ELWIN -v- ROBINSON [2012] WASC 311

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 311
Case No:	SJA:1074/2011	Heard:	18 JUNE 2012
Coram:	McKECHNIE J	Delivered:	31/08/2012
No of Pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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On Appeal from:	Jurisdiction: MAGISTRATES COURT OF WESTERN AUSTRALIA Coram: MAGISTRATE J MUSK File Number: PE 10232 of 2010
Parties:	JASON CAMERON ELWIN EDWARD GEORGE ROBINSON
Catchwords:	Criminal law and procedure Police powers of arrest Whether excessive force in forcing a person to the ground Courts and judges Whether magistrate made findings Whether facts in substance justified the decision
Legislation:	Criminal Code (WA), s 260 Criminal Investigation Act 2006 (WA), s 16, s 128
Case References:	R v Hardy [2010] QCA 28

Last Updated: 31/08/2012

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : ELWIN -v- ROBINSON [2012] WASC 311 CORAM : McKECHNIE J HEARD : 18 JUNE 2012 DELIVERED : 31 AUGUST 2012 FILE NO/S : SJA 1074 of 2011 BETWEEN : JASON CAMERON ELWIN

Appellant

AND

EDWARD GEORGE ROBINSON

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE J MUSK

File No : PE 10232 of 2010

Catchwords:

Criminal law and procedure - Police powers of arrest - Whether excessive force in forcing a person to the ground - Courts and judges - Whether magistrate made findings - Whether facts in substance justified the decision

(Page 2)

Legislation:

Criminal Code (WA), s 260
Criminal Investigation Act 2006 (WA), s 16, s 128

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S Vandongen SC

Respondent : Mr J Newton-Palmer

Solicitors:

Appellant : Terry Dobson Legal

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

R v Hardy [2010] QCA 28

(Page 3)

McKECHNIE J

A rowdy night in Northbridge

1 New Year's Eve 2010 was a rowdy event in Northbridge. Mr Elwin (the appellant) was involved in a fight (though later cleared of a charge of disorderly conduct), when the police, in the vernacular, took him down; that is, grabbed him in a neck restraint, arrested him, put him on the ground and tasered him when he did not submit.

2 He resisted the officers trying to restrain him and was in due course charged with 'obstructed a public officer, in the performance of the officer's functions' (Criminal Code (WA) s 172(2)). He pleaded not guilty but was convicted after trial and fined. From that conviction he appeals on three grounds. There has been no, or no substantial miscarriage of justice and the appeal is dismissed.

The trial

3 The principal issue between the parties was whether the officers used excessive force against the appellant and so were no longer acting in the performance of their functions.

4 My use of the plural is deliberate because that is the way the prosecution notice is worded and that is the way in which the trial…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Elwin v Robinson

Details

AGLC: Elwin v Robinson [2012] WASC 311
Case: [2012] WASC 311
Decision Date

CaseChat Overview and Summary

Jason Cameron Elwin (the appellant) appealed against his conviction by Edward George Robinson (the respondent) for obstructing a public officer in the performance of the officer's function. The appellant was arrested in Northbridge on New Year's Eve 2010. He was involved in a fight and resisted arrest. He was tasered when he did not submit to the officers. The appellant pleaded not guilty but was convicted by the respondent and fined. The appellant appealed on the grounds that the respondent erred in law in convicting him based on the finding that he was resisting or obstructing the police officers in the performance of their functions, that the respondent failed to properly consider whether the prosecution established that the appellant obstructed a public officer, and that the verdict of guilty was unreasonable or could not be supported having regard to the evidence. The court was required to decide whether the magistrate made an error of law and if so, whether there was a miscarriage of justice.

The court found that the magistrate did make an error of law in convicting the appellant based on the finding that 'he was resisting or obstructing the police officers in the performance of their functions'. However, the error did not cause a miscarriage of justice. The court held that the facts in substance supported the decision and that the appellant obstructed the police officers in the performance of their functions. The court found that the appellant was entitled to resist the neck restraint until such time as he became aware that the persons involved were police officers. After that time, he continued to struggle all the way through to the end. By so struggling, he committed the offence. The court dismissed the appeal.

The final orders of the court were that the appeal was dismissed.

Orders