Hale v Gardiner

[2000] WASCA 122

HALE -v- GARDINER [2000] WASCA 122

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 122
Case No:	SJA:1184/1999	Heard:	20 APRIL 2000
Coram:	SCOTT J	Delivered:	10/05/00
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	MICHAEL ROY HALE BRADLEY WAYNE GARDINER
Catchwords:	Appeal against conviction Resisting arrest Police investigating complaint Appellant in possession of replica pistol Appellant agitated and abusive to police Incident recorded on appellant's video recorder Independent witness unreliable Challenge to Magistrate's findings of fact Appeal dismissed
Legislation:	Nil
Case References:	Devries v Australian National Railways Commission (1993) 177 CLR 472 Minga v Cramp, unreported; SCt of WA (Anderson J); Library No 950330; 11 July 1995 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Abalos v Australian Postal Commission (1990) 171 CLR 167 Bacci v Queen (1992) 9 WAR 504 Benter v Corkill [1999] WASCA 48 Brazil v Bielefeld; ex parte Bielefeld [1964] QWN 5 Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 Harling v Hall 94 A Crim R 437 Mann v Mann (1957) 97 CLR 433 McLachlan v Mesics (1966) 11 CLR 340

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HALE -v- GARDINER [2000] WASCA 122 CORAM : SCOTT J HEARD : 20 APRIL 2000 DELIVERED : 10 MAY 2000 FILE NO/S : SJA 1184 of 1999 BETWEEN : MICHAEL ROY HALE

Appellant

AND

BRADLEY WAYNE GARDINER
Respondent

Catchwords:

Appeal against conviction - Resisting arrest - Police investigating complaint - Appellant in possession of replica pistol - Appellant agitated and abusive to police - Incident recorded on appellant's video recorder - Independent witness unreliable - Challenge to Magistrate's findings of fact - Appeal dismissed

Legislation:

Nil

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant : Mr N R Cogin
Respondent : Ms C V M Barton

Solicitors:

Appellant : Corsers
Respondent : State Crown Solicitor

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

Devries v Australian National Railways Commission (1993) 177 CLR 472
Minga v Cramp, unreported; SCt of WA (Anderson J); Library No 950330; 11 July 1995
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Bacci v Queen (1992) 9 WAR 504
Benter v Corkill [1999] WASCA 48
Brazil v Bielefeld; ex parte Bielefeld [1964] QWN 5
Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Harling v Hall 94 A Crim R 437
Mann v Mann (1957) 97 CLR 433
McLachlan v Mesics (1966) 11 CLR 340

(Page 3)

1 SCOTT J: The appellant was charged on complaint with two offences, each alleged to have occurred on 25 October 1998 at Bayswater. The first of those offences was a charge of loitering. The learned Magistrate dismissed that charge which plays no further part in these reasons. The second charge alleged that at the same date and place, the appellant resisted one, Deborah Michelle Wheatley, a member of the West Australian Police Force, when acting in the execution of her duty. The appellant was convicted of that charge and fined $300 with costs of $91.50. The appellant has obtained leave to appeal against this conviction.

2 The grounds of appeal are:

"1.1 The Magistrate erred by not giving the Police Officers' evidence sufficient critical examination and preferring it to Defence witnesses evidence. The Learned Magistrate concluded that the Police Officers' evidence was to be preferred because the Police were more likely to have an accurate recollection of their evidence because of their status as Police officers. The Learned Magistrate was not entitled to come to this conclusion because there was no evidence to support such a conclusion and nor was the Learned Magistrate entitled to assume this proposition by way of Judicial Notice.

1.2 The Learned Magistrate erred by finding that the Police Officers' evidence was more reliable than the witness LYONS evidence. The evidence at trial did not support that finding. The Police evidence was to the effect that the Defendant violently thrashed his body and arms about and that was the basis for preferring the charge. The Defence evidence was that no such conduct by the Defendant occurred. The witness LYONS who had no prior connection or association with the Defendant corroborated the Defendant's evidence - he was such an independent witness. The evidence of Police Officers and the Defence witness LYONS raised significant issues about the veracity of the Police evidence and the Learned Magistrate did not properly consider that issue. In assessing LYONS' evidence, the Learned Magistrate made findings about the accuracy of LYONS' evidence that were not supported by the evidence. The Learned Magistrate found that:

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1.2.1 LYONS 'must have' missed the incident the Police described - that proposition was not tested in evidence and was not available based on LYONS' evidence as a whole.

1.2.2 LYONS did not have a proper view of the incident - that finding was contrary to LYONS' evidence and was not seriously challenged by the Prosecution.

1.2.3 LYONS' view of the incident was obscured by darkness - that finding was not supported by the evidence - the witness was never properly tested on that issue and made no admission that would allow such a finding.

1.3 The Learned Magistrate erred by failing to identify with any precision what act or conduct constituted the offences as charged. It was critical to do this because of the contrast in the Police evidence and the Defence evidence as referred to in 2.1.2 [1.2] sic above.

1.4 The Learned Magistrate erred by making a finding that the scuffling noise heard on the video recording was evidence of the Defendant's act of resistance. No evidence from any witness was given on that issue. To reach that finding the Learned Magistrate had to draw an inference from the evidence. That inference was not the only inference available nor was it an inescapable inference to be drawn from the evidence. Making the finding against the Defendant from the inferences available when there was at least one other inference available was an incorrect application of the law.

1.5 The Learned Magistrate erred by finding that the Defendant must have resisted the Police otherwise the Police would not have had cause to put him on the ground and handcuff him. This finding was not supported by the evidence and displayed a propensity to accept the Police evidence without subjecting it to critical examination.

1.6 The Learned Magistrate did not adequately weigh the competing evidence given by the Police and Prosecution

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and in turn then failed to give proper consideration to the standard of proof required of the Prosecution."

3 A brief summary of the facts is that on 25 October 1998 at Bayswater, the appellant was seen with what was thought to be a replica pistol. It was also reported to the police that the appellant had been tampering with a motor vehicle.

4 Eventually the appellant was located in his vehicle and was approached by the police. It is apparent from a video tape, which the appellant had running at the time that he was stopped by the police, that the police car pulled up fairly close in front of his vehicle and thereafter a police officer asked him to get out of his car. He refused to do so. He was again asked by a police officer to get out of the vehicle and again refused to do so, demanding to know what he was charged with. When he was told what he was charged with he still refused to alight from the vehicle and was both agitated and abusive towards the officers involved. Eventually, it seems a police officer managed to open the door of the vehicle and the appellant was taken from the vehicle. The appellant had a video recorder with him, which was running, and upon searching his vehicle, police officers located what turned out to be a plastic BB gun. That replica firearm became exhibit "A" in the court below and an examination of it reveals that it had been almost totally covered with black plastic tape, which had the effect of making it look remarkably realistic.

5 The prosecution case was that after the appellant was arrested, he was asked to place his hands on top of the police vehicle and stand with his legs apart so that he could be searched. The appellant resisted arrest by swinging his arms and twisting away from the police officers who were then trying to carry out that function. The prosecution's case was that it was this act of twisting away and swinging his arms that constituted resisting arrest.

6 In support of the prosecution case, Deborah Michelle Wheatley, a police constable who was present at the scene, testified in re-examination:

"When you said under cross-examination, you were - - as you were walking him to the van, you said 'He didn't want to go with us'. Can you just indicate for me what gave you that indication?---Because we had to basically pull him to the van, and then, when we had him there, he just started swinging his

(Page 6)

arms around, and just didn't want anything - - did not want to be with us - - did not want to come with us at all."

7 That evidence was supported by Trevor Alan Baldwin ("Baldwin"), a police constable who was also at the scene and who testified:

"I then - - Constable Burne and myself then started to search - - I started to search the defendant, and as I was starting to search him, the - - the defendant turned around and - - and swung his arms around, and we then place him on the ground, and - - and handcuffed him."

8 Baldwin also testified at 60 of the appeal book:

"I've started to search him - I don't know what stage I'm at, at this stage, - but he's come around like that (witness demonstrates), and I've been beneath him, so I'd say that I'm going down the - - down the body, searching him.

And the arm going at the back: that was it."

9 Evidence was also given by John Kieran Burne, a senior constable currently attached to the Bureau of Criminal Intelligence, who also attended the scene as a result of a radio message, and he testified (appeal book 67):

"At the van I attempted to search Mr Hale and he swung his arm - - arms around, trying to pull away from me and my attempts to search him. We then handcuffed Mr Hale, placed him on the ground and handcuffed him, and then I searched him, and I located a small microphone in his jacket."

10 Importantly, as I have already indicated, the appellant had an operating video recorder running at the time of the incident. Whilst there is no visible picture on the video recording, the sound is audible. What is apparent from the sound track is that the appellant was agitated and patently unco-operative with the police. He repeatedly refused to alight from his vehicle after being asked by the police to do so, and his attitude, as audible on the videotape, was both aggressive and antagonistic towards the police officers involved in the inquiry.

11 The appellant gave evidence in the court below, and in his evidence denied that he was struggling with the police at all, or that he swung around in the way indicated by the police witnesses.

(Page 7)

12 In addition, as part of the defence case an independent witness, Jason Bruce Lyne ("Lyne"), (wrongly called "Lyon" in the grounds of appeal) an environmental technician, was called to give evidence. Lyne testified that on the day in question he was at his parents' place at a specific named address in Bayswater watching a video. He said that he was able to see the street and that his attention was drawn to the police lights. He said he went over and opened the blinds and saw the paddy wagon's light flashing. Lyne also testified that he saw the appellant being removed from the vehicle and taken towards the paddy wagon. He said:

"From there it seemed to me as if he was being treated rather roughly.

Can you describe that?---Yeah. He was - - I mean not knowing the circumstances behind it, he seemed to have been grabbed quite roughly, sort of thrown around. He was searched. He was patted down. He was then - - after being searched he was grabbed - - one of the officers seems to have grabbed him and there seemed to be some sort of a - - not so much a struggle but it seemed as though he was trying to get out of the hold that he was in. He was then thrown on to the ground in a rather abrupt manner, just pushed down. There was a lot - - I heard him in pain. I heard shrieks of pain coming from him laying (sic) on the ground and it was then that they handcuffed him on the ground and picked him up. His jacket had been semi pulled off him and that's when he was sort of taken to the back of the paddy wagon."

13 In cross-examination Lyne said that the area was pretty dark, although he indicated there was "a sort of orangey colour" street light just down the road. Lyne indicated that his view of the incident was from within the room and he said that he had a "full view of that whole corner of Langley and Hudson Street" which was where the incident occurred. Lyne's evidence was that no incident of the kind the subject of the charge was seen by him. He did however say (appeal book 102):

"Your actual observations were - - when you said he was trying to get out of the hold you say he was moving his arm back?---Yeah. He sort of threw his arm. It was sort of like throwing it back. I can't describe exactly how it was done but he did, yeah, throw his arm back.

(Page 8)

And it was prior to him being place on the ground, wasn't it?---Yes, that's correct. Yeah.

The response to the throwing back of the arm - - was that when the police officers placed the defendant on the ground, is it?---Shortly after that."

14 In dealing with the evidence, his Worship said:

"The defendant says that without reason the police jumped on him and took him to the ground. From all of the evidence as in the normal course of conduct of their affairs, there is no reason for that to happen, excepting as explained by the police. Normally people do not get involved in scuffles on the ground because of the risk of injury. … From the sound on the video it seems like there was a scuffle for about 1 minute.

On the tape he was told to put his hands up, to put his legs apart and it would seem that after that he went to the ground. Shortly after from the tape, when he was talking of being bruised and was told if he didn't resist he would not have any bruises. To which he said he had no choice. It is difficult to know if that meant he had no choice but to resist, or he had no choice but to struggle once on the ground."

15 His Worship went on to deal with Lyne's evidence and said of it:

"This person, or this witness did not hear word for word what was said from when he was the - - from where he was the defendant was on the other side of his vehicle, it was dark and the defendant was wearing dark clothing. The witness was not sure how many police officers - escorted the defendant. He described in part what the movement was and said the defendant threw his arms back prior to being placed on the ground.

Given the apparent lack of good lighting and that the police officers were much closer and the movement of the arms seems consistent in part with what - - the police officers' evidence, I consider the police officers' description most reliable and take this witness - and that this witness is not sufficiently strong to corroborate the defendant's version and I am satisfied beyond reasonable doubt in respect to the resisting."

(Page 9)

16 As can be seen from the grounds of appeal set out earlier in these reasons, they essentially challenge the learned Magistrate's findings of fact. In dealing with those grounds, it is important to note that in this case, more so than in the usual case, his Worship had the opportunity of hearing and seeing the witnesses. I say that because it is apparent, from some of the evidence, that witnesses gave demonstrations in the course of their evidence. Descriptions of demonstrations were not recorded or dictated onto the transcript. An example is in the evidence of Baldwin, referred to earlier (appeal book p 60), where the witness said:

"I've - - I've started to search him - I don't know what stage I'm at, at this stage - but he's come around like that (witness demonstrates), and I've been beneath him, so I'd say I'm going down the - - down the body searching him."

17 There were other examples in the course of the transcript where it is obvious that witnesses were demonstrating conduct as well as orally testifying about it, which gave the learned Magistrate a distinct advantage: see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 per Kirby J at 330.

18 Counsel for the appellant contended that the Magistrate accepted the evidence of the police officers, without subjecting it to critical examination: Minga v Cramp, unreported; SCt of WA (Anderson J); Library No 950330; 11 July 1995 at 6.

19 In my opinion, having examined his Worship's reasons, he has not approached the evidence in that way. All his Worship was doing, in the passage to which I have referred, was making a general remark that it was unusual to find people involved in scuffles with police in circumstances where, to become involved in physical altercations was unnecessary.

20 His Worship clearly gave close attention to the evidence of Lyne and the difficulties confronted by that witness in giving accurate evidence, bearing in mind both his distance from the event and the circumstances surrounding the incident, including the lighting and the view of the incident available to him. In my opinion, his Worship was entitled to discount the value of Lyne's evidence by reason of his position, the difficulty with the lighting and the length of time between the incident and trial.

(Page 10)

21 In my opinion the learned Magistrate did give careful consideration to the evidence and reached conclusions based upon the evidence, which he was entitled to do. In addition, in my opinion, the evidence contained on the appellant's video recording (albeit in audio form) demonstrated the extent of the appellant's unco-operative attitude with the police officers involved in his arrest.

22 It is not necessary to deal with all the grounds of appeal in detail as it is conceded by counsel for the appellant that the challenges in this case are essentially challenges to the findings of fact.

23 The grounds of appeal are not made out and the appeal will be dismissed.