Heanes v Herangi
[2007] WASC 175
•1 AUGUST 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HEANES -v- HERANGI [2007] WASC 175
CORAM: JOHNSON J
HEARD: 27 MARCH 2007
DELIVERED : 1 AUGUST 2007
FILE NO/S: SJA 1111 of 2006
BETWEEN: JONATHAN STEPHEN HEANES
Applicant
AND
ANDREW HERANGI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE P A NICHOLLS
File No :PE 39693 of 2006
Catchwords:
Disorderly conduct - Collaboration in preparation of witness statements - Admissibility of evidence illegally or improperly obtained - Failure to call witness - Disorderly conduct - Offensive language - Whether necessary to establish that offence caused to a person - Whether miscarriage of justice
Legislation:
Criminal Code (WA), s 74A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr I Weldon
Respondent: Mr P D Lochore
Solicitors:
Applicant: Lavan Legal
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Alexander v The Queen (1981) 145 CLR 395
Ashley v Balchin (2006) 161 A Crim R 497
Ball v McIntyre (1966) 9 FLR 237
Beahan v McDermott, unreported; SCt of WA; Library No 8830; 24 April 1991
Bilney v Police [2004] SASC 356
Birch v Police [2003] SASC 354
Bunning v Cross (1977) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
Coleman v Power (2004) 220 CLR 1
Corke v Corke [1958] 1 All ER 224
Crowe v Graham (1967) 121 CLR 375
CSR Ltd v Maddalena (2006) 80 ALJR 458
Cumaiyi v Taylor [2006] NTSC 72
Dalton v Bartlett (1972) 3 SASR 549
De Jesus v The Queen (1986) 61 ALJR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Director of Public Prosecutions v AM [2006] NSWSC 348
Director of Public Prosecutions v Boardman [1975] AC 421
Director of Public Prosecutions v Hester [1972] 3 All ER 1056
Driscoll v The Queen (1977) 137 CLR 517
Duke v The Queen (1989) 180 CLR 508
Dyers v The Queen (2002) 210 CLR 285
E (A Child) v STAATS (1994) 13 WAR 1
Foster v The Queen (1993) 67 ALJR 550
Fox v Percy (2003) 214 CLR 118
Hales v Nebro [2003] NTSC 2
Hoch v The Queen (1988) 165 CLR 292
Hollington v Hewthorn and Co Ltd [1943] KB 587
Houda v The State of New South Wales (2005) Aust Torts Reports 81‑816
Jones v Hyde (1989) 85 ALR 23
Keft v Fraser, unreported; FCt SCt of WA; Library No 6251; 21 April 1986
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
M v The Queen (1994) 181 CLR 487
Martin v Osborne (1936) 55 CLR 367
Melser v Police [1967] NZLR 437
Mogridge v Foster [1999] WASCA 177
Norton v R (No 2) (2001) 24 WAR 488
Noto v The State of Western Australia [2006] WASCA 278
Palmer v The Queen (1998) 193 CLR 1
Police v Christie [1962] NZLR 1109
Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281
R v Baskerville [1916] 2 KB 658
R v Dietrich (1992) 177 CLR 292
R v Hughes (2000) 202 CLR 535
R v Ireland (1970) 126 CLR 321
R v Quin [1962] 2 QB 245
R v Whitehead [1929] 1 KB 99
Ridgeway v The Queen (1995) 184 CLR 19
Robinson v Police [2004] SASC 271
State Rail Authority and Earthline Constructions Pty Ltd (In Liq) (1990) 160 ALR 588
Sutton v The Queen (1984) 152 CLR 528
Sweeney v The State of Western Australia [2006] WASCA 118
Van der Meer v The Queen (1988) 62 ALJR 656
Watson v Trenerry (1998) 122 NTR 1
JOHNSON J: The appellant, Jonathan Stephen Heanes, appeals against his conviction in the Magistrates Court at Perth on 24 October 2006 for the offence of disorderly conduct, contrary to s 74A of the Criminal Code (WA).
The grounds of appeal on which the appellant relies are these:
"1. The learned magistrate erred in law and in fact in accepting and relying upon the evidence of the prosecution witnesses when that evidence was admittedly the product of collaboration between them.
Particulars
1.1The statements of the two police witnesses reproduced typographical errors, contained obvious similarities and had patent mistakes, which indicated a common authorship.
1.2Constable Paul, the female police officer who was the second witness called for the prosecution, accepted that she had received an electronic version of the statement prepared by Constable Herangi and had produced her own statement by 'typing over' that earlier statement.
1.3Notably, the words complained of, which the appellant denied that he had said (which denial was supported by his father), were identical in each of the police statements.
2. The learned magistrate erred in fact in discounting the evidence of the defence witness, Stephen Heanes, to the effect that he had heard the whole of the relevant conversation and that the second expletive had not been said by the appellant.
Particulars
2.1It was the prosecution case that the offensive words were said in the course of the telephone conversation between the appellant and his father. On this basis, there were no grounds on which the learned magistrate could find that the evidence of Stephen Heanes could be disregarded.
3. The learned magistrate erred in fact and in law in holding that the conduct of the appellant, even on the prosecution case, could amount to disorderly conduct.
Particulars
3.1No independent witness was called to indicate any distress, disquiet or discomfort about the conduct or language used.
3.2The appellant was arguably disrespectful and possibly rude. He offered no physical threat or challenge. That falls well short of conduct requiring the sanction of the criminal law.
3.3The language complained of was not offensive or obscene in its proper, actual and contemporary context.
4. There was a miscarriage of justice in that the conviction was unsafe and unsatisfactory; and against the weight of the evidence.
Particulars
The appellant relies on the following:
4.1The discrepancies between the evidence of the prosecution witnesses about the earlier behaviour of the appellant.
4.2The disparity between the evidence of the prosecution and defence witnesses about the events forming the basis of the charge
4.3The fact that the crucial evidence of the words said to amount to disorderly conduct was challenged; denied by the defence witness Stephen Heanes; and the product of admitted collusion."
The Facts
The prosecution notice states that the appellant, being in Forrest Chase, behaved in a disorderly manner. The charge is not particularised and no particulars were requested or provided at the commencement of the hearing or at any other stage. However, as is apparent from the circumstances to which I will shortly refer, the conduct said to be disorderly was the language used by the appellant.
On 12 July 2006 the appellant and his girlfriend were crossing the road at the Wellington Street crossing, having come out of the entrance of the Perth train station. At the same time two uniformed police officers, Constable Paul and Constable Herangi, were crossing Wellington Street from Forest Chase to the train station. According to Constable Herangi, he and his partner were on duty and walking within arm's reach of each other, virtually shoulder to shoulder. He was asked whether there was a reason why they were walking so close together and he said: "That is just the way - no, nothing, to - we were just walking in a normal manner". Constable Herangi said that he was walking on Constable Paul's right side which is the side on which she wears her gun.
As they were crossing the road, Constable Herangi observed the appellant on the other side of the road. He was about one to two metres on Constable Herangi's right hand side. There was no eye contact between them. Constable Herangi indicated that he and Constable Paul were walking straight ahead but the appellant was cutting across. He came across in front of Constable Herangi. The two officers were just over half way when the appellant walked between them, bumped Constable Paul to the hip with his right elbow and continued on without apologising. The appellant rejoined his girlfriend who had gone straight ahead without walking between the officers. According to Constable Herangi, the appellant could have gone straight ahead as well.
When the appellant bumped into Constable Paul and continued on, Constable Herangi turned around and saw that the appellant was looking back at him with a smile on his face. The appellant continued looking at him until he was out of view.
At that point Constable Herangi said to Constable Paul, "Did he deliberately walk into us?" Constable Paul agreed that he had and they turned around and, after waiting for the lights to turn green so they could cross back over the road, the two officers went to look for him. About five minutes later the two officers located the appellant in the Myer store and asked him to come outside so they could speak to him about the incident. The appellant came outside and Constable Herangi said to him, "You deliberately walked into us." He replied, "No. I didn't see you". In cross‑examination it was put to Constable Herangi that the appellant said, "No, I didn't see her?" His response was, "Yes".
At this point in the conversation the appellant's mobile phone rang and Constable Herangi asked him to turn it off until they had sorted the matter out. According to Constable Herangi, the appellant replied in a loud and clear voice, "I am on the phone - I am on the phone. I'm fucking talking to my dad. Fuck off." When Constable Herangi repeated what the appellant said it was in these terms: "I'm on the fucking phone talking to my dad. Fuck off." Constable Herangi stated that it was school holidays at the time and there were several children within hearing distance. There were a few people standing around as well and approximately 15 people in the vicinity.
The appellant was arrested, conveyed to Perth police station, charged and then released to bail. Later, when Constable Herangi let the appellant out of the main door of the station the appellant turned around and said to him, "You'd better harden up". Constable Herangi stated that he did not know what he meant by that.
In cross‑examination Constable Herangi said that he saw the appellant bump into Constable Paul although he agreed he could not see the actual contact. Constable Herangi denied that he was upset by the fact that the appellant had walked between them but said that he found it annoying. He explained that "it just seemed weird" that he would do something like that. Constable Herangi agreed with the proposition that the appellant "had got a bit of attitude".
Constable Herangi denied that he grabbed the phone out of the appellant's hand and turned it off but he agreed that the appellant asked him to take the handcuffs off. Constable Herangi denied telling the appellant to "just fucking shut up". In response to the proposition that, later at the police station, when the camera used to take a photograph of the appellant would not operate, he said words to the effect, "What the fuck is wrong with this bloody thing. I can't make the fucking thing work", Constable Herangi said that he did not recall.
Constable Paul said in her evidence that she was walking approximately 30 centimetres apart from Constable Herangi. The appellant was approximately 1½ to 2½ metres on her right hand side and to the front of her when she first saw him. There were not very many people coming towards them and there was no one in their way as they walked across the intersection. Neither did she observe the appellant "having to negotiate any person on the crossing". What attracted her attention to the appellant was that he changed his speed as he was walking towards the two officers and began to walk faster. He walked between her and Constable Herangi and when he did that he bumped into her right hip with his right elbow. Constable Paul said that when she felt him walk into her she tried to move out of the way but it was too late. When she turned around she saw the appellant grab his girlfriend's hand, walk up the stairs to Forrest Chase and turn around and look back at them. Constable Paul said that although the appellant bumped into her, his girlfriend had continued to walk straight across the road approximately 1½ to 2½ metres away.
According to Constable Paul, when the appellant was spoken to and asked if he had deliberately walked between her and Constable Herangi, he denied he had and said that he did not see her. It was at this point that his phone rang. Her account of what the appellant said when asked by Constable Herangi to hang up the phone was this: "I'm on the fucking phone to my father. Get fucked. So fuck off". She said that it was lunchtime during school holidays and very busy. There were a number of children in the area within hearing distance of the accused. On Constable Paul's assessment there were at least more than 10 to 15 people in the vicinity who looked at them as they were walking past. The appellant was then arrested.
In cross‑examination Constable Paul explained that at the time the appellant was asked to hang up his phone she was writing out a "move on" notice which would require him to leave the city for a period of time. It was suggested to Constable Paul that there was no reason why the appellant could not have been allowed to complete his phone call. Constable Paul's response was that he could have answered her questions and then continued with his phone call. It was put to Constable Paul that there was no reference to the "move on" notice in her statement but, as she pointed out, because he was arrested, she did not get to write it out. Constable Paul maintained that Constable Herangi grabbed the appellant's arm and not his phone. She denied that she or Constable Herangi used the word "fuck" in the course of their dealings with the appellant.
Questions were put to Constable Paul in cross‑examination to the effect that she and her partner did not arrest everyone who swore and that they arrested the appellant because of what had happened when crossing the road. Constable Paul explained that often "move on" notices were given to people who used bad language but in this case he had already done something to justify the "move on" notice but he went further and therefore was arrested for his language. She did admit that she was angry with the appellant for walking into her.
The appellant's initial account of the incident was that, as he crossed the road, he and his girlfriend were weaving in and out of people as they came the other way. The two police officers were directly opposite him and as they walked towards him there was about a metre between both the officers and he walked straight between them. The appellant said that it was so insignificant that his girlfriend did not even notice that he had done it. This comment by the appellant of his girlfriend's knowledge of events was, of course, hearsay. The appellant maintained that there was no contact between him and either police officer and there was ample room between them.
The appellant stated that as he continued walking across the road he glanced back and the officers were looking back at him and he suspected they may not have been too impressed but he continued walking to Myer. Approximately five minutes later the appellant was in the Myer store, felt a hand on his shoulder and Constable Herangi told him to come outside.
When the appellant was asked by Constable Herangi to explain why he walked in between the two officers he explained that he had his head down at the time because he had just been writing an SMS message on his mobile phone before he and his girlfriend crossed the road. He was putting the lock on his phone when he looked up "and the officers were there". According to the appellant, there was ample room in between the two officers so he kept walking straight through and put the phone in his pocket.
As the appellant was explaining why he walked between the two officers his phone rang. The appellant explained that the ring was loud and the officer could clearly see that his phone was ringing. He told the officer to "hold on a minute" then answered the call which was from his father. He could tell before he answered it that it was his father because the phone came up with his father's name, although he did not mention that to the police officers.
The appellant stated that he had only been on the phone for 5 ‑ 10 seconds when the male officer said "in a very rude voice", "get off the phone". He said to the officer, "hold on a minute" but the officer told him again to get off the phone and went to grab the phone out of his hand. The appellant brought the phone down and said to him, "It's my fucking dad. Just let me talk to him". According to the appellant, he did not shout when he said this. Constable Herangi said "no" and grabbed the phone out of his hand, hung up, placed the appellant under arrest and handcuffed him. The appellant maintained that there was nobody around where they were. He also said that Constable Herangi gave the phone to Constable Paul who passed it to the appellant's girlfriend. The appellant said that he girlfriend was, "very shocked and was a bit surprised at what happened". This was another hearsay statement by the appellant concerning his girlfriend.
According to the appellant, as he was waiting to be placed into the van and taken to the police station, he asked for the handcuffs to be removed because he was not violent and was not going to resist. The appellant stated that Constable Herangi said, "We don't fucking know what you're like". He added that there were many more people standing around at that point. It would seem that the purpose of this evidence was to show that Constable Herangi, himself, used the same language as the appellant had used.
The appellant stated that as they were waiting a group of four males walked past and spat right in front of them. The appellant commented to Constable Herangi that, "These are the sort of people that you should be focusing on". According to the appellant, Constable Herangi responded with, "Well, we would be if we weren't dealing with dickheads like you". The appellant maintained that during the time between his arrest and the arrival of transportation, the police also used the word "fuck" three times. The appellant also maintained that Constable Herangi used that word at the police station when he was having difficulties with the camera.
In cross‑examination the appellant confirmed that he had his head down the whole time doing an SMS. He said that, as the lights went green, he had finalised writing the SMS message, locked the phone, went to put it in his pocket, looked up and there were two officers coming. He put the phone in his pocket and "it wasn't worth making a detour around them when there were only four metres around and I walked in between them". However, when questioned further, the appellant gave this account:
"As I said the first time, as I was walking across the road I was still writing the SMS, I finished it, then we got to about halfway. I put the key lock on my phone, put the phone in my pocket. Then about a metre away from the officers, as they were walking one to two metres away, as I was walking towards them, they were walking towards me, I finished putting the phone in my pocket and they were there. It wasn't - it would have been stupid to make a detour around either side of them."
It can be seen that there is some discrepancy in the appellant's account of the point at which he finished the SMS message and hence the point at which he became aware of the two police officers. However, the appellant denied that he had said earlier in his evidence that he had finished the SMS message before he proceeded across the intersection.
The appellant settled on "about a metre away" as the distance between him and the two officers when he looked up. The appellant stated that the explanation he gave the police officers was that he was writing an SMS and he had his head down. However, the explanation recounted by the two police officers did not include any reference to a SMS message.
The appellant disputed that the two officers were walking shoulder to shoulder and also denied that officers walking the beat walk close together. When asked why, if there was ample room between the two officers, the appellant looked back, he said, "Because I thought they were police officers, well, they must have been a little bit offended". When further asked why they would be offended if the appellant had crossed the intersection without incident, the appellant stated:
"If they weren't officers - if I had walked in between a couple I would have glanced back to say, 'Hope I didn't upset them'."
The appellant then said, "Because they were like - they were wearing the same uniform, they like to stick together and when I walked it was - like well, they mustn't have liked that". The appellant denied that he was being a smart alec.
In my view, it was certainly open to the Magistrate to conclude that the reasons the appellant gave for looking back were inconsistent with the account he gave of walking between two officers who were a reasonable distance apart and where, as the appellant stated, it would have looked "pretty stupid if you were walking across and all of a sudden you yanked to one side just because there were two officers".
With respect to the phone call from his father, the appellant said in cross‑examination that he did not tell his father that he would call him back because there was no need to. He said, "He rang me up for a reason. I spoke to him". He also said that he did not think they would mind. When it was pointed out that they obviously did mind, the appellant's response was that he had no obligation to be talking to them.
The appellant denied that he told the police officers to "fuck off". According to the appellant, he said in a very low and casual voice, "It's my fucking dad on the phone". His explanation for using an expletive was that the officer had grabbed his hand and he was very angry and surprised and it just came out.
Stephen Heanes, the father of the appellant, gave evidence that he calls his son quite often and there was no particular reason for calling him on that occasion; nothing pressing about the particular phone call. He stated that he chatted with the appellant for a very short while, "friendly as we always are". The appellant greeted him and said that he was in the city with Samantha, his girlfriend, and then the noise started. Approximately half a minute had elapsed at that point. Mr Heanes heard some very loud aggressive voices in the background and heard lots of commotion and asked the appellant what was going on. Mr Heanes said that it was very difficult to hear what the voices in the background were saying. The phone then went dead. The last words he heard the appellant say was that he had been arrested and was being taken out of the shop. He did not know police were involved until 10 or 15 minutes later when he rang back and the phone was answered. With respect to the background voices, Mr Heanes stated that there was a mixture of voices with the aggressive one mainly being a male voice. He also said in cross‑examination that he heard the appellant say "I'm on the fucking phone" but he did not hear anything after that apart from a lot of aggressive noise from other people.
Magistrate's reasons for decision
The Magistrate concluded that the prosecution had proved the charge against the appellant. He found that the appellant did bump into Constable Paul on the pedestrian crossing and this was the result of carelessness on his part. The Magistrate further found that, when the appellant was being spoken to by the police officers and his phone rang, he could have, and should have, said that he would call his father back. It was noted that the father was making nothing more than a routine call. The Magistrate accepted that the appellant, having been asked to switch off the phone, said "I am on the fucking phone. Fuck off." In reaching that conclusion the Magistrate considered that the evidence of the appellant's father did not particularly assist because he had not heard all of what was said. The words were found to have been said in the proximity and within the hearing of both adults and children. The Magistrate stated that he accepted the evidence of Constable Paul that the appellant yelled the comment. He also accepted Constable Paul's evidence that the reason the appellant was arrested was because she was already writing a "move on" notice in relation to the appellant's earlier conduct.
The Magistrate accepted in substance the testimony of the two police officers. In particular, he accepted the evidence of Constable Paul that the appellant had bumped into her. The Magistrate also stated that he rejected the evidence of the appellant and gave his reasons for doing so. The Magistrate said that, despite the appellant's assertion that there was no contact between him and Constable Paul, the appellant looked back and continued to look back as he walked away. He was also pursued by the two police officers regarding his conduct. The Magistrate considered that neither of these things made sense if the appellant had merely walked between the two officers without making contact.
With respect to the issue of whether the conduct, as found by the Magistrate, amounted to disorderly conduct, the Magistrate stated that the appellant's conduct of continuing with a routine call was clearly, and at least, "inappropriate and rude behaviour". He added:
"As to whether it was disorderly, even in what might be described as a more liberal view or attitude to swearing in public, to tell a police officer, loudly in Forrest Chase to "fuck off" is, in my view, still sufficient to be a clear case of disorderly behaviour."
Grounds of Appeal
Ground 1
The appellant alleges that the Magistrate erred in accepting and relying on the evidence of the police officers when that evidence was the product of collaboration between them. The appellant's submission is that collaboration affects the admissibility of the evidence and not simply the weight to be given to that evidence. Counsel for the prosecution submitted that collaboration is relevant only to the weight of the evidence.
(i) The evidence of collaboration
In cross‑examination Constable Herangi was asked about communications with Constable Paul. He said that he had discussed the case with Constable Paul. He also said that he prepared his statement first. He denied he showed his statement to her. It was put to Constable Herangi that some of the paragraphs are identical. His response was that he did not know because he had not read Constable Paul's statement.
Constable Herangi was not cross-examined on the effect on his recollection of the discussion with Constable Paul. Indeed, the nature and purpose of that discussion was neither addressed nor identified and there was, therefore, no evidence upon which to base a conclusion that this conversation had any impact on his recollection of events.
In cross‑examination Constable Paul said that she discussed the case with Constable Herangi after it happened and before statements were made. Similarly, the nature and purpose of that discussion and the effect, if any, on her recollection was not addressed in cross-examination. Constable Paul further stated that she read Constable Herangi's statement before she made her own. She explained that Constable Herangi would have sent her his statement to have a look at it and she typed over the top of it. In re‑examination Constable Paul further explained that she received Constable Herangi's statement on the computer. She said that her practice was to read the statement of the other officer and then type her own out or type over the top of the other officer's statement. She added that whoever is compiling the brief normally sends the statement to the other officer. As with Constable Herangi, Constable Paul was not cross-examined about the impact on her evidence of the circumstances relating to the preparation of her statement. Specifically, Constable Paul was not asked whether Constable Herangi's statement refreshed her own memory of events or provided her with information which she did not actually recall.
(ii) The abuse of process application
The appellant's counsel at trial made a submission of no case to answer on the basis that the way in which the statements were prepared was an abuse of process. It was submitted that, where issues of credibility arise, evidence that the witnesses have prepared their statement and "colluded or co-operated in this way" is unacceptable and it is an abuse of process to prosecute a case based on such evidence. The appellant's trial counsel added:
"The care that one takes to make sure that evidence of a witness is his or her uncontaminated and independent recollection is, in my respectful submission, crucial to the presentation of a proper prosecution case."
The submission was prefaced by the observation that it was made without any criticism at all of the two police officers concerned and that observation was repeated at a later point in the submission.
As I understand the submission, the complaint being made was with respect to the process and the potential for evidence based on statements prepared in that way to include matters which were not part of the witness's own recollection. It was not submitted that the evidence of either officer was in fact contaminated or that either witness knowingly gave evidence of something not seen, not heard or not recalled. However, it appears from a response by counsel to a question from the Magistrate that counsel was submitting that such a process could result in a witness unintentionally adopting as his or her own recollection, the recollection of the other person. The Magistrate's question involved two propositions. The first was whether counsel was suggesting that the testimony was false. The second was whether counsel was suggesting that the process was flawed and, consequently, the prosecution should be dismissed simply because the process by which prosecution witnesses prepared the statements from which they refreshed their memory before giving evidence was flawed. I believe counsel's response of, "That is exactly right", was in fact a response to the second question. Counsel's additional statement that there was no suggestion that the officers had deliberately concocted their evidence would be inconsistent with the response being to the first question.
The prosecution submitted that it was common place in this age of technology for police officers to create a statement by cutting and pasting or typing over a statement in electronic format. It is said that officers are busy and are expected to prepare statements in a short period of time and get back to performing their duties. It was further suggested that any issue arising had been dealt with under cross‑examination and it was a matter for the Magistrate to assess the credibility of the witnesses having been made aware of the circumstances. It is apparent that the prosecution's position was that the circumstances surrounding the preparation of the witness statements were something to be addressed in cross‑examination and went only to the weight of the evidence.
In rejecting the application to dismiss the charge on the basis that the conduct did not amount to an abuse of process, the Magistrate expressed the view that "there has been certainly collaboration between the two officers as to the two statements to, in effect, come up with a result which has the effect of the two statements being virtually identical". I note in passing that there was no evidence from either police officer that the purpose of the process was to ensure that the two statements were virtually identical, nor was such a proposition put to either witness in cross-examination. The reasons for the Magistrate's decision were these:
"Now, I would have thought that that, in many cases, is not desirable because there are situations whereby people's recollections are not a hundred per cent correct and the same applies even to police officers and, unfortunately, there seems to be this policy of making the statements as identical as they possibly can so that when we get to a situation like this where there is disclosure now in these courts … the statements which are disclosed to defence counsel are scrutinised and the cross‑examination often proceeds on the basis of quite careful cross‑examination based on the differences between the two typed statements.
To some extent this practice, which I do not consider to be desirable, of the two police officers collaborating and producing identical statements, to some extent it seems has flowed out of the disclosure process that is now the case in these Magistrate's Courts and I don't consider, really, it is the best way to prepare a case for prosecution, but, unfortunately, that seems to be what has been happening."
The Magistrate noted that there was no suggestion that the witnesses had concocted evidence and in their collaboration produced a false story.
Having determined that there was a case to answer, the defence went into evidence calling both the appellant and his father. As noted above, the Magistrate found the charge proved. The reasons for his decision have already been referred to but, in short, the Magistrate accepted the police officers' testimony. He rejected the appellant's version as not credible and gave his reasons for reaching that conclusion. In deciding to accept the evidence of the police officers the Magistrate made no mention of the fact that the police evidence was consistent or was corroborated.
(iii) Admissibility of evidence where there has been collaboration between witnesses
The appellant does not seek to pursue the argument that, because of the way in which the statements of the police officers came into existence, the prosecution was an abuse of process. The ground of appeal alleges that evidence which is admittedly the product of collaboration between witnesses should not be accepted or relied upon. I understand the ground of appeal to deal with the Magistrate's acceptance of the evidence in the sense of reliance on it, rather than with respect to allowing the evidence to be given. I make that distinction because at no stage did counsel for the appellant at first instance suggest that the evidence should be excluded, albeit that it had already been given. However, in written submissions counsel for the appellant referred to authorities which deal with the admissibility of evidence improperly obtained. Further, in the course of oral submissions counsel submitted that unless a witness could give evidence of his or her independent recollection of events, wholly unaffected by any other person's recollection, that evidence should be excluded in the exercise of the judicial discretion. Counsel directed the balance of his submissions to the proposition that the Magistrate should not have relied on the evidence in any event.
Because of the way in which the matter was dealt with by counsel for the appellant at first instance, I have reservations as to whether it is now open to the appellant to submit that the Magistrate should have rejected the evidence in the sense of excluding it from evidence rather than declining to rely on it. I put to one side the question whether evidence which has already been led can be later excluded. However, I propose to consider the authorities dealing with the admissibility of evidence on the basis that they provide the rationale for declining to rely on the evidence in this case as well as the rationale for declining to admit evidence of this type. Further, as I have noted, it is apparent from the submissions made on behalf of the application that, irrespective of whether it is now open to address on appeal the admissibility of the evidence of Constable Herangi and Constable Paul, the appellant's position is that, as a matter of principle, collaboration affects admissibility as well as weight.
(a) Whether a wholly independent recollection of events is a pre‑requisite to admissibility
On behalf of the appellant it is said that the Magistrate's fact finding was flawed because he relied on evidence which was the product of collaboration which reasonably precluded any reliance being placed on consistency or on the fact that the evidence was corroborated.
The terms "concoction", "collusion" and "collaboration" are used by counsel for the appellant, and also in a number of authorities, as if synonyms or, at least, different aspects of the same conduct. The terms are almost invariably used in a pejorative sense, although the term collaboration is usually defined simply to mean to "work jointly". It is the surrounding circumstances which determine whether the collaboration may reasonably be the subject of criticism. In the context of witness statements the issue is whether the collaboration has led, or is liable to lead, a witness to include in his or her statement something of which the witness has no personal recollection.
In the course of oral submissions counsel submitted that unless a witness could give evidence of his or her independent recollection of events, wholly unaffected by any other person's recollection, that evidence should be excluded in the exercise of the judicial discretion. No authority was provided for that proposition which was said by counsel to be obviously correct.
Counsel also submitted that it is fundamental to the assessment of credibility that the evidence of a witness should be an independent and uncontaminated recollection. Certainly circumstances which may affect the accuracy or reliability of a witness's evidence, in particular whether a witness has discussed his or her evidence with others, are commonly addressed in cross‑examination. Indeed, juries are almost invariably told by judges to consider any and all matters which they consider might affect the reliability of a witness's evidence. It was further said by counsel for the appellant that, notoriously, courts often proceed by accepting evidence which is consistent in preference to that which contains discrepancies. That may well be so, although complete consistency may be an indication of inappropriate collaboration or rehearsed false statements.
I accept the proposition that, when assessing the credibility of a witness, it is relevant to consider whether the evidence of the witness is an independent and uncontaminated recollection. However, it does not automatically follow that evidence from a witness who has discussed the event with another is inadmissible or should be the subject of a discretionary exclusion. It would be naïve to suggest that witnesses do not discuss with others events which are significant or important to them. Witnesses make complaints to others who might question them and to police officers who participate in obtaining a statement from the witness. With respect to police officers, in many cases it will be necessary to discuss the circumstances of an incident with a fellow officer in order to determine the extent of the available evidence and whether charges should be laid. There are a multitude of circumstances with the potential to affect a witness's account of a particular event. If the absence of discussion with another were the criteria for admissibility there would be little available evidence.
Of course, the type of discussion or collaboration which occurred in this case, and which is the subject of the appellant's submission, is with another person with actual knowledge of the event as a result of which there is the potential for one person's recollection to be influenced by the other person's recollection of events. However, police officers who take statements from witnesses often also have knowledge of the event. That, too, would be a situation where there is the potential for the witness's recollection to be influenced by the person preparing the statement. If the potential for personal recollection to be influenced provides a basis for excluding evidence, the effect of such a principle would be far‑reaching indeed.
I am not aware of any authority for the proposition that the mere fact of discussion or collaboration renders a witness's evidence inadmissible or provides a justification for excluding that evidence in the exercise of the judge's discretion. Counsel for the appellant placed considerable emphasis on the decision in Hoch v The Queen (1988) 165 CLR 292 to support the proposition that evidence which has been "contaminated" by collaboration between witnesses should be excluded or, at the very least, not relied upon. That is said to be because, as a result of the decision in Hoch v The Queen (supra) and until a recent legislative change, courts would order separate trials where there was even the possibility of concoction of prosecution evidence. The fact that Hoch v The Queen (supra) and similar cases seem invariably to concern allegations of sexual offences is said by counsel for the appellant not to confine the principle as the reasoning in such authorities does not logically confine the principle in that way and the legislative reform that has abrogated the effect of Hoch v The Queen (supra) is not so restricted: see Noto v The State of Western Australia [2006] WASCA 278 and Sweeney v The State of Western Australia [2006] WASCA 118. I accept that the principle is not so confined.
However, in my opinion, in relying on Hoch v The Queen (supra), counsel for the appellant misconceives the principle underpinning the decision in that case. In Hoch v The Queen (supra) the Court was dealing with the admissibility of similar fact evidence. The question raised on the application for special leave to appeal was whether there should have been separate trials of the separate counts contained in the indictment presented against the applicant. Each count charged the commission of a sexual offence and, unless the evidence of each offence was admissible in relation to the other offences, separate trials should have been ordered: De Jesus v The Queen (1986) 61 ALJR 1.
However, as the majority pointed out (at 294), having referred to Dixon J's discussion in Martin v Osborne (1936) 55 CLR 367 at 375, the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity that, if accepted, bears no reasonable explanation other than the inculpation of the accused person in the offence charged. In other words, once relevance is established, the criterion of admissibly is the strength of its probative force: at 294. The probative force of similar fact evidence lies in the improbability of the witness giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible: at 295.
However, in cases where there is a possibility of joint concoction there is another rational view of the evidence. Joint concoction, therefore, destroys the probative value of the evidence which is a condition precedent to its admissibility: 296 ‑ 297.
Referring to and relying on the observations of Lord Wilberforce in Director of Public Prosecutions v Boardman [1975] AC 421 at 444 where his Lordship posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible, Brennan and Dawson JJ held (at 300 ‑ 301) that a trial judge should exclude similar fact evidence unless he is satisfied that there is no real chance that it is the product of a cause common to the witnesses. Mason CJ, Wilson and Gaudron JJ reached the same conclusion (at 296) stating that the admissibility of similar fact evidence in cases involving allegations of sexual offences against several persons depends on that evidence having a probative value which is absent if the evidence is reasonably explicable on the basis of concoction.
As Mason CJ, Wilson and Gaudron JJ observed (at 297):
"On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible."
See also per Brennan and Dawson JJ at 302, 304.
The decision in Hoch v The Queen (supra) is not authority for the proposition that evidence which is affected by collaboration or collusion should be excluded from evidence or, if admitted, should not be relied upon. The quality of the evidence was relevant only to whether it could properly be admitted as similar fact evidence. If the similarity could be the result of collaboration it did not meet the test for admissibility and, as that was the only basis upon which the separate charges could be heard together, it was necessary to order separate trials. Indeed, the practical effect of the decision was that the evidence of the witnesses would be put before the court at separate trials. If the appellant’s interpretation of the decision in Hoch v The Queen (supra) were correct, the evidence of the complainants would be inadmissible or would be excluded in the exercise of the judicial discretion, whether sought to be adduced at a joint or separate trial.
The appellant also relies on the case of Houda v The State of New South Wales (2005) Aust Torts Reports 81‑816 which sets out the reasons for decision of Acting Justice Cooper with respect to a civil action based on vicarious liability brought by the plaintiff against the State with respect to the actions of a number of police officers. The Statement of Claim alleged malicious prosecution, false imprisonment, wrongful arrest and assault. Three police officers gave evidence on behalf of the defendant. Two of the police witnesses indicated in their evidence that they prepared their statements at a time when a statement of the third police officer had been provided to them "as an aid memoir, to refresh my memory from the incident that had occurred".
One constable said she had read the other statement when she prepared her statement. She further stated under cross‑examination that if she did not think it was right, "there is no way it would be in my statement, it's not what I saw or heard or thought was correct. That's the only thing in my statement, what's correct".
The third police officer agreed in his evidence that he gave a copy of his statement or provided access to his notebook to each of the other police witnesses. He did this because he assumed the plaintiff was going to plead "not guilty" and he wanted them to do their statements.
In making his findings of fact the learned trial Judge made the following comments (at [246] ‑ [248]):
"All of the police officers said that they saw nothing wrong with using the notebook or statement of another police officer in order to assist them in preparing their own statements. They emphasised that it was merely to help them refresh their memory and if something was said with which they did not agree they would not have adopted it as part of their own statement.
The fact, however, is that what each of the officers was doing was not writing down something that was his/her own independent recollection. What they were doing was accepting the recollection and statements of Constable Stebbing as their own recollection. This practice overlooks the fact that in relying upon another officer's statement as to the details of conversations there is a real danger of it being accepted as correct even though the personal recollection of the writer of the statement may be unclear or slightly different.
Furthermore, the value of evidence as corroboration is seriously diminished when that evidence is all based upon a statement of the witness sought to be corroborated."
That is the only reference in the judgment to the issue of witness statements being prepared in collaboration with other witnesses. It is apparent that Cooper AJ was not dealing with the issue of admissibility of the evidence, only of weight and whether he was prepared to rely on the evidence. Further, in his reasons for decision Cooper AJ did not refer to any cross‑examination or other evidence which supported his interpretation of the quality of the evidence, nor did he refer to any questions asked to address that issue. It is the case that his Honour's view of the witnesses may well have affected his conclusions on how the other statements came into existence and the relevance of that in relation to the credibility of each particular witness.
In my view, the decision in Houda v The State of New South Wales (supra) does not support the appellant's position. Indeed, it supports the respondent's view that the circumstances of the preparation of a witness' statement is relevant only to weight and credibility and will be one of a number of relevant factors.
(b) General principles of admissibility
All evidence which is sufficiently relevant to the issue before the court is admissible: Hollington v Hewthorn and Co Ltd [1943] KB 587 at 594 per Goddard LJ. As noted above, there is a distinction between the admissibility of evidence and the weight to be attached to it, although the weight of evidence may effect its admissibility: see R v Quin [1962] 2 QB 245 at 257. Further in Cross on Evidence (7th Aust ed) at [1540] the learned author observed that the courts rightly take the view that the degree to which an item of evidence is relevant to an issue diminishes in proportion to the likelihood of evidence being manufactured. Reference is made to the decision of the Court of Appeal of England in Corke v Corke [1958] 1 All ER 224 where the husband petitioned divorce on the grounds of adultery. The wife having been found in the co‑respondent's bedroom, when challenged by the husband the wife and the co‑respondent denied adultery. Shortly after, they phoned a doctor with a request that he should examine them in order to certify that recent intercourse had not taken place. The doctor did not perform the examination because, in his view, it would have been useless. A majority of the Court of Appeal considered that evidence of the phone conversation ought not to have been admitted by the trial judge, principally on the ground that the wife and co‑respondent might have prepared themselves for the examination, or been aware of its inutility, with the result, in either case, that they would simply have been manufacturing evidence. However, based on that reasoning, it could be said that the exclusion had more to do with the rule against self‑serving statements than the concern that the evidence might have been manufactured. In this case there was no evidence before the court that the evidence was manufactured.
In Palmer v The Queen (1998) 193 CLR 1 at [55] McHugh J observed that, in general, evidence of a relevant fact is excluded only when it infringes some policy of law: see also Cross on Evidence (supra) at [1570] which refers to infringing any of the exclusionary rules that may be applicable. However, in R v Dietrich (1992) 177 CLR 292, on which the appellant relies, the High Court re‑stated the fundamental principle of our criminal justice system that every accused has a right to receive a fair trial according to law: per Mason CJ and McHugh J at 299; per Toohey J at 353; per Gaudron J at 362. As Deane J observed (at 326) the requirement of fairness transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.
In this context counsel for the appellant referred the Court to the decision of the High Court in Bunning v Cross (1977) 141 CLR 54 and in Ridgeway v The Queen (1995) 184 CLR 19 which deal with the discretion to exclude evidence because of the way in which it has been obtained or has come into existence. In Bunning v Cross (supra) the High Court dealt with the admissibility of illegally procured evidence. The High Court in Ridgeway v The Queen (supra) (at 37) relied on the principle in Bunning v Cross (supra), by way of analogy, to recognise a discretion to exclude evidence of an illegally procured offence, or an element of it. Mason CJ and Deane and Dawson JJ decided that the considerations of "high public policy" referred to in Bunning v Cross (supra) which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained, were also applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction: at 31 ‑ 32. Mason CJ, Deane and Dawson JJ considered the reception of the evidence by the courts as a critical step in the obtaining by law enforcement officers of curial advantage which is the objective of the unlawful conduct: at 32.
Of course, in this case, there is no suggestion that any issue of illegality arises from or is involved in the conduct of the two police officers in preparing their statements of evidence. An express finding was made by the Magistrate to the contrary. However, in Ridgeway v The Queen (supra) the Court also addressed the issue of whether the discretion to exclude evidence extends to circumstances of impropriety. Although it was unnecessary to resolve this issue for the purposes of determining the case before it, Mason CJ, Deane and Dawson JJ concluded that impropriety could also provide the basis for excluding evidence in the exercise of the discretion: at 36. Their Honours considered that circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which society should expect and require of those entrusted with powers of law enforcement. The decision in Bunning v Cross (supra) is said, again by analogy, to support the conclusion that the discretion to exclude evidence of an offence or an element of an offence procured by unlawful conduct extends to evidence of an offence or an element of an offence procured by conduct which, while not unlawful, is improper: at 36.
The basis of the conclusion is stated to be found in the case of R v Ireland (1970) 126 CLR 321 at 334 – 335, where the public policy discretion had its origin, in particular in the judgment of Barwick CJ where it was made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by "unfair" as well as "unlawful" conduct on the part of law enforcement officers. Barwick CJ said (at 334):
"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."
In Bunning v Cross (supra) Stephen and Aickin JJ plainly accepted (at 75) that the discretion extended to "unfair … conduct on the part of the authorities". However, the phrase "improper conduct" was considered by Stephen and Aickin JJ (at 75) to be preferable to the term "unfair" and in subsequent cases "impropriety" has been the preferred term. It is now well accepted that the principle in Bunning v Cross (supra) applies also to cases of improper conduct: see Cleland v The Queen (1982) 151 CLR 1 at 16 ‑ 17. McHugh J, in Ridgeway v The Queen (supra) (at 82), stated the principle in these terms:
"A trial judge has a discretion to exclude evidence obtained by unlawful or improper means irrespective of whether the admission of the evidence would be unfair to the accused. The discretion to exclude such evidence is grounded in public policy."
The term "impropriety" lacks the precision of "illegality". Possibly because of the wide range of conduct which can constitute impropriety and the fact that it involves a subjective judgment, Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen (supra) placed the following qualification on the term in this context (at 37):
"The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community."
In Norton v R (No 2) (2001) 24 WAR 488, Roberts‑Smith J (with whom Wallwork J and Pidgeon AUJ agreed) set out the principles of admissibility, in the context of confessional evidence, in the following terms (at 521 ‑ 522):
"A voluntary confession may be excluded in the exercise of the discretion on the ground of unfairness to the accused (McDermott (at 512-513), per Dixon J). This is not a sanction against the conduct of the police officers: see R v Lee (at 154). The question is whether the reception on an accused's trial of evidence obtained by illegal or improper methods would be unfair to him: see Cleland (at 18) per Deane J. The exercise of the discretion is therefore to be governed by the effect of the illegality or impropriety rather than the inherent nature of the police conduct: see Swaffield (at 174) per Brennan CJ."
Roberts‑Smith J also noted the view expressed by Brennan CJ in Duke v The Queen (1989) 180 CLR 508 at 512 and in Foster v The Queen (1993) 67 ALJR 550 and by Mason CJ in Van der Meer v The Queen (1988) 62 ALJR 656 that the exclusion of a confession as a matter of public policy should be regarded as also falling for consideration under the fairness discretion.
In Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 the South Australian Supreme Court observed (at 287) that there is no doubt that, in the exercise of the discretion, a court can exclude evidence other than confessional evidence. However, Doyle CJ, with whom Cox and Matheson JJ agreed) noted (at 287) that it is equally clear that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. Doyle CJ explained (at 287 ‑ 288) that the rationale underlying the exercise of the discretion to exclude evidence is that considerations of public policy may require the court to prevent the prosecution from gaining "curial advantage" by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. Consequently, according to his Honour, if the evidence in question was not obtained by unlawful or improper means, this discretion does not arise.
However, it has long been established that, once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds, for example where its prejudicial effect outweighs its probative value: Ridgeway v The Queen (supra) at 33 per Mason CJ, Deane and Dawson JJ; Driscoll v The Queen (1977) 137 CLR 517 at 523, 541; Alexander v The Queen (1981) 145 CLR 395 at 402 ‑ 403, 417 ‑ 418, 428 ‑ 430, 435; Sutton v The Queen (1984) 152 CLR 528 at 534, 558 ‑ 559, 565. Irrespective of the circumstances and the particular test or tests to be applied in assessing whether evidence should be excluded, it is for the party which asserts that the evidence should be excluded to establish, often by cross‑examination on a voir dire, that exclusion is warranted.
(c) The evidence said to justify exclusion
Before the effect of these principles can be determined, it is necessary to identify the precise conduct of which complaint is made. In particular, because the alleged impropriety is said to be the fact of collaboration, it is important to also consider whether the "quality" of the evidence has been impaired by the process adopted or whether there has been an attempt by the police officers to manipulate the evidence by the process adopted.
Both officers were witnesses to the same incident although at different times they had different roles and, necessarily, different perspectives. Both officers stated that they discussed the case after it happened and before making their statements. No questions were asked about this discussion and there is no evidence of the nature and purpose of the discussion and what effect, if any, it had on the individual recollections of the two officers. In those circumstances, I consider it cannot be said that the discussion was part of a deliberate process of ensuring that the respective statements were identical in terms and also that the evidence based on the statements was identical.
Constable Herangi's evidence was that he prepared his statement and sent it to Constable Paul. He stated that he had not read Constable Paul's statement and Constable Paul did not make a contrary assertion. On that basis, there is no conduct on the part of Constable Herangi which affects the content and quality of his evidence. Unlike Constable Paul, Constable Herangi did not have before him another statement of the events which might impact on his own recollection. Therefore, putting to one side the initial discussion with Constable Paul, in determining this appeal it must be kept in mind that the evidence of Constable Herangi was not affected by being provided with a statement on which to model his own statement. Hence, his evidence could not be rejected on that basis and was properly before the Court. Constable Herangi may be said to have collaborated with Constable Paul by providing her with a copy of his statement, but that "collaboration" had no impact on his statement or on his evidence. It was only Constable Paul who said in her evidence that she read Constable Herangi's statement, which she was provided with in electronic form, and typed her own statement over the top of it. Again, no questions were asked which were directed at determining the effect of this process on her evidence. There was, therefore, no evidence from which a conclusion could be drawn that the process resulted in Constable Paul giving evidence of something which she did not actually see, hear, or recollect, or that such was the purpose.
Of course, as I understand the submission, the concern with the practice of discussing an event with another witness, or being provided with a copy of the witness statement of another, is that such a process could result in a witness unintentionally adopting as his or her own recollection, the recollection of the other person. However, in my view, excluding evidence simply because of that potential is an inappropriate way of dealing with one of many factors that can affect the accuracy and reliability of a witness's evidence and which are usually dealt with in cross‑examination and left to the tribunal of fact to determine. Whether the practice is sufficiently likely to cause a witness to inadvertently adopt the recollection of another, and therefore should be discouraged by rejecting the evidence, is something about which there is, in my view, insufficient information to justify such a serious consequence.
(iv) The deference given by appellate courts to the influence of demeanour on the assessment of credibility
In support of the appellant's submission that the evidence should be excluded or not relied upon, this court has been referred to the line of authority dealing with the reliance placed by appeal courts on the assessment of witnesses by the primary tribunal. In Fox v Percy (2003) 214 CLR 118 the "trilogy of cases" which reiterated the High Court's earlier statements concerning the need for appellate respect for the advantages of a trial judge were identified in the joint judgment of Gleeson CJ, Gummow and Kirby JJ as Jones v Hyde (1989) 85 ALR 23 at 27 ‑ 288, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482 ‑ 483: at [26]. Despite the judicial acceptance of the principle in Fox v Percy (supra) the majority did make the following observation (at [27]):
"The cases mentioned remain the instruction of this Court to appellate decision‑making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute."
The High Court in Fox v Percy (supra) (see for example McHugh J at [71] and [90]) and in State Rail Authority and Earthline Constructions Pty Ltd (In Liq) (1990) 160 ALR 588 (see for example Kirby J at [68], [87] ‑ [88]) did criticise the giving of undue deference to the influence of demeanour. However, as counsel for the respondent observed in his submissions, some Justices of the Court have more recently cautioned that the influence of demeanour should not be overlooked: see CSR Ltd v Maddalena (2006) 80 ALJR 458 at 492 per Callinan and Heydon JJ; but see contra Kirby J at 466 and Gleeson CJ at 462.
I have referred to this line of authority and the debate which has occurred as to the extent to which the principle of deference to the influence of demeanour should constrain an appellate court because of the emphasis placed on it in the submissions of the appellant. However, I fail to see how it impacts on this appeal. Obviously, if witnesses have collaborated to give a false impression of consistency then the tribunal at first instance is in no better position than an appellate court to determine issues of credibility. However, in this case, the Magistrate was well aware of the circumstances by which the witness statements were prepared and did not have a false or impaired impression of consistency. Further, armed with that knowledge, the Magistrate was the person in the best position to assess the credibility of the witnesses from the way in which they addressed this issue and the manner in which they gave their evidence. In any event, as I have noted, there was no evidence to suggest that any consistency was deliberately achieved through collaboration rather than as a result of having the same recollection.
If the proposition being put is that, because of the practice adopted by the witnesses in this case, the extent of which is not known, there is the potential for the court at first instance to be misled with respect to consistency and hence with respect to credibility, which would wholly undermine the principle set out in cases such as Devries v Australian National Railways Commission (supra), then I believe there is a short answer to that concern. Wherever the statements of corroborating police witnesses are identical, those witnesses can be questioned about the circumstances surrounding the preparation of the statements and the impact, if any, of the procedure adopted on the evidence given. This, in my view, is a standard approach where witnesses express matters in identical terms where some variation might be expected. The court at first instance will then have the relevant knowledge and will remain in the best position to assess credibility.
(iv) Conclusions on admissibility of the police evidence
Having considered the principles established by the authorities outlined above, I am of the view that the appellant has failed to discharge the onus of establishing that the evidence of the police witnesses should have been excluded from evidence. Establishing the fact of collaboration and the circumstances of the creation of Constable Paul's statement does not, in my view, achieve that result. In my opinion, applying the tests for admissibility outlined above to the evidence which was adduced at trial as to the circumstances in which the witness statements were created, would not result in the exclusion of the evidence. Indeed, with respect to the public policy test, it is necessary for the conduct of which complaint is made to be improper. Even if the conduct could be labelled improper, something of which I am not persuaded, it does not on the available evidence reach "a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances": see Ridgeway v The Queen (supra) per Mason CJ, Deane and Dawson JJ at 37.
The discussion between the witnesses and the way in which Constable Paul's statement was prepared were, in my view, clearly relevant to the weight of the evidence of the police witnesses and matters to be considered by the Magistrate. The evidence was in fact treated by the Magistrate in that way and, in my view, no error occurred in adopting that approach.
There are many aspects of an event which it is necessary to include in a witness statement that are not contentious and can be variously expressed without there being any difference in meaning. Witness statements also include facts which are taken from other documents. Dates on which events occurred, dates and times of arrival and departure, reference to vehicle registration numbers and descriptions of items seized, are all examples of items of evidence which are often taken from running sheets or exhibit lists and other sources and included in statements for criminal trials. To expect each individual officer to go through source material and retrieve such information is, in my view, a waste of valuable time and scarce resources. Further, it is unfortunately but almost inevitably the case that any inconsistency, and I include in that term any difference in expressing the same proposition, will in many cases be the subject of extensive cross‑examination. Presumably this is one of the reasons why some police witnesses prepare their statements in the way referred to by Constable Paul.
With respect to contentious matters, provided that police officers are aware that they may reproduce the recollection of another officer only if it accords with their own recollection, I can see no problem with using the statement of another officer as a template from which to produce their own statement. Constable Paul's knowledge and understanding of her responsibility to include in her witness statement only matters of which she had an actual recollection was not tested in cross‑examination and there is, in my view, no reason to assume that she was unaware of such a fundamental point.
I consider the practice adopted to be a legitimate and efficient method of preparing witness statements, provided the content of the statement is in accordance with the particular officer's recollection of events; something which should be tested in cross‑examination as it often is with lay witnesses.
Of course, if a witness is prepared to give false evidence in order to ensure that the witness's evidence is consistent with the evidence of another, there are many and varied ways of achieving that end. The giving of false evidence is something which may occur in any trial irrespective of the way in which witness statements are prepared and, in an adversary system, one of the purposes of cross‑examination is to test the evidence and provide the tribunal of fact with information which allows it to determine the credibility of witnesses. In those circumstances, it seems to me that excluding evidence based on witness statements prepared in the way that Constable Paul prepared her statement because it could be used to achieve a false consistency is an approach which, if applied consistently, would severely and unjustifiably limit the evidence available for consideration by the tribunal of fact in criminal trials.
As I have noted, an application of the principles of admissibility referred to above to the evidence in this case would not, in my view, result in the exclusion of the evidence, nor in a conclusion that the evidence, although before the court, should not be relied upon.
Finally, in view of the observations I have made with respect to the evidence of Constable Herangi on the making of his statement, there was before the Court evidence of each element of the offence which was unaffected by the issues raised by this ground of appeal. Further, that evidence was accepted by the Magistrate who also noted that there was no suggestion that the witnesses had concocted evidence and in their collaboration produced a false story.
(iv) Further issues
In relation to this ground of appeal, counsel for the appellant made a number of submissions relating to the Magistrate's decision to accept the evidence of the police officers. In my view, those submissions do not withstand scrutiny.
It is said that the Magistrate accepted the evidence of the two police officers without reserve or any explanation and without reminding himself of the comments that he had expressed when the submissions was made at the close of the prosecution case. It is the case that the Magistrate did not refer to or repeat any of the comments he had earlier made with respect to the circumstances in which Constable Paul's statement was made. However, those statements had only been made a short time earlier and I am not prepared to conclude that no consideration was given to those circumstances simply because no specific reference to them was made. It is implicit in the Magistrate's findings that, notwithstanding the fact that the two witnesses had discussed the event and Constable Paul had a copy of Constable Herangi's statement when she prepared her statement, he accepted their evidence. In circumstances where it was never suggested to either witness that, because of these factors, their evidence was inaccurate or untruthful, there was nothing to prevent the Magistrate from accepting that evidence.
The appellant also submits that the Magistrate dismissed the evidence of the accused without reasons. There is no substance to that proposition. As I have noted above, the Magistrate did indeed set out the reasons why he disbelieved the appellant. No attack has been made on those reasons and, in my opinion, nor could there be.
In this context, the appellant suggests that, to the extent that the Magistrate based any decision on the failure to call the accused's girlfriend, this was an error in itself. The appellant relies on the decision in Dyers v The Queen (2002) 210 CLR 285 where the High Court held (at 305 ‑ 306 per Kirby J; at 292 per Gaudron and Hayne JJ); that, as a general rule, a Jones v Dunkel direction should not be given in a criminal trial, and the giving of such a direction in that case was found to be a material misdirection. That is because a defendant in a criminal trial is not bound to give evidence and is not obliged to prove his innocence. Consequently, as the basis of a Jones v Dunkel direction is that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so, and as there can be no expectation that an accused will call any witness in a criminal trial, there can be no basis for the direction: see Gaudron and Hayne JJ at 292; see Callinan J at 328
In the course of his reasons for decision the Magistrate made the following statement:
"There is no evidence today from his girlfriend. She has not been called to give evidence to cast any light upon what happened".
That statement needs to be considered in the context of the appellant's evidence that his girlfriend did not notice that he had made contact with Constable Paul and also to the effect that she had been shocked and a bit surprised at what had happened with respect to the phone. In circumstances where the appellant gave hearsay evidence of his girlfriend's knowledge and reaction to certain events, it is understandable for the Magistrate to note that there would be no evidence from that source.
The Magistrate made no reference to drawing an adverse inference from the fact that the girlfriend has not been called. Neither am I able to discern from his reasons that he must have done so. In its context, I consider the reference to the appellant's girlfriend to be no more than an indication that no assistance can be obtained from that source in resolving the conflict in the evidence.
Another aspect of the appellant's submissions with respect to this ground of appeal related to the statement of the prosecutor that the prosecution evidence "is quite clear, it is corroborated". It is said that, in the context of this trial, where there was no independent or objective evidence of any sort, the prosecutor must have meant that the evidence of the two officers supported each other. This statement was made by the prosecutor at the commencement of his closing submission. It is apparent from the transcript that the Magistrate did not make any comments during the course of the closing submissions of either the prosecution or the defence. Therefore, it cannot be said that if the Magistrate did not reject this proposition, he must have relied on it. More significantly, in his reasons for decision the Magistrate neither referred to the prosecutor's submission nor mentioned the issue of corroboration. He did not purport to rely on the evidence of the police officers because of any consistency between the evidence of one witness and that of the other. I therefore attach no significance to the fact that such a proposition was put to the Court.
However, I do not accept that there was no corroboration. Evidence which is admissible, relevant to the evidence requiring corroboration and (if believed) confirmatory of that evidence in a material particular, is capable of being corroborative and, when believed, is corroboration. The word "corroboration" means no more than evidence tending to confirm, support or strengthen other evidence: 11 Halsbury's Laws of Australia (4th ed) at [454]; Director of Public Prosecutions v Hester [1972] 3 All ER 1056 at 1070 per Lord Pearson; R v Baskerville [1916] 2 KB 658 at 667. However, in order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated: R v Whitehead [1929] 1 KB 99 at 102 per Lord Hewart CJ. Consequently the evidence of a witness cannot be corroborated by the evidence of another witness of what he or she was told by the first witness.
Whether or not Constable Paul's evidence was corroborative of Constable Herangi's evidence depended on whether, notwithstanding having discussed the incident and having been provided with a copy of Constable Herangi's statement, Constable Paul's evidence was an account of her own recollection of events. Unfortunately, whether the information from Constable Herangi refreshed Constable Paul's own recollection of events or whether she simply accepted and repeated Constable Paul's account was never canvassed in cross‑examination. The Magistrate was left to draw his own conclusions based on hearing and observing the evidence of the witness. However, he clearly accepted Constable Paul's evidence which, in the circumstances, I consider he was entitled to do.
Counsel for the appellant further submitted that it was "ironical" that the prosecutor suggested that "the accused has concocted his version of events". Reference was also made to the fact that the prosecutor made statements from the bar table about police procedures with respect to the situation where two officers walk together whilst armed. It certainly was not appropriate for such matters to be raised by the prosecutor where they had not been addressed in evidence. However, again, the Magistrate makes no mention of such matters when giving his reasons. In my view, it cannot be assumed, and there was no basis upon which to conclude, that they had any impact on his determination. As to the criticism of the submission that the accused concocted his version of events, I consider this was a submission which the prosecution were quite entitled to make in view of the nature of the conflict in the evidence which could not readily be explained by a difference in perspective or recollection. Indeed, it was a submission which the Magistrate accepted as is evident from his specific finding that he did not accept the evidence of the appellant. It was also a submission which the defence were entitled to make in relation to the prosecution witnesses but elected not to do so.
In my view, this description of the purpose and justification of the provision which does not require that the conduct be directed to a particular person is in accordance with the description given by Gleeson CJ at 23 ‑ 24 and Callinan J at 111 ‑ 112 in Coleman v Power (supra).
In dismissing the complaint against the appellant, Burt CJ held (at 12) that it was relevant to the question of whether the words used were obscene, so as to deem the appellant to be disorderly and to be punished, to consider that the words were used in a setting where the audience had been warned of the content of the show and had paid to enter and see it.
Wallace J noted (at 3) that it was common ground that all that was involved in the appeal was whether his Worship erred in making the finding that the words in question taken out of context were obscene. In reaching his decision, his Honour referred (at 3 ‑ 5) to a number of authorities, each of which identified two separate requirements. Firstly, for a word to be obscene it must be calculated to deprave or corrupt or have a tendency to deprave or corrupt. Secondly, the term is used to describe things which, in the manner in which they are presented, are offensive to current standards of decency.
Wallace J concluded (at 5) that it was clear that one cannot reach his Worship's affirmative conclusion where the words complained of are taken out of context. In reaching that conclusion his Honour referred (at 3) to the fact that the relevant word was in common usage, whether as a noun, adverb or adjective and however distasteful its use may be found. Consequently, Wallace J considered (at 5) that the repeated use of the four letter taboo word in its various forms was simply part of our language as defined in the dictionaries and, in those circumstances, he was unable to conclude that the words used were obscene.
Despite the reference in Wallace J's judgment to the fact that the use of the allegedly obscene word must be considered in context, it seems that there is some support to be found for the appellant's position in his Honour's judgment. However, when the Annexure to the judgment which sets out examples of the words and expressions used by the appellant, is considered in full, it becomes apparent that there was more allegedly, and arguably, obscene expressions than simply the word "fuck" used as a noun, adverb or adjective. Further, it must be kept in mind that the specific conduct under consideration in that case was "obscene" language.
Rowland J expressed the opinion (at 4) that the Magistrate found that the language was obscene because some words used were capable of being obscene and not because, as required, there was evidence before him to enable him to reach the conclusion that the language used in the particular case was obscene. Rowland J considered one relevant factor to be the fact that the appellant was not using the language to express a sexual connotation. His Honour stated (at 5) that the appellant was generally using shock words and phrases to emphasise the jokes and stories. The other factor relied upon (at 6) was that the language must be gauged in its particular setting and its particular circumstances. Rowland J referred, as a pointer only, to the fact that it was necessary to ascertain the audience and to note the reaction of the audience. Ultimately, Rowland J determined that the appellant's case succeeded because the evidence accepted by the Magistrate did not disclose that the words used in context were obscene language.
It is difficult to identify the ratio of the decision in Keft v Fraser (supra). Both Burt CJ and Rowland J considered context to be a relevant factor. In Burt CJ's judgment a word may be obscene if it is an affront to a person's sensibility and likely to arouse in others shock, shame, disquiet, or revulsion and the use of the word in one place or context may meet that description whereas in another place where the people have paid to hear such words it may not.
However, in Rowland J's view the nature of the audience and their reaction to the language was seen only as a pointer to whether the language was obscene. Whether the word was being used to express a sexual connotation was another. The definition of obscenity on which Rowland J relied was that of Windeyer J in Crowe v Graham (1967) 121 CLR 375 where his Honour stated (at 395), with respect to a publication, that "[t]he question still is - does the publication by reason of the extent to which and the manner in which it deals with sexual matters transgress the generally accepted bounds of decency?". With respect to his Honour, that definition must be considered in light of the nature of the words used in the particular publication. In my view, when that is done it will be seen that, in order to meet the definition of obscene, it is not necessary for the words to be intended to express a sexual connotation. The only requirement is whether the words used transgress the generally accepted bounds of decency or are an affront to sensibilities. In my opinion, in certain situations, that definition will be met simply because the words have a sexual connotation, irrespective of whether they are being used in that sense.
Although Wallace J clearly referred to the requirement for the words to be considered in context, the fact that one of the words was in common usage, irrespective of how distasteful the word may be, was the basis for his Honour's conclusion that the word was part of our language and therefore could not be obscene. With respect to his Honour, I cannot accept that the fact that a word is defined in a dictionary and is used, however extensively, by a section of society, means that the word can never be obscene, or offensive for that matter, in any circumstance.
In any event, whether or not a word continues to have a sexual connotation or is intended to express a sexual connotation may be relevant to whether the language is obscene but it does not follow that either is a requirement when it is alleged that the language is offensive.
It seems to me that the only common proposition in the judgments in Keft v Fraser (supra) is that, in order to determine whether a word is obscene, its use must be considered in context. Whilst some factors referred to in Keft v Fraser may be limited to language which is obscene, I consider the issue of context is equally and obviously relevant to language said to be offensive.
The decision in Keft v Fraser (supra) was considered and applied in E (A Child) v STAATS (1994) 13 WAR 1. The appellant relies on this case in support of the proposition that the words he used to a police officer were not insulting or offensive. In that case the appellant was convicted on a charge of disorderly conduct in that he used obscene language at the WA City Police Station in contravention of s 54 of the Police Act 1892. When taken to the police station the appellant was told to wait until a responsible person came to collect him. The appellant wished to leave and was told that he had to wait. He then used the following language, "I want to fucking go", "You can get fucked", and "Fuck you". Between the first and second, and the second and third statement, the appellant was warned about his language and told he would be charged if he repeated it. When he did, he was arrested. On appeal, White J held that a Police Station was not a public place and as certain conduct was disorderly only if carried out in a public place, the conviction could not stand. However, his Honour also held (at 5) that the question as to whether the words were obscene, in the sense that they offended current standards of decency, was to be determined in the light of the standards of the community, not a particular witness. White J noted that the words used were used as expletives and there were no sexual overtones or implications in the words used. His Honour then referred, without comment, to a lengthy extract from the judgment of Burt CJ in Keft v Fraser (supra). White J then referred (at 7) to Wallace J's conclusion that the repeated use of a word that is part of our language and found in the dictionary was not obscene. Reference was then made by White J (at 7) to Rowland J's comment that the relevant word, in some circumstances, is not necessarily obscene and that the Magistrate had erred in concluding the word was obscene because some words used were capable of being obscene.
White J then referred to one case where it was held that the term was in common use and not offensive before referring to an extract from Dalton v Bartlett (1972) 3 SASR 549 which emphasised the fact that in order to determine whether words were obscene, the context in which they are used must be considered. Reference was also made (at 8) to the decisions in Melser v Police (supra) and Police v Christie (supra) to which I have already referred.
White J concluded his judgment with this statements (at 10):
"In my opinion, the learned magistrate erred in holding that the language used by the applicant was obscene. In the context in which it was used, as it seems to me, it was clearly neither indecent nor obscene, albeit it was coarse and would be offensive to many members of the community."
Leaving to one side the issue of whether White J was correct in concluding that the particular language used in that case was not obscene, his Honour drew a distinction between language which is obscene and language which is offensive. Indeed, White J expressed the opinion, obiter dicta, that the language in question would be offensive to many members of the community. To that extent, the decision in E (A child) v STAATS (supra) does not support the appellant's position.
The legislative change from the Police Act provisions relating to disorderly conduct to the Criminal Code provisions set out above, has resolved the problem with respect to police stations as public places. Further, as noted above, it is only necessary to establish to the requisite standard that language used by a person is insulting, offensive or threatening for that person to be found to be disorderly under s 74A.
Counsel for the respondent submits that there are two consistent themes in the "seemingly disparate decisions" regarding offences akin to disorderly conduct. The first is said to be the requirement that for conduct to be disorderly, it must disturb the "order" of the particular place at that particular time. This particular theme is consistent with the public nuisance rationale to which Burt CJ referred in Keft v Fraser (supra) and the requirement for the conduct to be considered in context to which I have already referred. Counsel for the respondent specifically relied on the decision in E (A child) v STAATS (supra) at 1113 quoting with approval from Police v Christie (supra) at 1109 and to Coleman v Power (supra) at 56 per Gummow and Hayne JJ in support of this proposition. I accept this to be both a consistent and relevant theme, irrespective of whether disturbing the "order" of the particular place is established by the objective nature of the language or by evidence of the actual or likely impact of the language on those present at the time.
The other consistent theme is said by counsel for the respondent to be that where police are involved behaviour, including language, that challenges the authority of police officers is likely to be considered to be disorderly. I accept that to be a theme of a number of cases and to be an appropriate concern because of the potential for the language to incite others to involve themselves in challenging the authority of the officers. In discussing either the actual or the potential impact on public order of obscene language, the members of the court in Coleman v Power (supra) appeared not to give any consideration to this issue, presumably because, as the facts of that case involved an allegation of corruption, it had no specific relevance. Support for the respondent's proposition can be found in the following cases which are considered hereunder: Director of Public Prosecutions v AM [2006] NSWSC 348; Robinson v Police [2004] SASC 271; Bilney v Police [2004] SASC 356 ;and Birch v Police [2003] SASC 354.
Counsel for the respondent also relied on the following decisions in support of the principle that a criminal sanction is warranted if the words used disrupt public order: DPP (NSW) v AM (supra), Bilney v Police (supra), Birch v Police (supra), Ashley v Balchin (2006) 161 A Crim R 497 and Beahan v McDermott, unreported; SCt of WA; Library No 8830; 24 April 1991.
Dealing with the cases on which the respondent relies in no particular order, the case of Beahan v McDermott (supra) involved a charge of being disorderly by using obscene language. The incident occurred at Rottnest Island and the appellant entered a plea of guilty. The relevant facts were that the appellant was asked to leave the scene where his friend was being arrested for street drinking. This he did but as he was walking away he uttered a single obscenity. It was stated by his counsel (and not disputed at any stage) that he uttered this obscenity "to himself". It was heard by the police officers and he was called back, arrested and charged. The Magistrate refused an application that the charge be dismissed under the "first offender" provision of the Criminal Code which required, inter alia, that the offence be of a trivial nature.
Anderson J held that the Magistrate had misapprehended the approach to be taken in ascertaining the triviality of the offence by referring only to the maximum penalty provided for in the statutory provision. The particular facts of the particular case did not justify the Magistrate's conclusion that there was serious interference by the appellant in matters that did not concern him. Indeed, it is difficult to see how the use of a single obscenity to oneself, albeit audibly, could constitute a serious interference with public order. Nevertheless, the plea of guilty indicates that, irrespective of whether the obscenity was used to a person, the fact that that an obscenity of that type was able to be heard in a public place was the relevant factor and justified a criminal sanction. Anderson J also made the following comment with respect to the issue of context and the relevance of the fact that the language was used to, or in the presence of, police officers (at 8):
"I am not unmindful of the fact that officers stationed on Rottnest Island at that time of the year, that is, the post exam end of school‑year period, encounter difficulties of law enforcement. It is notorious that the Island becomes crowded with young people who often behave badly, sometimes with total disregard for the convenience and well‑being of others. Police officers charged with the responsibility of maintaining order in those circumstances must be supported by the Courts. Young people who flaunt the law, abuse police officers and fling obscenities about cannot always expect to be dealt with sympathetically, either by the police or by the courts. Generally speaking they must be punished for the public good."
In Ashley v Balchin (supra), the appeal related to charges arising from a decision to arrest the appellant for disorderly conduct by using obscene or offensive language. The conduct occurred at approximately 11.30 am in a public car park when the appellant was seated in the rear passenger seat of a parked car. The language used was this: "Why don't you fucking leave us alone, you cunts. Fuck off cunt, why don't you fuck off." It was said in the presence of the other occupants of the vehicle and was heard by three police officers, two of whom had approached the vehicle to speak with the driver. When the officer who was standing close by asked who had said the words, the appellant replied, "Fuck off cunt, why don't you fuck off".
The relevant issue on appeal was whether the arresting officer believed on reasonable grounds that an offence had been committed. In determining that issue, Angel ACJ referred (at [15]) to the fact that the Magistrate dismissed a charge of offensive language against the appellant after referring to the High Court decision in Coleman v Power (supra).
In drawing the conclusion (at [18]) that, on the evidence before the learned Magistrate, the arresting officer believed on reasonable grounds that an offence had been committed, Angel ACJ considered as relevant the fact that the words were directed at the officer and were said in a belligerent manner. Further, his Honour relied upon the comments made by Turner J in Melser v Police (supra) at 444 which is cited in full above, and relying on the decision in Watson v Trenerry (1998) 122 NTR 1 at 5 to the effect that, in the case of disorderly behaviour in a public place, it is not necessary to prove that the behaviour in fact disturbed the peace or in fact interfered with the comfort of others; it is sufficient if it had a tendency to do so.
In the case of Bilney v Police (supra), cited in support of the proposition that one of the recurrent themes in cases of this type is maintaining public order, pleas of guilty were made to a charge of disorderly conduct by using offensive language in a public place, namely North Terrace in Adelaide. When approached by police officers the appellant told them to "fuck off". The words "fuck" and "cunt" were used repeatedly. There was a group of about 10 people on the first floor of a building next to where the police officers were standing with the appellant who were looking out the window and appeared to hear what was being said. This case was an appeal against sentence and is therefore significant only in that it contains no suggestion that the conduct was not properly the subject of the particular charge.
In Birch v Police (supra) the appellant was charged, inter alia, with behaving in a disorderly manner in a public place and using offensive language in a public place. The circumstances of the offences were that police attended at a disturbance. The appellant was in a group of people. He was grossly intoxicated and was behaving in a loud and abusive manner waving his arms about and stumbling. The language which was the subject of the offensive language count was this: "What the fuck do you want that for?", "I don't have to tell you shit", and "Fuck off cunt". As with Bilney v Police (supra) this case involved an appeal against a sentence of imprisonment. Despite allowing the appeal and imposing a good behaviour bond, Bleby J expressed the view that the appellant needed a strong incentive and a constant reminder that that sort of behaviour is unacceptable and will not be tolerated.
In Robinson v Police (supra) the appellant was charged with behaving in a disorderly manner. He was unrepresented and pleaded guilty but subsequently appealed against the recording of a conviction. The appellant was a member of a group of three people, one of whom was arrested by police. The appellant said to the arresting officer, "This is fucking bullshit" and "Why the fuck did you lock him up? You're piss weak". The officer cautioned the appellant about his language, following which the appellant said, "What fucking language? What offence?" and the officer replied "Disorderly behaviour". The appellant then shouted "Ha, the judge will fucking laugh at this bullshit". He then moved closer to the police officer and appeared to challenge him to a fight.
The appellant admitted that he had become abusive but was not aware when he appeared unrepresented that he could challenge the statement of facts. Nyland J allowed the appeal on the basis that the Magistrate had not canvassed the appellant's rights and duties with him when taking a plea of guilty from an unrepresented defendant and did not give the appellant an opportunity for an adjournment to seek legal advice. Further, the appellant was given an opportunity to present evidence on his own behalf by way of mitigation which might have enabled the Magistrate to proceed without recording a conviction, a course taken with one of the co‑offenders.
To my mind, the only significance of this decision is the statement of Nyland J (at [18]) that the offence could not be regarded as "trifling". I make that point in the context of the submission by counsel for the appellant that the language used by the appellant to Constable Herangi was trivial.
Counsel for the respondent has identified the following cases as falling into a category of cases where less consideration has been given to decorum of the public place in question, although it is submitted by counsel that the cases can be distinguished: Cumaiyi v Taylor [2006] NTSC 72; Robinson v Police (supra); Hales v Nebro [2003] NTSC 2; and E (A Child) (supra).
I have already dealt with the decision in E (A Child) and with Robinson v Police (supra). In the latter case, although counsel for the respondent considers the court in that case gave less consideration to the issue of public order, it was also relied upon as an example of a case which places greater emphasis on the challenge to police authority in determining whether certain language warrants a criminal sanction.
In Cumaiyi v Taylor (supra), Martin AJ set aside a conviction for behaving in a disorderly manner in a public place because there was no direct evidence or circumstances from which a proper inference could be drawn that the group of persons to whom the relevant words were directed, and who were in a public place, were within hearing of those words, something he considered to be an essential element of the offence: at [7]. The facts of the case were that the appellant was intoxicated aboard a charter aircraft. Police were waiting for him on his arrival. After disembarking and as he was walking across the car park he yelled out "Evil, fuck you mob, evil is back", directing his words towards opposing gang members near the airport hangar. He was arrested and taken to the police station where he started yelling at the police saying, "We're going to get you, both of you, all yous boys, the evil mob". At that time he was pointing at both police officers who were attempting to search him as he would not empty his pockets.
Martin AJ concluded the above statement of his reasons as follows:
"The police heard the words, but it is not the respondent's case that they considered the word 'disorderly' insofar as they impacted upon them."
Whilst I do not accept that it is a requirement that the person or persons to whom the words were directed consider the words to be disorderly, it is relevant that a case presented on one basis can only be established on another.
In Hales v Nebro (supra), the respondent was charged with two offences, both of which occurred at a Centrelink office. The first was that she behaved in a disorderly manner in that she was yelling and screaming. In the second charge, which arose from the same incident, it was alleged that the respondent behaved in an offensive manner in that she used the words "fuck" and "cunt". The Magistrate dismissed the second charge because the words "merged" into the other charge "but as to the matter of offensive manner I don't find that made out": [at 19]. No appeal was lodged with respect to the way in which the Magistrate dealt with that charge. The prosecution appealed only with respect to the Magistrate's decision to discharge the respondent without conviction, a decision which was set aside on appeal. Consequently, the decision of the appellate court in Hales v Nebro (supra) neither supports nor rejects the view held by the Magistrate that the words used were not offensive.
One authority included in the respondent's list of authorities, but not specifically referred to in submissions, is the case of Mogridge v Foster [1999] WASCA 177 which was decided before the change of the relevant statutory provision for disorderly conduct from the Police Act to s 74A of the Criminal Code. In that case, the accused was standing in the middle of a footpath and three young ladies (still teenagers) were walking towards him. He was taking up a fair bit of the footpath, swaying from side to side a bit. As they approached they tried to walk around him. He moved across in front of them to block their access and they went a bit further and tried to go around him. As they did try he shouted very loudly and caused them to jump back. They looked quite shocked. They attempted to walk around him again and then he held up his hands in front of him and moved his arms as they went to move. Each time they went to go around him he would jump in front of them. At one stage there was contact with one of the girls. All girls managed to get around him and went down the street at a fairly fast pace. No complaint was made to the police by the girls. The appellant's explanation was: "I was just having a bit of fun" and "I'm well within my rights, I can do what I like."
McKechnie J concluded (at [9]) that the circumstances of the conduct were capable of being described as disorderly and dismissed the appeal. The significance of this case, which did not involve offensive language, is McKechnie J's formulation of the nature and purpose of the offence, his emphasis on context and his reliance on the decision of the New Zealand Court of Appeal in Melser v Police (supra). His Honour observed (at [7] ‑ [8]):
"It is true that surrounding circumstances will have a bearing on the issue. General rowdiness within a boisterous crowd on New Year's Eve may not in the circumstances amount to such conduct as to require the sanction of the criminal law. Disorderly conduct is, as it name implies, a public order offence within the Police Act designed to prevent breaches of the peace and to allow citizens to go about their lawful business without undue interference or annoyance.
Magistrates with a wide experience of life and human foibles are generally in the best position to judge whether conduct should be categorised as disorderly. In the present case, the situation created by the appellant went beyond noisy good humour. It may have been funny to him but the young women appeared shocked and were impeded in their walk up the street for a little time."
Further, as I have noted, McKechnie J adopted the formulation of Turner J in Melser v Police (supra) which identified disorderly conduct as conduct which is sufficiently ill-mannered or in bad taste to meet with the disapproval of well‑conducted and reasonable men and woman and which not only tends to annoy or insult those persons faced with it but is sufficiently serious to warrant the interference of the criminal law.
In Crowe v Graham(1967) 121 CLR 375, an authority cited by the Magistrate in Keft v Fraser (supra), Windeyer J stated (at 399) that contemporary standards are those currently adopted by the Australian community and community standards are those which ordinary decent‑minded people accept. I would add that standards accepted by ordinary decent‑minded people in some circumstances may not be standards accepted by them in all circumstances and, in particular, in public. In the context of this case, words which ordinary decent‑minded people may consider acceptable if spoken in private in very limited circumstances, may not be considered acceptable if said in public or to an authority figure or in the presence of children.
The following remark of Windeyer J in Crowe v Graham (supra) is of particular application to words that have become more prevalent in some circumstances by some members of society (at 399):
"I agree with the remark of Sholl J in the Supreme Court of Victoria, repeated by North J in the Supreme Court of New Zealand, that 'the court is not called upon to overlook or minimize what is really obscenity, merely in order supposedly to show its own judicial broadmindedness or tolerance or imperturbability or even cynicism': Mackay v Gordon & Gotch (A/sia) Ltd ([1959] VR 420 at 426); In Re Lolita ([1961] NZLR 542 at 553)."
In my view, the remark is equally applicable to determining whether words such as the relevant word in this case, are offensive.
I consider the following observations of Heydon J in Coleman v Power (supra) (at 121 ‑ 122) to be a compelling statement of the importance of prohibiting, in appropriate circumstances and in public places, words of a particular type, be they insulting or offensive:
"In seeking to prevent provocative statements of an insolent, scornful, contemptuous or abusive character, s 7(1)(d) does seek to serve legitimate ends. Insulting statements give rise to a risk of acrimony leading to breaches of the peace, disorder and violence, and the first legitimate end of s 7(1)(d) is to diminish that risk. A second legitimate end is to forestall the wounding effect on the person publicly insulted. A third legitimate end is to prevent other persons who hear the insults from feeling intimidated or otherwise upset: they have an interest in public peace and an interest in feeling secure, and one specific consequence of those interests being invaded is that they may withdraw from public debate or desist from contributing to it. Insulting words are a form of uncivilised violence and intimidation. It is true that the violence is verbal, not physical, but it is violence which, in its outrage to self‑respect, desire for security and like human feelings, may be as damaging and unpredictable in its consequences as other forms of violence. And while the harm that insulting words cause may not be intended, what matters in all instances is the possible effect - the victim of the insult driven to a breach of the peace, the victim of the insult wounded in feelings, other hearers of the insult upset."
I consider that inciting others to challenge the authority of police officers, even if such a result is not intended, can also be added to Heydon J's examples of the harm which results from the use in public of, in this case, offensive words to a police officer.
Having reviewed the relevant authorities, I am not persuaded that the decision in Coleman v Power (supra) alters the standard to be applied when considering whether language is offensive and whether it warrants a charge of disorderly conduct. Further, I am not persuaded that, in establishing such a charge, it is necessary for the prosecution to adduce evidence of the impact on those present of the words used. Neither is it an essential ingredient of the offence that the conduct provoked a breach of the peace or was calculated to do so. However, I am of the view that the words used by the appellant had that character when spoken to a police officer in the circumstances that prevailed at the time.
In view of the changes effected by the legislature in the wording of s 74A of the Criminal Code, some of the authorities referred to above are no longer of application. Certainly, as I have noted, the difference in legislation is the most significant aspect of my conclusion that the decision in Coleman v Power (supra) has little, if any, application in this case. However, some of the general principles remain applicable in construing s 74A. In particular, I consider the approach to establishing disorderly conduct set out in Police v Christie (supra) and Melser v Police (supra) is relevant to language as well as conduct and is as relevant today under the new legislation as it was in the past.
Applying the principles in the cases which I have addressed, and considered to be relevant to a charge of this specific nature in the terms of s 74A of the Criminal Code, I do not consider the Magistrate has erred in concluding that, in the context in which the relevant words were used, they offended contemporary community standards and were offensive and deserving of criminal sanction.
Ground 4
The appellant alleges that his conviction was unsafe and unsatisfactory and against the weight of the evidence and consequently there was a miscarriage of justice.
Where an appeal court is asked to conclude that a conviction is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that, upon the whole of the evidence, it was open to the Magistrate to be satisfied beyond reasonable doubt that the accused was guilty of the charge. In answering that question the court must not disregard or discount either the consideration that the Magistrate is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the Magistrate has had the benefit having seen and heard the witnesses: M v The Queen (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493.
In support of this ground the appellant relied, in particular, on the discrepancies between the evidence of the prosecution witnesses about the earlier behaviour of the appellant and the disparity between the evidence of the prosecution and defence witnesses about the relevant events. The appellant also relied on the fact that the evidence of the words said to be the offensive words was denied by Stephen Heanes and was the product of admitted collusion.
I have already dealt with the issue of the evidence of Mr Heanes and the fact that there were competing versions of events told by the prosecution and the defence and I have also dealt with the allegation concerning the Magistrate's reference to the appellant's girlfriend. None of the matters specifically referred to in submissions with respect to this ground of appeal, or any matter raised in the other grounds of appeal, persuade me that there has been any miscarriage of justice.
Further, other than the statement of Constable Herangi that he discussed the case with Constable Paul, the nature, purpose and effect of which was not addressed in any way at trial, the issue of the practice adopted in preparing the witness statements did not affect Constable Herangi's statement. It was open to the Magistrate to accept the evidence of Constable Herangi. This he did and I believe this is a situation where he was in the best place to make that assessment. There was, therefore, evidence of each element of the offence and hence evidence to support the conviction entered.
Conclusion
I would dismiss the appeal.
7
35
1