Greenway v Lavers
[2023] WASC 311
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GREENWAY -v- LAVERS [2023] WASC 311
CORAM: LEMONIS J
HEARD: 21 JULY 2023
DELIVERED : 18 AUGUST 2023
FILE NO/S: SJA 1026 of 2023
BETWEEN: NATHAN NORMAN GREENWAY
Appellant
AND
PATRICK LAVERS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B A AYLING
File Number : FR 489/2022
Catchwords:
Offence of display of insignia of an identified organisation in a public place - Appellant found guilty at trial - Whether the learned magistrate identified and considered requisite elements of the offence - Consideration of appropriate orders in circumstances where the learned magistrate did not do so
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)
Result:
Appeal allowed
Retrial ordered
Representation:
Counsel:
| Appellant | : | Mr C C Porter |
| Respondent | : | Mr J D Berson |
Solicitors:
| Appellant | : | Terry Dobson Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593
Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305
Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
Gartner v Brennan [2016] WASC 89
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Larussa v The State of Western Australia [2023] WASCA 62
McGahan v Royal Borough of Windsor & Maidenhead Council [2002] EWHC 1551
Mohammadi v Bethune [2018] WASCA 98
Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 [45]; (2005) 224 CLR 193
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wimbridge v The State of Western Australia [2009] WASCA 196
LEMONIS J:
On 10 January 2023, the appellant (Mr Greenway) was convicted by the learned magistrate after trial of one offence of displaying insignia of an identified organisation in a public place. This is an offence under s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (the Act).
The prosecution alleged at trial that Mr Greenway wore a ring marked with insignia of the Comanchero organisation in a public section of the Raffles Hotel. Mr Greenway accepts that he did so and that the Comanchero is an identified organisation under the Act. The issue at trial was whether his wearing of the ring constituted the display of insignia within the meaning of s 25(2).
Mr Greenway seeks leave to appeal against his conviction pursuant to the Criminal Appeals Act 2004 (WA) (CA Act). Mr Greenway requires an extension of time to appeal. Initially, there were three grounds:
1.The learned magistrate erred in law by incorrectly describing and applying the elements of the offence.
2.The learned magistrate erred in fact when describing Mr Greenway's central factual contention at trial.
3.There was a miscarriage of justice because the judgment of conviction was unreasonable or cannot be supported having regard to the evidence.
Mr Greenway does not press ground 2.
Mr Greenway seeks orders that the appeal be allowed and that a judgment of acquittal be entered, alternatively the matter be sent back to the Magistrates Court for a retrial. For Mr Greenway to obtain a judgment of acquittal, it is necessary that he make out ground 3. He does not suggest that discretionary matters warrant the matter not being sent back for a retrial if I only uphold ground 1.
The respondent says that grounds 1 and 3 are not made out. Further, the respondent says that even if ground 1 is made out, the relevant error did not occasion a substantial miscarriage of justice and therefore the appeal should be dismissed. This is because, the respondent says, the evidence at trial proves Mr Greenway's guilt of the offence beyond reasonable doubt.
As can be seen, the parties' respective positions as to the effect of the evidence before her Honour are starkly different. Mr Greenway contends the evidence is not capable of establishing his guilt of the charge. The respondent contends the evidence demonstrates Mr Greenway's guilt beyond reasonable doubt.
The prosecution case against Mr Greenway is put on the basis of a deeming provision in s 24(1) of the Act. Relevantly, it provides that a person is taken to display insignia in a public place where the person wears a thing marked with insignia in a manner that the insignia would be visible to another person in the public place. On the evidence before her Honour, Mr Greenway was sitting at a table with another person having lunch. Mr Greenway and the respondent both accept that it is sufficient to make out the prosecution case that the insignia would be visible to that other person at the table.
It is still necessary though to interpret the relevant provisions of the Act in order to decide whether her Honour correctly described and applied the elements of the offence. It is also necessary to interpret her Honour's reasons as a whole, the respondent conceding that the reasons do not expressly grapple with the requirement that Mr Greenway wore the ring in a manner that the insignia on it would be visible to another person.[1]
[1] Respondent's written submissions, par 18.
It is useful to start by explaining the nature of this appeal and the principles applicable to statutory interpretation.
Nature of the appeal
The appeal is brought pursuant to s 7(1) of the CA Act, Mr Greenway being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include:
1.The learned magistrate made an error of law or fact or of both law and fact;[2] and
2.there has been a miscarriage of justice.[3]
[2] CA Act s 8(1)(a)(i).
[3] CA Act s 8(1)(b).
Leave of this court is required for each ground of appeal. Further, I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding.[4]
[4] CA Act s 9.
The appeal cannot be commenced later than 28 days after the date of the decision unless the Supreme Court orders otherwise.[5] Therefore, in this case, the appeal ought to have been commenced by 7 February 2023. It was filed two months and 10 days late.
[5] CA Act s 10(3).
Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of Mr Greenway, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. This provision is permissive, not mandatory.[6]
[6] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44] - [45].
Further, in this case, I cannot be satisfied that there was no substantial miscarriage, unless I am persuaded that the evidence properly admitted at trial proved Mr Greenway's guilt of the offence beyond reasonable doubt.[7] There would be significant hurdles in the way of my being able to reach such a conclusion where the honesty or reliability of a witness's evidence on material matters is in question. They are usually matters best left to the learned magistrate, who has the advantage of observing and assessing the evidence as it is given.
[7] Weiss [44].
I am not required to set aside the learned magistrate's decision because her Honour omitted to make any necessary finding of fact if the facts or evidence in substance support her Honour's decision or justify the finding not made: s 14(3). In the circumstances of this appeal, the relevant considerations raised by s 14(3) are effectively subsumed within a consideration of the application of s 14(2).
In relation to ground 3, the applicable principles in relation to whether a verdict is unreasonable or cannot be supported by the evidence have recently been summarised by the Court of Appeal in Larussa v The State of Western Australia.[8] That case concerned a trial by jury. The Court in a joint judgment stated:
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.The question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses. The appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box.
5.The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence ‑ the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
6.A doubt experienced by an appeal court would be a doubt that a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
7.If the evidence, upon the record, 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 jury, there is a significant possibility that an innocent person has been convicted, then the appeal court must set aside the verdict.
8.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of [the CA Act] is a serious step, not to be taken without regard to the advantage enjoyed by the jury over an appeal court that has not seen or heard the witnesses called at trial.
[8] Larussa v The State of Western Australia [2023] WASCA 62 [50].
These same principles apply by analogy to a trial before a magistrate.[9]
Extension of time within which to appeal
[9] The State of Western Australia v Olive [2011] WASCA 25 [44].
In Wimbridge v The State of Western Australia,[10] Buss JA (as his Honour then was) set out the following five principal factors to be considered in deciding whether to exercise the discretion to extend time, also noting those factors are not exhaustive:
First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merit. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
[10] Wimbridge v The State of Western Australia [2009] WASCA 196 [45].
An additional factor is whether the delay is intentional or the result of a bona fide mistake and whether the delay is that of the appellant themself or of their lawyer.
The application for an extension of time is supported by an affidavit of Ms Tonkin affirmed 14 April 2023, and a further affidavit of Ms Tonkin affirmed 18 July 2023, which corrects an error in her first affidavit. Ms Tonkin was a personal assistant employed by Mr Greenway's solicitors. In essence, the affidavits set out the following matters. There was a delay from 10 January 2023 to 23 March 2023 in obtaining counsel's opinion. On 24 March 2023, Mr Greenway confirmed instructions to appeal. There was then a delay in preparing the requisite appeal documents and Mr Dobson was unwell over the period 6 April 2023 to 13 April 2023. What is apparent from this recitation of matters is that the delay is attributable to Mr Greenway's lawyers.
The length of the delay itself is significant, although not excessive in the circumstances.
There is no prejudice to the respondent from the grant of an extension.
The respondent quite frankly accepts that in the circumstances of this case, the question of an extension of time will turn on the merits.[11]
[11] Respondent's written submissions, par 14.
Given that I have come to the view that ground 1 is made out, in all of the circumstances, I consider it appropriate to grant an extension of time to commence the appeal. I grant the extension through to the filing of the appeal notice on 17 April 2023.
Principles of statutory construction
The principles applicable to statutory construction were summarised in the joint reasons for decision of the Court of Appeal of Western Australia in Mohammadi v Bethune.[12]
[12] Mohammadi v Bethune [2018] WASCA 98 [31] ‑ [36].
Statutory construction requires attention to the text, context and purpose of the Act. Further, as their Honours observed in Mohammadi v Bethune at [32] and [33]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions. (footnotes omitted)
In addition, as the High Court observed in Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association[13] in respect of the legislative provisions under consideration in that case:
The material provisions of the Act must be understood, if possible, as parts of a coherent whole.
[13] Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; see also Mohammadi v Bethune at [34], [35].
The Act creates certain offences and is to be regarded as a penal statute. In relation to the interpretation of penal statutes, in Beckwith v The Queen,[14] Gibbs J (as his Honour then was) stated:
In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences… The rule is perhaps one of last resort.
[14] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576.
This observation has relatively recently been reiterated by the High Court – see the joint judgment in Aubrey v The Queen.[15] Further, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)[16] the majority observed that the fact that a construction contains penal provisions is part of its context and is therefore relevant to the task of construing the statute in accordance with established principles of statutory interpretation.[17]
[15] Aubrey v The Queen [2017] HCA 18; (2017) 260 CLR 305 [39].
[16] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [57] per Hayne, Heydon, Crennan and Kiefel JJ.
[17] See also Pearce D, Statutory Interpretation in Australia (9th Ed, 2019) at [9.12], page 325.
There can be circumstances where the penal nature of a provision points against a broad interpretation.[18] In Stevens v Kabushiki Kaisha Sony Computer Entertainment,[19] the majority of the High Court stated in respect of the relevant provision before the Court:
An appreciation of the heavy hand that may be brought down by the criminal law suggests the need for caution in accepting any loose, albeit 'practical', construction of [the provision].
[18] Ibid.
[19] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 [45]; (2005) 224 CLR 193 [45].
Further to these matters, pursuant to s 19(1) of the Interpretation Act 1984 (WA), I can have regard to the explanatory memoranda to the Act to confirm that the meaning of the provision is the ordinary meaning conveyed by the text, taking into account context and the legislation's purpose or object. I can also have regard to the explanatory memoranda to determine the meaning of a provision when it is ambiguous or obscure.
I turn now to the Act and its application to this case.
The Act and its application
The relevant offence is created by s 25(2), which appears in pt 3 of the Act. Part 3 has its own interpretation provision, which is s 21.
The objects of pt 3 are set out in s 23(2):
(a)to ensure that members of the public may lawfully use and pass through public places without experiencing fear or intimidation because of organisation-related activity that has the potential to cause public harm; and
(b)to reduce the likelihood of public disorder or acts of violence in public places; and
(c)to reduce the membership of identified organisations, members of which might engage in organisation-related activity that has the potential to cause public harm.
The concept of potential to cause public harm the subject of s 23(2)(a) and (c) is defined in s 23(1) to mean the potential to:
(a)cause members of the public to feel threatened, fearful or intimidated; or
(b)have an undue adverse effect on the health or safety of members of the public; or
(c) increase the likelihood of public disorder or acts of violence.
Broadly speaking, the objects of pt 3 are directed to the protection of the public.
An offence under s 25(2) is committed if a person displays insignia of an identified organisation in a public place.
Section 21 provides that an identified organisation means an organisation named in sch 2 of the Act, which includes Comanchero.[20]
[20] Item 10 of sch 2.
Section 21 provides that the word insignia has the meaning given in s 22. Section 22(1) sets out certain matters associated with an identified organisation that constitute its insignia for the purposes of the Act, which include the name, logo or patch of the organisation. Section 22(2) provides that the symbols '1%' or '1%er' are taken to be insignia of every identified organisation.
Section 21 defines public place as including a place to which the public or a section of the public is entitled to have lawful access.
In relation to the display of insignia of an identified organisation in a public place, s 21 provides that the word display has a meaning affected by s 24. To emphasise, the language used is 'affected by section 24'. This is to be contrasted with the language used in relation to the word insignia, which provides that word 'has the meaning given in section 22'.[21]
[21] See also the defined terms named person, required person and restricted person in s 21, which use the same language.
Section 24(1) sets out the circumstances in which a person is taken to display insignia of an identified organisation in a public place. This provision, like s 22(2), is a deeming provision. The effect of s 24(1) is to provide that certain scenarios are taken to constitute a display under s 25.
In my view, the language in s 21 that 'display has a meaning affected by section 24' together with the language in s 24 (1) that 'a person is taken to display insignia…', conveys that s 24(1) applies in addition to the meaning of display in s 25(2). Understood in this way, as the respondent's counsel submits, s 24(1) extends the operation of s 25(2). Section 24(1) is not to be understood as constraining the circumstances that constitute a display to only those circumstances that are set out in s 24(1).
This result is confirmed by the explanatory memoranda, which both state:[22]
The term display in clause 24 applies in addition to the ordinary meaning of the term under clause 25.
[22] Explanatory Memorandum presented in the Legislative Assembly, The Criminal Law (Unlawful Consorting and Prohibited Insignia) Bill 2021 (WA), page 21; Explanatory Memorandum presented in the Legislative Council, The Criminal Law (Unlawful Consorting and Prohibited Insignia) Bill 2021 (WA), page 21.
The interpretation of the word 'displays' in s 25 must be undertaken in accordance with principles of statutory interpretation. Further, s 24 and s 25 need to be looked at as part of the one legislative regime. While the prosecution case against Mr Greenway is brought under the operation of s 24, there is still a need to consider the operation of s 25 given the desire for coherency between s 24 and s 25 where possible.
There is of course not just one ordinary meaning of the word display. Particular examples are these. The Macquarie Dictionary (8th ed, 2020), page 446, defines the meaning of the word to include 'to show; exhibit; make visible: to display a flag'. The Shorter Oxford Dictionary (6th ed, 2007), page 711 defines the meaning of the word to include 'expose to view, make visible; show, exhibit.'
As was said in McGahan v Royal Borough of Windsor & Maidenhead Council, a case which concerned the interpretation of the word display:[23]
… one should not feel too hidebound by the exact words used in the dictionary because they may not be entirely apposite to the particular context with which one is concerned.
[23] McGahan v Royal Borough of Windsor & Maidenhead Council [2002] EWHC 1551 (Admin) [28].
McGahan dealt with the situation where the operators of a Harley-Davidson motorcycle dealership had placed motorcycles on the forecourt of their business premises. It was alleged that this constituted a contravention of a planning condition that 'The display or sale of vehicles or goods of any description shall not take place on any part of the site except inside the proposed building'. Mr Justice Harrison held that 'to display an object is to put it on show or to exhibit it in order to attract people's attention to it'.[24] Thus, his Honour was of the view that in the circumstances of that case, the reason the operator placed the motorcycles on the forecourt was an important consideration. The decision in McGahan is a good example, to use his Honour's words, that exact words used in the dictionary 'may not be entirely apposite to the particular context with which one is concerned'.
[24] McGahan [28].
In this case, broadly speaking, the purpose for the provisions in the Act is the protection of the public. The words 'displays insignia of an identified organisation in a public place' convey more than that insignia is visible in a public place. There is a difference between something being visible and something being displayed.
I think that the preferred interpretation of the phrase 'displays insignia of an identified organisation in a public place' which appears in s 25 is that the insignia is made visible in a manner that attracts attention to it in a public place. This requires a consideration of the relevant circumstances, which include the prominence and features of the insignia, how and where it is shown and the nature of the public place. I do not think it is helpful to give examples. It very much depends on the overall circumstances.
It is not necessary on this appeal to say anything more about s 25, given the prosecution case against Mr Greenway was put under the operation of s 24.
Section 24(1) provides that a person is taken to display insignia of an identified organisation in a public place if the person:
(a)wears, carries or otherwise possesses or controls a prohibited thing in a manner that insignia of an identified organisation would be visible to another person in the public place; or
(b)has a tattoo or other body marking that -
(i)comprises or includes insignia of an identified organisation; and
(ii)is left uncovered in a manner that insignia of an identified organisation would be visible to another person in the public place.
The display the subject of this appeal is said to have arisen under s 24(1)(a). The phrase 'prohibited thing' which appears in s 24(1)(a) is defined by s 21 as meaning a thing marked with insignia of an identified organisation, but not including a tattoo or other body marking.
Section 24(2) clarifies the operation of s 24(1). It provides that s 24(1) applies whether the thing or person marked with insignia is physically in the public place, or is physically in some other place from where the insignia would be visible to another person in the public place.
A critical aspect of display under s 24(1)(a) is that the manner in which a person wears, carries, possesses or controls a prohibited thing is such that the insignia on it would be visible to another person in a public place. It is not sufficient to only prove that the thing would be visible to another person in a public place. Nor is it sufficient to only prove that the person is wearing a thing marked with insignia in a public place.
Bearing in mind what I have just written, for the purposes of this case, the relevant elements of s 25(2) which the prosecution must prove beyond reasonable doubt are as follows:
1.Mr Greenway wore a ring marked with insignia of the Comanchero, that being an identified organisation.
2.Mr Greenway did so in a manner that any one or more of the insignia on the ring would be visible to another person in a public place, being the Raffles Hotel.
Mr Greenway accepts the first element is made out. Mr Greenway also accepts that the Raffles Hotel is a public place.
It is consideration of the second element that is important to the disposition of this appeal, in particular the proper interpretation of the phrase 'would be visible to another person in the public place'. It appears in both s 24(1)(a) and (b). Given both paragraphs describe instances of what constitutes display of insignia such as to constitute an offence, in my view the phrase must have the same meaning for the purposes of each paragraph. There is no legislative imperative that warrants a different approach being taken to that phrase in each separate paragraph.[25]
[25] See Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618, per Mason J.
Section 24(1) does not require that the prosecution prove a person in fact saw the insignia. The phrase 'would be visible to another person' does not mean 'was seen by another person'. This interpretation is confirmed by the explanatory memoranda, which respectively state:[26]
The words 'would be visible' mean the offence will apply without the prosecution being required to prove that a person actually saw the insignia.
[26] Explanatory Memorandum presented in the Legislative Assembly, The Criminal Law (Unlawful Consorting and Prohibited Insignia) Bill 2021 (WA), page 22; Explanatory Memorandum presented in the Legislative Council, The Criminal Law (Unlawful Consorting and Prohibited Insignia) Bill 2021 (WA), page 21.
I consider that, at least in part, the rationale for this is to limit the need for members of the public to give evidence about what they saw or may have seen regarding the activities of an identified organisation and its members. This is consistent with the stated purposes of pt 3, which include protecting the public from the potential to feel threatened, fearful or intimidated by organisation-related activity.
That being said, if there is evidence that a person in fact saw the insignia, then in the ordinary course, that would be significantly probative that the insignia would be visible to another person. It may be an important piece of evidence where the insignia itself is not of a pronounced nature.
Both Mr Greenway and the respondent accept that the phrase would be visible to another person involves a hypothetical objective assessment. I think that is right. Consistently with that approach, in my view, the prosecution does not have to prove the peculiar characteristics of those who were at the Raffles Hotel, in particular their eyesight, so as to establish it would be visible to people of that characteristic if they had chosen to look in Mr Greenway's direction.
The parties however differ as to the scope of the reference to another person. Mr Greenway submits it refers to those persons who are actually in the public place at the relevant time.[27] The respondent submits it is a reference to a person hypothetically situated in the public place.[28]
[27] Appeal transcript, ts 25 - 26.
[28] Respondent's written submissions, par 32; Appeal transcript, ts 39 - 40.
I very much doubt that s 24(1) has the more expansive operation put forward by the respondent.
Where possible, s 24(1) should be construed so that it is internally coherent and also is coherent with s 25.
The words 'another person in the public place' in s 24(1) envisage there is a person or persons in the public place at the relevant time. Such words go beyond s 25, which only refers to a display in a public place and make no reference to a person in the public place.
Sub-sections 24(1)(a) and (b) direct attention to the manner in which the thing marked with the insignia is worn, carried, possessed or controlled, or in which a tattoo or body marking is left uncovered. The section requires that manner to have the result that the insignia would be visible to another person. If this was to be assessed against where a person hypothetically could be in the place, this would give rise to a whole myriad of different hypothetical scenarios. The penal nature of the provision points against such a broad result.
The language of s 24 does not impose any qualifications on who may constitute another person. So, for example, if a number of people attend a dinner in a public restaurant, they each constitute another person in the public place for the purposes of each other. As another example, if members of an identified organisation attend a public place together, they each constitute another person in the public place for the purposes of each other. Also, the language of s 24 also does not require that the other persons in the public place appreciate that the insignia is that of an identified organisation. The language used is 'would be visible', not 'would be recognisable'.
I think the preferred view is that the requirement that the insignia would be visible to another person is directed to where people are in fact situated within the public place and the circumstances that exist at the time, and attributing to those persons who are there ordinary characteristics of sight. This interpretation works coherently with s 25(2). Where the relevant circumstances are such that the insignia is made visible in a manner that attracts attention to it (s25(2)), the provisions protect against the risk that people may be drawn to observe the insignia. It is not necessary that a person saw the insignia, or that it would be visible to a person. Section 24(1) then expands this operation of s 25(2), such that even if the insignia is not made visible in a manner that attracts attention to it, a display arises if insignia marked on a thing or comprised in a tattoo or body marking, would be visible to the persons who are in the public place. No doubt, there will be circumstances where both apply, however that is to be expected where one provision expands on the operation of another.
However, ultimately I do not need to express a concluded view on that matter. As I have already indicated, both parties accept that the prosecution case can be made out by proving that the insignia on the ring would be visible to the person at the table with Mr Greenway, attributing to him ordinary characteristics of sight. To proceed in that way accords with my preferred view of the legislative provision. It also accommodates the respondent's contention that the test is referable to where a person hypothetically could be in the Raffles Hotel, as a person could hypothetically sit across from Mr Greenway. I am therefore content to proceed in that way.
The respondent also contends that the prosecution case can be made out if the evidence establishes beyond reasonable doubt that the police officer who was there at the time, Senior Constable Lavers, saw the insignia from approximately 2 m away. Mr Greenway in written submissions submitted that a police officer carrying out their duties does not fall within the characterisation of another person within the meaning of s 24. In brief, as I understand it, Mr Greenway submits that the provisions are directed to members of the public, and a police officer carrying out their duties should not be so regarded. This proposition was not pressed in oral submissions. In any event, I need not resolve the issue. For reasons which follow, if I am persuaded on the evidence that Senior Constable Lavers saw the insignia from approximately 2 m away, then together with the other evidence led at trial, I would be persuaded that the evidence established beyond reasonable doubt that the insignia would be visible to the other person sitting at the table with Mr Greenway.
In respect of the words 'would be visible' in s 24, Mr Greenway submits this conveys it was perceptible to the eye.[29] The respondent submits it conveys capable of being seen. The respondent accepts that there is no material difference between the two respective formulations.[30] I think that concession is properly made and I will proceed on that basis.
[29] Appeal hearing, ts 11.
[30] Appeal hearing, ts 42.
I turn now to the trial and the learned magistrate's reasons.
The trial
The trial took place before her Honour on 10 January 2023 commencing at 11.27 am. The only witness called by the prosecution was Senior Constable Lavers, who was a member of the Gang Response Team at the time of Mr Greenway's conduct the subject of the charged offence.[31]
[31] ts 3, ts 9.
The prosecuting sergeant at the trial did not give a substantive opening. Mr Greenway was represented by counsel, who was not counsel who appeared on the appeal. Mr Greenway's counsel did not give a substantive opening, saying 'I believe this to be a very quick matter. It's a discrete issue'.[32]
[32] ts 2.
Mr Greenway did not give evidence. At the conclusion of the closing addresses, her Honour adjourned briefly to consider the matter and then at around 12.39 pm delivered oral reasons.
Evidence
Senior Constable Lavers in examination‑in‑chief gave evidence that on Friday, 7 January 2022 he attended at the Raffles Hotel in Applecross with another officer.
When they arrived, they went outside to the drinking area and asked three male persons who were sitting at a table to identify themselves and to leave.[33] They were all members of the Comanchero. Senior Constable Lavers then observed Mr Greenway and another male person at another table.[34] Mr Greenway is a member of the Comanchero and Senior Constable Lavers knew this at the time. Senior Constable Lavers said that he saw on Mr Greenway's left‑hand index finger a gold ring and as he got closer he saw that the gold ring had the Comanchero's outlaw motorcycle gang insignia on the face and 1% insignia on the side.[35]
[33] ts 4.
[34] ts 4.
[35] ts 4.
Senior Constable Lavers said he introduced himself to Mr Greenway and conducted a name check and while he was doing so, he saw Mr Greenway slip the ring off his finger and place it into his pocket.[36] He asked Mr Greenway to remove the ring from his pocket, which he did. Senior Constable Lavers seized it for evidence.[37] The ring became Exhibit 1 in the trial. He also asked Mr Greenway to leave the Hotel, which he did.[38]
[36] ts 4.
[37] ts 4.
[38] ts 4.
Senior Constable Lavers was asked how far away he was when he first noticed the ring. He said he was around three and a half metres away when he first saw the ring, and as he got to about 2 m he recognised it as having the Comanchero's insignia on the top and the 1% insignia on each side.[39] He said when he recognised the insignia he was standing sort of behind Mr Greenway at the table.[40] He was asked where he was standing when he actually recognised or when he could see the 'actual ring itself, the insignia' and he said:[41]
About two metres and I was still walking up to him. I could see it was a Comanchero ring.
[39] ts 4.
[40] ts 5.
[41] ts 5.
His body worn camera footage was then played, which became Exhibit 4. In relation to the footage, he was asked to indicate where it was that he first noticed the ring and he pointed out where he said he identified it as a Comanchero ring, then saying maybe a metre before that is when he first saw the ring. The transcript does not identify the elapsed time on the footage where Senior Constable Lavers said he identified the ring as a Comanchero ring, or whether he pointed to any particular aspect of the footage.
Senior Constable Lavers was asked to elaborate a little bit more on what he meant when he said he identified it as a Comanchero ring. He answered that:[42]
So [from] there, potentially a little bit closer, you could see that on the ‑ it's, like, a large, gold ring, on the top there's a flat face where the Comancheros' three piece insignia, the arm of the Comancheros Australia.
…
And on either side there's a one percent diamond.
[42] ts 6.
Senior Constable Lavers then was asked 'So when you say that you've identified it as a Comanchero's ring, what I mean is were you observing the actual detail of the ring from there?' He answered 'Not in 100 per cent detail … But I could recognise it as - I've seen them before … I know what I was looking for, and - yes, that was the ring.'[43]
[43] ts 6.
He was then taken to the ring itself and identified the insignia on it. These were: [44]
1.the three piece Comanchero insignia with the top rocker saying Comanchero and the bottom rocker saying Australia and the centre piece being the bird/phoenix of the Comancheros; and
2.on either left and right face, a 1% diamond within a wreath, the 1% containing the letters 'ACCA' and then a percentage and 'ER', reflecting '1%er', being on both sides of the ring.
[44] ts 7.
As I have indicated when identifying the elements, it is only necessary for the prosecution to prove beyond reasonable doubt that any one of these indicia would be visible to another person within the meaning of s 24(1)(a). Mr Greenway's counsel rightly accepted at the hearing of the appeal that the word Comanchero itself constitutes insignia.
After giving this evidence, Senior Constable Lavers was then shown a close‑up photograph of the top face of the ring which showed the three piece insignia.[45] He was asked '… how far away were you when you actually were able to see that?' and he answered, 'When I was able to see that three piece insignia was approximately two metres'.[46] In giving that evidence, he did not distinguish between the word Comanchero and the bird/phoenix logo.
[45] Exhibit 3.2.
[46] ts 8.
In cross‑examination, Senior Constable Lavers said that he was on heightened alertness when dealing with Mr Greenway, given Mr Greenway's history and that he was a patched member of the Comanchero group.[47] He also said in cross-examination that his interaction with Mr Greenway was an intimate interaction.[48] In terms of the movements of the people that were there at the time, he was asked whether people were in effect seated with their party and not interacting with others and he said yes.[49] He accepted that at the time there were COVID restrictions in place and also accepted that the restrictions required that there was 1.5 m between patrons.[50]
[47] ts 9 -10.
[48] ts 10.
[49] ts 12.
[50] ts 12.
Senior Constable Lavers was not cross-examined on his evidence that when he was able to see the three piece insignia he was approximately 2 m away.
In re‑examination, Senior Constable Lavers said that on the particular table with Mr Greenway he had a drink and a pizza. He could not recall the type of drink, but the pizza was a prawn pizza.[51]
Closing addresses
[51] ts 13.
The prosecuting sergeant concluded his closing address by saying:[52]
In this case, we say, that this [ring] is showing a membership of a group and we say it's an outlaw motorcycle gang. And that this is what is worn to display that they have that membership. And we see in the video it is clearly visible on the accused's hand at the time.
He raised his hand up; it's displayed face out. So we say that it is in alliance with what the elements of the offence are, that it was worn. By its very nature it's a display piece of jewellery and it has that symbolism on there for display. To actually show that affiliation. So therefore we say that the case is beyond reasonable doubt….
[52] ts 15.
Earlier on in the closing address, the prosecuting sergeant said that the witness (Senior Constable Lavers) gave evidence that 'he was able to observe that that ring from two metres away'.[53]
[53] ts 14.
The prosecution address focussed on the visibility of the ring itself, as opposed to the visibility of the insignia on it.
In the closing address of Mr Greenway's counsel, Mr Greenway accepted that the Raffles is a public place, the Comancheros are an identified organisation, the 1% and the Comanchero logo each constitute insignia and that the ring is a prohibited thing due to carrying the insignia.[54]
[54] ts 15.
After accepting these matters, Mr Greenway's counsel then said:[55]
But what we don't accept is that the insignia itself which is on the ring, would be visible to another person that was at the Raffles at that time.
Going about their ordinary business that would be expected of another patron. You see, in relation to the law and approaching this task of the assessment, your Honour, I would say the correct approach is to determine whether Mr Greenway wore the ring in a manner that the insignia would become visible. And that's so that the insignia is then capable of being seen by another hypothetical person. And the prosecution doesn't have to prove that it was actually seen by another person.
And the fact that [Senior Constable Lavers] saw it is, in effect, irrelevant. And I will come to that again later.
[55] ts 15 - 16.
Mr Greenway's counsel did not return to the subject matter of Senior Constable Lavers' evidence.
Her Honour's reasons and Ground 1
As I have explained, a necessary element of the offence in this case is that the insignia on the ring would be visible to another person in the Raffles Hotel. The essence of ground 1 is that her Honour did not identify this as being a necessary element and consequently made no findings as to visibility. Accordingly, Mr Greenway submits, her Honour made an error of law.
Consideration of ground 1 requires me to consider her Honour's reasons as a whole.
In her Honour's reasons, her Honour set out that Mr Greenway was sitting at the back area of the Raffles Hotel eating a pizza, that Senior Constable Lavers arrived, activated his body worn camera footage and filmed his approach towards Mr Greenway and his interaction with him. Further, that Senior Constable Lavers seized from Mr Greenway a large gold ring on which there was an image displaying the words 'Comanchero Australia' and an image of a bird on the front square face of the ring. Further, her Honour referred to there being an identical image on both sides of the ring being 1% surrounded by a wreath in a circular symbol.
Her Honour said that the elements of the offence are relatively straightforward, being whether there was a display of an insignia of an identified organisation within a public place. Her Honour then read out the meaning of insignia as defined by s 22 of the Act. Her Honour said the meaning of the word display is defined within s 24 of the Act and read out that section. Her Honour seems to have proceeded on the premise that s 24 defined the meaning of the word 'display', as opposed to it providing an expanded meaning of the word 'displays' which appears in s 25(2). As I have already explained, I think the expanded meaning approach is the preferred interpretation of the relevant provisions. In any event, the prosecution case is put by reference to the provisions of s 24.
Her Honour said that the argument raised on behalf of Mr Greenway: [56]
…is that the display of the ring on the accused's finger was not able to be seen by other members of the public within the public place, and therefore it was not a true display of that insignia. The contention being that the wearing of the ring was simply the wearing of a large gold ring with no evidence of any person, any member of the public, having seen the insignia on that ring.
[56] ts 19.
Her Honour then found that 'the purpose of section 24 is to allow for a display to be defined as simply wearing the prohibited item'.[57] Her Honour also found that there was no issue that the item was worn in the public place and the evidence shows that it was in fact on Mr Greenway's finger at the relevant time.[58] The critical aspect of her Honour's reasoning is as follows:[59]
As to the application of section 24, it would appear that the prosecution have proved beyond reasonable doubt that Mr Greenway was wearing the item. There's no contest as to it being in a public place.
There's no contest as to the identified organisation being one of the organisations who is prohibited within the schedule of the Act. I note that the Comancheros name and symbol are depicted on the front face. The acronym relating to the Comancheros, being 'ACCA' and 'one percent' is on both sides of the ring. The definition of 'insignia' allows for 'one percenters' being part of the insignia of an identified organisation as defined.
And so, reviewing the evidence within this case, it would seem that the prosecution have proved beyond reasonable doubt the elements of the offence that Mr Greenway did on the relevant date display insignia of an identified organisation, being Comancheros, in a public place. And so there's a judgment of conviction.
[57] ts 19
[58] ts 19.
[59] ts 19 - 20.
In summary then, what her Honour found was that Mr Greenway was wearing a ring containing insignia of a prohibited organisation in a public place. Her Honour did not expressly find that he was wearing the ring in such a manner that the insignia on it would be visible to another person in that public place. Her Honour also did not identify that an element of the offence was that the insignia on the ring would be visible to another person in the Raffles Hotel. To the contrary, her Honour held that 'the purpose of section 24 is to allow for a display to be defined as simply wearing the prohibited item'.
Pursuant to s 31(1) of the Magistrates Court Act 2004 (WA), her Honour's reasons need only identify the facts that her Honour has accepted, and the law that her Honour has applied, in coming to her decision and give the reasons for doing so.
Further, as Pritchard J (as her Honour then was) observed in Gartner v Brennan:[60]
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. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. 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, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced). (footnotes omitted)
[60] Gartner v Brennan [2016] WASC 89 [58]; see also Strahan v Brennan [2014] WASC 190 [89] - [90].
However, these observations do not convey that the learned magistrate's reasons can be interpreted so as to include material matters that were overlooked, nor that they can be interpreted in a way which is substantially inconsistent with what her Honour said.
As the respondent's counsel rightly points out, her Honour commenced her consideration of the elements of the offence by noting the relevant statutory definitions, including the provisions of s 24(1) of the Act. The respondent says that this means her Honour directed herself to the appropriate legal test. I do not accept that submission. While her Honour directed herself to the appropriate legislative provision, the identification of the appropriate legal test still required that provision to be interpreted. As can be seen from what I have written regarding the Act, its interpretation (at least to my mind) has certain nuances to it and is not necessarily straight forward.
The substance of the respondent's submission is that while her Honour simply noted that the prosecution had proved beyond reasonable doubt that Mr Greenway was wearing the item, this must be understood by reference to her Honour's earlier statement as to the meaning of display in s 24.[61] It seems to me that there are three difficulties with this submission. First, it is not what her Honour said. Her Honour held that display under s 24 is defined as simply wearing the prohibited item. In my view, it is not open to view that passage as incorporating the additional words of the section that such insignia was worn in a manner that it would be visible to another person in the public place. To do so would be to interpret her Honour's reasons in a manner expressly contrary to what her Honour said. Second, her Honour's reasons do not interpret the phrase 'would be visible to another person in the public place' which is the critical phrase in determining whether Mr Greenway is guilty of the offence. Third, her Honour did not make any findings as to the visibility of the insignia on the ring.
[61] Respondent's written submissions, par 24.
The respondent's counsel also submits that her Honour's sentencing remarks reflect that her Honour considered the meaning of display in coming to the finding of guilt.[62] Her Honour said:[63]
Mr Greenway, obviously I've found against you in terms of the display of the item. With that said, it - noting the nature of the display on the scale for offences of its type, it was not a particularly overt example of it in my view.
[62] Respondent's written submissions, par 25.
[63] ts 20.
However, even if those remarks could be read as the respondent's counsel suggests, that does not overcome the three matters I have set out at [108].
Accordingly, I am not satisfied her Honour's reasons can be interpreted as demonstrating that her Honour found Mr Greenway wore the ring in a manner that the insignia on it would be visible to another person in the Raffles Hotel within the meaning of the Act. Accordingly, with respect, her Honour's reasons do not address a necessary element of the offence and I am satisfied her Honour made an error of law. Mr Greenway has therefore made out ground 1 of the appeal. I grant leave to appeal in respect of that ground.
Notwithstanding that success on ground 1, I still need to consider ground 3. It founds the claimed relief that a judgment of acquittal be entered for Mr Greenway.
Ground 3
As is apparent from my consideration of ground 1, her Honour did not make any factual findings in relation to the visibility of the insignia on the ring. Also, the prosecution closing focussed on the visibility of the ring, as opposed to the insignia on it.
The evidence at the trial was constituted by Senior Constable Lavers' evidence, the ring, Senior Constable Lavers' body worn camera footage and the photographs of the ring. I have read Senior Constable Lavers' evidence, watched the footage and viewed the other exhibits.
As to the body worn camera footage, it shows the following. Mr Greenway was sitting at a small table with another person, who was in relative close proximity to Mr Greenway. From looking at the footage, there was about one and a half arms lengths between them. The ring was on the index finger of Mr Greenway's left hand, with the top of the ring being face up. Mr Greenway had no other rings on the fingers or thumb of that hand. Senior Constable Lavers approached Mr Greenway from behind and spoke to him. While Senior Constable Lavers was speaking, Mr Greenway stroked his beard with his left hand. As he did so, the top of the ring which contained the Comanchero insignia was directed towards the other person at the table.
Having looked at the ring, and viewed the footage, their combined effect is not capable of proving Mr Greenway's guilt beyond reasonable doubt. While I am able to discern the features on the top of the ring from a relatively close distance, the ability to do so reduces as that distance increases. Also, on a close inspection of the footage, I am not able to discern any of the insignia on the ring from the footage.
It is Senior Constable Lavers' evidence that is material to the disposition of ground 3. If his evidence conveys that he saw the insignia on the top of the ring from approximately 2 m away, and that evidence is capable of being accepted, then in my view the evidence at trial is capable of proving Mr Greenway's guilt beyond reasonable doubt. In that respect, from the footage, the other person at the table is within an approximate 2 m range and at one point the top of the ring is pointed at that person.
Mr Greenway does not suggest that Senior Constable Lavers' evidence was dishonest or misleading. Rather, Mr Greenway submits that the net effect of that evidence and its unreliability is such that I must have a reasonable doubt as to whether Mr Greenway is guilty of the charged offence. It is therefore necessary to consider its effect and the matters that go to its reliability.
In assessing Senior Constable Lavers' evidence, I do not have the same advantages as her Honour did in observing the Senior Constable as he gave that evidence. This includes how carefully he looked at the photographs and footage when asked about them, whether there was any hesitation in giving his answers, and whether he placed any emphasis on particular answers. Also, in his evidence, Senior Constable Lavers was asked to identify by reference to the footage where it was that he identified the ring as a Comanchero ring. The transcript does not identify at which point on the footage that was.
It is worthwhile setting out again particular aspects of what Senior Constable Lavers said regarding the visibility of the ring.
Senior Constable Lavers was asked 'So when you say that you've identified it as a Comanchero's ring, what I mean is were you observing the actual detail of the ring from there?' He answered 'Not in 100 per cent detail … But I could recognise it as - I've seen them before … I know what I was looking for, and - yes, that was the ring'.[64]
[64] ts 6.
Shortly after having given this answer, the prosecuting sergeant asked Senior Constable Lavers for clarification of his evidence. Senior Constable Lavers was shown a close‑up photograph of the top face of the ring which showed the three piece insignia. He was asked 'how far away were you when you actually were able to see that?' and he answered, 'When I was able to see that three piece insignia was approximately two metres'.[65]
[65] ts 8.
Senior Constable Lavers was not cross-examined on this evidence. The overall thrust of the cross-examination was directed to two matters. First, that he was on heightened alert at the time, given Mr Greenway's antecedents. Second, that the movement of people within the Hotel at the time was limited. As I understood it, the first matter was directed to demonstrating that Senior Constable Lavers' observations were not that of an ordinary member of the public. In relation to the second matter, it does not take account of the other person sitting at the table with Mr Greenway.
The approach taken on this appeal is somewhat different. It is that Senior Constable Lavers' evidence did not convey that he saw the indicia on the ring from approximately 2 m away and, even if it did, that evidence is unreliable having regard to the ring and the footage.
Mr Greenway submits that Senior Constable Lavers' evidence understood as a whole conveyed that at a distance of approximately 2 m, he could perceive there were three things on the face of the ring, which he knew from experience to be insignia of the Comanchero, as opposed to him actually being able to see that insignia.[66]
[66] Appeal hearing, ts 15 - 17, 32.
In making this submission, Mr Greenway places particular emphasis on Senior Constable Lavers' evidence that he did not observe the actual detail of the ring in 100% detail. However, it was subsequent to giving this evidence that Senior Constable Lavers was shown a photograph of the insignia on the top of the ring and asked 'how far away were you when you were actually able to see that?'[67] In his answer he used the words 'able to see that three piece insignia'.[68] So, the question and answer were both directed to him being able to see the insignia, not to him recognising the ring as a Comanchero ring.
[67] ts 8.
[68] ts 8.
In my view, the preferred interpretation of Senior Constable Lavers' evidence is that from 2 m away, he did not observe the actual detail of the ring in 100% detail, however he did see the Comanchero insignia on the top of the ring from approximately 2 m away. This interpretation is consistent with there being other insignia on the sides of the ring which are not as prominent as the insignia on the top.
Mr Greenway's submission in effect requires a reading down of Senior Constable Lavers' evidence. In my view, that is not a task that I can undertake. To do so, requires an assessment of the manner in which Senior Constable Lavers gave his evidence and also where it was on the footage that he first identified the ring as a Comanchero ring.
Mr Greenway also submits that Senior Constable Lavers' evidence is unreliable, when regard is had to the ring itself and to the body worn camera footage.
As I have already stated, I cannot make out the insignia on the ring from the footage and while I am able to discern the features on the top of the ring from a relatively close distance, the ability to do so reduces as that distance increases. However, this does not itself mean that Senior Constable Lavers' evidence is unreliable. The Senior Constable was there, he viewed the ring in the light conditions that existed at the time, at varying distances as he approached, and in circumstances where there were different angles of presentation of the ring. This key piece of evidence was not challenged in cross‑examination, so I do not have the benefit of what he might have said if he had been challenged. I also do not have the benefit of observing Senior Constable Lavers give his evidence and her Honour made no findings as to the reliability of his evidence. I do not know where it was on the footage where Senior Constable Lavers first identified the ring as a Comanchero ring. Where that was may add to, or detract from, the plausibility of Senior Constable Lavers' evidence.
In all of these circumstances, in my view, Senior Constable Lavers' evidence is capable of being accepted and therefore the evidence as a whole is capable of proving Mr Greenway's guilt of the offence.
For these reasons, ground 3 is not made out. It follows that a judgment of acquittal should not be entered. I will however grant leave to appeal on ground 3, as I consider it did have a reasonable prospect of succeeding.
It is next necessary to consider the respondent's contention that even where Mr Greenway succeeds on ground 1, this did not occasion a substantial miscarriage of justice and therefore the appeal should be dismissed.
Is there no substantial miscarriage of justice?
In the High Court decision of Kalbasi v The State of Western Australia,[69] the majority stated that:
…Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. (footnotes omitted)
[69] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [15].
In this case, the error is that her Honour did not correctly identify the elements of the offence. The omitted element - that the insignia would be visible to another person in the Hotel - was a matter that Mr Greenway's counsel had put in issue at trial (see [95] above). As a consequence of the error, her Honour did not make any findings as to visibility.
For the respondent to succeed in its contention, I would first need to be persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, Mr Greenway's guilt of the offence. If I was so satisfied, I would also need to consider whether the discretion provided by s 14(2) of the CA Act should be exercised in circumstances where her Honour did not correctly identify the elements.
The respondent points to three particular aspects of the evidence in support of its submission that the appeal should be dismissed because there is no substantial miscarriage of justice even if ground 1 is made out.[70] First, the ring was worn face up, such that the insignia would be visible to another person. Second, the ring was worn in such a manner that Senior Constable Lavers recognised and could see the insignia on the top face of the ring from approximately 2 m away. Third, the ring was being worn in the company of the other person seated at the table.
[70] Respondent's written submissions, par 35.
In assessing the respondent's contention, I must have regard to the whole of the evidence, which requires me to go over again some of the same considerations I have already addressed in relation to ground 3, considered though from a different perspective.
For reasons that I have already explained at [116], having looked at the ring, and viewed the footage, their combined effect is not sufficient to satisfy me of Mr Greenway's guilt beyond reasonable doubt.
I have found that the preferred interpretation of Senior Constable Lavers' evidence is that from 2 m away, he did not observe the actual detail of the ring in 100% detail, however he did see the Comanchero insignia on the top of the ring from approximately 2 m away. If I was persuaded this evidence should be accepted, then in combination with the ring and the footage, I would be persuaded that the evidence at trial proved Mr Greenway's guilt of the offence beyond reasonable doubt. This is because, in my view, the totality of that evidence demonstrates that the insignia would be visible to the other person at the table.
Senior Constable Lavers' evidence must however be viewed in light of all of the evidence, including whether what Senior Constable Lavers said is consistent with the features of the ring and with what can be discerned from the footage.
Senior Constable Lavers' evidence is arguably inconsistent with the ring and the footage, as from inspecting them, the visibility of the insignia on the top of the ring is not immediately apparent from a distance of around 2 m. Also, at times in Senior Constable Lavers' evidence, he blends what he could in fact see with his own experience of the Comanchero, so for example, where he says 'I could recognise it as - I've seen them before…I know what I was looking for…'.
Whether the matters I have identified at [142] ultimately affect an assessment of Senior Constable Lavers' evidence is a matter that needs to be considered by the trier of fact, having the benefit of the advantages I have already identified in respect of ground 3.
Accordingly, sitting on appeal, I am not persuaded that Senior Constable Lavers' evidence regarding the visibility of the insignia should be accepted.
The respondent also submits that Mr Greenway's counsel in his closing address at trial accepted Senior Constable Lavers' evidence that he had seen the insignia on the ring. Mr Greenway's counsel commenced his closing address by outlining those matters which were accepted.[71] Those accepted matters did not include Senior Constable Lavers' evidence as to the visibility of the insignia.
[71] ts 15.
The relevant passage to which counsel for the respondent refers is where Mr Greenway's counsel said:[72]
And the prosecution doesn't have to prove that it was actually seen by another person.
And the fact that [Senior Constable Lavers] saw it is, in effect, irrelevant. And I will come to that again later.
[72] ts 16.
Unfortunately, trial counsel did not return to the subject matter of Senior Constable Lavers' evidence.
On the one hand, the passage set out at [146] could be viewed as an acceptance of Senior Constable Lavers' evidence. On the other hand, it could be viewed as saying even if Senior Constable Lavers did see the insignia, that is irrelevant. Reflecting on the entirety of the closing address, I do not think I can regard this passage in isolation as an acceptance that Senior Constable Lavers saw the insignia on the top of the ring from approximately 2 m away.
For these reasons, sitting on appeal, I am not persuaded that the evidence properly admitted at trial proved beyond reasonable doubt Mr Greenway's guilt of the offence. That ultimately must be a determination for the trier of fact, who has the advantage of seeing and hearing witnesses give their evidence.
Accordingly, I am not satisfied that there is no substantial miscarriage of justice occasioned by reason of the error of law the subject of ground 1.
Conclusion
For these reasons:
1.I extend to 17 April 2023 the time for Mr Greenway to commence this appeal.
2.I grant leave to appeal on ground 1 and on ground 3.
3.The appeal is allowed on ground 1.
4.Ground 3 is not made out.
5.The judgment of conviction is set aside.
6.I order that there be a retrial before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Research Associate to the Honourable Justice Lemonis
18 AUGUST 2023
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