an accelerant, the learned Magistrate's findings contain no factual error, for the reasons explained below.
The bases for Mr Stanton's beliefs
55 Grounds 1 and 2 also contend that there was no evidentiary foundation for the beliefs which the learned Magistrate found that Mr Stanton held. Counsel for the appellant submitted that Mr Stanton's suspicion was not founded on any evidence as:
(a) The suspicion that an accelerant had been used was not reasonably open given that Mr Stanton conceded in evidence that he had no evidence that an accelerant had been used, that the use of an accelerant was at that stage simply a best guess,42 that the wet conditions suggested that the fire may have been lit with an accelerant was an 'educated guess'43 and that at the time of these events he had not completed the sort of training that arson squad detectives undergo;44
(b) Mr Stanton's belief that the accelerant used was petrol rather than diesel was not reasonably open on the evidence, because as the evidence did not establish that the fire had been started with an accelerant at all, let alone with unleaded petrol as opposed to diesel, there was no basis on which the inspector could reasonably have held any belief as to the relevance of the contents of the can vis a vis the fire;45
(c) there was no direct or admissible evidence upon which Mr Stanton could reasonably have held a belief as to when the fire had started;46
(d) the learned Magistrate's finding that Mr Stanton reasonably believed that Mr Caratti, with links to a site developer, had a financial motive to set fire to the treated logs was not supported by the evidence, because Mr Stanton did not give evidence about what he believed about the particular circumstances of this investigation.47
56 I am unable to accept these submissions for two reasons.
57 First, the tenor of the submissions suggests that the grounds for Mr Stanton's suspicion had to be founded on admissible evidence. That is not the case. The very point of provisions such as s 92A of the EP Act is that action may be taken to seize an item even though proof of its involvement in the commission of an offence is not available. Consequently, information which is acted on by an officer as the basis for a suspicion in cases of this kind need not be based on admissible evidence. The officer's suspicion may be based on hearsay material (such as information provided by other investigators) or materials which may otherwise be inadmissible in evidence, including information given anonymously, or it may be based on information which turns out to be wrong.48 But the suspicion must be based on some grounds, and in order to constitute a reasonable suspicion, those grounds, whatever they may be, must have some probative value.49
58 Secondly, although at the point when the obstruction is alleged to have occurred, Mr Stanton was not in possession of any admissible evidence as to how the fire was actually started, whether it was started using an accelerant, and if so, what that accelerant may have been, nevertheless Mr Stanton's evidence disclosed the basis for each of the beliefs on which his suspicion relied. In my view, the grounds for those beliefs had probative value, for the reasons set out below.
59 Turning first to Mr Stanton's suspicion that an accelerant had been used to start the fire, that suspicion was based on Mr Stanton's knowledge of the recent wet weather and his observations of the damp conditions on the ground at the site, together with his experience in investigating fires and knowledge of how they may be started. His evidence was:
[I]t depends on the type of fire … . It could be accidental. It could be that someone lit the fire. If it's a fire on a development site, it may well - it has definitely been started by someone in most cases, using an accelerant to get the fire going. It really depends on the time of year, whether it's summer or winter and what - what the material is made of.50
…
And, generally, on a day like that, where there was a lot of moisture on the ground - so May is a fairly wet time of year. Fire on a development site is going to need some kind of accelerant to start the fire.51
…
The site was fairly wet, so a pile of vegetation in those conditions doesn't generally tend to self-combust.
…It's highly likely that an accelerant is needed in those conditions being so wet. There [were] large puddles on the ground at the site.52
60 Nothing turns on Mr Stanton's acceptance, in cross examination, that it was an 'educated guess'53 on his part that an accelerant may have been used. His agreement with that proposition reflected the fact that at the time he attempted to seize the fuel can he did not have any admissible evidence to establish that the fire was started using an accelerant. But his experience in the investigation of fires, and his observations, were clearly sufficient to found a suspicion that that had occurred in this case.
61 Mr Stanton's suspicion that the fire was started using unleaded petrol was founded on several matters. As a result of his experience in investigating fires, Mr Stanton was aware that unleaded fuel is a better accelerant than diesel fuel. Mr Stanton's evidence was:
Unleaded fuel is a lot more volatile than diesel fuel. And diesel fuel is harder to ignite, to get to burn than unleaded fuel.54
62 In addition, Mr Stanton believed that the fuel can contained unleaded fuel. That belief was based on his own observations, and those of Ms Griffiths. When Mr Stanton took the lid off the fuel can and smelled its contents, he formed the belief that the can contained unleaded petrol. He asked Ms Griffiths to smell the fuel as well and she confirmed that she thought it smelled like unleaded fuel.55 In addition, Mr Stanton had had experience attending diesel spills,56 and was confident that the fuel in the can was not diesel.
63 Next, Mr Caratti told Mr Stanton that the fuel can contained spare fuel for his diesel utility.57 If, as Mr Stanton believed, the fuel can contained unleaded petrol, it followed that Mr Caratti's claim that the can contained diesel fuel was false. Mr Stanton suspected that Mr Caratti may have lied about the contents of the can to 'cover up the fact that he may have had a connection with lighting the fire'.58
64 Turning next to the submission that there was no evidence upon which Mr Stanton could reasonably have held a belief as to when the fire had started, I do not accept that that is so. Mr Stanton's evidence was that he had received a telephone call reporting the fire the previous evening, in which the fire had been described as an intense fire,59 that fire had been attended by volunteer firefighters,60 and when he arrived at the site, the fire was still smouldering.61 That information and observation clearly supported the belief that the fire had been recently started.
65 Finally, I do not accept the submission that there was no evidence to support Mr Stanton's suspicion that Mr Caratti may have had a financial motive for burning treated logs. As a result of his experience in investigating fires, Mr Stanton was aware that fires on development sites are often deliberately lit. Mr Caratti told Mr Stanton that he was a director of the company which was developing the site. Mr Caratti was present on the site on a Saturday morning (that is, not on an ordinary working day) at a time when the fire was still smouldering and he had a fuel can in his possession. As a result of his experience in investigating fires, Mr Stanton was aware that the motivation for a developer to light a fire on a development site may be financial. Mr Stanton's evidence was:
a lot of the times, companies need to clear the land to - to build whatever they're building, and in doing so, they have a large pile of tree trunks. There may be excess soil they want to get rid of, and it may save on costs for disposing to landfill. … Disposing of this material obviously ha[s] significant … transport costs. So you've got to have a trucking company transport it somewhere then you've got the actual tipping fees itself.62
66 In my view, it was not necessary that the basis for Mr Stanton's suspicion should pertain specifically to the kind of materials the remains of which Mr Stanton had observed being burned in the fire.
Whether the Magistrate erred in concluding that there were reasonable grounds for Mr Stanton's suspicion that a sample of fuel from the fuel can may afford evidence of the commission of the offences
67 Finally, ground 2 contends that the learned Magistrate's finding - that Mr Stanton had reasonable grounds for his suspicion that a sample of the fuel may afford evidence of the commission of the offences he was investigating - was not reasonably open.
68 In addition to his submissions as to the evidentiary foundation for Mr Stanton's suspicion (to which I have already referred), counsel for Mr Caratti also submitted that the learned Magistrate erred in finding that there were reasonable grounds to support Mr Stanton's suspicion, when several uncontradicted aspects of the evidence ran contrary to that finding. Those were said to be:
(a) Mr Caratti used diesel fuel for his ute;
(b) Mr Caratti had no financial incentive to light the fire on his building site;
(c) There was no evidence of the time the fire was initially lit;
(d) There was no evidence that Mr Caratti lit the fire or was complicit in its being lit;
(e) There was no evidence that an accelerant of any kind had been used to light the fire; and
(f) The pallets and bindings in the utility appeared quite different to the ones in the fire.
69 I do not accept that the grounds for Mr Stanton's suspicion were not reasonable for the reasons set out below.
70 Having regard to the matters discussed above at [59] - [66], Mr Stanton's beliefs or suspicions:
• that the fire had been started recently;
• that Mr Caratti was present on the site relatively soon after the fire had started;
• that the fire was likely to have been started using an accelerant;
• that unleaded petrol was a better accelerant than diesel;
• that Mr Caratti was in possession of a can of unleaded petrol;
• that Mr Caratti's claim that the contents of the can were diesel was a lie;
• that Mr Caratti may have lied to conceal his connection to the fire;
combined with Mr Stanton's experience in investigating fires, as a result of which he was aware that fires on development sites are often deliberately lit, and that developers often have a financial motive to light a fire to burn material on a building site, constituted reasonable grounds for Mr Stanton's suspicion that a sample of the fuel may afford evidence of the commission of the offences Mr Stanton was investigating.
71 In my view, Mr Stanton's belief that the fuel can contained unleaded petrol, and his suspicion that Mr Caratti had lied about the contents of the fuel can, were the most significant of the grounds for his suspicion that a sample of the fuel may afford evidence of the commission of the offences. The apparent lie cast a new complexion on Mr Caratti's presence at the site, while the fire was still smouldering, and with a fuel can in his possession. In the absence of the lie, a reasonable person would have concluded that there was an innocent explanation for those circumstances, which was quite unrelated to the lighting of the fire. However, in light of Mr Stanton's belief that the fuel can contained unleaded petrol, one explanation for the apparent lie Mr Caratti told Mr Stanton in relation to the contents of the fuel can was that Mr Caratti was unable to account innocently for the presence of unleaded fuel in the can and that it would implicate him in the offence.63 In view of that apparent lie, the grounds on which Mr Stanton relied, taken together, constituted reasonable grounds for Mr Stanton's suspicion that a sample of the fuel may afford evidence of how the fire was started, and thus of the commission of the offences under investigation.
72 It is necessary to mention three further matters referred to by counsel for Mr Caratti.
73 First, Mr Caratti's evidence that he used diesel fuel for his utility would have strongly supported the conclusion that there was an innocent explanation for why Mr Caratti had a fuel can in the tray of the utility if the contents of the fuel can were diesel. But as a result of Mr Stanton's observations and his experience, and Ms Griffiths' observations, Mr Stanton believed that the fuel can did not contain diesel.
74 Secondly, as for Mr Caratti's evidence that he had no financial incentive to light the fire, the learned Magistrate pointed out that that evidence pertained to the burning of the pallets and vegetation. That evidence did not exclude the possibility that a developer may have a financial motive for burning other items, including treated wood.
75 Thirdly, as for the submission that the pallets and strappings in the utility appeared different from those seen burning in the fire, the presence of such items in a utility owned by a developer is hardly surprising. In my view, their presence did not add to, but nor did it detract from, the reasonable grounds for Mr Stanton's suspicion that the contents of the fuel can may afford evidence of the commission of an offence.
76 For these reasons, leave to appeal should be refused in respect of ground 1, and ground 2 should be dismissed.
The appeal against sentence
The sentence imposed and the learned Magistrate's reasons
77 The learned Magistrate fined Mr Caratti $7500 in respect of the offence. In reaching his conclusion as to the quantum of the fine, the learned Magistrate had regard to the following matters.
78 In assessing the seriousness of the offence, the learned Magistrate took into account the maximum penalty for the offence, which was $25,000.
79 As for the seriousness of the obstruction in this case, the learned Magistrate was not satisfied beyond a reasonable doubt that Mr Caratti was aware that when Mr Stanton seized the fuel can, he did so for the purpose of taking a sample of its contents.64 Nevertheless, the learned Magistrate accepted that Mr Caratti's conduct 'wholly frustrated' Mr Stanton in the performance of his functions, because when Mr Caratti left with the fuel can, Mr Stanton was unable to obtain a fuel sample at all.65
80 The learned Magistrate also took into account the circumstances in which the offence was committed. Mr Caratti's case was that he had not intended to make physical contact with Mr Stanton but when Mr Stanton unexpectedly lunged towards him and seized the can, Mr Caratti flung his left arm upwards in an 'instinctive defence'. He said he only lightly touched Mr Stanton's upper body, and not in any way which caused Mr Stanton to be thrown backwards. In his reasons for his decision to convict Mr Caratti, the learned Magistrate concluded that the prosecution had proved, beyond a reasonable doubt, that Mr Caratti used one hand to deliver a forceful blow to Mr Stanton's chest.66 The learned Magistrate said:
Although the blow may have been 'instinctive' in the sense that it was not a considered reaction by Mr Caratti to an unfolding situation, the movement of his arm was a willed act of aggression directed to Mr Stanton. Mr Caratti could not have believed that his act was necessary to defending himself from an attack upon him. The force of the blow caused Mr Stanton to move backwards at least one step.67
81 In the course of his reasons for sentence, the learned Magistrate repeated that finding.68 The learned Magistrate concluded that the fact that the obstruction of Mr Stanton involved violence on Mr Caratti's part, made the manner of the obstruction more serious.69
82 The learned Magistrate noted that Mr Caratti did not derive the benefit of good character because he had prior criminal convictions, but acknowledged that there was nothing in those convictions which was specifically relevant to the present offence.
83 The learned Magistrate also considered that there was a need for an element of general deterrence in the sentence imposed so as to ensure that those dealing with officers of State government departments would be aware that there would be consequences for behaving other than in accordance with the law, in the way Mr Caratti had in this case.
Ground 3 of the grounds of appeal
84 Ground 3 of the grounds of appeal is directed solely to Mr Caratti's appeal against sentence. It alleges an error of fact and an excessive sentence as a result. An appeal to this court is open on that basis.70
85 Ground 3 is in the following terms:
1. The fine imposed was excessive in all of the circumstances of the case and grounded on a material factual error.
PARTICULARS
1. The Magistrate found that the blow struck by the Appellant on Stanton in question may not have been a 'considered reaction' by the Appellant;
2. In the light of that finding the learned Magistrate erred in finding as a fact that the assault on the witness Stanton was a willed act of aggression rather than reflexive or instinctive;
3. The finding which was as regards an aggravating factor for the purpose of sentence was not reasonably open on the facts to the required standard of proof;
4. The sentence imposed was vitiated by this erroneous finding and the penalty imposed was excessive as a result.
86 There was no suggestion in this ground of appeal that the sentence was excessive by virtue of an implied error, having regard to the seriousness of the offending conduct and to the sentences customarily imposed for offences of this kind. Rather, the sentence imposed was said to be excessive because of the erroneous reliance on the element of violence as an aggravating factor.
87 The written submissions for the appellant also suggested that the learned Magistrate had erred in taking into account the need for general deterrence, having regard to the learned Magistrate's conclusion that he was not satisfied beyond a reasonable doubt that Mr Caratti knew of Mr Stanton's intention to take a sample of the fuel.71 It was not entirely clear that this was advanced as an additional express error by the learned Magistrate, which vitiated the sentence imposed. This alleged error was not explicitly encompassed by the ground of appeal and counsel for Mr Caratti did not address it in his oral submissions. Nevertheless, I have addressed this alleged error for the sake of completeness.
No error by the learned Magistrate
88 An appellate court can only interfere with the exercise of the sentencing discretion if the appellant demonstrates that the judge or magistrate erred in exercising that discretion by making an express error (such as by mistaking the law or the facts) or by making an error which is implied or inferred. In the latter case, the implied error arises from the fact that the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.72 An appeal court will not intervene simply because the appeal court might have imposed a different sentence had it sentenced the offender at the initial hearing. Interference will only be justified if the appellate court is satisfied of error.73
89 A sentencing court will fall into error if it takes into account an aggravating factor when it is not satisfied of the existence of that factor beyond a reasonable doubt.74
90 Counsel for Mr Caratti submitted that the learned Magistrate could not have been satisfied beyond a reasonable doubt that Mr Caratti engaged in a 'willed act of aggression' towards Mr Stanton given his finding that the blow delivered by Mr Caratti was 'instinctive' in the sense that it was not a considered reaction by Mr Caratti to the situation.75
91 I am unable to accept that submission. It is clear that the learned Magistrate accepted that the prosecution had proved beyond a reasonable doubt that Mr Caratti deliberately struck Mr Stanton so as to stop him from seizing the fuel can. In accepting that the blow may have been 'instinctive' and 'not a considered reaction' the learned Magistrate was not suggesting that the blow delivered by Mr Caratti was a reflex action, or an unwilled act. Rather, he was clearly endeavouring to convey that he accepted that Mr Caratti's response to Mr Stanton's attempt to seize the can was an immediate physical response, which was not the result of a planned course of conduct. That observation was not inconsistent with the learned Magistrate's satisfaction beyond a reasonable doubt that the blow was a willed act of aggression.
92 Accordingly, the learned Magistrate did not err in taking Mr Caratti's conduct, characterised in this way, into account as an aggravating factor which added to the seriousness of the obstruction.
93 Nor was there any error by the learned Magistrate in taking into account the need for general deterrence in this case. I do not accept the submission by counsel for Mr Caratti that the need for general deterrence was significantly reduced given the learned Magistrate was not satisfied beyond a reasonable doubt that at the time of the obstruction Mr Caratti knew that Mr Stanton's intention was to take a sample of fuel from the can. Mr Caratti was aware that Mr Stanton was an inspector of the Department of Environment and Conservation and that he was conducting an investigation into offences relating to the fire. The offence of obstructing an inspector from obtaining evidence in the exercise of his power under the EP Act, like other similar offences of obstructing public officers in the conduct of their duties, can have serious consequences for the detection and investigation of crime. All public officers are entitled to carry out their duties without being subjected to aggressive or violent behaviour. The need for general deterrence was a legitimate consideration in sentencing for an offence of this kind.
94 For these reasons, leave to appeal in respect of ground 3 of the grounds of appeal should be refused.
1 Section 49(3) of the EP Act provides that a person who causes pollution or allows pollution to be caused, commits an offence. (Pollution is defined to mean a direct or indirect alteration of the environment to its detriment or degradation, or of a prescribed kind, and which involves an emission.)
2 Regulation 4(1) provides that a person who in the course of or in connection with a business or commercial activity burns or allows a material listed in Schedule 2 to the Regulations (which includes timber treated with preservatives) to be burnt so as to cause or allow visible smoke to be discharged into the environment commits an offence.
3Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA); Criminal Appeals Act 2004 (WA) s 9(2).
4Potts v Caratti(Unreported, WAMC, 3 September 2013) [8] (Magistrate Flynn).
5Potts v Caratti(Unreported, WAMC, 3 September 2013) [8(f)] (Magistrate Flynn).
6 ts 7 (7 August 2013).
7 ts 7 (7 August 2013).
8 ts 10 (7 August 2013).
9 ts 12, 19 (7 August 2013).
10 ts 19 (7 August 2013).
11 ts 15 (7 August 2013).
12 ts 28 (7 August 2013).
13 ts 24 (7 August 2013).
14 ts 18 (7 August 2013).
15 ts 20 (7 August 2013).
16 ts 20, 23 (7 August 2013).
17 ts 19 - 20 (7 August 2013).
18 ts 25 (7 August 2013).
19Potts v Caratti(Unreported, WAMC, 3 September 2013) [9] (Magistrate Flynn).
20Potts v Caratti(Unreported, WAMC, 3 September 2013) [4], [10] (Magistrate Flynn).
21Potts v Caratti(Unreported, WAMC, 3 September 2013) [10] (Magistrate Flynn).
22Potts v Caratti(Unreported, WAMC, 3 September 2013) [10] (Magistrate Flynn).
23Potts v Caratti(Unreported, WAMC, 3 September 2013) [10] (Magistrate Flynn).
24Criminal Appeals Act 2004 (WA) s 8(1)(a)(i).
25Criminal Appeals Act 2004 (WA) s 8(1)(a)(i).
26George v Rockett[1990] HCA 26; (1990) 170 CLR 104, 110 - 111.
27 Cf George v Rockett[1990] HCA 26; (1990) 170 CLR 104, 110 - 111.
28George v Rockett[1990] HCA 26; (1990) 170 CLR 104, 115, citing Hussien v Chong Fook Kam[1970] AC 942, 948 (Lord Devlin).
29George v Rockett[1990] HCA 26; (1990) 170 CLR 104, 115, citing Queensland Bacon Pty Ltd v Rees[1966] HCA 21; (1966) 115 CLR 266, 303 (Kitto J).
30George v Rockett[1990] HCA 26; (1990) 170 CLR 104, 112.
31Hyder v Commonwealth of Australia[2012] NSWCA 336 [88] (Hoeben JA) citing O'Hara v Chief Constable of the Royal Ulster Constabulary[1997] AC 286 (Lord Hope).
32Hyder v Commonwealth of Australia[2012] NSWCA 336 [15] (McColl JA), citing Anderson v Judges of the District Court of New South Wales(1992) 27 NSWLR 701, 714 (Kirby P, Meagher & Sheller JJA agreeing) and O'Hara v Chief Constable of the Royal Ulster Constabulary[1997] AC 286, 298 (Lord Hope).
33Ruddock v Taylor[2005] HCA 48; (2005) 222 CLR 612 [40] (Gleeson CJ, Gummow, Hayne & Heydon JJ).
34Hyder v Commonwealth of Australia[2012] NSWCA 336 [15] (McColl JA) citing O'Hara v Chief Constable of the Royal Ulster Constabulary[1997] AC 298, 301, 303 (Lord Hope). See also Police (SA) v Leo [2006] SASC 144 [37] - [38] (Doyle CJ).
35 ts 58 - 59, 85 - 86, 88 (6 August 2013).
36 ts 52, 56 (7 August 2013).
37Potts v Caratti(Unreported, WAMC, 3 September 2013) [4], [7] (Magistrate Flynn).
38Potts v Caratti(Unreported, WAMC, 3 September 2013) [4] (Magistrate Flynn).
39Potts v Caratti(Unreported, WAMC, 3 September 2013) [8(h)] (Magistrate Flynn).
40HWE Mining Pty Ltd v Robertson [2015] WASCA 26 [115] - [116] citing Manonai v Burns [2011] WASCA 165 [56], [61] (Hall, Pullin & Murphy JJA agreeing).
41Strahan v Brennan[2014] WASC 190 [90] (Martin CJ).
42 Appellant's Written Submissions, 6 October 2014 [30].
43 Appellant's Written Submissions, 6 October 2014 [31].
44 Appellant's Written Submissions, 6 October 2014 [31].
45 Appellant's Written Submissions, 6 October 2014 [34].
46 Appellant's Written Submissions, 6 October 2014 [39].
47 Appellant's Written Submissions, 6 October 2014 [40] - [42].
48Hyder v Commonwealth of Australia[2012] NSWCA 336 [15] (McColl JA).
49Hyder v Commonwealth of Australia[2012] NSWCA 336 [15] (McColl JA).
50 ts 47, 48 (6 August 2013).
51 ts 58 (6 August 2013).
52 ts 85 (6 August 2013).
53 ts 86, 88 (6 August 2013).
54 ts 86 (6 August 2013).
55 ts 59 (6 August 2013).
56 ts 89 - 90 (6 August 2013).
57 ts 93 (6 August 2013).
58 ts 59, 93 - 94 (6 August 2013).
59 ts 67 (6 August 2013).
60 ts 53 (6 August 2013).
61 ts 53 (6 August 2013).
62 ts 48 (6 August 2013).
63Edwards v The Queen[1993] HCA 63; (1993) 178 CLR 193, 199 - 200 (Brennan J), 209 (Deane, Dawson & Gaudron JJ).
64 ts 9 (3 September 2013).
65 ts 8 - 9 (3 September 2013).
66Potts v Caratti(Unreported, WAMC, 3 September 2013) [18] (Magistrate Flynn).
67Potts v Caratti(Unreported, WAMC, 3 September 2013) [18] (Magistrate Flynn).
68 ts 8 (3 September 2013).
69 ts 9 (3 September 2013).
70Criminal Appeals Act 2004 (WA) s 8(1)(a).
71 Appellant's written outline of Submissions, 6 October 2014 [68].
72House v The King[1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ); Wilson v The State of Western Australia[2010] WASCA 82 [2] (McLure P & Owen JA).
73Lowndes v The Queen[1999] HCA 29; (1999) 195 CLR 665, 671 - 672 [15].
74R v Olbrich[1999] HCA 54; (1999) 199 CLR 270, 270; Gullello v The State of Western Australia[2011] WASCA 261 [31] (McLure P, Buss JA & Murphy JA agreeing).
75 Appellant's Written Submissions, 6 October 2014 [64].
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