Greenway v WA Police
[2024] WASC 463
•5 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GREENWAY -v- WA POLICE [2024] WASC 463
CORAM: HOWARD J
HEARD: 11 NOVEMBER 2024
DELIVERED : 5 DECEMBER 2024
FILE NO/S: SJA 1016 of 2024
BETWEEN: NATHAN NORMAN GREENWAY
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE YOUNG
File Number : PE 489 of 2022
Catchwords:
Single judge appeal - Appeal against conviction - Whether the learned Magistrate erred in law - Interpretation of the word visible as it applies to insignia - Whether insignia displayed
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) s 21, s 24, s 25(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr C C Porter |
| Respondent | : | Mr J Berson |
Solicitors:
| Appellant | : | Terry Dobson Legal |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Greenway v Lavers [2023] WASC 311
Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
HOWARD J:
The appellant's conviction and sentence
The appellant was charged with an offence against s 25(2) of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (Act) that on 7 January 2022 he displayed insignia of an identified organisation in a public place.
Following a trial on 7 February 2024, the appellant was convicted.
The learned Magistrate imposed a fine of $1,500 and ordered the appellant pay costs of $259.30.
By way of background, the appellant had previously (on 10 January 2023) been convicted of the same offence arising out of the same incident. An appeal against that conviction was allowed by Lemonis J in Greenway v Lavers (Greenway 1). [1]
[1] Greenway v Lavers [2023] WASC 311.
Relevant statutory provisions
Section 25(2) of the Act provides:
(2)A person commits an offence if the person displays insignia of an identified organisation in a public place.
…
By s 21 of the Act, 'display' has 'a meaning affected by section 24' of the Act.
Relevantly, s 24(1) of the Act provides:
(1) 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 … (original emphasis)
Ground of Appeal
The appellant's ground of appeal is:
The learned Magistrate erred in law by applying an interpretation of the word visible as it applies to insignia by section 24 of the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021, not as meaning an insignia being wholly or perceptible to the eye of an onlooker, but as meaning and including circumstances where a part of a word or an aspect of an image constituting insignia are partially perceptible to the eye of an onlooker and based on special familiarity or experience with that particular word or image an onlooker uses a process of intuition to conclude as to what the word or image is.
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's conviction is a 'decision' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on his appeal ground.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[2]
[2] Samuels v State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 (Samuels) [56].
The trial
The sole prosecution witness was Detective Lavers who had approached the appellant at the Raffles Hotel on the afternoon of 7 January 2022.[3]
[3] ts, Western Australia Police v Greenway, Perth Magistrates Court, 7 February 2024, (Magistrates Court ts), 4.
The appellant was sitting at a table with another person.[4]
[4] Magistrates Court ts 5, 6.
Broadly, the detective's evidence was that as he approached the appellant he saw the appellant's ring.
The detective saw that the gold ring had the Comancheros' insignia on it.[5] The detective described the insignia he saw at about 2 metres from the appellant.[6]
[5] Magistrates Court ts 5, 7.
[6] Magistrates Court ts 5.
Three exhibits were tendered:
1.the ring itself (exhibit 1);
2.the detective's body worn camera footage (exhibit 2); and
3.two photographs depicting the ring (exhibit 3).
It was not in dispute at trial or in this Court that:
1.the 'Comancheros' were an 'identified organisation' named in Sch 2 to the Act;
2.the appellant was wearing the gold ring which was exhibit 1;
3.the word 'Comanchero' and a bird logo were on the ring, both of which were insignia of that identified organisation within the meaning of s 22(1) of the Act;
4.the ring had a 1% symbol on it, which was insignia within the meaning of s 22(2)(a) of the Act; and
5.the Raffles Hotel was a public place within the meaning of s 25(2) of the Act.
The appellant contended that the issue in dispute was whether the insignia were 'visible' within the meaning of s 24(1) of the Act.
The detective's evidence was that he could read Comanchero and Australia, and see the bird and the 1% logo in a diamond on the ring.[7]
[7] Magistrates Court ts 5.
The detective was cross-examined. In the course of that cross‑examination, the detective said:
1.he saw the word Comanchero and recognised it as that word;[8]
2.he could not be certain that he saw every single individual letter;[9]
3.he believed that he read the letters forming the word Comanchero and the letters forming the word Australia and was able to make out the bird on the ring;[10]
4.he was very familiar with the Comancheros' insignia and motifs;[11] and
5.he saw the ring was Comancheros because it said Comancheros on it.[12]
[8] Magistrates Court ts 10.
[9] Magistrates Court ts 10.
[10] Magistrates Court ts 11.
[11] Magistrates Court ts 12.
[12] Magistrates Court ts 12.
The appellant contended before the Magistrate that it was implausible that any person, including Detective Lavers, would have been able to read the words or make out the images on the ring from a distance of around 2 metres away.[13]
[13] Appellant's submissions [37], Magistrates Court ts 32.
The learned Magistrate's reasons
His Honour identified that the issue in the trial was whether the prosecution had proved beyond reasonable doubt that the insignia were displayed.[14]
[14] Magistrates Court ts 37.
His Honour said:
But it is enough, in my view, if the item as a whole, that is, that the picture, the way the words surrounded it, you've got the Comancheros for example in a semicircle pattern around the bird, and then the word "Australia" in a straight line beneath that, it would be enough that if the item as a whole with those characteristics were visible to another person in that public place. And that, in my view, is the essence of the evidence given by Detective [Lavers].
So his evidence in chief was that - and that's leaving aside the finer point of whether or not he can articular in words the concept of seeing, but his evidence in chief was that, "I would have been a couple of metres away when I noticed the ring and insignia. It has a recognisable logo and 1 percent".[15]
[15] Magistrates Court ts 39.
The Magistrate found that the body worn camera footage showed that the ring itself was plainly visible as the detective approached the appellant.[16] The Magistrate found, by reference to the footage, again:
And during that time Mr Greenway raised his hand with the ring on, on two occasions, to stroke his beard and adjust his mask and the ring was certainly prominent during those times at least. And I'm satisfied beyond reasonable doubt that [Lavers] or a member of the public would have been able to see the insignia.[17]
[16] Magistrates Court ts 40.
[17] Magistrates Court ts 40.
His Honour further found, in conclusion:
… I'm satisfied beyond reasonable doubt that [Lavers] was an honest and credible witness. His evidence essentially was that as he approached, he noticed the ring.
As he got closer, and the estimates - and they're only estimates was about 1.5 metres, he was able to discern the insignia and he specified not necessarily every single letter, but some of the letters, the logo, the style of the pattern was recognisable, and that, in my view, is sufficient to constitute display.[18]
[18] Magistrates Court ts 42.
Appellant's contentions on appeal
In the appeal, the appellant conceded:
[22]The Appellant accordingly concedes, consistent with the interpretation put above (as he did in [Greenway 1]), that the prosecution case can be made out by proving beyond reasonable doubt that the insignia on the ring would be visible to the person who was sitting at the table with Mr Greenway, attributing to him ordinary characteristics of sight.
[23]Further, it is conceded factually that if on the evidence it could be found beyond reasonable doubt that that the insignia on the ring were actually visible within the meaning of s 24(1)(a), by Constable Lavers, from a distance of about 2m away; then the evidence would also establish beyond reasonable doubt that the insignia would be visible to the other person who was sitting at the table with Mr Greenway (who was about 1.5 metres away).[19]
[19] Appellant's submissions dated 10 May 2024 [22] - [23].
A core proposition advanced by the appellant was that:
… ‘visible’ and ‘recognisable’ are different concepts. Notably, evidence that someone recognises insignia of an identified organisation in a public place without a word or image constituting an insignia being fully perceptible to their eye (because they have some special familiarity or past experience with the particular insignia in question), should not be taken to constitute evidence of the insignia being visible to another person in a public place.[20]
[20] Appellant's submissions [28].
The appellant contended that the Magistrate conflated the concepts of something recognisable because the observer is familiar with it and is able to make an educated guess about it with something being fully visible to the observer's eye[21] and that conflation continued into the reasons for judgment.[22]
[21] Appellant's submissions [45].
[22] Appellant's submissions [46].
That 'conflation' is the central, if not only, error of law which the appellant submits was made.
The appellant submitted:
In the Appellant’s submission, an insignia is either visible to a person's eye (with normal eyesight) from a certain position within the meaning of s 24(a), or it is not. And that visibility in the context of s24(a) is a physical concept that requires that the words or image constituting an insignia be fully perceptible to the eye of an observer. Visibility in this context does not describe a situation where a person may by intuition or educated guessing, based on special familiarity or past experience, infer what a word or image is without the word or image being fully visible to them.[23]
[23] Appellant's submissions [48].
It was submitted that the Magistrate applied an incorrect interpretation of the word 'visible' as it appeared in s 24(a) of the Act.[24] That is, the Magistrate considered the insignia visible where they were only partly perceptible to the eye of an observer but the observer 'by intuition or educated guessing based on special familiarity or past experience' infers or discerns that the word or image was insignia and in that way recognised it without it being fully visible.[25]
[24] Appellant's submissions [54].
[25] Appellant's submissions [54].
Appeal ground consideration
With respect, in my view, the appeal ground seeks to present an attack on the factual findings made by the Magistrate as an error of law.
In my view, the evidence of the detective, if accepted, was capable of supporting the conviction that the insignia on the ring were visible to him at about 2 metres.
The detective's evidence, if accepted (and it was by the Magistrate), contradicted the factual premise in the appeal ground; that premise being that the detective could only 'see' the insignia because he recognised them without 'reading' them.
There is also an unstated premise in the appellant's contentions that one only reads or sees words if one reads or sees each and every letter distinctly. I do not need to decide whether that is correct or not because of the detective's evidence. I merely note in passing that the premise strikes me as one unlikely to be correct.
Both parties referred me to Greenway 1. In that case, Lemonis J, with customary care, analysed the objects and scope of the Act and its relevant provisions.[26]
[26] Greenway 1 [34] - [56].
I consider that the concessions properly made by the appellant (as set out in paragraph [27] above) mean that I do not need to consider the parties' submissions as to certain aspects of Lemonis J's reasoning in Greenway 1. Those matters can and should await a case where they need to be decided.
Disposition
I consider that the appeal ground must fail. No appellable error has been identified. I therefore refuse the appellant leave to appeal and dismiss the appellant's application.
I will hear the parties, if need be, as to the form of final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
5 DECEMBER 2024
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