Griffen v Birch - [2023] WASC 444

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   GRIFFEN -v- BIRCH [2023] WASC 444
CORAM:   MITCHELL J
HEARD:   6 SEPTEMBER 2023
FURTHER WRITTEN SUBMISSIONS ON
22 SEPTEMBER 2023 & 16 OCTOBER 2023

DELIVERED          :   24 NOVEMBER 2023
FILE NO/S:   SJA 1047 of 2023
BETWEEN:   MARK THOMAS GRIFFEN
Appellant
AND
PETER ALEXANDER BIRCH
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MAHON
File Number            :   AR 5817 of 2022

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction for common assault - Where appellant was employed as a youth custodial officer at Banksia Hill Detention Centre and complainant was a juvenile detainee - Whether guilty verdict is unreasonable or unsupported by evidence - Whether magistrate erred by incorrectly interpreting and applying the Young Offenders Act 1994 - Whether self-defence requires a proportionate response

Legislation:

Criminal Code (WA), s 248, s 313(1)(b)
Young Offenders Act 1994 (WA), s 11, s 11B, s 11C
Young Offenders Regulations 1995 (WA), reg 71, reg 72

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	F M Hugo
Respondent	:	P A Femia

Solicitors:

Appellant	:	Tehan Legal
Respondent	:	State Solicitor's Office

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

Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651
DKA v The State of Western Australia [2019] WASCA 123
Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203
Elwin v Robinson [2014] WASCA 46
Gibbs v The State of Western Australia [2018] WASCA 68
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351
Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62
Lacco v Director of Public Prosecutions (WA) [2022] WASC 168
M v The Queen (1994) 181 CLR 487
Strahan v Brennan [2014] WASC 190
Technip Oceania Pty Ltd v Director of Public Prosecutions (Cth) [2021] WASCA 139; (2021) 251 LGERA 111
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wells v The State of Western Australia [2017] WASCA 27
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

MITCHELL J:

Summary

The appellant, a custodial officer at Banksia Hill Detention Centre, was charged with unlawfully assaulting the complainant, who was a detainee at the Centre, on 5 May 2022. That is an offence against s 313(1)(b) of the Criminal Code (WA) (Code). On 3 May 2023, the appellant was convicted of that offence after trial in the Magistrates Court. He received a fine of $3,000 with a spent conviction order and was ordered to pay costs of $264.30. The appellant now appeals against his conviction of that offence.
There is no dispute that the appellant assaulted the complainant by applying force to the complainant without the complainant's consent.[1] The issue at trial, and on appeal, is whether the appellant's assault of the complainant was unlawful. Section 223 of the Code relevantly provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law. The appellant's case at trial was that the prosecution had not proven, beyond reasonable doubt, that the assault was not authorised or justified by law. The authorisation or justification which the appellant sought to invoke was that provided by:
1.s 11C of the Young Offenders Act 1994 (Act), which authorises certain uses of force by custodial officers; and/or
2.s 248 of the Code, which provides that a harmful act is lawful if done in self-defence under s 248(4) of the Code.
[1] See the definition of 'assault' in s 222 of the Code.
The appellant now appeals against his conviction on three grounds. Ground 1 contends that the verdict of guilty is unreasonable and cannot be supported, having regard to the evidence. Grounds 2 and 3 each in effect contend that the magistrate made an error of law in misconstruing provisions relied on by the appellant as authorising or justifying the assault. Ground 2 contends that the magistrate erred in fact and law by incorrectly interpreting and applying the Act. Ground 3 contends that the magistrate erred in law by stating that self-defence under s 248 of the Code required a proportionate response.
The respondent in effect contends that it was open to the magistrate to be satisfied, beyond reasonable doubt, that the assault was unlawful so that ground 1 is not established. In relation to ground 2, the respondent accepts that the magistrate erred in his construction of the Act. However, the respondent contends that any error by the magistrate was inconsequential and did not give rise to any substantial miscarriage of justice. The respondent denies that the magistrate construed the requirement for a reasonable response in s 248(4)(b) of the Code as requiring a proportionate response, as contended for by ground 3.
For the following reasons, the appeal must be dismissed.

Statutory provisions

I note the following relevant statutory provisions.

Offence creating provisions

Under s 313(1) of the Code:
Any person who unlawfully assaults another is guilty of a simple offence[.]
Section 222 of the Code relevantly provides that a person who applies force of any kind to the person of another, either directly or indirectly, without his or her consent is said to assault that other person, and the act is called an assault. Section 223 of the Code relevantly provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

Authority under the Act

Section 11(1a)(a) of the Act provides for the chief executive officer of the Department to appoint custodial officers for primarily non‑administrative functions. Under s 11B(d) of the Act, a custodial officer:
may issue to a detainee such orders as are necessary for the purposes of this Act, including the security, good order, or management of a facility or detention centre, and may use such force as is prescribed under section 11C as is necessary to ensure that lawful orders given to a detainee are complied with.
Section 11C of the Act provides:
(1)A custodial officer is authorised to use no more than prescribed force in the management, control and security of a facility or detention centre.
(2)A custodial officer must not use force on a young offender unless that force is used in the prescribed circumstances.
Regulation 71 of the Young Offenders Regulations 1995 (WA) (Regulations) provides:
(1)For the purposes of section 11C(1) of the Act —
prescribed force means the degree of physical force which is the minimum required to control a detainee's behaviour in the circumstances.
(2)A person cannot use a physical restraint hold when applying prescribed force unless —
(a)that person has received instruction in the proper use of that hold; and
(b)the use of that type of hold has been authorised by the superintendent.
Regulation 72 of the Regulations relevantly provides:
(1)For the purposes of section 11C(2) of the Act —
prescribed circumstances means an immediate period when a detainee is imminently presenting a risk of physical injury to himself or herself, other detainees or staff.
(2)As soon as the imminent risk has passed and the detainee has been stabilised then prescribed circumstances for the use of force no longer exist.

Self-defence

Section 248 of the Code relevantly provides:
(1)In this section —
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
…
(4)A person's harmful act is done in self-defence if —
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.

The prosecution case at trial

The prosecution case was that the assault occurred when the complainant returned to the Banksia Hill Detention Centre from court on 5 May 2022. The arrival process required the complainant to stand on a box about 30 cm off the ground so he could be 'wanded' to check for weapons etc. When the complainant returned to Banksia Hill he was 'a bit agitated', was 'a bit mouthy with the staff' and was not compliant with getting on the box. The complainant was instructed to get on the box which he did. The complainant continued to be argumentative towards staff and 'mouth off'. The complainant then thrust his chin out towards the appellant, which the complainant described as 'baulking' towards the appellant. The appellant then applied force towards the complainant who was on top of the box.[2]
[2] Trial ts 15/3/23 pages 28 ‑ 29.
The prosecutor did not contend that there was no need for the appellant to use any force and accepted that a 'type of [restraint] would have been fine'. However, the prosecutor contended that the force used by the appellant was excessive, 'over the top' and disproportionate in all the circumstances. The prosecutor contended that self-defence was negated on the basis that the force used was not reasonable in the circumstances.[3]
[3] Trial ts 15/3/23 pages 30 ‑ 31.

The defence case at trial

The defence case at trial identified two pathways to the appellant's acquittal. First, it was contended that s 11C of the Act authorised the appellant to act as he did. Counsel said that the appellant applied a hold known as a 'harness hold' or a 'seatbelt hold' which was authorised. Secondly, it was contended that self-defence had not been excluded as the prosecution had not proven that the appellant's response was not a reasonable response in the circumstances as the appellant believed them to be. Defence counsel did not understand the prosecution to contend that it had proven the other elements of self-defence were not satisfied.

Evidence at trial

The following is a summary of the evidence adduced at trial.

Prosecution evidence

The prosecution relied on the oral evidence of the complainant, as well as written statements by four youth custodial officers which were read into evidence by consent.

CCTV footage

The prosecution also relied on two CCTV recordings showing the reception area where the conduct alleged to constitute the offence occurred. The footage is shot from two perspectives. Exhibit 1 was taken from an elevated position behind the reception desk. Exhibit 8 is shot from a less elevated position facing the entry door from the sally port to the reception area. The CCTV footage comprises video without audio.
The footage shows the complainant, who stands at about shoulder height to the appellant, entering the reception area from the sally port. The complainant passes by an orange box which sits on the floor at just below knee height of the officers. There are four youth custodial officers around the complainant in the main reception area, and a fifth officer behind the reception desk.
The complainant walks past the orange box as an officer (who would appear to be Officer Jenkins) makes a gesture for him to stand on the box. The appellant, who is behind the complainant, grabs the back of the complainant's shirt and spins him around. As the complainant faces the appellant, he can be seen to be remonstrating with him. Officer Jenkins places his hand on the complainant's back and a third officer (who appears to be Officer Lyons) points to the top of the orange box. About five seconds after the appellant grabbed the complainant's shirt, the complainant stands on the orange box. Standing on the orange box, the top of the complainant's head is slightly above the top of the appellant's head. The complainant continues to face the appellant and remonstrate with him. The four officers are standing close to and are surrounding the complainant. The appellant is still holding onto the back of the complainant's shirt and Officer Lyons is holding the top of the complainant's right arm as the complainant turns away from the appellant and appears to attempt to step off the box about three seconds after stepping onto it.
The complainant, still standing on the orange box, raises and lowers his right arm, and the appellant and Officer Lyons release their hold on him. The complainant turns around to face the appellant and appears to be remonstrating with him. About five seconds after stepping onto the orange box, the complainant's upper body moves towards the appellant. At this point, the appellant places his gloved hand at the back of the complainant's neck. He pulls the complainant forward and off the orange box. The appellant's forearm pushes on the side and front of the complainant's neck and pushes the complainant backwards onto the ground from the elevated platform. The floor of the reception area appears to be a hard surface. The complainant lands heavily on the ground on his back or side about seven seconds after he stood on the orange box. There is then a struggle between the complainant and the officers. The complainant is turned around to face the floor and is restrained by the four officers. Still resisting, the complainant is forcibly removed from the reception area.

Complainant's evidence

The complainant's evidence was that he was born in October 2007 and was 14 years old at the time of the incident on 5 May 2022. He exited the bus returning him from the court and saw one of his friends who he began to walk towards. The appellant grabbed him, and the complainant said, 'Leave me alone, you motherfucker'. The appellant said, 'You've got to come here for a search' and the complainant stood on the orange box.[4]
[4] Trial ts 15/3/23 pages 44 ‑ 45.
The appellant then said to the complainant, 'Put your hands up along crossways'. The complainant responded, 'No' and the appellant grabbed his arm. The complainant said, 'Leave me alone' and shook the appellant off him. The complainant was getting agitated and was abusing and swearing at the officers. The complainant pulled his arm away from the appellant and the appellant tried to grab it. The complainant was screaming at the appellant and went to 'baulk' him. The appellant then grabbed the complainant's face and 'slung' or 'slammed' the complainant to the floor, where he landed on the back of his head and his face.[5] The complainant was winded and felt sad and 'pissed off'.[6] His hand, back and neck were sore for a couple of days afterwards.[7]
[5] Trial ts 15/3/23 pages 45 ‑ 46, 48 ‑ 49.
[6] Trial ts 15/3/23 pages 50 ‑ 51.
[7] Trial ts 15/3/23 page 50.
In cross‑examination, the complainant accepted that he went from the Perth Children's Court to Banksia Hill because DCP did not sign his bail, which made him agitated and a little bit angry.[8] The complainant admitted damaging a seatbelt in the vehicle from the court to Banksia Hill and having a bit of metal on him when he entered the detention centre.[9] Although he said he did not know he had to stand on the orange box to get searched, the complainant accepted that he knew that he could not bring the metal from the seatbelt into Banksia Hill.[10]
[8] Trial ts 15/3/23 page 52.
[9] Trial ts 15/3/23 page 53.
[10] Trial ts 15/3/23 page 54.
The complainant also accepted in cross‑examination that, just before the appellant 'stepped on [his] face', the complainant said to the appellant, 'You motherfucker. Don't fuck around. I will king hit you'. The complainant said this to scare the appellant and because he wanted the appellant to leave him alone.[11]
[11] Trial ts 15/3/23 page 55.
The complainant said in cross‑examination that the appellant grabbed him by the neck and pushed him to the floor maintaining that hold. He also accepted that he later kicked the appellant on the way to being taken to his unit.[12]
[12] Trial ts 15/3/23 page 56.
In re-examination, the complainant said that the appellant grabbed him by the side of his neck near where it met the shoulder as he pulled the complainant down.[13]

Statement of Mathew Lyons

[13] Trial ts 15/3/23 pages 57 ‑ 58.

Mathew Lyons is a youth custodial officer who was on duty at Banksia Hill at the time of the alleged offence. His statement was read into evidence.
After describing the usual admission procedure, Officer Lyons gave the following account of the training regime:[14]
With the use of force training at the academy during our initial course, we receive training in communication and de-escalation, getting us to talk to the kids and to try to de-escalate whatever is happening. We're supposed to do all that before using force.
When we use force against kids, it has got to be justifiable force. Use of force [training] is supposed to be mandatory. With staff shortages, training has gone out the window. Refresher training is supposed to be done 12 monthly but I can't say the last time I did it. If you don't do your training each year, I don't think there are any restrictions placed upon you. Training isn't done [just] because we are so short staffed. There is no time for it.
[14] Trial ts 15/3/23 page 62.
Officer Lyons gave the following account of the incident the subject of the charge:[15]
[The complainant] was lipping off. By lipping off I mean mouthing off, swearing, being abusive.
I've worked with [the complainant] a bit at Banksia Hill. I know he bites, spits and assaults staff. It was decided to do a wand search of [the complainant]. I don't know who had the wand. [The complainant] was put on the orange box. I don't remember how he got there. I must have helped [the complainant] get up there. The floor in admissions is concrete with lino on it. I wouldn't think there is padding on the floor.
[The complainant] was threatening [the appellant], calling him an old cunt and saying he was going to punch him in the head.
…
I'm pretty sure when he was on the box facing towards [the appellant] [the complainant] lunged at him. I grabbed hold of the back of [the complainant's] shirt. I'm pretty sure he lunged forward as his shirt pulled out while I was holding it. His shirt was stretched out when he was leaning forward. In holding [the complainant's] shirt, I had some control of him. It would have stopped him running off or lunging forward. I didn't have hold of [the complainant's] arm. He was free to do whatever he wanted.
[The complainant] may have cocked his arm but I'm not 100 per cent sure. If I did grab [the complainant's] arm, he pulled away. It could be the cocking of his arm I saw. I don't remember this. Then [the complainant] was on the ground. Next minute [the complainant] was restrained on the ground. It was over and done pretty quick, 20 to 30 seconds from [the complainant] getting on the box to handcuffs being put on him.
[15] Trial ts 15/3/23 pages 63 ‑ 64.
After describing the removal of the complainant from the reception area and certain other matters, Officer Lyons said:[16]
One of the holds we are trained in is the harness hold. We can use force when kids are a danger to themselves or others. Working on recovery, we carry handcuffs. We do not have any other use of force equipment such as batons, OC spray, Tasers. We have shields available.
Staff in admissions have handcuffs in the cupboard but we do not carry them. We tried de-escalation with [the complainant]. I think we were telling him what he was supposed to be doing but he was not responsive to instructions. He was non-compliant … agitated and aggressive.
He was angry when he came into admissions. [I don't] think he wanted to be at Banksia Hill but they are all like that when they come back. Grabbing a kid around the neck and across the throat is not a trained technique. We are not taught restraints on how to take someone down from a height. We are supposed to give a use of force warning before using any force, telling the kids if they don't comply use of force will be used. It depends if we need to use force straight away and don't have time to give the warning. [The appellant] wasn't angry or upset, he was more frustrated because [the complainant] wasn't following instructions. (emphasis added)

Statement of Dana Steddy

[16] Trial ts 15/3/23 pages 65 ‑ 66.

Dana Steddy was the youth custodial officer shown behind the reception desk on the CCTV footage. She made the following observations as to the training regime:[17]
I undertook use of force training when I went through the Corrective Services Academy. In our training, we did various scenarios including how to de-escalate aggression using minimal force to correct behaviour and what is use of force and the situations that can be used as well as the de-escalation and conflict resolution. We occasionally have use of force training at Banksia Hill when we have a training day.
[17] Trial ts 15/3/23 page 67.
Officer Steddy said that she had known the complainant for two years through working at Banksia Hill. He was challenging, reactive and impulsive with a history of numerous staff assaults. Intelligence had said the complainant had been destructive of the vehicle on the way back from court, had pulled something off and had concealed something in his mouth.[18]
[18] Trial ts 15/3/23 page 68.
Officer Steddy's account of the incident was rather vague. She described the complainant coming into the reception area, refusing to be searched and being verbally aggressive towards the appellant and other officers. He was not standing still on the box and was moving about in an aggressive and threatening manner. She observed the complainant spit something out of his mouth as he was being restrained on the floor and recalled being handed a ring.[19]

Statement of David Jenkins

[19] Trial ts 15/3/23 pages 68 ‑ 71.

David Jenkins was the senior youth custodial officer on duty at Banksia Hill on the day of the alleged offence. He made the following statement as to the training received by youth custodial officers:[20]
As youth custodial officers, we do use of force training. It's meant to be done every 12 months. There is a satellite trainer at Banksia Hill who does the training with us on site. The training involves physical type training and instruments of use of force being the theory side. These are done on separate days by the satellite trainer and use of force training covers communications and de-escalation. The physical side is where we do scenarios and have techniques trained to us. This is hands-on training with staff involvement.
I don't know the currency of staff with their use of force training. I believe the training is mandatory but if it is not done there are no restrictions on their duties.
[20] Trial ts 15/3/23 pages 71 ‑ 72.
In describing the incident the subject of the charge, Officer Jenkins said that after completing a pat search, they got the complainant to stand on the orange box to do a wand search. Officer Jenkins was holding the wand and started at the complainant's left shoulder and worked across. He described the complainant stepping on and off the box as he continued 'wanding'.[21] Officer Jenkins gave the following description of the incident:[22]
[The appellant] said, 'Put your arms down'. At the time this happened, [the complainant] turned and was looking in [the appellant's] face. [The complainant] said some threatening words to [the appellant], 'You want to have a go? You want to make something of it?' Something like that.
I don't remember [the complainant] saying anything else. What he said was along those lines. [The appellant] was on [the complainant's] left side and his right arm went up to take hold of him. He reached around [the complainant], placed him in a hold and went to ground. It appeared to be a normal seatbelt move when an officer's arm goes around the shoulder. Because [the complainant] was standing on the step, he was higher. [The appellant] had to reach high to get to his shoulder. The seatbelt manoeuvre is one we are trained in. One arm is high and the other low wrapping around the person like a seatbelt.
You are supposed to grip your other arm to restrain the person. [The appellant] reached up to [the complainant's] right shoulder. To me it looked like [the appellant's] arm was over [the complainant's] right shoulder. I didn't see [the appellant's] left hand. I assume he was reaching around the right-hand side of [the complainant]. [The complainant] was twisted around and went to the ground. From my position behind [the complainant] it was hard to see. We don't get taught how to bring someone down from a height. From a height it would be the same manoeuvre but off balance.
[21] Trial ts 15/3/23 pages 72 ‑ 73.
[22] Trial ts 15/3/23 page 73.
Officer Jenkins gave evidence that the use of force policy is contained in the Commissioner's Operational Procedures. He did not recall seeing the complainant threaten the appellant at the time of the incident but was aware that the complainant had a history of staff assaults. He said that the appellant was trying to de-escalate the situation by talking to the complainant, telling him to get the process done and he could go back to his cell.[23]

Statement of Stacey Brydon

[23] Trial ts 15/3/32 page 76.

Stacey Brydon was the fourth youth custodial officer surrounding the complainant at the time of the alleged offence. In her statement, she gave the following account of the training received:[24]
At the academy we received initial training on use of force, de-escalation and communication. Training is meant to be done at the centre by the satellite [training] officer but is not very regular. Given we are short staffed I think everyone is out of date with their training. I don't remember how often we are meant to do … retraining. There are no restrictions placed on your work if training is not done.
[24] Trial ts 15/3/23 page 77.
Officer Brydon gave an account of the complainant's arrival at the Banksia Hill reception, including receiving reports that he had been abusive and breaking things in the back of the vehicle which had brought him from court. She had thought that the complainant was under the influence of some sort of drug. She described the complainant's history of staff assaults, including one occasion when the complainant punched her in the head.[25]
[25] Trial ts 15/3/23 page 78.
Officer Brydon gave the following account of the incident the subject of the charge:[26]
[The appellant] grabbed [the complainant's] shirt to pull him up for him to come on the box. They were guiding him onto the step. [The complainant] was agitated, abusing [the appellant], calling him names like an old cunt and saying, 'I'll bash you, you old cunt. Wait till I see you on the outside'. We were telling [the complainant] to settle down, to get changed, and he would then go ISU. All three of us, [the appellant], Matt Lyons and myself, are saying this. [The complainant] was told several times to settle down. He was getting more agitated and becoming more aggressive with his yelling.
[26] Trial ts 15/3/23 page 79.
Officer Brydon said that she saw the complainant raising his arms and she thought the complainant was going to hit the appellant as the appellant and Officer Lyons were telling the complainant, 'Lets get it over with'. Officer Brydon said that 'all of a sudden' the complainant was restrained on the ground by the appellant who 'grabbed him on the box'. She did not see where the appellant grabbed the complainant. She did not think that the complainant hit the ground any harder than normal and did not hit his head. She described the complainant shouting abuse and spitting as he was escorted to his cell.[27]
[27] Trial ts 15/3/23 pages 79 ‑ 80.
Officer Brydon also made the following further observations in relation to training:[28]
One of the techniques we first used is de-escalation, trying to talk to them, trying to solve what their problem is. Also keeping calm when they're yelling at you is helpful. If you keep calm and help them to calm down it stops things escalating. The orange box posed a risk because it placed detainees at a height. They could slip or fall, we could trip on the box when there is an incident with them. We do not do any training on physically controlling detainees when they are at a height.
…
Grabbing a detainee by the neck and the arm coming across the neck would not be an approved technique or one we have been trained to use.

Other documentary evidence

[28] Trial ts 15/3/23 pages 80 ‑ 81.

The prosecutor also tendered the appellant's training record and a Commissioner's Operating Policy and Procedure COPP 8.2 Use of Force and Restraints for Banksia Hill Detention Centre (Policy).
Part 2 of the Policy contained the following passages:
The purpose of this COPP is to establish clear standards and procedures when using force and restraints on detainees.
Use of force is an option of last resort. De-escalation to achieve compliance using non-physical techniques is preferred unless impractical in the circumstances.
Custodial Officers are authorised to use no more than prescribed force in the management, control and security of a facility or detention centre. The force must be used in the prescribed circumstances.
Force shall never be used as a form of punishment or cause unnecessary humiliation, degradation, or trauma to a detainee.
The health and wellbeing of staff and detainees is paramount when considering use force options and determining the level of force to be applied.
When using force consideration shall be given to the detainees physical, emotional, and mental welfare, safety, and dignity.
Custodial Officers shall be trained in use of force and the correct application of restraints and shall respond in a flexible manner as circumstances change and should escalate or de-escalate the use of force as circumstances require.
Where the use of force is necessary, only authorised physical restraint techniques shall be used. When applied, force shall be no more than is necessary and cease when the level of imminent risk has been managed.
(Legislative references omitted)
Part 3 of the Policy states the following with regard to the authorisation and circumstances for use of force:
3.1.1 Custodial Officers are authorised to use no more than prescribed force in the management, control, and security of BHDC.
3.1.2 Custodial Officers shall not use force on a detainee unless that force is used in prescribed circumstances.
3.1.3 Prescribed circumstances are the immediate period when a detainee is imminently presenting a risk of physical injury to himself, herself, other detainees, or staff.
3.1.4 The use of force shall be limited to the immediate period where the detainee is imminently presenting a risk.
3.1.5 Once the detainee is no longer imminently presenting as a risk the use of force shall cease.
The appellant's training record indicated that his last training in relation to the use of force was in 2020. He completed a use of force theory certification on 26 February 2020, an online course in relation to the Policy on 2 August 2020 and a 'Defence and Control' course and certification on 23 September 2020.

Defence evidence

The appellant elected to give evidence at trial. The following is a summary of that evidence.

Experience and training

The appellant had worked as a youth custodial officer or in earlier equivalent positions within the Department for 20 years. He transferred to Banksia Hill in around 2013.[29] He described receiving ongoing training on an 'ad hoc basis' due to staff shortages,[30] and confirmed the accuracy of his training record.[31]
[29] Trial ts 15/3/23 pages 93 ‑ 94.
[30] Trial ts 15/3/23 pages 95, 96 ‑ 98.
[31] Trial ts 15/3/23 pages 95, 99 ‑ 100, 16/3/23 page 126.
The appellant described receiving training in a gymnasium as to the application of a 'seatbelt technique' or a 'harness hold' to take a person to the ground.[32] The appellant described this as standing behind the detainee and placing one arm under the detainee's shoulder and the other arm over the detainee's other shoulder to establish a diagonal connection across the detainee's torso like a seatbelt or harness. The detainee could then be taken to the ground.[33]
[32] Trial ts 15/3/23 page 102.
[33] Trial ts 15/3/23 pages 113 ‑ 114.
The appellant said:[34]
[W]hen we train, we train on - you know, we train in the gymnasium. It's on the floor. … [W]e don't do any restraint training with - with regards to operating from a height.
[34] Trial ts 15/3/23 page 117.
In cross‑examination, the appellant said that the 'seatbelt technique' or a 'harness hold' was usually practised from a 45‑degree angle, and confirmed that he had received no instruction to use that hold from a height.[35]

Knowledge about the complainant

[35] Trial ts 16/3/23 pages 150 ‑ 151.

The appellant had known the complainant for about 3 ‑ 4 years prior to 5 May 2022. The complainant had been coming in and out of Banksia Hill since he was about 10 ‑ 11 years of age. In the past few years prior to trial, the complainant's behaviour had escalated to the point that assaults on staff were a daily occurrence. During extended stays at Banksia Hill, he would be managed by three officers (including one prison officer) and handcuffed upon exiting his cell. Officers would wear spit masks as the complainant was a 'prolific spitter'. Alerts on the Department's offender management system contained alerts that the complainant was a 'prolific spitter, staff assaulter, prolific … self‑harmer'.[36]
[36] Trial ts 15/3/23 pages 103 ‑ 105.
On 5 May 2022, the appellant was aware of reports that the complainant was causing a disruption at the Perth Children's Court and had smashed some overhead lights in his cell. Officers transporting the complainant back to Banksia Hill reported that the complainant had damaged his seatbelt and covered the cameras in the van so he could not be seen. The appellant was briefed that the complainant 'may well have weapons'.[37]

The subject incident

[37] Trial ts 15/3/23 page 105, 16/3/23 pages 127 ‑ 128.

When the van with the complainant and two other boys arrived, the appellant opened the back of the van and observed the complainant in an agitated state 'calling DCP all the names … under the sun'. The appellant said to the complainant, '[Name], we're going to get you out the van, mate. We're going to do a wand search and a pat search, and then we will get you up to your unit as quickly as possible'.[38] The complainant responded, 'Fuck youse. I'm not getting a fucking pat search. I'm not getting a fucking wand search'. The appellant tried to calm the complainant down and said, 'Sooner we get it done, the sooner you can go to your unit'.[39]
[38] Trial ts 15/3/23 page 107.
[39] Trial ts 15/3/23 page 109, 16/3/23 page 129.
The complainant then walked past the orange box ignoring instructions by the appellant and Officer Jenkins to stand on the box. The complainant indicated that he was going to see a boy that had just arrived and was in a cell. The appellant grabbed the complainant's shirt to bring him back to the box and said, 'No [name], I need you to come back and stand on the box'.[40]
[40] Trial ts 15/3/23 pages 109 ‑ 110, 16/3/23 page 129.
The complainant then became agitated and was calling the appellant a 'motherfucker' and a 'dog' as he stood on the box. The appellant said, 'Come on [name]. Let's get this over and done with, mate. Sooner we get it over and done with, you know, sooner you go to your unit'. The complainant was threatening to punch the appellant in the head 'because [he was] an "old dog" and … a "cunt"'.[41]
[41] Trial ts 15/3/23 pages 111, 113, 16/3/23 page 138.
The appellant gave the following evidence about the point on the CCTV where the complainant breaks away from the officers' holds:[42]
I've got my hands up to sort of maintain the distance, but now it's like I actually believe that it has gone beyond just the verbal threats. He's now actually intent on, you know, assaulting me. Now, whether that be by way of, you know, punching. You know, I'm probably more thinking probably a headbutt or getting spat in the face would be probably the most likely as opposed to perhaps throwing a punch. So it has kind of gone - it has gone from verbal - verbal sort of threats and abuse to now that I feel that it's going to be an actual attack on myself.
[42] Trial ts 15/3/23 pages 113 ‑ 114.
The appellant said that he then went to apply a seatbelt technique or harness hold to the complainant as the complainant lunged forward, although he accepted it was not the 'perfect technique'. The appellant said that he tried to maintain control of the complainant's arms and shoulders to turn him away to negate the threat of the complainant headbutting or spitting at him.[43] He said that his intention was to apply the approved restraint to stop the complainant assaulting him, and his memory was that he did apply the approved hold.[44]
[43] Trial ts 15/3/23 pages 114 ‑ 115.
[44] Trial ts 16/3/23 pages 141, 155 ‑ 156.
When asked why he applied the technique at this time, the appellant responded:[45]
Because I believed I was at real risk of being assaulted by [the complainant]. You know, he - he - he had threatened - threatened to assault - assault me, you know, at some stage from - from the minute he got off - off the vehicle to the time where I've actually had to physically - physically restrain him. So I - I believed I was at real risk of - of being headbutted or spat and, you know, I was also aware that he may well have - may well have a weapon or weapons upon him, you know, because he - he had - I think he had smashed glass at court, so he may well have had, you know, glass, sharp bits of plastic from the seatbelt, so, yes, I felt that I was at real risk of being assaulted.
[45] Trial ts 15/3/23 page 115.
The appellant said that he maintained close control over the complainant as he took him down to the ground. The complainant did not land 'uncontrollably' and the appellant believed he would 'have probably braced [the complainant's] fall'.[46] In cross‑examination, the appellant denied that he slammed the complainant into the ground without applying a hold. He accepted that he landed on top of the complainant and the complainant might have been winded in the fall.[47] He did not accept that the use of the 'seatbelt technique' or a 'harness hold' from a height was not reasonable or was excessive.[48]
[46] Trial ts 15/3/23 page 116.
[47] Trial ts 16/3/23 pages 147 ‑ 148.
[48] Trial ts 16/3/23 page 152.
Also in cross‑examination, the appellant said that he believed placing the complainant in a hold while he was standing on the box was his only use of force option at the time.[49] However, he accepted that, with hindsight, he had a number of different options, such as:[50]
1.pushing the complainant with the appellant's arm to maintain distance between them;
2.stepping back from the complainant to maintain the distance between them; or
3.'angling off' to place himself at a 45‑degree angle to the complainant.
[49] Trial ts 16/3/23 page 152.
[50] Trial ts 16/3/23 pages 153 ‑ 154.
The cross‑examination of the appellant concluded as follows:[51]
So, given the options that have been present, I'm going to put to you that there's no way that throwing him to the ground the way you did from a height is the minimum force that could have been used?---I maintained control. I never threw him to the ground. So I would disagree.
But given the other options that I've given you, how can you say that a takedown to the ground is the minimum force?---In - in hindsight, I could have done - I could have done a number of things, but - - -
So - - -?---But it - but what was presented to me at the time, I felt, was an imminent threat to myself and I - I believe that I reacted, you know, within - within the - the laws of Banksia Hill, 11B, 11C.
But there were other options?---8.2.
There were other options that were available that we've gone through that were less impactful than what you did. Correct?---There would have been other options available. Correct.
So - - -?---In hindsight.
- - - on that, I'm going to put it to you that it was not a reasonable response in the circumstance to take him to the ground that forcefully?---I disagree.
[51] Trial ts 16/3/23 pages 154 ‑ 155.

Ground 1: unreasonable verdict

Ground 1 contends that the guilty verdict was unreasonable or cannot be supported by the evidence. This ground of appeal is expressed in terms of s 30(3)(a) of the Criminal Appeals Act 2004 (WA), which applies to appeals from superior courts under pt 3 of that Act. The present appeal is under pt 2 (which relates to appeals from courts of summary jurisdiction), rather than pt 3 of the Criminal Appeals Act. The grounds for an appeal under pt 2 of the Criminal Appeals Act are provided for in s 8(1) of that Act:
An appeal may be made under this Division on one or more of these grounds —
(a)that the court of summary jurisdiction —
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Although s 8 does not reflect the terms of s 30(3)(a) of the Criminal Appeals Act, there can be no doubt that a 'miscarriage of justice' occurs when the findings or verdicts of the tribunal of fact raise a real doubt as to whether a conviction is safe or just.[52]

General principles

[52] See The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [40].

The general principles governing an appeal on the ground that the verdict delivered by a jury is unreasonable or cannot be supported by the evidence, derived from the decision of the High Court of Australia in M v The Queen,[53] are well established. In summary:[54]
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.That 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.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.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 appellate 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 appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
[53] M v The Queen (1994) 181 CLR 487.
[54] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] ‑ [34].
The decision of the High Court, in Dansie v The Queen,[55] reiterated that the appellate court's task in resolving an appeal on the unreasonable verdict ground is not different when the appeal is against a verdict of a judge sitting alone. The court recognised that undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty can distract the appellate court from the proper performance of the function required when determining whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. In this respect, the court said:[56]
That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
[55] Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 [15].
[56] Dansie [7].
The High Court described the function of the appellate court in determining an unreasonable verdict ground, on appeal either from the verdict of a jury or a judge sitting alone, in the following terms:[57]
In each case, the court must conduct an independent assessment of the whole of the evidence to ask itself the question of fact whether it thinks it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty. In each case, the court 'will conclude that it was not open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty if its own [assessment] of the evidence leads it to have a reasonable doubt that the accused was guilty, unless that tribunal's advantage in seeing and hearing the evidence is capable of resolving that doubt'. (citation omitted)

The critical issues in this case

[57] Dansie [15].

There is no issue that, when the appellant took the complainant to the ground from his position standing on the orange box, the appellant assaulted the complainant by applying force to the complainant without the complainant's consent. The question on appeal is whether that assault was authorised or justified or excused by law. The only lawful authority relied on by the appellant at trial and on appeal is that conferred by s 11C of the Act and s 248 of the Code.
Section 11C of the Act authorised the appellant, as a custodial officer, to use no more than the 'prescribed force' in the management, control and security of Banksia Hill in the 'prescribed circumstances'. The incident the subject of the charge occurred in prescribed circumstances as defined in reg 72 of the Regulations, being the immediate period when the complainant, a detainee, was 'imminently presenting a risk of physical injury to … staff'. The appellant's use of force to prevent the complainant assaulting staff in those circumstances would have been authorised if it was 'no more than prescribed force' provided for by reg 71 of the Regulations, being:
the degree of physical force which is the minimum required to control a detainee's behaviour in the circumstances.
The contentious issue under s 11C of the Act is whether the degree of force used by the appellant as he took the complainant down from the orange box was the minimum degree of physical force required to control the complainant's behaviour in the circumstances.
Section 248 of the Code would justify the assault of the complainant in self-defence if all of the requirements of s 248(4) were satisfied. As explained by Buss JA in Goodwyn v The State of Western Australia,[58] where the accused satisfies the evidential onus in relation to self‑defence then the burden is on the prosecution to negate the defence by excluding at least one of the following four elements beyond reasonable doubt:
1.The accused subjectively believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a).
2.The accused's harmful act is an objectively reasonable response by the accused in the circumstances as the accused subjectively believes them to be: s 248(4)(b).
3.There are objectively reasonable grounds for the accused's subjective belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent: s 248(4)(a) read with s 248(4)(c).
4.There are objectively reasonable grounds for the accused's subjective belief as to the circumstances: s 248(4)(b) read with s 248(4)(c).
[58] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95] ‑ [96] (Buss JA), [1] (Martin CJ), [170] ‑ [174] (Mazza JA).
In the present case, the appellant's evidence was that he subjectively believed the use of force to be necessary to defend himself against being assaulted by the complainant. The appellant's evidence to that effect was not seriously challenged in cross‑examination. There were clearly objectively reasonable grounds for the appellant to subjectively believe that the complainant may be about to assault him. In these circumstances, to prove that the appellant was not acting in self-defence, the prosecution needed to establish beyond reasonable doubt either that:
1.there were no objectively reasonable grounds for the appellant to believe that his harmful act was necessary to defend himself from an assault by the complainant; or
2.the appellant's harmful act was not an objectively reasonable response in the circumstances as the appellant subjectively believed them to be.
In resolving ground 1, it is convenient to focus on the second of these ways in which the prosecution could prove that the appellant was not acting in self-defence.
Therefore, the critical questions in dealing with ground 1 are whether the prosecution proved, beyond reasonable doubt, both that:
1.the appellant used a degree of physical force that was more than the minimum required to control the complainant's behaviour in the circumstances, so that the authority conferred by s 11C of the Act was exceeded; and
2.the appellant was not acting in self-defence under s 248 of the Code because his assault of the complainant was not an objectively reasonable response by the appellant in the circumstances as he subjectively believed them to be.

The trial court's advantage

In the present case there is very limited advantage that the magistrate had over this court. Much of the prosecution evidence was documentary, and the circumstances are clearly depicted in two CCTV video recordings shot from two different angles. The accounts given by various witnesses, in either oral testimony or witness statements, illustrate the fallibility of human memory in recalling stressful situations. To the extent that the witnesses' accounts of the relevant conduct differ from what is depicted in the CCTV footage, the CCTV footage is clearly to be preferred. While the CCTV recordings do not have audio, there is no real dispute as to the substance of what is being said by the complainant and the appellant at the critical times.
Further, the critical questions which I have identified at [74] above turn largely on an evaluative assessment of objective criteria in the circumstances clearly established by the evidence.
In these circumstances, the important question is whether my own assessment of the evidence leads me to have a reasonable doubt that the appellant was guilty. If that review leaves me with a reasonable doubt as to either of the critical matters referred to at [74] above, the magistrate's advantage in seeing and hearing the evidence would not be capable of resolving that doubt.

Facts established by the evidence

My review of the evidence led at trial satisfies me of the following circumstances of the incident which is the subject of the charge.
The complainant arrived at Banksia Hill from the Children's Court in a vehicle, and the appellant was one of the officers who brought the complainant into the reception area from the vehicle. The complainant was agitated and angry because he had not obtained bail. The appellant was aware that the complainant had a regular history of assaulting staff at Banksia Hill by striking them or spitting at them. The appellant had also been told that the complainant had damaged property at the Children's Court and in the transfer vehicle. He was concerned about whether the complainant may be carrying some form of makeshift weapon, and the complainant did actually have a bit of metal on his person as he entered reception.
Either before or as the complainant entered the reception area, the appellant instructed the complainant to stand on the orange box so that he could be 'wanded'. Officer Jenkins, who was holding a metal detection 'wand', at least gestured for the complainant to stand on the box. The complainant, who did not want to be searched, ignored the instruction and walked past the orange box.
The appellant then grabbed the back of the complainant's shirt and spun him around to face the appellant. At this point, the complainant swore at the appellant and told the appellant to leave him alone. The complainant was shouting abuse at the appellant and indicating that he did not want to be searched. The appellant told the complainant that the sooner a search was done, the sooner the complainant could go back to his unit. At about this time, Officer Jenkins placed his hand on the complainant's back and Officer Lyons pointed to the top of the orange box. About five seconds after the appellant grabbed the back of the complainant's shirt, the complainant stood on the orange box.
As the complainant is standing on the orange box, he is surrounded by four custodial officers who are standing close to the complainant. The appellant is still holding onto the back of the complainant's shirt and Officer Lyons is holding the top of the complainant's right arm as the complainant turns away from the appellant and appears to attempt to step off the box about three seconds after stepping onto it.
The complainant, still standing on the orange box, raises and lowers his right arm, and the appellant and Officer Lyons release their hold on him. The complainant's arm movement does not appear from the CCTV footage to be attempting or preparing to strike either officer, although I accept that it might have been perceived as such by the appellant. The complainant turns around to face the appellant and shouts threats and abuse at the appellant. The complainant's threats include statements to the effect, 'You motherfucker. Don't fuck around. I will king hit you'. The complainant was threatening to punch the appellant in the head. The complainant made these threats to scare the appellant and because he wanted the appellant to leave him alone.
About five seconds after stepping onto the orange box, the complainant's upper body moved towards the appellant. At this point, the appellant places his gloved hand at the back of the complainant's neck. He pulls the complainant forward and off the orange box. The appellant's forearm pushes on the side and front of the complainant's neck and pushes the complainant backwards onto the hard surface of the floor from the elevated platform. The complainant lands heavily on the ground on his back or side about seven seconds after he stood on the orange box.
The appellant's movements in bringing the complainant to the ground are not consistent with the appellant performing or attempting to perform a 'seatbelt technique' or 'harness hold'. The appellant does not place or attempt to place one arm over one of the complainant's shoulders and the other under the complainant's other shoulder. Rather, the appellant's movement is properly characterised as grabbing the complainant by the neck and slamming him backwards onto the hard floor surface from an elevated height.

Authority under the Act

As noted above at [74], the issue under s 11C of the Act is whether the prosecution proved that the appellant used a degree of physical force that was more than the minimum required to control the complainant's behaviour in the circumstances.
In considering what was the minimum degree of force required, and whether the response was reasonable, some analogy may be drawn with the observations of Mazza JA in Elwin v Robinson.[59] In Elwin, the issue was whether the use of force by a police officer making an arrest was authorised by:[60]
1.s 16 of the Criminal Investigation Act 2006 (WA), which provided that person exercising a power under that Act may use any force that is reasonably necessary in the circumstances to exercise the power and overcome any resistance offered; and
2.s 231 of the Code, which provides that it is lawful for a person engaged in making an arrest to use such force as may be reasonably necessary to overcome any force used in resisting that arrest.
[59] Elwin v Robinson [2014] WASCA 46.
[60] Elwin [57] ‑ [58].
In that context, Mazza JA observed (Pullin & Newnes JJA concurring):[61]
The question of what force is reasonably necessary to effect an arrest depends upon an objective evaluation of all of the surrounding circumstances. …
It must also be borne in mind, when assessing what force is reasonably necessary, that arrests often occur in situations of sudden violence and mayhem. In the context of public disturbances such as street fights, it will frequently be necessary for police to swiftly defuse the situation in order to preserve order and prevent injury. In such situations, it may not be possible or practical for a police officer to stand back and consider which individuals or which group were in the wrong or to make fine judgments about what force is necessary in the circumstances. In these situations, a police officer must have the discretion to act quickly and decisively. In McIntosh v Webster (1980) 43 FLR 112, 123, Connor J put it this way:
'Arrests are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.'
This is not to say that police officers are unaccountable and can act with impunity when arresting persons alleged to be involved in public disturbances. Acknowledging the difficulties that police officers face in such circumstances, the actions of police are subject to the scrutiny and judgments of the courts against the yardstick of what was reasonably necessary in all the circumstances of the particular case.
[61] Elwin [61] ‑ [63].
In my view, these observations apply by analogy when considering whether a youth custodial officer used a degree of physical force which was more than the minimum required to control the complainant's behaviour in the circumstances. It is important to recognise that a custodial officer in the appellant's position does not have the capacity, that the court enjoys, of being able to carefully consider the appropriate reaction in the calm environment of the courtroom and judge's chambers. In determining whether a custodial officer used more than the required minimum degree of physical force, it is necessary to take account of the way in which and speed at which a rapidly developing and potentially dangerous situation may evolve and the need for the officer to react quickly without opportunity for reflection. However, acknowledging the difficult position in which a youth custodial officer may be placed, it remains for the court to judge whether the degree of force was authorised by law. The protection of often vulnerable children in the custody of the Department demands that the court exercise an independent judgment as to whether the degree of force used was more than the minimum required.
In the present case, the appellant was faced with a difficult and challenging situation. He was aware of the complainant's history of regular assaults against custodial officers, and was reasonably concerned that the complainant might have secreted an item that could be used as a weapon on his person. The complainant, who had in fact concealed such an item on his person, was not complying with the instruction to stand on the orange box to be searched. The complainant was making verbal threats and performed actions (shaking his arm free and 'baulking' at the appellant) that could reasonably be perceived as threatening a physical assault. The events the subject of the charge took place over about 10 seconds. Allowance must be made for the position in which the appellant found himself in assessing whether the degree of physical force he used was more than the minimum required to control the complainant's behaviour in the circumstances.

However, allowance must also be made for the fact that the complainant was a 14‑year‑old boy who was of much smaller stature than the appellant and other custodial officers. The complainant was surrounded by four youth custodial officers standing within arm's reach around him as he stood on the orange box. As the appellant acknowledged in cross‑examination (albeit with the benefit of hindsight), there were a number of options available to the appellant to deal with the threat of an assault which did not require the use of physical force at all, such as the appellant stepping back from the orange box or 'angling off' to the complainant. There were options which required a much lower degree of physical force than that employed by the appellant, such as having the other three officers surrounding the complainant take hold of him as he faced away from them.
Rather than adopting one of these options, the appellant grabbed the complainant by the neck and slammed him backwards onto a hard surface from an elevated height. That use of force carried with it a significant risk of serious injury to the complainant as his back and potentially his head struck the floor. It was, in my view, more than the minimum degree of physical force required to control the behaviour of a 14‑year‑old boy of relatively small stature standing on a box surrounded by four custodial officers.
Counsel for the appellant submitted that some of the above options, such as stepping back or 'angling off', did not involve any physical force at all.[62] However, in my view s 11C does not authorise the use of physical force where no physical force is required to control a detainee's behaviour. Counsel also submitted that none of the alternative use of force options would have addressed the risk of the complainant spitting at the appellant. While that may be true, the force used by the appellant also did not control the risk of spitting. Indeed, the approach taken by the appellant tended to increase that risk in that, by tackling the complainant face on, the appellant placed his face in close proximity to the complainant's face.
[62] Appeal ts 23 ‑ 24.
In my view, the evidence at trial proved, beyond reasonable doubt, that, when he grabbed the complainant by the neck and slammed him into the ground from an elevated height, the appellant used a degree of physical force which was more than the minimum required to control the complainant's behaviour in the circumstances.

Self-defence

For similar reasons, in my view the evidence led at trial proved, beyond reasonable doubt, that the appellant's conduct was not an objectively reasonable response in the circumstances as the appellant subjectively believed them to be.
The appellant gave evidence as to the circumstances he subjectively believed to exist, and I proceed on the basis that this evidence is to be accepted. On that evidence, the appellant was aware that the complainant was standing on the orange box surrounded by four youth custodial officers. The appellant, aware of the complainant's violent history, reasonably believed that the complainant might be about to assault him by striking him, headbutting him or spitting on him. He believed the complainant may have an item which could be used as a weapon hidden on his person.
In my view, grabbing the complainant by the neck and slamming him backwards onto a hard surface from a height was not an objectively reasonable response in those circumstances. There were other options available, as explained above at [91]. The appellant's action carried with it a significant risk of serious injury to the complainant, to a degree much greater than the risk which the appellant faced from the apprehended assault. It was an objectively unreasonable response in the circumstances as the appellant may subjectively have believed them to be.
In reaching this conclusion I have had regard both to the training and instruction which the appellant received and the regrettably sporadic nature of the training provided by the Department. The evidence indicated that a focus of training was on de-escalation and that when force is required minimal force is to be used. That is reflected in the instructions given in the Policy (see [45] above). The appellant's conduct involved a departure from that training and instruction.
In the manner described above, the evidence at trial established, beyond reasonable doubt, that the appellant was not acting in self‑defence when he assaulted the complainant.

Conclusion as to unreasonable verdict ground

My independent review of the whole of the trial record satisfies me beyond reasonable doubt that the appellant assaulted the complainant in a manner that was not authorised or justified either by s 11C of the Act or s 248 of the Code. That review of the evidence does not leave me with any reasonable doubt as to the appellant's guilt of the charged offence. Not only do I regard it as open to the magistrate to have been satisfied beyond reasonable doubt as to the appellant's guilt, in my view, that was the correct verdict on the evidence. The guilty verdict was not unreasonable or unsupported by the evidence. Ground 1 is not established.

Ground 2: authority under the Act

Ground 2 asserts an express error by the magistrate in dealing with the question of whether the assault was authorised by s 11C of the Act.
There were two alternate bases on which the magistrate found that s 11C of the Act did not authorise the use of force in this case.
The first was that the degree of physical force used by the appellant was more than the minimum required to control the complainant's behaviour in the circumstances. The magistrate said:[63]
[I]t has to be said that the forceful take down I've I described earlier was not the degree of physical force, which was the minimum - not minimal, minimum required to control the detainee's behaviour in the circumstances. And on that basis alone, [the appellant's] conduct, in my view, falls outside of - I was about to say the protection. It's a clumsy way to put it. It would not convert an otherwise unlawful assault into a lawful assault, because it steps outside, and in my view, falls foul. It was not the minimum force that was required, because, as [the appellant] conceded, there were other force options available, as we've described, that would have dealt with the matter.
[63] Trial ts 3/5/23 page 31.
The magistrate then said that, if he was wrong about that, then what was effected was a physical restraint hold on which the appellant had received no instructions in the proper use of. In referring to reg 71(2) of the Regulations, the magistrate said:[64]
And, of course, the second part of the section, effectively, where no one has been trained on this, in those circumstances of that height, it's as plain as a pikestaff that's the case, that [reg 71(2)] sets out a person cannot use a physical restraint hold when applying prescribed force:
…unless that person has received instruction in the proper use of that hold.
And, again, it has to be that hold in those circumstances. Because the nature of managing a difficult detainee, at height, is different from handling a detainee, at ground level. And on that basis, even if it had been a picture perfect seatbelt harness type manoeuvre, then there's an argument to say even that wouldn't be covered, because that's a matter that has been trained at ground level only, and never at height.
But, as I say, in my finding, this was, at best, an attempt to use such a hold in difficult circumstances such that the physical steps taken never really eventuated into a proper seatbelt hold, on any basis. And as I've said, I've already referred to the paragraphs. [The appellant] has told me he has never been trained to deal with detainees, at height, as does Officer Lyons at 118 and 119, Jenkins at 66 and Brydon at 85 and 87.
On that basis, never been trained on how to deal with a detainee on a box. On that basis, in my finding, no physical restraint hold could lawfully [be] applied in relation to the [Act and Regulations]. (emphasis added)
[64] Trial ts 3/5/23 page 32.
Counsel for the respondent conceded,[65] and I accept, that the passage just quoted involves a misconstruction of reg 71 of the Regulations. Regulation 71(2) imposes a prohibition subject to an exemption. The prohibition is against using a physical restraint hold. The exemption applies relevantly where the custodial officer has received 'instruction in the proper use of that hold'. The exemption is not whether the instruction has been given in relation to particular circumstances. Here the appellant received training in the proper use of the seatbelt or harness hold. The condition for the exemption was satisfied, and it was not necessary that the instruction be given in the use of the hold while the detainee was elevated.
[65] Appeal ts 36 ‑ 37.
However, while the magistrate's construction of reg 71 involved an error of law, both counsel accepted that the error could not have affected the magistrate's guilty verdict.[66] The first basis on which the magistrate found that the assault was not authorised by s 11C of the Act remained and was not affected by the error of law.
[66] Appeal ts 6 ‑ 7, 37 ‑ 38; respondent's supplementary submissions, par 34.
There was some debate about whether the question of materiality arose in determining whether the magistrate made an error of law within the meaning of s 8(1)(a)(i) of the Criminal Appeals Act or whether it arises when considering whether the court considers no substantial miscarriage of justice to have occurred within the meaning of s 14(2) of that Act.[67] It is unnecessary for me to address that debate in these reasons. To the extent that an error of law to which s 8(1)(a)(i) refers must be material to the outcome, the magistrate's error was immaterial. The immateriality of the error also leads to the conclusion that no substantial miscarriage of justice occurred, in circumstances where, for the reasons I have explained in dealing with ground 1, the evidence at trial proved the appellant's guilt beyond reasonable doubt.[68] The error did not involve any serious breach of the presuppositions of a trial that would prevent the application of s 14(2) of the Criminal Appeals Act.[69]
[67] Cf WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [138] ‑ [139], [239]; Technip Oceania Pty Ltd v Director of Public Prosecutions (Cth) [2021] WASCA 139; (2021) 251 LGERA 111 footnote to [117]; Hofer v The Queen [2021] HCA 36; (2021) 274 CLR 351 [114] ‑ [123]; OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [38] ‑ [39]; Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [70]; DKA v The State of Western Australia [2019] WASCA 123 [60].
[68] See Kalbasi [71]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44].
[69] Weiss [46].
For these reasons, ground 2 does not provide a basis for this court to set aside the appellant's conviction.

Ground 3: proportionality and reasonableness

Ground 3 alleges that the magistrate made an express error of law in dealing with the question of whether the assault was justified by s 248 of the Code. The appellant contends that the magistrate erred by stating that s 248 of the Code 'required' a proportionate response. I understand the appellant's contention to be that the magistrate erred by equating the concept of a 'reasonable response' in s 248(4)(b) of the Code with a response that is proportionate.
As to proportionality, counsel for the appellant relied on a passage from my reasons for decision in Egitmen v The State of Western Australia,[70] in which I observed:
[T]he proportionality of the response will be a relevant matter to consider in determining the reasonableness of the response. That is not to say that the concept of reasonableness requires that the response be proportionate. Rather, the proportionality of the response is one of the matters to which the jury may have regard in considering whether a response is reasonable. A jury might also regard a response as unreasonable if it involved a greater degree of force than was needed in the circumstances as the accused believed them to be. There is no warrant for confining the circumstances to which the jury may have regard in assessing the reasonableness of a response, so long as they are satisfied that the accused may have believed those circumstances to exist.
[70] Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203 [286].
I said that I remained of that view in Lacco v Director of Public Prosecutions (WA).[71]
[71] Lacco v Director of Public Prosecutions (WA) [2022] WASC 168 [90].
The question is whether the magistrate erred by regarding the question of proportionality as determining the issue of reasonable response. In the passage on which the appellant principally relies,[72] the magistrate said:[73]
I now turn my mind to, really, the nitty gritty, the reasonable of the response. Again, I want to make this clear. Self-defence doesn't require the minimum force. Self-defence requires a reasonable proportion at a necessary response. (emphasis added)
[72] Counsel also referred to some exchanges between the magistrate and trial counsel during the course of submissions as well as the magistrate's summary of the prosecutor's submissions at trial ts 3/5/23 at 4 ‑ 5, but these do not assist in construing the magistrate's reasons for decision.
[73] Trial ts 3/5/23 page 35.
While this suggests an equivalence between a reasonable response and a proportionate response, the magistrate's reasons must be considered as a whole. In the next paragraph of his reasons, the magistrate observed:
We are looking at a reasonableness test here, in all the circumstances.
Later the magistrate said:[74]
The issue is whether what happened was reasonable precaution in the circumstances.
[74] Trial ts 3/5/23 page 36.
The magistrate also later observed:[75]
I take the view, and I'm satisfied beyond reasonable doubt that the force applied simply went too far in all the circumstances.
…
My view is that that take down movement was, particularly with the movement of the hand and the bounce, was a clear indicator to me that the forced used was, in all the circumstances, as [the appellant] reasonably believed them to be, simply too great, and was, indeed, excessive.
…
I'm satisfied beyond reasonable doubt that the force [applied] was not proportionate not appropriate. Even allowing for all of those, this was not a controlled take down. It went beyond that, respectfully, and in my view, it went too far …
[75] Trial ts 3/5/23 page 37.
The magistrate's conclusion as to self-defence was expressed in the following terms:[76]
In that circumstance and having been satisfied beyond reasonable doubt by the prosecution, that the level of force and speed applied was such as to exceed by a reasonable margin, the appropriate and proportionate necessary level of force required. I find that [the appellant] - I still maintain the position, an experienced and respected officer, for good reasons, I'm sure, and a leader and a mentor in his work environment, I find, having been satisfied beyond reasonable doubt that that level of force exceeded.
I'm left with no alternative - and, again, I've got to be true to my oath, in my view, the self-defence aspect, I'm satisfied beyond reasonable doubt that the prosecution have satisfied me that the level of force was not a reasonable response in the circumstances overall …
[76] Trial ts 3/5/23 page 38.
As can be seen from the above passages, while the magistrate reserved his decision, the ex‑tempore reasons he delivered did not simply involve reading from prepared notes. The magistrate is employing expressions which are clearly formulated as the reasons are given. That is not an approach which is to be criticised in the tremendously busy Magistrates Court. It has been repeatedly recognised that infelicities of language are to be expected in magistrates' reasons and that:[77]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[77] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
The passage quoted at [112] above clearly involved some infelicitous language. However, when the magistrate's lengthy reasons are read as a whole, it is apparent that his Honour addressed the correct test under s 248(4)(b) of the Code. Taken as a whole, the reasons indicate that the magistrate considered whether the prosecution had proved that the assault was not a reasonable response and, in doing so, did not inappropriately equate concepts of reasonableness and proportionality. His Honour correctly recognised that questions of proportionality were relevant to the assessment of whether the response was reasonable in the circumstances without improperly conflating the two concepts.
For these reasons, ground 3 is not established.

Orders

While I would grant leave to appeal on all three grounds of appeal, in my view none of the grounds are established. I will therefore make the following orders:
1.Leave to appeal is granted on grounds 1 ‑ 3 of the amended grounds of appeal.
2.The appeal is dismissed.
I would hear from the parties on questions of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
24 NOVEMBER 2023