CRC v Taylor
[2019] WASC 187
•7 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CRC -v- TAYLOR [2019] WASC 187
CORAM: SMITH J
HEARD: 21 MAY 2019
DELIVERED : 7 JUNE 2019
FILE NO/S: SJA 1137 of 2018
BETWEEN: CRC
Appellant
AND
ALVIN TAYLOR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D POTTER
File Number : GN 591/2018
Catchwords:
Criminal Appeal - Appeal from magistrate - Disorderly behaviour in public - Whether behaviour threatening in light of surrounding circumstances - Whether conduct was serious enough or caused sufficient disturbance to warrant the intervention of the criminal law - Whether error shown - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (Infringement Notices) Regulations 2015 (WA), r 4
Criminal Code 1913 (WA), s 74A(2)
Police Act 1892 (WA), s 54 (repealed)
Summary Offences Act 1981 (NZ), s 4(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr P Sheiner |
| Respondent | : | Ms N Eagling |
Solicitors:
| Appellant | : | Roe Legal Services |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Barrington v Austin [1939] SASR 130
Brooker v Police [2007] NZSC 30; [2007] NZLR 91
Bugmy v The Queen [2018] HCA 37; (2018) 249 CLR 571
Coleman v Power [2004] HCA 39; (2007) 220 CLR 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Heanes v Herangi [2007] WASC 175
Melser v Police [1967] NZLR 437
Mogridge v Foster [1999] WASCA 177
Police v Christie [1962] NZLR 1109
Wang v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146
SMITH J:
The appeal and the result
On 2 November 2018, the appellant was convicted of behaving in a disorderly manner in a public place at Bluff Point on 21 October 2017, contrary to s 74A(2)(a) of the Criminal Code (WA).
The appellant was fined $500, ordered to pay costs of $190.85 and granted a spent conviction.[1]
[1] In light of the spent conviction order, the appellant's name and others have been anonymised in these reasons.
The appellant applies for leave to appeal the conviction on the following two grounds in the appellant's amended grounds of appeal:
1.The magistrate erred in law in failing to have regard to all of the surrounding circumstances.
Particulars of surrounding circumstances
A.The accused had a genuine and reasonably held concern for the welfare of his partner, DR.
B.The accused was prevented from attending to his partner by a person who was unknown to him and did not identify himself.
2.The magistrate erred in law and/or law and fact in that it was not reasonably open to the magistrate to conclude that in all the circumstances the appellant's conduct was serious enough or caused sufficient disturbance to warrant the intervention of the criminal law.
Leave of the court is required for each ground of appeal. The question of leave to appeal was referred to in the hearing of the appeal and must not be given on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding.[2]
[2] Criminal Appeals Act 2004 (WA), s 9.
I am not satisfied that either of the proposed grounds have any reasonable prospect of succeeding, as the appellant has not demonstrated any error of fact or law in the decision of the magistrate.
Leave should be refused on both grounds and the appeal dismissed.
The trial and the magistrate's findings of fact
The trial was conducted on 30 October 2018. Six witnesses gave evidence on behalf of the prosecution. The prosecution witnesses were Ms Kerry Leanne Clinton (Senior Assistant Manager of the Wintersun Hotel); Constable Thalia Dawson; Senior Constable Jason Robert Daines; off‑duty Senior Constable Adrian Mark Barker (who will be referred to as Mr Barker in these reasons); and Senior Constable Alvin Charles Taylor. The appellant also gave evidence.
Magistrate Potter did not make any specific findings of credibility. His Honour did, however, find that the appellant's evidence was quite patchy and that he had limited recall of the events that occurred that night which could have been for two reasons. The first of which was that the appellant had consumed alcohol, the second was that subsequent to the incident constituting disorderly behaviour the appellant was taken heavily to the ground and suffered a concussion from the fall.[3]
[3] Primary court ts 9, 2 November 2018.
The events that occurred on the night in question, on 21 October 2017, occurred after the appellant, his wife DR, and a friend (another woman) VS had been drinking at the Wintersun Hotel in Bluff Point, Geraldton.
The appellant and his partner DR were regular patrons of the Wintersun Hotel. It is clear from the evidence given in the proceedings that they were usually well behaved patrons of the hotel. Both the appellant and DR were known to the senior assistant manager of the hotel, Ms Clinton.
On the day in question, the appellant and DR went to the hotel in the early afternoon for lunch. They stayed on after lunch and by 9.45 pm DR had become intoxicated, and had begun drinking water. At about 10.45 pm Ms Clinton received a request from hotel security to speak to DR in the beer garden. Ms Clinton observed that DR was slurring her speech and was 'sloppy in her composure'. Ms Clinton said that was unlike DR's usual behaviour.[4]
[4] Primary court ts 6, 30 October 2018.
Ms Clinton saw that DR was drinking water and told her that she was to leave the premises within 15 minutes. By that time, the appellant had consumed between six and eight stubbies of beer during the course of the afternoon and evening.[5]
[5] Primary court ts 5, 2 November 2018.
After Ms Clinton spoke to DR, she left the beer garden and returned 15 minutes later. When she returned, Ms Clinton observed that:[6]
(a)DR was swearing at security staff and was very agitated. Ms Clinton heard DR say 'go, call the cops then, you cunt';
(b)VS did not appear to be happy; and
(c)the appellant was trying to get DR to be quiet and calm.
[6] Primary court ts 7, 30 October 2018.
At about that time, officers Dawson and Daines arrived at the hotel. They were there to conduct a routine weekend licensed premises check. Ms Clinton sought the assistance of the officers to persuade DR to leave the premises.
When the officers spoke to DR in the beer garden, her demeanour did not change. She was still very agitated about the fact that she had been asked to leave the premises and the appellant was still trying to convince DR to leave.
Officers Dawson and Daines ushered DR out of the beer garden into the carpark of the hotel. The appellant and VS followed. Ms Clinton also followed.
Constable Dawson said that at the start of the conversation she spoke to DR in a calm manner and explained that it was an offence to remain on licensed premises after being asked to leave.[7] After saying this several times over and over (as many as 20 times) Constable Dawson raised her voice and swore back at them saying the words 'You've been told to leave. Now you need to fucking leave'.[8] DR became upset and said 'You can't swear at me' and that resulted in further argument. At some stage, Senior Constable Daines also swore at DR and told her 'You need to leave' and 'You need to leave ... You need to fuck off'.[9]
[7] Primary court ts 30, 30 October 2018.
[8] Primary court ts 35, 30 October 2018.
[9] Primary court ts 51, 30 October 2018; both Senior Constable Daines and Constable Dawson were subsequently counselled about the use of this language: see primary court ts 35, 53, 30 October 2018.
DR and VS continued to argue with the police officers. The appellant began to walk away. He was on the lookout to find a taxi to go home.
As the magistrate properly found, the appellant had not been the subject of a request to leave the premises and he willingly left the beer garden and wanted to go home. However, he did not wish to leave his wife and so stood off to one side; he was not involved in any argument.
When in the carpark, DR initially walked away about 5 m and then walked back to officers Dawson and Daines to argue the point about why she believed she was being asked to leave the premises. VS stood next to her. When Constable Daines gave his evidence he explained what was said by VR:[10]
Once we were outside, DR said, 'I want to tell you my side.' I said, 'Go ahead.' She has advised me that the only reason they had been asked to leave is because she saw something the day before inside the pub, involving a child and the pool table. I advised her that if she had any complaints to take it up with management the following day, but for the time being that she would still need to leave. She advised me that she didn't need to leave. She had been coming to the premises for 20 years, that she goes there four times a week, and that she wasn't going to go anywhere.
What were you observations, and what was the demeanour of DR at that stage?---She was becoming argumentative. Simply stating that she wasn't going to leave the premises, and completely refusing to do so. Officers Dawson and Daines continued to ask DR and VS to leave.
[10] Primary court ts 50, 30 October 2018; transcript has been edited to anonymise the name of the appellant's partner.
About that time, Mr Barker walked into the carpark area. He had been at a function at the Wintersun Hotel for a 60th birthday with his wife. The birthday party was for another police officer. Mr Barker saw two women arguing belligerently with Senior Constable Daines. Mr Barker asked his wife to go to the car and he stood and watched officers Dawson and Daines deal with DR and VS.
Mr Barker described himself as having been affected by alcohol. He said that two drinks is usually his normal limit and that he had had five drinks that night over a period of five hours so he considered himself drunk and he certainly was not intending to drive home.
By that time, Constable Dawson had asked for assistance (by calling for another police vehicle to attend). Constable Dawson told DR 'If you don't leave by the time the other vehicle gets here, you'll be arrested. Do you understand that?'[11] By that time, sirens could be heard in the background indicating that a support vehicle was not far away. DR stated, 'I don't care. Arrest me. Arrest me then'. She had her arms up in the air. Constable Dawson grabbed one of DR's arms and said 'You're under arrest'. Senior Constable Daines grabbed the other arm and DR was handcuffed. Senior Constable Daines then placed DR up against the wall of the beer garden.[12]
[11] Primary court ts 52, 30 October 2018.
[12] Primary court ts 52, 30 October 2018.
By this time VS was yelling. She was also yelling at Ms Clinton who was still in the carpark standing off to one side of the officers, DR and VS. Ms Clinton swore at VS and yelled at her to calm down.
VS was swearing at the officers telling them to leave DR alone. VS tried to intervene and Constable Dawson attempted to arrest her. VS ran away and Constable Dawson gave chase leaving Senior Constable Daines with DR, who at that point in time began kicking Senior Constable Daines in the leg. At some point during the chase VS's top came off so she was running through the carpark just with her bra on.
Whilst Senior Constable Daines was holding DR against the wall DR lashed out and kicked Senior Constable Daines in the left leg three times. As she lifted her leg to kick him again he caught her leg and took her to the ground.
DR sustained grazing to her face from falling onto the ground. Senior Constable Daines placed her (on her side) in a recovery position and monitored her welfare. Senior Constable Daines said that DR refused to speak at that point and refused to sit up or move until another police officer came to assist. They picked her up and then coached her to stand and walked her to a van.[13]
[13] In his evidence‑in‑chief the appellant said that his partner was picked up by officers and thrown into a police van. However, the appellant's evidence was inconsistent on this point, when cross-examined, the appellant agreed that he saw DR seated on the ground and two officers pick her up and stand her up.
Whilst DR was on the ground, Mr Barker (who was in plain clothes and did not identify himself as an off‑duty police officer) heard a voice from the darkness 'That's my wife', 'You can't do that' and saw the appellant run out of the dark.[14]
[14] Primary court ts 66, 30 October 2018.
When Mr Barker saw and heard the appellant he put himself between Senior Constable Daines and the appellant.
Magistrate Potter found that the appellant was not swearing and, at this point in time, his behaviour was not disorderly. Magistrate Potter found:[15]
Now, that behaviour of Mr 'C', that aspect, wouldn't be disorderly conduct, it's just perhaps a normal reaction to turn around, come back and make those comments and observations and, indeed, alert a police officer to the fact that there's someone present who is related to the individual who's being put on the ground. So a potential for negotiation assistance, whatever the case might be. Of course, Senior Constable Daines was not in the position to negotiate anything at that point.
[15] Primary court ts 10, 2 November 2018; transcript has been edited to anonymise the name of the appellant.
However, his Honour went on to find that what happened after that is what resulted in a finding that the appellant's behaviour was disorderly. His Honour found that the following events then occurred:[16]
(a)the appellant was agitated and had his fists clenched; he came very close to Mr Barker while Mr Barker was saying, 'Mate, look, let them just do their job' and the appellant was saying, 'That's my wife. They can't do that';
(b)the appellant would walk away in a wide arc and then come back to Mr Barker saying, 'Let me through' and Mr Barker would have to push the appellant away with open palms;[17]
(c)the appellant became further worked up and came back to Mr Barker, again with his fists clenched but at his sides; head first, not suggestive of a head butt but agitated; and
(d)Mr Barker perceived the appellant's target had changed at that point in time from Senior Constable Daines' (out of concern for DR, or at least a concern for DR who was on the ground) to Mr Barker.
[16] Primary court ts 11, 2 November 2018.
[17] Mr Barker's evidence was also that he initially grabbed the appellant by the shoulders and then pushed or shoved the appellant backwards with his open palms.
At that point in time Senior Constable Taylor arrived at the scene in a backup police vehicle as a result of the urgent priority call placed by Constable Dawson. He jumped out of the passenger seat of the police vehicle and saw the appellant appearing to be 'shaping up' to Mr Barker, and Senior Constable Daines behind, with DR on the ground.
What immediately followed was that Senior Constable Taylor did what his Honour found one would perhaps expect him to do, and that was to restrain a person who he perceived as being the aggressor in the situation.
As Senior Constable Taylor grabbed the appellant from behind by his arms the appellant fell, and Senior Constable Taylor fell with him, to the ground. The appellant's face hit the ground and he was momentarily knocked unconscious.
The magistrate found that the behaviour of the appellant, going back and forth to Mr Barker with his fists clenched down by his side, being pushed back by Mr Barker, and then walking toward Mr Barker leading with his head was threatening, because of the evidence of Ms Clinton, Constable Dawson, Senior Constable Daines and Senior Constable Taylor who witnessed this interaction between Mr Barker and the appellant.[18] In particular, his Honour had regard to the evidence given by Senior Constable Taylor that when he saw the appellant his demeanour was aggressive, his fists were clenched, his chest was puffed out and he was fixed on Mr Barker at a distance of about 3 m and the appellant was starting to advance upon Mr Barker just before (Senior Constable Taylor) restrained the appellant.[19] It was this behaviour that Magistrate Potter found could properly be viewed as objectively, or subjectively, threatening behaviour to Mr Barker (that is, disorderly behaviour) and potentially threatening to Senior Constable Daines.
[18] Primary court ts 12, 2 November 2018.
[19] Primary court ts 12, 2 November 2018.
Immediately after the appellant and Senior Constable Taylor fell to the ground the appellant was assisted to stand. He was then compliant. Ms Clinton, assisted by another woman then attended to his face. The appellant did not wish to seek medical attention. Ms Clinton also assisted the appellant to locate a taxi and he went home. At that point in time DR had been conveyed to the police station under arrest.
DR was taken to the police station and charged with refusing to leave licensed premises and obstruction. She later went to the hospital for medical attention, was released the following morning and went home.
The offence of disorderly conduct
Section 74A of the Criminal Code (WA) provides as follows:
(1)In this section ‑
behave in a disorderly manner includes ‑
(a)to use insulting, offensive or threatening language; and
(b)to behave in an insulting, offensive or threatening manner.
(2)A person who behaves in a disorderly manner ‑
(a)in a public place or in the sight or hearing of any person who is in a public place; or
(b)in a police station or lock-up,
is guilty of an offence and is liable to a fine of $6 000.
(3)A person who has the control or management of a place where food or refreshments are sold to or consumed by the public and who permits a person to behave in a disorderly manner in that place is guilty of an offence and is liable to a fine of $4 000.
In the past, the offence of disorderly conduct was in the past contained in s 54 of the Police Act 1892 (WA). Section 54 was repealed and replaced on 31 May 2005 by s 74A(2) of the Criminal Code, the offence of disorderly behaviour in public.
In Heanes v Herangi, in an extensive review of the authorities on disorderly conduct, Johnson J found that some of the principles relevant to the former offence of disorderly conduct remain applicable in construing s 74A.[20] In particular, her Honour found that the approach into establishing disorderly conduct taken in Police v Christie,[21] and Melser v Police,[22] is relevant to language as well as conduct, and is as relevant today under the new legislation as it was in the past.[23]
[20] Heanes v Herangi [2007] WASC 175 [204].
[21] Police v Christie [1962] NZLR 1109.
[22] Melser v Police [1967] NZLR 437.
[23] Heanes v Herangi [2007] WASC 175 [204].
This matter does not concern disorderly behaviour by the use of language, but concerns disorderly behaviour by behaving in a threatening manner in public.
To constitute disorderly behaviour, the conduct or behaviour must disturb the order of the public place at the particular time in question.[24] That is, the behaviour must be behaviour that tends to disturb the peace.[25]
[24] Heanes v Herangi [2007] WASC 175 [176] (Johnson J); see also Melser v Police [1967] NZLR 437, 443 ‑ 444 (North P).
[25] Barrington v Austin [1939] SASR 130; applied in Melser v Police [1967] NZLR 437; see also Coleman v Power [2004] HCA 39; (2007) 220 CLR 1 [11] (Gleeson CJ).
Surrounding circumstances will have a bearing on the issue of whether the conduct or behaviour is disorderly.[26] As Gleeson CJ remarked in Coleman v Power, concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.[27] Not only must the conduct be disorderly, the conduct or behaviour must be sufficiently serious to warrant the interference of the criminal law.[28]
[26]Mogridge v Foster [1999] WASCA 177 [7] (McKechnie J); see also Police v Christie [1962] NZLR 1109; Melser v Police [1967] NZLR 437.
[27] Coleman v Power [2004] HCA 39; (2007) 220 CLR 1 [12].
[28] Mogridge v Foster [1999] WASCA 177 [6] ‑ [9] (McKechnie J); Heanes v Herangi [2007] WASC 175 [196] ‑ [200] (Johnson J); Melser v Police [1967] NZLR 437.
It follows, therefore, that disorderly behaviour must be objectively seriously disruptive of public order and not merely a private affront or annoyance to either the person to whom it is directed or a person present.[29]
[29] This approach was applied by Elias CJ in Brooker v Police [2007] NZSC 30; [2007] NZLR 91 [24], [33] and [43] in respect of a charge instituted pursuant to s 4(1)(a) of the Summary Offences Act 1981 (NZ) of behaving in a disorderly manner in a public place.
In Coleman v Power, Gleeson CJ also relevantly observed that the object of public order offences is generally the preservation of order in public places in the interests of the amenity and security of citizens, so that they may exercise, without undue disturbance, the rights and freedoms involved in the use and enjoyment of such places.[30]
[30] Coleman v Power [2004] HCA 39; (2007) 220 CLR 1 [32].
It is, however, notable that Coleman v Power concerned a matter where the appellant was charged with using insulting language by distributing pamphlets and placards to the effect that certain police officers were corrupt.
In Mogridge v Foster, McKechnie J pointed out that disorderly conduct (now disorderly behaviour) is, as its name implies, a public order offence designed to prevent breaches of the peace and to allow citizens to go about their lawful business without undue interference or annoyance.[31] To this observation, I would add that the offence of disorderly behaviour is also designed to allow police officers to go about their lawful business without undue interference or annoyance (which includes the lawful exercise of the power of arrest).
[31] Mogridge v Foster [1999] WASCA 177 [7].
In Mogridge v Foster, McKechnie J also importantly observed:[32]
Magistrates with a wide experience of life and human foibles are generally in the best position to judge whether conduct should be categorised as disorderly.
[32] Mogridge v Foster [1999] WASCA 177 [8].
Proposed amended grounds of appeal
It is argued on behalf of the appellant that in finding that the appellant's interaction with Mr Barker was subjectively or objectively threatening to Mr Barker and potentially threatening to Senior Constable Daines, Magistrate Potter focused exclusively on a small part of the events of the night in question. Further, that in making this finding it is argued that his Honour did not have regard to the following circumstances:
(a)the appellant had a genuine and reasonably held concern for the welfare of his partner, DR. In particular, there was evidence that his concern was heightened by the fact that she had previously been pushed over by an officer in an unrelated incident outside a nightclub some time ago;[33]
(b)the appellant was prevented from attending to his partner by Mr Barker who was unknown to him and did not identify himself. It is said that to an outside observer Mr Barker was a layman hanging around a potentially volatile incident;[34]
(c)the events took place in the late evening in a carpark where the only persons present were hotel staff, the police officers, DR, VS, the appellant and Mr Barker;[35] and
(d)the appellant's actions took place in a context where the public order was disturbed by the actions of the police officers and Ms Clinton swearing at DR and VS, and the physical violence perpetrated by the police officers against DR and VS.[36]
[33] Appellant's outline of submissions, filed 9 April 2019 [15], [30.1].
[34] Appellant's outline of submissions, filed 9 April 2019 [14], [30.2].
[35] Appellant's outline of submissions, filed 9 April 2019 [7], [30.3].
[36] Appellant's outline of submissions, filed 9 April 2019 [30.4].
In the alternative, it is argued on behalf of the appellant that Magistrate Potter did not consider whether the appellant's actions were sufficiently serious to warrant the intervention of the criminal law. In particular, it is argued that his Honour did not have regard:
(a)to the circumstances the appellant refers to (as outlined in [51] (a) ‑ (d) above); and
(b)to the evidence of:
(i)Ms Clinton that the appellant and Mr Barker got a 'bit chesty' with each other; and
(ii)Mr Barker's description of the conduct of the appellant as being 'pretty innocuous' and 'nothing terribly outrageous'.[37]
[37] Appellant's outline of submissions, filed 9 April 2019 [18] ‑ [19].
It is said by the appellant that if the magistrate had regard to all of these matters he could not have been satisfied beyond reasonable doubt that the appellant committed the offence, and that the court should uphold the appeal and quash the appellant's conviction.[38]
[38] Appellant's outline of submissions, filed 9 April 2019 [32].
However, it is clear that his Honour did have regard to the fact that the appellant had a genuine and reasonably held concern for the welfare of his wife DR. Magistrate Potter found that when the appellant saw his wife being arrested and being taken to the ground he could not be criticised for running back and saying 'That's my wife'. But, as his Honour correctly found, it was what happened after that (that is, what the appellant did after his wife was arrested) that constituted disorderly behaviour in public.
The fact that Mr Barker did not identify himself at all or as an off‑duty police officer is irrelevant. The magistrate accepted Mr Barker's evidence that he did not identify himself as an off‑duty officer as he had had five alcoholic drinks. His Honour properly found that the intervention of an unidentified member of the public to ensure that a police officer is not obstructed in, or prevented from, carrying out their duty is the lawful conduct of a citizen.
The number of people that were present when the events occurred is also irrelevant. The place at which the offence occurred was a public place, namely, a carpark of a hotel. It is simply an element of the offence that the behaviour that constitutes disorderly behaviour, in law, must occur in a public place. This is to be distinguished from what constitutes disorderly behaviour itself, which is the behaviour must constitute a serious disruption of public order. In any event, there was evidence that, when the events in question occurred, the carpark was quite full (of vehicles) and there were staff members present as well as police officers and other persons.
The fact that Officers Dawson and Haines swore at DR and Ms Clinton swore at VS, may have had the effect of escalating those persons' bad behaviour to some degree. However, no submission was made to the magistrate that that was the case. Nor was such a proposition put to Officers Dawson and Haines. In any event, there was no reliable evidence before the magistrate of 'physical violence' perpetrated by the police officers against DR and VS. The magistrate properly found that DR kicked Senior Constable Daines, the officer effecting an arrest, four times, and that he had to use force to bring her under control. Nothing was put in the cross‑examination of Senior Constable Daines that it was not necessary for him to do so. The magistrate also referred to the fact that VS was running around without a shirt. Yet, the evidence at the hearing was not clear as to how that shirt came to be removed. Whilst this was unfortunate, it is not relevant to the charge against the appellant.
Plainly, Magistrate Potter did consider whether the conduct of the appellant was sufficiently serious to warrant the intervention of the criminal law. His Honour found that it was appropriate for Mr Barker to intervene to assist Senior Constable Daines in order that he could go about his lawful business (of arresting DR) without undue interference by the appellant and that as a result of this interference the appellant engaged in threatening behaviour directed towards Mr Barker. It is clear from Magistrate Potter's reasons that his Honour regarded the actions of the appellant as being towards the bottom end of seriousness of disorderly behaviour and this was reflected in the penalty imposed on the appellant for the offence.[39]
[39] The fine of $500 is the modified penalty amount prescribed by r 4 of the Criminal Code (Infringement Notices) Regulations 2015 (WA).
The appellant attempted to intervene in the arrest, and to do so can be properly characterised as behaviour that disturbs the peace. Mr Barker took action to stop him from intervening by pushing him away. Whilst Mr Barker described the appellant's initial attempts to push through as not terribly outrageous but as attempts (by the appellant) to invade his (Mr Barker's) personal space, the magistrate properly found that the appellant became further wound up and agitated, and then returned again to Mr Barker with his fists clenched by his sides and leading with his head. It was at that point in time that Mr Barker said, when giving evidence, that he formed the view that he was then the target of the appellant.
Ms Clinton's evidence was not contradictory to the findings of the magistrate. To the contrary, her evidence (which was not entirely accepted by Magistrate Potter) was that the appellant was swearing and yelling at Mr Barker to 'get out of (the appellant's) face'; 'they were getting chesty with each other'; 'with raised shoulders'; 'trying to be a bit more manly or a bit more buff'; and the appellant 'had his hands up shaped in a fist'; 'like they were going to get involved in something'; 'to protect himself, or do physical violence' and it was at that point that the police officer (Senior Constable Taylor) 'jumped out of the car and jumped onto' the appellant.
It is also argued on behalf of the appellant, in relation to ground 2, that while magistrates are generally in the best position to judge what is disorderly behaviour, that does not preclude the court deciding on appeal that such a finding was not open. It is said that the objective standard of disorderly behaviour, described as the 'values of orderly conduct which are recognised by right thinking members of the public', involves the court being informed by the heightened concern about and mistrust of the police by Aboriginal people grounded in their particular history and experience;[40] the over representation of Aboriginal people in custody; the systematic discrimination of the criminal justice system against Aboriginal people';[41] and the recommendations of the Royal Commission into Aboriginal Deaths in Custody.[42]
[40] See, eg, the comments of Mortimer J in Wotton v State of Queensland (No 5) [2016] FCA 1457; (2016) 352 ALR 146 [142] ‑ [143] and [1064].
[41] Chief Justice Martin AC, Unequal Justice for Aboriginal Australians, paper to Criminal Lawyers Association of NT Conference 2017, 15; see also Indigenous Incarceration Rates, Law Summer School 2015.
[42] ts 15-16, 21 May 2019.
The appellant's submission on this point should not be accepted. Equal justice before the law is an essential component of the rule of law.[43] The application of the legal principle of equality before the law depends critically and fundamentally upon the identification of all the characteristics that are relevant to the legal outcome. Equal justice according to law also requires, insofar as the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the relevant law.[44]
[43] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
[44] Wang v The Queen [2001] HCA 64; (2001) 207 CLR 584 [65] (Gaudron, Gummow & Hayne JJ); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 [28] (French CJ, Crennan & Kiefel JJ).
This does not, however, provide the basis for cases to be distinguished purely on race alone. In his extrajudicial paper 'Unequal Justice for Indigenous Australians', former Chief Justice Martin points out that the courts should not discriminate purely on the basis of race and that the legal principle of equality before the law requires that, insofar as the law permits, like cases are to be treated alike.[45]
[45] Chief Justice Martin AC, Unequal Justice for Aboriginal Australians, paper to Criminal Lawyers Association of NT Conference 2017, 15; Indigenous Incarceration Rates, Law Summer School 2015, 15, 43.
The High Court has said that courts cannot take judicial notice of any systemic background of deprivation of Aboriginal offenders. Where an offender relies upon his or her deprived background he or she must point to material tending to establish that background.[46] Martin CJ pointed out that, in this way, whether or not a person is an Aboriginal is not a consideration to be borne in mind, but the social deprivation that an Aboriginal offender may have suffered is relevant (as it is with non-Aboriginal offenders).
[46] See generally, Bugmy v The Queen [2018] HCA 37; (2018) 249 CLR 571.
These observations, however, have been made in the context of sentencing, where the offenders' background is relevant to his or her culpability. In such a context, the social deprivation or disadvantage suffered by the person in question is a relevant consideration but the court is not to make such an assumption on the basis of race alone and the offender must substantiate their claim by pointing to material that tends to show the disadvantage suffered by them. However, these matters have no place in the consideration of whether the offence of disorderly conduct has been committed in the first place.
The values of orderly conduct which are recognised by right thinking members of the public is an objective standard that does not differ between people depending on their race. Right thinking members of the public would recognise that the police have a right to exercise their lawful power of arrest without interference or threat from members of the public.
Whilst it is important for the law, with respect to sentencing, to make allowance for circumstances of social disadvantage, it is not appropriate to do so in the context of whether the offence has been committed. Indeed, equality before the law demands it.
The standard of behaviour expected of members of the public and the standard of seriousness of disorderly conduct that will attract the sanction of the criminal law is objective and applies equally to all members of the public. The surrounding circumstances of the incident are relevant in the context of whether the behaviour was, in fact, disorderly but it cannot be said that race alone or even social disadvantage offers any assistance in determining whether or not behaviour is, in fact, disorderly.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith7 JUNE 2019
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