Copeman v WA Police
[2023] WASC 450
•23 NOVEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COPEMAN -v- WA POLICE [2023] WASC 450
CORAM: HOWARD J
HEARD: 25 OCTOBER 2023
DELIVERED : 23 NOVEMBER 2023
FILE NO/S: SJA 1035 of 2023
BETWEEN: JESSE FRANCIS COPEMAN
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1035 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ZEMPILAS
File Number : AM 6070 of 2005
Catchwords:
Criminal law - Single judge appeal - Appeal against conviction under Criminal Law (Unlawful Consorting and Prohibited Insignias) Act 2021 (WA) - Whether 'Rebel Power' indicated membership of or association with an identified organisation - Leave to appeal allowed on one ground - Appeal dismissed on both grounds
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)
Evidence Act 1906 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Z A V Gilders |
| Respondent | : | J Berson |
Solicitors:
| Appellant | : | ZG Criminal Law |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Larussa v State of Western Australia [2023] WASCA 62
Samuels v State of Western Australia (2005) 30 WAR 473
Sturniolo v State of Western Australia [2023] WASCA 147
Webb v Tang [2023] WASCA 119
HOWARD J:
The appellant's conviction and sentence
The appellant was charged[1] with one offence against s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (Prohibited Insignia Act);[2] that he displayed insignia of an identified organisation, namely 'Rebels - Outlaw Motorcycle Gang (OMCG)'[3] (Rebels) - in a public place.
[1] Prosecution Notice JO 8322 of 2022.
[2] Unless otherwise indicated, all statutory references from here are to this Act.
[3] As defined in Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA), Schedule 2, item 38.
At the trial, the insignia was particularised as being the tattoo on the appellant's lower jaw of 'Rebel' on one side and 'Power' on the other side.[4]
[4] Trial ts 5.
Following the trial on 4 April 2023, the appellant was convicted and the learned Magistrate (as she then was) imposed a fine of $1,000 and ordered the appellant pay costs of $264.30.
Grounds of Appeal
The appellant's two grounds of appeal are:[5]
[5] By his Amended Grounds of Appeal dated 17 September 2023.
1.The learned Magistrate erred in law in failing to properly apply the elements of the offence charged:
a.Her Honour erred in finding that 'Rebel Power' was 'insignia' pursuant to s 22(1)(c) of the [Prohibited Insignia] Act;
b.Her Honour erred in finding that whether the tattoo was 'visible' in the relevant sense depended only on the fact of its existence on the Appellant's jaw; and
c.Her Honour erred in finding that a tattoo 'left uncovered' was, without more, sufficient to establish a 'display' of same.
2.There was a miscarriage of justice because the judgement of conviction was unsound or not supported by the evidence:
a.The learned Magistrate erred in applying standards which are not standards known to the law, as to proof of the element of 'Insignia' s 22(1)(c), and specifically in applying 'her view' that the words 'Rebel Power' indicate membership or an association with the Organisation, in circumstances where there was no such evidence;
b.The evidence was incapable, as a matter of law, of permitting an inference of guilt to be drawn against the Appellant; or
c.Even if an inference of guilt was capable of being drawn against the Appellant it was not the only rational inference that was open on the evidence, there being other reasonable inferences consistent with innocence.
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to s 7(1) and ss 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's conviction is a 'decision' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each appeal ground.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[6]
[6] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The facts and the trial
The only witness at trial was WAPOL Officer Richard Bayes. Still photographs, and footage from a CCTV camera and a body worn camera were tendered as exhibits.
In the afternoon of Sunday, 24 July 2022, the appellant was at the Oceans 27 Bar in Alkimos.
He was recorded on CCTV footage by a camera which was situated above the bar. It captured images of him from his left‑hand side as he was facing the bar. That footage became Exhibit 3.
On that afternoon, WAPOL received information,[7] as a result of which Officer Bayes and his partner (Officer Thompson), at about 5.00 pm, travelled towards the Oceans 27 Bar on Shorehaven Boulevard.[8]
[7] Trial ts 7.
[8] Trial ts 7.
Officer Bayes observed a white Mercedes utility travelling in the opposite direction,[9] and recognised the driver of the car as the appellant.[10]
[9] Trial ts 7.
[10] Trial ts 11.
Officer Bayes turned the police car around and performed a traffic stop. The Mercedes pulled over in a service station.[11]
[11] Trial ts 7.
Officer Bayes activated his body worn camera. The footage from the body worn camera was tendered in the trial as Exhibit 5.
During this interaction, which lasted approximately six minutes,[12] Officer Thompson took photos of the appellant, which were tendered as Exhibits 1A and 1B.
[12] Trial ts 8.
Later, the two WAPOL Officers attended the Oceans 27 Bar and captured the CCTV footage on a mobile phone (which, as said, was Exhibit 3).
Still images from the CCTV footage were also tendered as Exhibits 4A, 4B, and 4C.
Officer Bayes gave evidence that, from his previous interactions (before 24 July 2022) with the appellant, the appellant had always had the 'Rebel Power' tattoo on his jaw.[13]
[13] Trial ts 13.
Pursuant to s 32 of the Evidence Act 1906 (WA), the appellant admitted that he was the individual wearing a sandy coloured hooded jumper with a white star motif in the centre in the CCTV footage taken at the Oceans 27 Bar.[14]
[14] Trial ts 6.
It was not in dispute that the Oceans 27 Bar was a public place within the definition provided by s 21 of the Prohibited Insignia Act.
The issues put in dispute by defence below were:
1.there was no evidence that 'Rebel' by itself, or in combination with 'Power', indicated membership or association with the organisation 'Rebels';[15] and
2.there was no evidence that the 'Rebel' tattoo was visible at the Oceans 27 Bar.[16]
[15] Trial ts 14 - 15.
[16] Trial ts 16.
The learned Magistrate's reasons
Her Honour identified and set out s 25(2) and (b) and then s 24(1)(b) and (c) of the Prohibited Insignia Act.
Her Honour summarised the evidence in this way:
1.the evidence largely comprised of the CCTV footage taken from the Oceans 27 Bar;[17]
2.the CCTV footage showed the appellant approaching the bar, predominantly showing the left-hand side of his face, although at certain points he turned to face the camera, showing a front‑on view;[18]
3.the appellant was wearing a light-coloured hooded jumper, that was level on both the right and left-hand side of his face;[19]
4.the appellant was seen to turn his head, in a manner which meant that the right-hand side of his check would have been visible to the people serving him at the bar;[20]
5.at no point in the footage was the appellant's right-hand side of his face clearly visible;[21]
6.the photographs later taken (Exhibits 1A and 1B) showed the appellant in the same clothing and clearly showed both words of the tattoos on the left and right-hand side of his face;[22]
7.in the photographs taken by Officer Thompson, the tattoos were visible relevant to the placement of the jumper;[23]
8.the CCTV footage at the Oceans 27 Bar showed the appellant's jumper was in the same place as in the photographs taken by Officer Thompson;[24] and
9.the WAPOL body worn camera footage without sound was admissible and relevant to the facts in issue.[25]
[17] Trial ts 19.
[18] Trial ts 19.
[19] Trial ts 19.
[20] Trial ts 19.
[21] Trial ts 19.
[22] Trial ts 19.
[23] Trial ts 19.
[24] Trial ts 20.
[25] Trial ts 20.
Her Honour said:
What all of those still photographs, the stills from the footage, and the footage itself demonstrates is that the hood of the accused's jumper was in effectively the same position when all of those pictures were taken, as well as when compared to the CCTV footage. It was in essentially the same resting position, sitting back over the accused's neck and back, and in the footage available - the body worn camera footage - and the still photographs, it shows that both words were clearly visible on each side of the accused's lower jaw while it was in that position.
So on that basis, the prosecution have proved, in my view, beyond reasonable doubt that both of those words, and in particular the word 'Rebel' would have been left uncovered in such a manner that it would have been visible to another person at the tavern. I recognise that that is requiring me to draw an inference from the evidence. But on the evidence available to me, it is the only inference that is reasonably open.[26]
[26] Trial ts 20.
On the question of the identified organisation, her Honour held:
Rebel is obviously a singular version, and a derivative of the word Rebels, which is the recognised identified organisation in schedule 2.
In my view, that is a kind of abbreviation which is contemplated by section 22, subsection (1)(c) as being included in such insignia, and to exclude it, in my view, would result in a similar and nonsensical application of that provision, particularly when you look at other named organisations in schedule 2. For instance, if the words were simply Hell Angel or Coffin Cheater or Bandido, the argument would - to suggest that that is then not insignia, because it's said or stated in the singular, in my view, would be nonsensical and completely contrary to the fairly broad wording of the section, which contemplates including any number of derivatives, acronyms, abbreviations that obviously might be attributed to such an organisation.
And I say that particularly where the word 'Rebel', which I appreciate can have other meanings, where it appears, not in isolation, but in conjunction with the word 'Power', on this occasion, where it is in the same font, effectively, on either side of the jaw, clearly intended to be read together. And I say that because, obviously, the word Rebel in a tattoo where it's on its own, or in another fairly innocuous context, for example, 'Rebel without a cause', or another well-known saying, obviously, there may be a contrary argument.
But in this case, the word, 'Rebel', as it is, in conjunction with the word, 'Power', in my view, clearly indicates membership or association of the identified organisation as Rebels. So as I have said, I consider that the wording of section 22, subsection (1), paragraph (c) is sufficiently broad to allow me to draw what, again, is an irresistible inference that those words or the word on its own are contemplated and do fit within the wording of that particular section, and I don't require expert evidence to reach that conclusion.
In my view, that is a common-sense reading of the word, in its context, and as a singular version of a named and identified organisation.[27]
[27] Trial ts 21.
Relevant provisions
Section 22 of the Prohibited Insignia Act provides:
(1)The following are insignia of an identified organisation -
(a)the name of the organisation;
(b)the logo or patch of the organisation;
(c)another image, symbol, abbreviation, acronym or other form of writing or mark that indicates membership of, or an association with, the organisation.
Section 24 provides:
(1)A person is taken to display insignia of an identified organisation in a public place if the person -
(a)wears, carries or otherwise possesses or controls a prohibited thing in a manner that insignia of an identified organisation would be visible to another person in the public place; or
(b)has a tattoo or other body marking that -
(i)comprises or includes insignia of an identified organisation; and
(ii)is left uncovered in a manner that insignia of an identified organisation would be visible to another person in the public place.
(2)Subsection (1) applies whether the thing or person marked with insignia of an identified organisation is physically -
(a)in the public place; or
(b)in some other place from where the insignia would be visible to another person in the public place.
Section 25(2) provides:
A person commits an offence if the person displays insignia of an identified organisation in a public place.
Appeal Grounds
As the argument developed at the hearing, it became apparent that (notwithstanding the arrangement of the Appeal Grounds) there were really two distinct challenges to the conviction which were:
1.as set out in Grounds 1(a) and 2(a); and
2.as set out in Grounds 1(b) and (c) and 2(b) and (c).
I have dealt with them in that way.
Appeal Grounds 1(a) and 2(a)
Her Honour relied on s 22(1)(c) in finding that the particularised tattoo 'Rebel Power' was 'insignia of an identified organisation'; that organisation being the 'Rebels' from item 38 of Schedule 2.
It was essentially contended by the appellant below and on appeal that 'Rebel Power' did not, and more precisely could not, by itself 'indicate membership of, or an association with,' the Rebels organisation within the meaning of s 22(1)(c).
The appellant submitted that in the absence of any evidence, there was nothing which linked 'Rebel Power' with the Rebels organisation.[28] They were, rather, on the appellant's submission, simply a combination of two ordinary words.[29]
[28] SJA ts 6.
[29] SJA ts 6.
The appellant submitted that the combination of those two ordinary words could not give rise to the only reasonable inference that the combination indicated membership or an association with the Rebels organisation.[30]
[30] SJA ts 7.
For the appellant to succeed, in my view, he must show that the conclusion reached by the learned Magistrate was incapable of being reached as a matter of law. That is, that the tattoo 'Rebel Power' could not indicate membership or association of the Rebels as an identified organisation.
A significant difficulty for the appellant's argument, in my view, is that s 22(1)(c) specifically refers to an 'abbreviation'. It seems to me, with respect, that it was well open to her Honour to conclude that the 'Rebel' part of the 'Rebel Power' tattoo was an abbreviation which was within s 22(1)(c).
To accept the appellant's submission would be to conclude that 'Rebel Power' was, as a phrase, less indicative of the membership of, or association with, the Rebels than if the appellant had a tattoo that was simply 'Rebel'.
It seems to me that it was well open for her Honour to find that 'Rebel Power' was a positive indicator towards the Rebels organisation which indicated membership or an association with it.
It is obvious that her Honour considered that a different use of the word 'Rebel' might not indicate membership or an association with the organisation and her Honour used as an example 'rebel without a cause'.[31]
[31] Trial ts 21.
It seems to me the significance of her Honour's consideration of the example 'rebel without a cause' is an acceptance that not all abbreviations would necessarily fall within s 22(1)(c). And, it might be more readily found to be the case where the expression, such as in the example given, referenced a film or some other known expression which had no link to a specified organisation. The absence of such a link may mean that there was no indication of membership or association with the particular organisation.
However, her Honour reached a finding which, in all of the circumstances, I consider was open to her. I do not detect an error.
With respect to the argument, I do not think that the learned Magistrate did engage in inferential reasoning such that would attract the complainant that the conclusion was not the only rational inference available.
Rather, I consider the charge, here, required (and received) a more direct assessment (under s 22(1)(c)) which did not require inferences to be drawn.
Appeal Grounds 1(b), (c) and 2(b), (c)
I do not accept that the learned Magistrate made the findings attributed to her by Grounds 1(b) and (c). I will not repeat here the quotation made in para [25] above as to the findings her Honour relevantly made on this point.
Relevantly, from s 24(1)(b), 'display' includes what might be described as the passive act of leaving uncovered a tattoo which would be visible to another person in a public place.
In my view, the evidence before the learned Magistrate was capable of supporting a finding that the whole of the tattoo 'Rebel Power' had been left uncovered at Oceans 27 Bar, and that it would have been visible to another person in the public place.
Indeed, with respect, the conclusion the learned Magistrate drew was irresistible and the only rational inference available.
The appellant's tattoo was fully visible during the traffic stop while the appellant was wearing the hooded jumper in the same manner as he was wearing it at the Oceans 27 Bar a short time previously.
The CCTV footage from the Oceans 27 Bar shows the appellant at the bar with three other people and one bar staff. In my view, with respect, the only rational inference available is that the tattoo 'Rebel Power' would have been visible to at least those four (other) people in that public space.
The appellant's submissions suggested, effectively, that there was some other available inference consistent with the appellant's innocence. But that other inference was not identified.
The Court of Appeal in Sturniolo v State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA) said that:[32]
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times.
[32] See also Larussa v State of Western Australia [2023] WASCA 62 [50] and Webb v Tang [2023] WASCA 119 [120].
The Court then set out the principles in summary. I do not repeat them.
In this matter, the learned Magistrate enjoyed no particular advantage in the assessment of the evidence. So, the most relevant principles identified by the Court of Appeal in Sturniolo are, in my view:
1.whether in all the circumstances it would be dangerous to permit the verdict to stand; and
2.whether on the whole of the evidence I consider it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.
Further, the Court of Appeal in Sturniolo at [71] summarised the principles to apply where the prosecution case relies on inference. Again, I have not restated those principles here.
I do not consider it would be dangerous to permit the conviction to stand and I consider that, on the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond a reasonable doubt that the appellant was guilty; indeed I do not understand what other conclusion was rationally open.
It follows that I do not detect any error of the kind contended for in Grounds 1(b), and (c) or 2(b), and (c).
Disposition
For the reasons above, I would grant the appellant leave to appeal on Grounds 1(a) and 2(a) but dismiss those grounds.
I would not grant the appellant leave to appeal on Grounds 1(b) and (c) and 2(b) and (c). With great respect, I do not consider that they were arguable.
I will hear the parties on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
23 NOVEMBER 2023
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