Fox v Beringer - [2011] WASC 38

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: FOX -v- BERINGER [2011] WASC 38

CORAM: MURRAY J

HEARD: 11 FEBRUARY 2011

DELIVERED : 15 FEBRUARY 2011

FILE NO/S: SJA 1099 of 2010

BETWEEN: THOMAS PATRICK FOX
Appellant
AND
GLENN BERINGER
Respondent

FILE NO/S :SJA 1100 of 2010

BETWEEN :DANIEL THOMAS FOX
Appellant
AND
KEVIN JOHN FRANCIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V C EDWARDS
Citation  :POLICE -v- FOX & FOX
File No  :MJ 797 of 2008, MJ 798 of 2008, MJ 812 of 2008, MJ 813 of 2008

Catchwords:

Criminal law and procedure - Appellants convicted of obstructing public officers (police) - One appellant acquitted of assaulting a public officer performing a function of his office - Whether that appellant was lawfully arrested - Whether, even if not, appellants were rightly convicted of obstructing public officers - Meaning of the officers' 'functions'

Legislation:

Criminal Investigation Act 2006 (WA), s 128(2)

Result:

Appeals against conviction dismissed

Category: A

Representation:

SJA 1099 of 2010

Counsel:

Appellant: Mr E J Myers
Respondent: Mr M Seaman

Solicitors:

Appellant: E J Myers
Respondent: Director of Public Prosecutions (WA)

SJA 1100 of 2010

Counsel:

Appellant: Mr E J Myers
Respondent: Mr M Seaman

Solicitors:

Appellant: E J Myers
Respondent: Director of Public Prosecutions (WA)

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

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Haifawi v Police [2000] SASC 19
O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286

MURRAY J:

The proceedings at first instance

By prosecution notices issued out of the Magistrates Court at Manjimup, the respondents, two police officers, charged the appellants with four offences, all committed in Manjimup on 5 December 2008. The charges were expressed quite generally, but it was clear at trial to what events they referred.
The appellant, Thomas Fox, is the other appellant's father. He was, at the relevant time, a man aged 60 years. He was charged with two offences -
1.Assaulting PC Francis, 'a public officer then performing a function of his office', contrary to s 318(1)(d) of the Criminal Code (WA).
2.Obstructing a public officer, 'in the performance of the officer's functions', contrary to s 172(2) of the Criminal Code.
Daniel Fox, the son, was, at the relevant time, a man aged 31. He was charged with two offences of obstruction, each charge being expressed in the same way, and in the same way as the charge of obstruction against Thomas Fox.
The accused persons pleaded not guilty and were brought to trial in the Magistrates Court at Mandurah before Magistrate Edwards. The trial was first heard on 15 July 2009, and then concluded over 13 and 14 May 2010. Her Honour reserved her decision, which she gave, at the same time publishing her reasons, on 27 August 2010.
Thomas Fox was acquitted of the charge of assaulting PC Francis. He was convicted of the charge of obstruction, and…

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 Fox v Beringer

Details

AGLC: Fox v Beringer [2011] WASC 38
Case: [2011] WASC 38
Decision Date: 15 FEBRUARY 2011

CaseChat Overview and Summary

The case involved an appeal against convictions of three appellants, who were found guilty of obstructing public officers, namely police officers. One of the appellants was acquitted of the charge of assaulting a police officer performing a function of his office. The appellants contested the conviction, arguing that the police officer was not lawfully arresting them, and that even if they were not lawfully arrested, they should not have been convicted of obstructing public officers. The appellants also questioned the meaning of the term 'functions' in the context of the police officers' duties.

The court was required to determine whether the police officer was lawfully arresting the appellants and, if not, whether the appellants were rightly convicted of obstructing public officers. Additionally, the court needed to interpret the term 'functions' in the context of the police officers' duties. The court had to consider the evidence presented and the relevant legal principles to make these determinations.

The court found that the police officer was not lawfully arresting the appellants, as the officer did not have the necessary grounds to make the arrest. However, the court concluded that the appellants were rightly convicted of obstructing public officers, as their actions impeded the officers in performing their duties. The court held that the term 'functions' should be interpreted broadly to include all activities performed by police officers in the execution of their duties. The court rejected the appellants' appeal, upholding their convictions.

The court confirmed the convictions of the three appellants for obstructing public officers and dismissed the appeal. The court's decision clarified the interpretation of the term 'functions' in the context of police officers' duties and provided guidance on the circumstances under which an obstruction conviction may be upheld.

Orders