Gartner v Brennan

[2016] WASC 89

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GARTNER -v- BRENNAN [2016] WASC 89

CORAM:   PRITCHARD J

HEARD:   31 JULY 2015

DELIVERED          :   23 MARCH 2016

FILE NO/S:   SJA 1079 of 2014

BETWEEN:   BENJAMIN DAVID GARTNER

Appellant

AND

JAMIE BRUCE BRENNAN
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE M WHEELER

File No  :HC 78 of 2014

Catchwords:

Appeal against conviction - Assault occasioning bodily harm - Section 317(1) Criminal Code (WA) - Where use of force was excessive - Section 260 Criminal Code (WA)

Application for leave to appeal against conviction - Whether ground of appeal has reasonable prospect of success - Whether Magistrate convicted the appellant on a factual basis not relied on by the prosecution - Whether there was any unfairness to the appellant - Leave to appeal granted - Where Magistrate did not depart from factual basis relied on by prosecution - Where no unfairness to the appellant - Appeal dismissed

Application for leave to appeal against conviction - Whether Magistrate erred in law by finding that the charge of assault occasioning bodily harm had been proven beyond reasonable doubt - Whether Magistrate's finding was against the weight of the evidence - Where Magistrate's finding was not against the weight of the evidence - Where the offence had been proven beyond reasonable doubt - Leave refused

Application for leave to appeal against conviction - Whether Magistrate erred in law in relying on closed-circuit television footage - Whether Magistrate erred in law in relying upon evidence from unrelated cases - Whether Magistrate erred in failing to take into account only the evidence at trial - Whether Magistrate excluded other hypotheses reasonably open on the evidence - Where Magistrate did not take into account material extraneous to the evidence adduced at the trial - Leave refused

Application for leave to appeal against conviction - Whether Magistrate erred in law and in fact in rejecting the appellant's evidence - Where Magistrate expressly referred to appellant's evidence - Leave refused

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Leave granted in part
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms L B Black

Respondent:     Ms C J Thatcher

Solicitors:

Appellant:     Tindall Gask Bentley Lawyers

Respondent:     State Solicitor's Office

Cases referred to in judgment:

Bennett v Carruthers [2010] WASCA 131

Elwin v Robinson [2014] WASCA 46

Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434

Francis v Todd [2011] WASC 185

Hunt v Callaghan [2011] WASC 10

Johnson v Miller (1937) 59 CLR 467

Johnson v Staskos [2015] WASCA 32

Jones v The Queen (1997) 191 CLR 439

King v The Queen (1986) 161 CLR 423

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen (1994) 181 CLR 487

Maqdouf v Robinson [2010] WASC 15

Murphy v Spencer [2013] WASC 256

Re JRL; Ex parte CJL (1986) 161 CLR 342

Robinson v The Queen [2006] NSWCCA 192

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Scolaro v Shephard [No. 2] [2010] WASC 271

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Stephenson v Treser [2014] WASC 181

Strahan v Brennan [2014] WASC 190

Thakrar v Hull [2013] WASC 447

Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506

Table of Contents

1.     Overview of the evidence at the trial

Evidence as to the circumstances leading up to the assault
Evidence of the assault itself

2.     The learned Magistrate's reasons
3.     What was in dispute on the appeal, and the focus of the grounds of appeal

The grounds of appeal

The elements of the offence
The focus of the appeal

4.     Why leave to appeal on ground 4 of the grounds of appeal should be granted, but that ground of appeal should be dismissed

Did the learned Magistrate convict the appellant on a basis different from that advanced by the prosecution?
Was there any unfairness to the appellant as a result of the way the learned Magistrate determined the case?

5.     Why leave to appeal on ground 1 of the grounds of appeal should be refused

The nature of the ground of appeal
Was the learned Magistrate's finding that the charge had been proven beyond reasonable doubt against the weight of the evidence?

6.     Why leave to appeal on ground 2 of the grounds of appeal should be refused
7.     Why leave to appeal on ground 3 of the grounds of appeal should be refused

Conclusion

1. PRITCHARD J: In September 2014, the appellant was convicted, following a trial in the Magistrates Court, of a charge of unlawful assault occasioning bodily harm, contrary to s 317(1) of the Criminal Code (WA) (the Code), committed on 16 November 2013 at Halls Creek. At the time of the offence, the appellant was a police officer. He and another officer, Senior Constable Mallard, had arrested two youths and placed them in the back of a police van (the pod) to take them to the police station at Halls Creek. When they arrived at the police station, the officers parked the police van in the station yard adjacent to the rear door of the station, and opened the pod to take the youths into the station. One of the youths (the complainant) got out of the pod, at which point the appellant sought to put him in handcuffs. In doing so, the appellant threw the complainant to the ground, as a result of which he sustained a cut to his eyebrow, which constituted bodily harm. The learned Magistrate found that in throwing the complainant to the ground, the appellant applied force which was not lawful in all of the circumstances.

2. The appellant seeks to appeal against his conviction.[1]  He requires leave to do so.[2]  The application for leave to appeal was referred for hearing at the same time as the appeal itself. 

   [1] Pursuant to the Criminal Appeals Act 2004 (WA) s 7(1).

   [2] Criminal Appeals Act 2004 (WA) s 9(1).

3. At the hearing, the appellant advanced four grounds of appeal against his conviction.  For the reasons set out below, leave to appeal should be refused on grounds 1, 2 and 3 of the grounds of appeal.  Leave to appeal should be granted in respect of ground 4 of the grounds of appeal as I am satisfied that it can be said that that ground had a rational and logical prospect of succeeding, in that it was not irrational, fanciful or absurd to envisage it succeeding, and that that ground had a real prospect of success.[3]  Nevertheless, for the reasons outlined below, ground 4 of the grounds of appeal should be dismissed.

   [3] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (the Court).

4. In these reasons for decision I deal with the following matters:

   1.Overview of the evidence at the trial;

   2.The learned Magistrate's reasons;

   3.What was in dispute on the appeal, and the focus of the grounds of appeal;

   4.Why leave to appeal on ground 4 of the grounds of appeal should be granted, but that ground of appeal should be dismissed;

   5.Why leave to appeal on ground 1 of the grounds of appeal should be refused;

   6.Why leave to appeal on ground 2 of the grounds of appeal should be refused; and

   7.Why leave to appeal on ground 3 of the grounds of appeal should be refused.

1. Overview of the evidence at the trial

1. At the trial, the key evidence in relation to the circumstances leading up to the assault, and the assault itself, was given by the appellant, Senior Constable Mallard, and the complainant.  In addition, the prosecution tendered closed circuit television footage (CCTV footage) recorded by a camera positioned at the rear of the police station, and which was directed to the area where the police van was parked.  The footage recorded the assault.

2. The complainant did not recall the circumstances of the actual assault.  Accordingly, the only evidence of the circumstances of the actual assault came from the appellant, Senior Constable Mallard, and the CCTV footage.[4]

   [4] Other witnesses gave evidence in relation to the CCTV footage, to police internal processes in relation to determining when force could be used, and reporting the use of force, and to the fact that immediately after the assault, the complainant's face was bleeding, and his injury required medical attention at the hospital.  Evidence of the complainant's physical injuries was admitted without objection.  It is not necessary to refer further to this evidence for present purposes.

3. No evidence was given by the youth who was arrested at the same time as the complainant, and who was present when the assault occurred.  An application to adjourn the trial to permit him to attend was refused.[5]

Evidence as to the circumstances leading up to the assault

[5] Trial transcript ts 131-133 (12 September 2014).

1. On the evening in question, the appellant and Senior Constable Mallard were driving through Halls Creek when they saw some youths who started swearing and yelling abuse at the officers before running away.[6]  The officers gave chase and apprehended two of the youths, one of whom was the complainant and, as I have already observed, placed them in the pod of the police van to take them to the police station.  The complainant was arrested by Senior Constable Mallard, and placed into the pod without being handcuffed.  The other youth was arrested by the appellant and was handcuffed prior to being placed into the pod. 

   [6] Trial transcript ts 65 - 66 (11 September 2014).

2. Both of the youths were, to use the complainant's words, 'pretty wasted at the time',[7] having consumed a large quantity of alcohol and smoked cannabis.[8] 

   [7] Trial transcript ts 65 - 66 (11 September 2014).

   [8] Trial transcript ts 64 - 65, 76 - 77 (11 September 2014).

3. Senior Constable Mallard's evidence was that as the appellant went to shut the door of the pod, the complainant 'began to shout abuse and kick the door'[9] and threatened to kill the appellant.[10]  During the drive back to the police station, the officers heard banging coming from the back of the pod.[11]  The complainant recalled that while in the pod, the he was 'kicking at the door' of the pod.[12]

   [9] Trial transcript ts 98 (12 September 2014).

   [10] Trial transcript ts 109 (12 September 2014).

   [11] Trial transcript ts 109 (12 September 2014).

   [12] Trial transcript ts 68 (11 September 2014).

4. The appellant's evidence was that when he went to close the pod door after apprehending the youths, it was kicked from inside, and he saw the complainant with his foot on the door.[13]   He said that he heard the door being kicked, and the complainant swearing and yelling abuse from inside the pod.[14]

Evidence of the assault itself

[13] Trial transcript ts 139 - 140 (12 September 2014).

[14] Trial transcript ts 140 (12 September 2014).

1. Senior Constable Mallard's evidence was that after he and the appellant opened the pod door, the complainant got out, took a step or two,[15] 'stopped next to the pod door'[16] and refused to follow Senior Constable Mallard to the door of the police station.[17]  Senior Constable Mallard agreed that as the police yard was open, and the complainant was not handcuffed, he was potentially a flight risk at that point.[18]  

   [15] Trial transcript ts 111 (12 September 2014).

   [16] Trial transcript ts 100 (12 September 2014).

   [17] Trial transcript ts 100 (12 September 2014).

   [18] Trial transcript ts 111 (12 September 2014).

2. Senior Constable Mallard said that when the appellant tried to escort the complainant to the station by grabbing his arm, the complainant swore at him and told him not to touch him.  His evidence was that the complainant stayed put, with his arm firmly on the pod door, when the appellant tried to guide him to the door of the police station.[19]  He saw the appellant attempt to place the complainant's hand behind his back to handcuff him, and said that the complainant resisted and tried to make it difficult for the appellant to do so.[20]

   [19] Trial transcript ts 113 (12 September 2014).

   [20] Trial transcript ts 117 - 118 (12 September 2014).

3. Senior Constable Mallard's evidence as to what occurred next was as follows:

   And then, without notice, [the appellant] forced him to ‑ forced [the complainant] to the ground.  In between he grabbed him and pulled him backwards towards the charge room door, and between myself and [the appellant] … [he did so] by grabbing his body and swinging him to the left.[21]

   [21] Trial transcript ts 100 (12 September 2014).

4. Senior Constable Mallard said that when he said that the appellant took the complainant to the ground 'without notice' he meant that he didn't know that the appellant was going to take the complainant to the ground.[22]  He said that he did not actually see the complainant fall to the ground, as it 'all happened so quickly'.[23] 

   [22] Trial transcript ts 118 (12 September 2014).

   [23] Trial transcript ts 119 (12 September 2014).

5. Senior Constable Mallard said that after the complainant was taken to the ground, he was positioned face down, and his behaviour continued to involve 'shouting and aggression'.[24]

   [24] Trial transcript ts 101 (12 September 2014).

6. The appellant's evidence was that when he and Senior Constable Mallard arrived at the police station and opened the pod door, the complainant got out of the pod, took a step or two, and that he stopped the complainant from proceeding by putting his hand up, before proceeding to turn him around to face the pod.[25]  The appellant said that he did this by putting his right hand on the complainant's shoulder, turning him around to face the pod, and then grabbing the complainant's left wrist with his left hand, in order to handcuff his hands behind his back.[26]  The appellant's evidence was that as soon as he took the complainant's wrist, he felt the complainant tense his left arm as if resisting his grip, and that the complainant pulled his wrist away from the direction of his lower back.[27]  The appellant said that the complainant then 'raised his right arm slightly'[28] and then 'raised his elbow towards head height into what I thought was going to be an elbow strike … to me'.[29]  The appellant's evidence was that 'I thought he was going to strike me'[30]and that 'there was to me the immediate threat that his elbow could strike my face or my head'.[31]  The appellant's evidence was that 'the situation escalated to me having to take him to the ground to apply handcuffs to ensure that there was no further threat'.[32]

   [25] Trial transcript ts 144 (12 September 2014).

   [26] Trial transcript ts 144 - 145 (12 September 2014).

   [27] Trial transcript ts 145 (12 September 2014).

   [28] Trial transcript ts 145 (12 September 2014).

   [29] Trial transcript ts 146 (12 September 2014).

   [30] Trial transcript ts 155 (12 September 2014).

   [31] Trial transcript ts 155 (12 September 2014).

   [32] Trial transcript ts 155 (12 September 2014).

7. The appellant said that he (the appellant) then started to turn away from the pod door as 'I had lost what I felt was control of him and I wasn't going to be able to apply handcuffs standing up so I was taking him to the ground to apply handcuffs'.[33]  He said that his purpose in turning 'was to catch [the complainant] off balance or off guard'[34] and that he did so 'just by making it a quick and sudden movement and to pull him in the direction away from himself, or away from the way we were facing'.[35]  The appellant described how he 'started to turn in a circle and I took [the complainant] with me and he began falling to the ground'.[36]  The appellant said that at that point he (the appellant) lost his grip of his right hand on the complainant's shoulder and that the complainant 'fell, unassisted'.[37] 

   [33] Trial transcript ts 146 (12 September 2014).

   [34] Trial transcript ts 146 (12 September 2014).

   [35] Trial transcript ts 146 (12 September 2014).

   [36] Trial transcript ts 146 (12 September 2014).

   [37] Trial transcript ts 146 (12 September 2014).

8. The appellant initially claimed that his purpose in having a grip on the complainant with both hands was to 'ensure that he had further support to get to the ground uninjured'.[38]  However, in cross‑examination, he accepted that while his recollection was that his right arm was on the complainant's right shoulder, in fact the CCTV footage showed that both of his hands were around the complainant's left arm.[39]  The appellant accepted that he was mistaken in his recollection that his hand slipped off the complainant's shoulder.[40] 

   [38] Trial transcript ts 148 (12 September 2014).

   [39] Trial transcript ts 153 (12 September 2014).

   [40] Trial transcript ts 153 (12 September 2014).

9. Notwithstanding that Senior Constable Mallard was standing right next to him, the appellant's evidence was that he believed that he needed to take the complainant to the ground at that point because:

   [the complainant's] left hand was resisting my initial grip.  I believed his aggressiveness was escalating again, and, given his prior kicking of the door and aggressive nature, I believe that it was potentially getting to that stage again.  So that was my risk assessment.[41]

   [41] Trial transcript ts 154 (12 September 2014).

10. The appellant described how the complainant then fell 'on the ground face first'.  He then held the complainant on the ground and put handcuffs on him.[42]

    [42] Trial transcript ts 146 (12 September 2014).

11. The appellant agreed that his own build was 'solid'[43] and that the complainant was of 'slim build',[44] and much smaller than he was.[45]  (The complainant had described himself as 'pretty small, skinny at the time.'[46]) 

    [43] Trial transcript ts 152 (12 September 2014).

    [44] Trial transcript ts 155 (12 September 2014).

    [45] Trial transcript ts 152 (12 September 2014).

    [46] Trial transcript ts 75 (11 September 2014).

12. The CCTV footage which was tendered in evidence captured what occurred after the police van pulled up in the police yard.  Although the camera was positioned some distance away, the recording was not in real time, the picture quality was a little grainy, and the fixed camera angle and the fact that the parties were moving meant that it was not possible to see their every movement without obstruction, the CCTV footage nevertheless captured the incident with considerable clarity. 

1. The learned Magistrate's reasons

1. At the conclusion of the two day trial, the learned Magistrate delivered his reasons for decision ex tempore.[47]  It is fair to say, with respect, that the reasons contained some infelicities in expression, and at various points the learned Magistrate digressed from his discussion of the evidence to make observations about other matters.  It is, however, apparent that those observations were just that ‑ digressions ‑ and were not relied upon by the learned Magistrate as the basis for any of his factual findings.  The key aspects of his Honour's reasons, shorn of those digressions, are set out below.

   [47] There were two copies of his Honour's reasons for decision before the Court.  In the first (Reasons for Decision), which appeared at the end of the trial transcript, some of the text was missing.  The transcript of those reasons was then reissued, together with transcript of part of the second day of the trial, but the pagination was not consecutive from the earlier transcript (the Reissued Reasons for Decision).  In addition, further editing and grammatical amendments appear to have been made in that copy.  These reasons contain footnote references to both versions, but quotations from the learned Magistrate's reasons for decision are drawn from the Reissued Reasons for Decision.

2. After reminding himself of the burden of proof and the criminal standard of proof, the learned Magistrate described the evidence adduced in the trial:

   We've heard a number of witnesses, some of whom have given evidence directly relating to the facts, what they saw, some not quite so directly relevant, some not quite so accurate.  That's understandable, going from memories some time ago …

   And then we have the closed-circuit television … which I've had the opportunity to review a number of times …

   It does give a lot of information.  It accept it's not real time, but it's not far off it.  I accept there's no sound … [48]

   [48] Reissued Reasons for Decision ts 25; Reasons for Decision ts 176 - 177.

1. The learned Magistrate then turned to the background to the alleged unlawful assault (which had been described by the appellant and Senior Constable Mallard in their evidence, in consistent terms), and made the following findings:

   [W]hat is quite clear from all the evidence is that those two young men, young juveniles … they ran.  The police saw them.  They wanted to speak to them … Senior Constable Mallard spoke with [the complainant].  He made the assessment at the time that [the complainant] was compliant, put him in the back of the van.  He got in the back of the van.  He was compliant.  He didn't feel the need to cuff him …

   ... I'm satisfied beyond a reasonable doubt that the evidence that [the complainant] started misbehaving when [the other youth] was put in the van is correct.  He kicked the door.  I've no doubt at all it banged into the hand of [the appellant], which caused him problems, and there was some abuse and threats ‑ empty threats, but threats nevertheless ‑ coming from the mouth of [the complainant] … [49]

   [49] Reissued Reasons for Decision ts 26 - 27; Reasons for Decision ts 177 - 178.

2. Next, the learned Magistrate turned to the evidence as to what happened once the police van arrived at the police station:

   The police station ‑ it's not a true sally port at the back.  They've simply reversed the vehicle up to the ‑ as close to the door as they could to get the young men out.

   Now, as I say, that's the CCTV does come in there.  It is to me immediately apparent and obviously apparent to everybody, not to me, everybody, that [the complainant] was ‑ he just came out of the van ‑ and that's the evidence of everybody, essentially, although, of course, again, I have no doubt that Senior Constable Mallard is an honest man, but he accepts that he got it wrong when he looked at the CCTV footage.  He thought the ‑ [complainant] walked over to the ‑  near the charge room door and then came back.

   But he actually just took about a step and they turned him back to put him near the back of the van.  They guided him, essentially, and he stood there.  I've no doubt that [the complainant] would have been carrying on, swearing and carrying on, at that point of time, because he had started doing that in the van, and, as I say, combined effects of alcohol and cannabis no doubt were contributing to that, and the fact that he no doubt felt he had done nothing wrong.[50]

   [50] Reissued Reasons for Decision ts 27; Reasons for Decision ts 178 - 179.

3. The learned Magistrate then set out the facts relevant to his finding that the appellant's decision to put handcuffs on the complainant was lawful:

   And [the complainant] was then attempted to be put in custody by ‑ sorry ‑ in cuffs ‑ they were in custody already ‑ by [the appellant] ... In my view, he was within his rights and within bounds to want to put [the complainant] in custody.  He had himself been ‑ I won't say 'injured', but he had been struck, accidentally or otherwise, by the door, been kicked at by [the complainant].  [The complainant] was fractious and, as has been pointed out, there was not a true sally port.  The situation was that the yard was open … So ‑ but he was within his rights to cuff [the complainant] under the fractious conditions that [the complainant] was acting and that's, in my view, and on all the evidence, what he was trying to do.[51]

   [51] Reissued Reasons for Decision ts 27 - 28; Reasons for Decision ts 179.

4. The learned Magistrate then turned to remind himself of the elements of the offence, and to make findings in respect of all of the elements of the offence, save for the question of the unlawfulness of the assault:

   So [the appellant] clearly took hold of ‑ all the elements of the offence are made out simply, except for the usual one that's the problem:  the unlawfulness.  An assault is unlawful unless authorised, justified or excused by law.  Now, [the appellant] did sling ‑ and I will use the word 'sling', and I will come to that shortly ‑ [the complainant] to the ground.  I have no doubt at all, let alone a reasonable doubt, at that stage that certainly the injury to his eyebrow which required stitches occurred … Bodily harm was caused by the injury to the eyebrow … 

   So [the appellant] received bodily harm and it was an assault by [the appellant], because he applied force to [the complainant] and threw him to the ground.[52]

   [52] Reissued Reasons for Decision ts 28; Reasons for Decision ts 179.

5. The learned Magistrate then turned to consider what the prosecution had to prove (in relation to the unlawfulness of the assault) and whether the prosecution had proved that the assault was unlawful beyond reasonable doubt.  Before doing so, however, the learned Magistrate was at pains to point out that the decision to put handcuffs on the complainant, and to put the complainant on the ground to do so, was lawful in the circumstances:

   [A]nd an assault is unlawful unless authorised, justified or excused by law.  The unlawfulness is an element of the offence that the prosecution have to prove beyond a reasonable doubt … It's for the prosecution to negative any defence beyond a reasonable doubt; not for the defence to raise and establish any defence.

   … As I say … handcuffing him ‑ and that includes handcuffing from behind ‑ was acceptable conduct and a reasonable thing to do, in my view, on the evidence that I've heard as to the behaviour of [the complainant].  … It's the effecting that that's the issue.

   Both the Criminal Code … [and] the Criminal Investigation Act … really require force being used [to be] reasonable in the circumstances, such as necessary to overcome any resistance. You can't do anything you want to overcome resistance, and the court, in the circumstances where a charge is laid, has to [look] at the circumstances as they occurred and determine whether or not it was reasonable, or I should say, whether the prosecution have proved beyond a reasonable doubt the force used and the actions of [the appellant] were not [a] reasonable use of force.

   We have, as I say, varying versions of the evidence.  [The complainant] for whatever reason, can't give us any evidence concerning the incident. …

   [H]e was angry and cranky … but clearly he was acting badly when ‑ at the point when [the other youth] was put in the pod with him, or kicking out the door and swearing, and I accept that he was still screaming abuse at the police when they were trying to cuff him.

   … [Senior Constable Mallard] gives us evidence of the way he saw it.  In a nutshell, he was trying to cuff the [complainant].  He wasn't able to do so.  And he also said the arm was raised up, the elbow was raised up and he felt he might be struck.  Senior Constable Mallard says he didn't see the throw to the ground …

   And looking at the CCTV, clearly he wasn't watching …

   … I don't know how many bits of video footage I've watched over the years … of police trying to pin people to the ground and put handcuffs on very fractious people … I'm just saying it's a common practice to try and get a person to the ground, and it's often on hard surfaces, to try and hand cuff them behind, because that's the most comprehensive way of cuffing a person and taking their hands out of commission, so to speak, as a potential causer of trouble.

   So, certainly, the idea of [the appellant] of taking [the complainant] to the ground is not exceptionable, in my view.  He was resisting and ‑ he, being [the complainant], was resisting and [the appellant] was entitled to use reasonable force to overcome that resistance and that would include taking him to the ground on the facts as they presented that night …

   But on those facts that were presented, taking him to the ground and handcuffing him behind at the time, because he was the one being difficult, fractious and recalcitrant, was a reasonable thing to do to ensure that he was taken into the police station.[53] 

   [53] Reissued Reasons for Decision ts 28 - 30; Reasons for Decision ts 179 - 182.

6. The learned Magistrate then turned to consider whether the manner in which the appellant got the complainant to the ground, in order to put handcuffs on him, involved the use of force which was excessive, and thus unlawful.  He began by making factual findings about the circumstances that presented themselves at the point in time when the appellant determined that he should get the complainant onto the ground to put handcuffs on him:

   Then it's how you go about that.  The … circumstances need to be looked at … He was resisting and resistance had to be overcome.

   ...

   He has got Mallard alongside him who was effectively doing ‑ with no disrespect ‑ nothing at that time.  He was talking to the young man in the back of the pod … But he had ‑ so he had Mallard to call on ‑ he, being [the appellant] ‑ he had police officers inside the station to call on.  It was still valid to take him to the ground.  I'm given various versions of what actually happened there but the way I see it …

   In my view, it's quite clear from the CCTV footage that, and I find as follows, proven beyond reasonable doubt that this occurred.  [The complainant] got out of the van, took a step forward, was stopped by the officers, told to turn around and face inside the pod.  The pod door to be used … was on the right-hand side of the van …

   There's no doubt that [the appellant] tried to take his left wrist to put a cuff on it to cuff it.  He couldn't get him to comply.  There's no doubt that [the complainant] resisted.  At one stage he struggles with his arm, as I say.  I find it … highly improbable that he was throwing his elbow back to try and assault.  I don't accept the prosecution submission he wouldn't have been able to elbow him from where he was.  He could have, but that doesn't seem the indication.

   It was more a general lack of cooperation; a resistance to being cuffed.  [The complainant] then, to me it's quite obvious, put the hand on the [door] frame and held on to stop, presumably, his right arm being moved to get ‑ there's no doubt [the complainant] knew what … [the appellant] was trying to do.  He was the one trying to cuff him …[54]

   [54] Reissued Reasons for Decision ts 30 -31; Reasons for Decision ts 182 - 183.

7. The learned Magistrate then made specific findings as to precisely how the appellant got the complainant onto the ground, to put handcuffs on him (in the course of which the assault which occasioned the bodily harm actually occurred):

   Now, were the hands that was on the shoulder slipped off it (sic)?  That's not clear from the vision, but what is clear is that [the appellant] took both put both his hands around the arm area, elbow area, of [the complainant's] left arm and took a step back to get a pivot and swung him ‑ swung and slung downwards ‑ directly downwards.

   Not across or along.  He didn't try and leg sweep him to take him to the ground.  He literally planted him forwards down into the ground.  He created a face plant for [the complainant] as far as I'm concerned.  The actions are so ‑ this downward motion from a slinging situation ... I realise you can only draw an inference adverse to [the appellant], as it's the only one reasonably open on the evidence, but to me it's patently obvious that the slinging was not across.

   It was straight down with the intention of making [the appellant] hit the ground very hard.  And, in my view, it went well past the desired, or stated desire, of putting him to the ground.  He didn't put him to the ground.  He planted him ‑ tried to plant him into it.  And, of course, we're talking about bitumen.[55] 

   [55] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

8. When the learned Magistrate's reasons are properly understood, his next observations marked the commencement of his consideration of whether the assault involved an unwilled act, and of the other defences which might have been open on the evidence:

   It was an excessive use of force and, in my view, I draw the irresistible inference that he intended to plant him in that way ‑ to put him down that hard and in that manner.

   And it's not an act independent of the exercise of his will at all.  In fact, it was deliberate.  And so he has acted in excessive force.  He was not acting in self‑defence.  The prosecution negative that beyond a reasonable doubt.  … [A]t the time that this swinging action was done, the stage had been reached where he was simply resisting and was not slinging his elbows around or anything like that.

   He had been twisting around earlier than that, but then the decision was made unilaterally by [the appellant], without any reference to Mallard, to just thump him to the ground.

   … Provocation doesn't apply.  He didn't act on the sudden before there was time for passions to cool.

   And as for section 247, it's not in that ‑ within the purview of that section. The prosecution have proven beyond a reasonable doubt it's not in that section, because it's not in the situation reasonably necessary to prevent the repetition of an act or insult of such a nature as to be provocation from assault. I have no doubt it was the intention of inflicting some pain on [the complainant]. It was excessive force. The prosecution have proven the case beyond a reasonable doubt.[56]

   [56] Reissued Reasons for Decision ts 32 - 33; Reasons for Decision ts 183 - 184.

9. Accordingly, the learned Magistrate found that the appellant was guilty of assault occasioning bodily harm.

1. What was in dispute on the appeal, and the focus of the grounds of appeal

The grounds of appeal

1. The Further Amended Notice of Appeal dated 4 February 2015 contained three grounds of appeal.  In addition, at the hearing, I granted leave to the appellant to amend the Notice of Appeal to add a fourth ground of appeal.  The grounds of appeal are discussed below.

2. In her oral submissions, counsel for the appellant focused on the complaints which were at the heart of grounds 1 and 4 of the grounds of appeal.  Although pursued as separate grounds, she noted that there was clearly an interrelationship between these two grounds.[57]

   [57] Appeal transcript ts 39.

3. Although she did not abandon grounds 2 and 3 of the grounds of appeal, she did concede that they were weak, and unlikely to succeed on their own.[58]

The elements of the offence

[58] Appeal transcript ts 5, 43.

1. Under s 317(1) of the Code, a person who unlawfully assaults another person and thereby does that person bodily harm is guilty of a crime. Section 223 of the Code provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

2. There is no challenge in this case to the learned Magistrate's finding that all elements of the offence, apart from the unlawfulness of the assault, were made out.  Counsel for the appellant made clear that the learned Magistrate's conclusions in respect of the 'defences' which the learned Magistrate considered (namely self‑defence,[59] provocation,[60] accident or an unwilled act[61] and the use of force to prevent repetition of an insult[62]) were not challenged in the appeal.[63]

   [59] Criminal Code (WA) s 248.

   [60] Criminal Code (WA) s 246.

   [61] Criminal Code (WA) s 23A and s 23B.

   [62] Criminal Code (WA) s 247.

   [63] Appeal transcript ts 30.

3. The learned Magistrate found that the appellant decided that in order to finalise the arrest, he should handcuff the complainant.[64]  For that reason, the learned Magistrate took the view that when the complainant resisted being handcuffed, he was resisting arrest.  Counsel for the respondent did not cavil with that characterisation.[65] (I note that the assault of the complainant actually occurred some time after the arrest had been effected,[66] and while the complainant was in the custody of the police officers following his arrest. An alternative characterisation may be that the assault occurred while the appellant was exercising the power to detain in custody a person who has been placed under arrest. However, that matter was not the subject of submissions and, for present purposes, it is not necessary to decide whether the appellant was exercising a power to arrest or a power to detain the complainant in custody following his arrest.)

   [64] Reissued Reasons for Decision ts 28; Reasons for Decision ts 179.

   [65] Respondent's Submissions [16].

   [66] See Johnson v Staskos [2015] WASCA 32 [97] (Mazza JA, McLure P & Buss JA agreeing) for a discussion of what is required at common law to effect an arrest.

4. The power to arrest,[67] and the power to detain a person following their arrest,[68] are powers which are now contained in the Criminal Investigation Act 2006 (WA) or are powers which are subject to that Act.[69]  Whether the appellant was continuing to act in the exercise of his power to arrest, or was exercising his power to detain the complainant following his arrest, the appellant was entitled to use 'any force … that it [was] reasonably necessary to use in the circumstances' in order 'to overcome any resistance to exercising the power that [was] offered [by the complainant]'.[70]  Any such use of force is subject to the provisions of Chapter XXVI of the Code (which includes s 223).[71]  Similarly, if the appellant was acting in the exercise of his power to make an arrest, then the Code also provided that he was entitled to use 'such force as may be reasonably necessary to overcome any force used in resisting' the arrest.[72]  In any case in which the use of force by one person against another is lawful, the use of more force than is justified by law under the circumstances is unlawful.[73]

   [67] Criminal Investigation Act 2006 (WA) s 128.

   [68] Criminal Investigation Act 2006 (WA) s 139.

   [69] Section 7 of the Criminal Investigation Act 2006 (WA) provides that where the Act confers on a police officer a power that the officer also has under the common law (such as the power to arrest) as reflected in s 7(1) of that Act, the power must be exercised in accordance with that Act.

   [70] Criminal Investigation Act 2006 (WA) s 16(1)(b).

   [71] Criminal Investigation Act 2006 (WA) s 16(3).

   [72] Criminal Code s 231(1).

   [73] Criminal Code s 260.

5. Accordingly, in order to prove beyond reasonable doubt that when he threw the complainant to the ground the appellant committed an unlawful assault, the prosecution had to prove that the force used by the appellant was more than what was reasonably necessary to overcome any resistance offered by the complainant either to his arrest or to his detention in custody following his arrest. 

The focus of the appeal

1. The focus of the appeal was summarised in the following submission by counsel for the appellant:

   [T]he prosecution case was premised on a foundation that the appellant had no right to take [the complainant] to the ground, and to do so in those circumstances was excessive.  The learned Magistrate found that the appellant did have the right to take the … complainant to the ground, that he was doing so so as to handcuff him, given his inability to handcuff [the complainant] while standing, but found that he did so excessively in circumstances where he was intending to cause him pain.  And what we say is, that is a finding, and a basis for a finding, that was contrary to the prosecution case and not open on the evidence.

   …

   The case started … [with] a focus on whether the appellant could take [the complainant] to the ground and it ended with a focus on what was in his mind and how that was reflected in the way in which he took [the complainant] to the ground.[74]

   [74] Appeal transcript ts 5 - 6.

2. In other words, the focus of the appeal was whether the appellant's conviction (and in particular, the learned Magistrate's finding that the assault was unlawful) was unfair to the appellant, having regard to the way that the prosecution case was advanced, and whether the conclusion that the assault was unlawful was supported by the evidence.

3. It is convenient to commence by considering ground 4 of the grounds of appeal.

1. Why leave to appeal on ground 4 of the grounds of appeal should be granted, but that ground of appeal should be dismissed

1. Ground 4 of the grounds of appeal was in the following terms:

   The learned Magistrate erred in convicting the appellant on a factual basis not relied upon by the prosecution.

2. Although ground 4 was not framed so as to contend that the conviction constituted 'a miscarriage of justice',[75] I have treated it as effectively contending that there was a miscarriage of justice because the learned Magistrate found the appellant guilty on a basis not advanced by the prosecution.  (Counsel for the appellant acknowledged that ground 4, together with ground 1, amounted to an overall contention that the conviction was unsafe and unsatisfactory.[76]) 

   [75] Criminal Appeals Act 2004 (WA) s 8(1)(b).

   [76] Appeal transcript ts 39.

3. In her written submissions, counsel for the appellant submitted that the prosecution opened its case on three inter‑related bases, namely that the complainant was not offering resistance, that the appellant had no right at law to take the complainant to the ground, and that when the appellant did so, he used excessive force.[77]  She submitted that the learned Magistrate instead found that the appellant was entitled to take the complainant to the ground in order to put handcuffs on him, but that in doing so he intended to cause pain to the complainant.[78] 

   [77] Appellant's Submissions [94].

   [78] Appellant's Submissions [95].

4. That argument was refined somewhat in the course of oral submissions.  Counsel for the appellant submitted that the prosecution case was that the complainant was offering little or no resistance, with the logical consequence that the amount of force which could be used to overcome that resistance was 'next to none'[79] and that that appeared to be the foundation for the cross‑examination of the appellant.[80]  However, she submitted that the learned Magistrate found that the complainant was offering resistance, in that he was trying to pull his hand away while the appellant was trying to handcuff him.[81] 

   [79] Appeal transcript ts 32.

   [80] Appeal transcript ts 32.

   [81] Appeal transcript ts 8.

5. In addition, counsel for the appellant submitted that the learned Magistrate made a finding 'that [the appellant] intended to put [the complainant] to the ground in the way that he did so as to cause him pain or injury',[82] but that it was never part of the prosecution case that the appellant threw the victim to the ground so as to cause him pain[83] and that it had never been put to the appellant that that was what he intended when he threw the complainant to the ground.[84]

   [82] Appeal transcript ts 11.

   [83] Appeal transcript ts 12.

   [84] Appeal transcript ts 7 - 8.

6. Counsel for the appellant also submitted that having accepted that the appellant was trying to handcuff the complainant, the learned Magistrate found that because the appellant was unable to put the handcuffs on, and because of the complainant's behaviour, the appellant had no option but to take the complainant to the ground so as to handcuff him.[85]  She submitted that it was 'difficult to see, in light of those findings, how it was that the magistrate was then able to jump from that to say "I find that he put him to the ground in the way that he did because he intended to cause him some pain".'[86]

   [85] Appeal transcript ts 8.

   [86] Appeal transcript ts 8.

7. The upshot of these submissions was that the appellant claimed that he did not know the case that he had to meet.[87]

   [87] Appeal transcript ts 12 - 13.

8. While I am satisfied that leave to appeal should be granted on ground 4 (as noted above at [3]), I am nevertheless of the view that ground 4 must be dismissed, for two reasons.  First, I do not accept that the learned Magistrate in fact convicted the appellant on a basis not advanced by the prosecution.  Secondly, even if the learned Magistrate did convict the appellant on a basis which was not precisely the same as that advanced by the prosecution, I am not persuaded that by doing so, there was any unfairness to the appellant, so that it can be said that the conviction constituted a miscarriage of justice.  My reasons for these conclusions are explained below.

Did the learned Magistrate convict the appellant on a basis different from that advanced by the prosecution?

1. In her opening, after recounting the facts alleged by the prosecution, the prosecutor formulated the case against the appellant in the following way:

   And it's in the moments after [the complainant] had exited the pod that the assault occurred …When the pod door was opened the victim, [the complainant], took a couple of steps outside the pod.  At that point he was turned back around by the officers and guided back towards the pod door.  Now, during the next 10 seconds he was stood facing into the open pod and it's after that period of about 10 seconds that [the appellant] is seen to take the victim to the ground with what can only be described as a throwing or a slinging motion. 

   And that's the application of force, the subject of the charge.  The victim landed on his face.  The prosecution case is that there was little or virtually no resistance offered by the boy which would have warranted him being thrown to the ground.  And the prosecution case is that in all the circumstances, the force used was not reasonably necessary.  It was excessive and was therefore unlawful. Some of those circumstances were that … [the complainant] … was significantly intoxicated at the time. 

   He was a skinny 16 year old, much smaller than [the appellant], and in the prosecution case did not pose such risk or resistance that couldn't have otherwise been overcome.[88]  (emphasis added)

   [88] Trial transcript ts 14 - 15 (11 September 2014).

2. Contrary to the initial submission of counsel for the appellant, it was not alleged that the complainant offered no resistance at all.  But nor was the prosecution case that the appellant offered 'little or virtually no resistance'.  The prosecution case was that the complainant offered little or no resistance which would have warranted him being thrown to the ground.  In other words, the prosecution case, from the outset, was very clearly that the degree of force used was excessive, having regard to the kind of resistance which was offered by the complainant, and having regard to all of the circumstances to which the prosecutor referred.

3. The learned Magistrate's findings in relation to the kind of resistance offered by the complainant were entirely consistent with the prosecution case.  As I have noted above at [31] the learned Magistrate rejected the appellant's evidence that the complainant was trying to elbow the appellant.  Instead, he found that the resistance was 'more a general lack of co-operation; a resistance to being cuffed.'[89]  It is clear that the learned Magistrate was of the view that applying handcuffs to the complainant, and placing him on the ground to do so, was a reasonably necessary response to overcome that kind of resistance, but throwing him to the ground in a slinging motion was not.

   [89] Reissued Reasons for Decision ts 31; Reasons for Decision ts 182.

4. I turn next to the submission by counsel for the appellant that the learned Magistrate made a finding that when the appellant threw the complainant to the ground he intended to inflict pain on the complainant, and that that was not part of the prosecution case.  This was a submission which placed much emphasis on the turn of phrase used by the learned Magistrate.  In my respectful view, it was a submission which did not give due regard to the fact that this was an ex tempore decision which was delivered immediately following a two day trial.  Furthermore, the submission in my view did not pay due regard to the context in which the learned Magistrate's observation was made.

5. Many cases have confirmed 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.  Consequently, 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.[90]  The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached.[91] The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made,[92] and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).[93]

   [90] See, eg, Strahan v Brennan [2014] WASC 190 [90] (Martin CJ).

   [91] Tran v Claydon [2003] WASCA 318; (2003) 40 MVR 506 [36] - [37] (McLure J, Steytler P & Johnson J agreeing)

   [92] Bennett v Carruthers [2010] WASCA 131 [27] (Mazza JA, McLure P & Newnes JA agreeing).

   [93] Francis v Todd [2011] WASC 185 [18] (Edelman J); Strahan v Brennan [2014] WASC 190 [92] (Martin CJ).

6. The learned Magistrate referred to the appellant's 'intention' on several occasions during the course of his reasons.  His first reference to the appellant's intention occurred in the context of his discussion of the manner in which the appellant pulled the complainant down to the ground.  The learned Magistrate concluded that the appellant's intention 'was to make the complainant hit the ground very hard', and 'went well past the desired, or stated desire, of putting him to the ground'.[94]  That was a finding which reflected the learned Magistrate's rejection of the appellant's evidence that he had merely been endeavouring to get the complainant onto the ground 'uninjured' so as to put handcuffs on him.[95]  And that finding was a finding as to one of a number of circumstances (including the downward 'face plant' the appellant used, and the fact that the complainant was thrown onto a bitumen surface) upon which the learned Magistrate relied for his ultimate conclusion that the force used was excessive. 

   [94] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [95] Trial transcript ts 148 (12 September 2014).

7. The learned Magistrate referred to the intention of the appellant on two further occasions (see above at [33]).  The last of these was his reference to the appellant's intention of 'inflicting some pain' on the complainant.  When each of these references is considered within its context, it is clear that the learned Magistrate was considering whether the prosecution had negatived any defences which may have been open on the evidence.  In this context, in referring to the appellant's intention, the learned Magistrate was simply seeking to express his conclusion that the prosecution had proved beyond reasonable doubt that the appellant's action in throwing the complainant to the ground was deliberate, was not an act independent of the appellant's will, and was not self-defence, or a response to provocation or to prevent the repetition of an act or insult.  The learned Magistrate's reference to the appellant's intention should thus properly be seen as conveying his finding that the appellant's conduct was deliberate, rather than independent of his will, contrary to what the appellant initially suggested in his evidence (see [18] ‑ [19] above).  In other words, in my respectful view, the learned Magistrate's reference to the appellant's intention of 'inflicting some pain' on the complainant is properly viewed as an imprecise choice of words, made in passing in the context of a lengthy ex tempore decision, and which was merely intended to convey a meaning synonymous with a deliberate use of excessive force by the appellant, rather than a finding as to a particular mental state on the part of the appellant at the time of the assault.

8. That the learned Magistrate was not intending to make a finding of that kind also follows from the fact that it was no part of the elements of the offence that the prosecution establish that the appellant had an intention to 'inflict pain' on the complainant.  While excessive force may cause pain to the person at whom it is directed, it is not necessary that the force used have that outcome, or that the appellant intend to produce that outcome, in order for the force used to be characterised as excessive. 

Was there any unfairness to the appellant as a result of the way the learned Magistrate determined the case?

1. However, even if the learned Magistrate's reference to the appellant's intention to 'inflict pain' on the complainant is viewed as a finding as to a specific intention on the part of the appellant, which was not part of the prosecution case, I am not persuaded that the making of that finding occasioned any unfairness to the appellant.

2. A fundamental aspect of a fair trial is that an accused person is entitled to know, not only the legal nature of the offence with which he or she is charged, but also the particular act, matter or thing alleged as the foundation of the charge.[96]  However, the accused is not entitled to particulars which descend into the facts in minute detail, or which would prevent the prosecution from seeking to prove a charge on the basis of alternative factual scenarios (provided those factual scenarios are not fundamentally inconsistent).[97]  And a prosecution will not inevitably fail if the prosecutor fails to prove all particulars that have been provided.[98] 

   [96] Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J); see also s 131(3) of the Criminal Procedure Act 2004 (WA) which permits a court to order that a prosecutor give further particulars of a charge to an accused.

   [97] Scolaro v Shephard[No. 2] [2010] WASC 271 [64] (Martin CJ).

   [98] Fermanis v The State of Western Australia [2007] WASCA 84; (2007) 33 WAR 434 [38] (Steytler P).

3. Because of the importance to a fair trial of ensuring that the accused knows the case advanced by the prosecution, the prosecution will ordinarily be bound by the way it formulates its case.  If the prosecution departs from the case it has formulated in opening, or if a trial judge instructs a jury on a basis for conviction which was not relied upon by the prosecution, that course may give rise to prejudice to the accused, and in the event of a conviction, the question will be whether any such prejudice meant that the accused did not receive a fair trial.  (The prejudice to an accused in such a case may arise as a result of tactical disadvantages, for example decisions made concerning the way the defence case was run in response to the prosecution case - in the objections taken to evidence, in the lines of cross‑examination pursued, in the evidence adduced and so on ‑ or from the fact that an accused did not have the opportunity to address the jury on the case actually advanced.[99])  Similarly, if a magistrate convicts an accused on a basis different from that put by the prosecution, the essential question in determining whether the conviction should be quashed on the basis of a miscarriage of justice will be one of fairness to the accused.[100]

   [99] Robinson v The Queen [2006] NSWCCA 192 [137] - [149] (Johnson J, Spigelman CJ & Simpson J agreeing).

   [100] Scolaro v Shephard [No. 2] [2010] WASC 271 [65] (Martin CJ); King v The Queen (1986) 161 CLR 423, 435 - 436 (Dawson J, Gibbs CJ, Brennan J & Wilson J agreeing), and see also at 429 - 430 (Deane J, Murphy J agreeing); Robinson v The Queen [2006] NSWCA 192 [137] - [149] (Johnson J, Spigelman CJ & Simpson J agreeing).

4. In my view, the learned Magistrate's 'finding' that the appellant intended to inflict pain on the complainant, when this was not part of the prosecution case, did not produce any unfairness to the appellant, for five reasons.

5. First, that 'finding' does not permit an inference that the learned Magistrate misdirected himself as to the elements of the offence.  There is nothing in the learned Magistrate's reasons to suggest that he misunderstood the elements of the offence under s 317 of the Code or that he misunderstood the requirement for the prosecution to prove that the assault was unlawful.  Counsel for the appellant submitted that it was impossible to know whether the learned Magistrate would have concluded that, irrespective of the appellant's intention, he took the complainant to the ground in a manner which constituted excessive force, and was therefore unlawful.[101]  She submitted it was not possible to conclude that the learned Magistrate would have found that the appellant flung the complainant to the ground in a manner that was too rough, because it was impossible to discern from his reasons whether he would have made such a finding 'without the addition of the intention element'.[102]  For the reasons outlined above at [60], I do not accept that submission. 

   [101] Appeal transcript ts 17 - 18.

   [102] Appeal transcript ts 18.

6. Secondly, I do not accept the submission of counsel for the appellant[103] that faced with the possibility of a finding that he intended to cause pain to the complainant, the appellant would have run his case differently.  Counsel for the appellant submitted that the appellant may have given evidence about his subjective intention.[104]  However, the appellant gave evidence as to what he was intending to do when he threw the complainant to the ground.  Initially, the appellant's evidence was that he had had a grip on the complainant with both hands 'to ensure that he had further support to get to the ground uninjured'[105] (or in other words, to ensure that the complainant was not hurt when he was put on the ground by the appellant).  However, in cross‑examination, he accepted that the CCTV footage did not depict him holding the complainant in the way he had claimed.[106]  In those circumstances, it is difficult to see how evidence from the appellant that he did not intend to cause pain to the complainant would have materially affected the position.

   [103] Appeal transcript ts 15.

   [104] Appeal transcript ts 40.

   [105] Trial transcript ts 148 (12 September 2014).

   [106] Trial transcript ts 153 (12 September 2014).

7. Thirdly, I do not accept the submission of counsel for the appellant that the trial was unfair because it was never put to the appellant, either in the prosecution's opening, or in cross‑examination, that he had intended to inflict pain on the complainant.[107]  That was not put by the prosecutor for the simple reason that it was not part of the prosecution case.  In a case where the learned Magistrate made a 'finding' which was not part of the prosecution case, the fact that the prosecutor did not put the allegation to the appellant could not of itself mean that the trial was unfair to the appellant. 

   [107] Appeal transcript ts 19.

8. Fourthly, for the reasons set out above at [61], evidence from the appellant as to whether he intended to 'inflict pain' on the complainant would have been irrelevant to the question whether the force used was excessive in all of the circumstances or whether the prosecution had negatived potential defences. 

9. Finally, there is no doubt that the appellant was aware that the prosecution's case was that the force used by the appellant was excessive, having regard to the nature of the resistance being offered by the complainant, in all of the circumstances.  The appellant's own evidence was directed to that issue, his counsel cross-examined the witnesses as to those circumstances (for example, in relation to the complainant's intoxication, demeanour and behaviour on the evening in question, and the extent to which he resisted attempts by the appellant to put handcuffs on him) and his counsel made full submissions in relation to the question whether the force used was excessive in the circumstances.  This was not a case where it can be said that the appellant suffered prejudice in the form of some forensic disadvantage either as a result of the way the prosecution ran its case, or as a result of the way the learned Magistrate approached the case.

1. Leave to appeal on ground 4 should be granted, but this ground of appeal should be dismissed.

1. Why leave to appeal on ground 1 of the grounds of appeal should be refused

1. Ground 1 of the grounds of appeal was in the following terms:

   The learned Magistrate erred in law by finding that the charge of assault occasioning bodily harm had been proven beyond reasonable doubt where such finding was against the weight of the evidence.

   Particulars

   (a)The learned Magistrate placed excessive reliance upon contemporaneous CCTV footage and failed to have sufficient regard to the balance of the evidence led at the trial;

   (b)The evidence led by the prosecution, aside from the CCTV footage, was not capable at law of sustaining a finding of guilt, and was to some extent consistent with the innocence of the Appellant;

   (c)The CCTV footage, although properly forming part of the evidence at trial, was not capable of being considered separately to the other evidence in that it could not unilaterally provide a proper basis for guilt;

   (d)The Appellant gave a version of events that, if accepted or if it raised a reasonable doubt, would lead to a verdict of not guilty;

   (e)The learned Magistrate rejected the Appellant's version solely by reason of the CCTV footage in circumstances where the CCTV footage was not capable of refuting the Appellant's version of events having regard to the standard and burden of proof.

2. Counsel for the appellant acknowledged that ground 1 was essentially 'an unsafe and unsatisfactory verdict' ground 'premised on the fact that the magistrate made a finding by a process of reasoning that did not … arise from the available evidence', and that he 'excluded reasonable possibilities that he ought not'.[108]

The nature of the ground of appeal

[108] Appeal transcript ts 39.

1. An appeal may be brought against a decision of the Magistrates Court to convict an accused after a trial on various grounds including that the court made an error of law or fact, or both, or that there has been a miscarriage of justice.[109]

   [109] Criminal Appeals Act 2004 (WA) s 8(1).

2. In so far as ground 1 contends that the learned Magistrate's finding that the prosecution had proved the charge beyond reasonable doubt was 'against the weight of the evidence' that is not a ground of appeal expressly permitted by the Criminal Appeals Act 2004 (WA) in respect of convictions in the Magistrates Court. This ground of appeal is reminiscent of a ground of appeal more often associated with appeals from convictions following jury trials, namely that the verdict was 'unsafe or unsatisfactory' or that having regard to the evidence, the verdict was 'unreasonable or cannot be supported'.[110]   However, there is authority for the proposition that a ground of appeal which contends that a conviction is 'unsafe or unsatisfactory' or 'unreasonable, having regard to the evidence' can be treated as a ground of appeal that contends that the conviction, having regard to the evidence, would constitute a miscarriage of justice.[111]  In addition, counsel drew my attention to one decision in which it appears to have been assumed that a ground of appeal that the conviction was against the weight of the evidence equated to a ground that the verdict was unsafe or unsatisfactory.[112]  For present purposes, I am content to proceed on the basis that ground 1 should be understood as contending that if the conviction were permitted to stand, there would be a miscarriage of justice, because the evidence did not prove the offence beyond reasonable doubt. 

   [110] Cf Criminal Appeals Act 2004 (WA) s 30(3).

   [111] See Stephenson v Treser [2014] WASC 181 [28] - [31] (Le Miere J); Thakrar v Hull [2013] WASC 447 [19] - [22] (Corboy J); Murphy v Spencer [2013] WASC 256 [62] - [68] (Corboy J); Hunt v Callaghan [2011] WASC 10 [150] - [152] (Jenkins J); but cf Scolaro v Shepherd [No. 2] [2010] WASC 271 [86] (Martin CJ).

   [112] Maqdouf v Robinson [2010] WASC 15 [3], [30].

3. The principles to be applied when it is alleged that a conviction should be set aside as being unreasonable or not supported by the evidence are those established in M v The Queen,[113] adapted to take into account that the proceedings at first instance were before a magistrate.[114]  The appeal court must consider whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty.[115]  The question whether it was open to the magistrate to be satisfied of guilt beyond reasonable doubt requires consideration of whether the magistrate must (as distinct from might) have entertained a reasonable doubt about the appellant's guilt.[116]

   [113] M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439, 452 (Gaudron, McHugh & Gummow JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [11] - [12] (French CJ, Gummow & Kiefel JJ).

   [114] Elwin v Robinson [2014] WASCA 46 [65] (Mazza JA, Pullin JA & Newnes JA agreeing).

   [115] M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ).

   [116] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113] (Hayne J).

4. In answering that question, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence and to the advantage that he had of seeing and hearing the witnesses.[117]  Having said that, a doubt which an appeal court has will also be a doubt which the magistrate ought to have experienced unless his advantage in seeing and hearing the evidence is capable of resolving that doubt.[118] 

   [117] M v The Queen (1994) 181 CLR 487, 494 - 495 (Mason CJ, Deane, Dawson & Toohey JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13] (French CJ, Gummow & Kiefel JJ).

   [118] M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13] (French CJ, Gummow & Kiefel JJ).

5. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based on that evidence.[119]

Was the learned Magistrate's finding that the charge had been proven beyond reasonable doubt against the weight of the evidence?

[119] M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson & Toohey JJ).

1. I have carefully considered all of the evidence adduced at the trial, and have reviewed the CCTV footage which was tendered in evidence.  I am not persuaded that the learned Magistrate's finding that the charge was proven beyond a reasonable doubt was against the weight of the evidence.  On the contrary, the evidence very clearly proved the charge beyond a reasonable doubt. 

2. In approaching the evidence relevant to the question of whether the force used by the appellant was reasonably necessary to overcome the complainant's resistance to his arrest, or to his detention following arrest, I have borne in mind that the events in question happened very quickly, with little time for the appellant to make his own assessment of the force required.[120]  Having said that, however, I note that the appellant's evidence (see [20] above) was that when he felt the complainant's hand resisting his grip, he actually had made an assessment of the risk that the complainant posed, having regard to the complainant's earlier aggression in kicking the pod door, and to his aggressive nature, and that the appellant believed there was a risk of the complainant's aggression escalating again. 

   [120] Cf Elwin v Robinson [2014] WASCA 46 [62] (Mazza JA, Pullin JA & Newnes JA agreeing).

3. Counsel for the appellant pointed to a range of factual findings made by the learned Magistrate which she submitted meant that it was not open to the learned Magistrate to find to the requisite standard that the appellant's actions constituted unreasonable force in the circumstances.[121]  Those facts were that the complainant was under the influence of alcohol and drugs, that he was abusive and making threats, that he had kicked the door of the police van (which had hurt the appellant's hand), that the complainant was not handcuffed, that the police yard was open, that the complainant was resisting being handcuffed, that the complainant raised his elbow in a manner in which he could have elbowed the appellant, and that the complainant was behaving in a way that justified the appellant taking him to the ground.[122]

   [121] Appeal transcript ts 35.

   [122] Appellant's Submissions [52].

4. Although the learned Magistrate did make these factual findings, they do not, with respect, adequately reflect the totality of the findings made by the learned Magistrate relevant to determining whether the force used was excessive in the circumstances. 

5. The learned Magistrate made the following findings in relation to the nature of the resistance being offered by the complainant:

   (i)When the complainant got out of the pod, he did not (contrary to Senior Constable Mallard's recollection) attempt to walk away.  Rather, the CCTV footage showed that he merely took a step towards the officers before they turned him around to face the police van;[123]

   (ii)The complainant's fractious behaviour was such as to justify his being placed in handcuffs,[124] including handcuffing him from behind;[125]

   (iii)The nature of the resistance offered by the complainant, however, was 'a general lack of co-operation; a resistance to being cuffed';[126] and

   (iv)Reasonable force to overcome the complainant's resistance to being handcuffed would have included taking the complainant to the ground to put the handcuffs on.[127] 

   [123] Reissued Reasons for Decision ts 27; Reasons for Decision ts 178.

   [124] Reissued Reasons for Decision ts 28; Reasons for Decision ts 179.

   [125] Reissued Reasons for Decision ts 29; Reasons for Decision ts 180.

   [126] Reissued Reasons for Decision ts 31; Reasons for Decision ts 182.

   [127] Reissued Reasons for Decision ts 30; Reasons for Decision ts 181.

6. The other key issues relevant to determining whether the force used was excessive, were the manner in which the appellant got the complainant to the ground, and the surrounding circumstances.  In relation to the manner in which the appellant got the complainant to the ground, the learned Magistrate made the following findings:

   (i)The appellant did 'sling' or throw the complainant to the ground;[128]

   (ii)The complainant was resisting having handcuffs put on, but was not slinging his arms around;[129]

   (iii)Although the complainant was wriggling his arms, and could have thrown his elbow backwards to assault the appellant, the CCTV footage suggested that that was not the indication;[130]

   (iv)The CCTV footage showed that immediately before throwing the complainant to the ground the appellant held the complainant's left arm with both of his hands, then took a step back to get a pivot and swung and slung the complainant directly downwards;[131]

   (v)Rather than trying to 'leg sweep' him to the ground, the appellant created a 'face plant' for the complainant by the downward slinging motion he used, so as to make the complainant hit the ground very hard[132]  (This was clear from the CCTV footage also); and

   (vi)The force with which the appellant flung the complainant to the ground was sufficient to cause bodily injury (an injury to his eyebrow, which was left bleeding after the assault).[133]

   [128] Reissued Reasons for Decision ts 28; Reasons for Decision ts 179.

   [129] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [130] Reissued Reasons for Decision ts 31; Reasons for Decision ts 182.

   [131] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [132] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [133] Reissued Reasons for Decision ts 28; Reasons for Decision ts 179.

7. In relation to the surrounding circumstances, the learned Magistrate made the following findings (in addition to those already mentioned):

   (i)Senior Constable Mallard was standing beside the appellant when the assault took place;[134]

   (ii)Senior Constable Mallard could have assisted the appellant in handcuffing the complainant (and subsequent to the assault, he passed handcuffs to the appellant to put on the complainant);[135]

   (iii)There were other officers in the police station at the time of the assault who could have assisted the appellant to handcuff the complainant;[136]

   (iv)The ground was made of bitumen;[137]

   (v)The complainant was of a smaller build than the appellant;[138]

   (vi)The other youth who had been arrested was handcuffed, was not aggressive and was sitting in the pod talking to Senior Constable Mallard immediately before, and during, the assault;[139]

   (vii)The manner in which the appellant 'planted' the complainant hard into the ground was deliberate.[140]  It was not an accident or an act independent of the appellant's will.[141]  (As I have already mentioned (at [60]), it was apparent in this respect that the learned Magistrate rejected the appellant's initial claim that he had placed one hand on the complainant's shoulder, and another on his arm, so as to take him to the ground without injuring him.  In cross‑examination, the appellant accepted that the CCTV footage showed that his hands were instead both holding the complainant's left arm);[142] and

   (viii)Furthermore, the assault was not otherwise lawful.  The appellant was not acting in self-defence, provocation did not arise, and the force was not applied to prevent the repetition of an act or insult of such a nature as to be provocation.[143]

   [134] Reissued Reasons for Decision ts 31; Reasons for Decision ts 182.

   [135] Reissued Reasons for Decision ts 30 -31; Reasons for Decision ts 181 - 182.

   [136] Reissued Reasons for Decision ts 31; Reasons for Decision ts 182.

   [137] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [138] Reissued Reasons for Decision ts 26, 31; Reasons for Decision ts 177, 182.

   [139] Reissued Reasons for Decision ts 30, 31; Reasons for Decision ts 182 - 183.

   [140] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [141] Reissued Reasons for Decision ts 32; Reasons for Decision ts 183.

   [142] Trial transcript ts 153 (12 September 2014).

   [143] Reissued Reasons for Decision ts 32 - 33; Reasons for Decision ts 183 - 184.

8. Having regard to the nature of the resistance offered, the findings of the learned Magistrate clearly supported the conclusion that the force applied to overcome that resistance was excessive. 

9. I turn, finally, to consider each of the 'particulars' of ground 1 which were advanced by the appellant. 

10. The appellant contended that the learned Magistrate placed excessive reliance upon the CCTV footage and failed to have sufficient regard to the balance of the evidence led at the trial.  This contention must be rejected.  Clearly, the learned Magistrate did not ignore the oral evidence in favour of the CCTV footage.  That is apparent from the fact that he clearly relied on the evidence of the appellant and of Senior Constable Mallard as to the complainant's behaviour (particularly his swearing and his earlier aggression).  There is also no doubt that the learned Magistrate was entitled to rely on the CCTV footage which recorded the assault.  The learned Magistrate appreciated the limitations of that evidence.  He referred to them expressly (see [25] above).  But the CCTV footage was of particular significance because, within its limitations, it was a reliable, objective and contemporaneous depiction of what occurred.  That evidence was also particularly significant in view of the facts that:  the complainant did not remember the particular circumstances of the assault; Senior Constable Mallard's evidence was that he was looking away at the precise moment when the assault occurred; and the appellant accepted in cross examination (having regard to what the CCTV footage depicted) that an aspect of his recollection, namely whether his arm was on the complainant's shoulder at the time of the assault, was faulty.

11. The appellant next contended that the evidence led by the prosecution, aside from the CCTV footage, was not capable at law of sustaining a finding of guilt, and was to some extent consistent with the innocence of the appellant.  It is not to the point to consider whether the evidence apart from the CCTV footage was sufficient to establish the appellant's guilt.  The prosecution was entitled to rely upon all of the evidence in order to prove the offence beyond reasonable doubt.

12. The appellant also contended that the CCTV footage, although properly forming part of the evidence at trial, was not capable of being considered separately from the other evidence in that it could not unilaterally provide a proper basis for guilt.  For the reasons outlined above, the learned Magistrate did not rely solely on the CCTV footage to the exclusion of other evidence, as the basis for finding guilt.

13. Next, the appellant contended that he gave a version of events that, if accepted, or if it raised a reasonable doubt, would have led to a verdict of not guilty.  The learned Magistrate was entitled to consider the appellant's evidence as to what occurred, and in view of the other evidence, to accept or reject the appellant's evidence.  That is what the learned Magistrate did. 

14. Finally, the appellant contended that the learned Magistrate 'rejected the appellant's version solely by reason of the CCTV footage in circumstances where the CCTV footage was not capable of refuting the appellant's version of events having regard to the standard and burden of proof'.  The learned Magistrate did not accept some aspects of the appellant's evidence, having regard to what was clearly depicted in the CCTV footage.  He was entitled to do so.  However, as I have already explained, the learned Magistrate's finding as to whether the assault was unlawful (and in particular as to the nature of the resistance offered by the complainant, and whether the force used to overcome that resistance was such as was 'reasonably necessary in the circumstances') was clearly reached on the basis of the learned Magistrate's consideration of the evidence of the complainant, of Senior Constable Mallard, and of the appellant, and having regard to the CCTV footage.

15. For these reasons, ground 1 did not have a rational and logical prospect of succeeding, or any real prospect of success.  Leave to appeal on ground 1 should therefore be refused.

1. Why leave to appeal on ground 2 of the grounds of appeal should be refused

1. Ground 2 of the grounds of appeal was in the following terms:

   The learned Magistrate further erred at law in his reliance on his experience in viewing closed-circuit television footage of restraints of offenders by police officers and his views on the unreasonable force he concluded had been applied by police officers in those unspecified unrelated cases.

2. Counsel for the appellant did not concede that ground 2 had no reasonable prospect of success, but accepted that ground 2 'is perhaps unlikely, standing alone, to be a basis upon which [the Court] would find that a miscarriage of justice has occurred'.[144] 

   [144] Appeal transcript ts 5.

3. The basis for ground 2 was remarks made by the learned Magistrate in the course of his reasons in which he said:

   I don't know how many bits of video footage I've watched over the years, especially in the last 10 years ‑ it has got worse, I must say, cause ‑ well, not worse, because there are more and more cameras, that's probably what it is, of police trying to pin people to the ground and put handcuffs on very fractious people.

   I've seen some things.  I've seen spear tackles into the ground that even the NRL wouldn't be happy with.  I've seen everything.[145]

   [145] Reasons for Decision ts 181.

1. Counsel for the appellant submitted that the learned Magistrate relied on 'unspecified unrelated cases' to which the learned Magistrate was referring in these remarks, and that this constituted a failure to take into account only the evidence at the trial.[146] 

   [146] Appellant's Submissions [65] - [66].

2. There is no doubt that one of the cardinal principles of the law is that a judge or magistrate must (subject to a contrary indication by the Parliament) try a case on the basis of the evidence and arguments presented in court by the parties.[147]  However, the remarks made by the learned Magistrate provide no basis for concluding that the learned Magistrate took into account material extraneous to the evidence adduced at the trial.  The learned Magistrate's remarks were clearly a digression, of the kind to which I referred to the outset of these reasons, and which had no bearing on the conclusion he reached.  That much is evident from the fact that immediately following the remarks set out above, the learned Magistrate went on to make a finding that given the resistance offered by the complainant, the appellant was entitled to get the complainant onto the ground to handcuff him.[148] 

   [147] Re JRL; Ex parte CJL (1986) 161 CLR 342, 350 - 352 (Mason CJ).

   [148] Reissued Reasons for Decision ts 30; Reasons for Decision ts 181 - 182.

3. The appellant submitted that the learned Magistrate's remarks distorted his consideration of all of the evidence before him, and he excluded other hypotheses reasonably open on the evidence, due to his overt reliance on his personal experience in viewing CCTV footage.[149]  The appellant also submitted that the learned Magistrate's assessment of the reasonableness of the appellant's conduct was determined by his knowledge of other cases where people had done similar things.[150]  Nothing in the learned Magistrate's reasons supported conclusions of that kind. 

   [149] Appellant's Submissions [67].

   [150] Appellant's Submissions [73].

4. Ground 2 has no prospect of success, whether alone or in conjunction with the other grounds of appeal.  Leave to appeal on this ground should be refused.

1. Why leave to appeal on ground 3 of the grounds of appeal should be refused

1. Ground 3 of the grounds of appeal was in the following terms:

   The learned Magistrate erred in law and in fact in rejecting the appellant's explanation for the offence in circumstances where there was no proper basis at law or on the evidence to do so having regard to the standard and onus of proof that applied.

   Particulars

   (a)The appellant repeats the particulars as set out in ground 1.

   (b)The learned Magistrate erred in rejecting the appellant's evidence of the victim raising his arm immediately before the appellant applied force to the victim when there was no proper basis to do so having regard to the evidence led at trial and failed to explain why he so rejected that account.

   (c)The learned Magistrate erred in rejecting the appellant's evidence of the appellant having lost grip of the victim as he applied force to the victim and hence why the level of force in which the victim struck the ground was unintended and accidental when there was no proper basis to do so having regard to the evidence led at trial and failed to explain why he so rejected that account.

   (d)The learned Magistrate made findings about the intention of the appellant that were contrary to the appellant's account in circumstances where there was no evidential basis to do so.

2. Counsel for the appellant described ground 3 as a 'more specific version of ground 1'.[151]  However, she acknowledged that ground 3 was a weaker ground of appeal than grounds 1 and 4.[152]

   [151] Appeal transcript ts 42.

   [152] Appeal transcript ts 43.

3. For the reasons set out above at [88] ‑ [92], this ground of appeal, in so far as it relies on the same particulars as ground 1, must also be rejected. 

4. In relation to the particular set out in par (d), for the reasons set out above at [91] that contention should also be rejected.

5. I turn to deal only with particulars (b) and (c) above.  In so far as the appellant submits that the learned Magistrate overlooked the appellant's evidence that the complainant raised his arm immediately before the assault took place, that submission must be rejected.  The learned Magistrate expressly referred to the evidence of the appellant that the complainant's arm was raised up.[153]  He also accepted that the complainant had resisted, and was struggling with his arm.[154]

   [153] Reissued Reasons for Decision ts 30; Reasons for Decision ts 181.

   [154] Reissued Reasons for Decision ts 31; Reasons for Decision ts 182.

6. In so far as particular (c) contends that the learned Magistrate erred in rejecting the appellant's evidence that he lost his grip on the complainant as he put him to the ground, counsel for the appellant submitted that the part of the appellant's evidence which was rejected was his evidence that his hand slipped (see above at [18] ‑ [19] and at [32]).  She acknowledged that overlooking this evidence was 'of the most significance' for ground of appeal 3.[155] 

   [155] Appeal transcript ts 43.

7. The contention in particular (c) must also be rejected.  As I noted at [60] and at [85(vii)], the appellant's initial evidence was that he had one hand on the complainant's shoulder, but that he lost his grip with that hand and the complainant 'fell, unassisted', to the ground.[156]  It is not surprising that the learned Magistrate did not rely on that evidence.  The appellant himself accepted that the CCTV footage showed that both of his hands were on the complainant's left arm, and that he must have been mistaken in his recollection that his hand slipped off the complainant's shoulder.[157] 

   [156] Trial transcript ts 146 (12 September 2014).

   [157] Trial transcript ts 153 (12 September 2014).

8. Ground 3 has no prospect of success, whether alone or in conjunction with the other grounds of appeal.  Leave to appeal on this ground should be refused.

Conclusion

1. Leave to appeal having been refused in respect of grounds 1, 2 and 3, and ground 4 having been dismissed, the appeal must be dismissed.  I will hear from the parties as to the orders which should be made.