HMJ v Director of Public Prosecutions
[2024] WASC 352
•27 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: HMJ -v- DIRECTOR OF PUBLIC PROSECUTIONS [2024] WASC 352
CORAM: FORRESTER J
HEARD: 4 JUNE 2024 AND 1 AUGUST 2024
DELIVERED : 27 SEPTEMBER 2024
FILE NO/S: SJA 1009 of 2024
BETWEEN: HMJ
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
For File No: SJA 1009 of 2024
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ANDRETICH
File Number : CC BU 54 OF 2023
Catchwords:
Criminal law - Single judge appeal - Appeal against conviction - Whether open to prosecution to rely on s 16 of the Criminal Investigation Act 2006 (WA) -Whether magistrate convicted the appellant on a basis that departed from prosecution case - Whether substantial miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
School Education Act 1999 (WA)
Young Offenders Act 1994 (WA)
Result:
Leave to appeal is granted on grounds 1, 2 and 3
Appeal allowed on grounds 2 and 3
Conviction and sentence set aside
Judgment of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | Mr R Napper |
| Respondent | : | Ms M Wong |
Solicitors:
| Appellant | : | Aboriginal Legal Services (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Elwin v Robinson [2014] WASCA 46
Johnson v Staskos [2015] WASCA 32
Kalbasi v Western Australia [2018] HCA 7
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
McIntosh v Webster (1980) 43 FLR 112
Morgan v Cramer [2019] WASC 68
Nuhana v The State of Western Australia [2018] WASCA 79
R v GAS [1998] 3 VR 862
Roberts v The State of Western Australia [2019] WASCA 83
Robinson v The Queen [2006] NSWCCA 199; (2006) 162 A Crim R 88
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Waters v The Queen [2011] VSCA 415
Weiss v The Queen [2005] HCA 81; 224 CLR 300
WS v Gardin [2015] WASC 97
FORRESTER J:
Introduction
On 8 January 2024 the appellant was convicted after trial before a magistrate in the Children's Court at Bunbury on a charge that on 6 February 2023 she assaulted Constable Kyle Suttie, a public officer, who was performing a function of his employment.
The appellant has appealed her conviction.
The issues which must be determined are:
(1)whether as a matter of law the appellant could be lawfully convicted on the basis that s 16 of the Criminal Investigation Act 2006 (WA) (CIA) authorised the police to act as they did;
(2)whether the learned magistrate convicted the appellant on a basis which departed from the basis on which the prosecution proceeded;
(3)if so, whether this resulted in a substantial miscarriage of justice;
(4)if not, whether the verdict was unreasonable and unsupported by the evidence.
For the reasons which follow, the second issue must be determined in favour of the appellant. I am not satisfied there has been no substantial miscarriage of justice and the appeal must therefore be allowed.
Trial
For reasons which are not necessary to detail, the trial proceeded in the absence of the appellant.
At the outset, counsel for the appellant indicated that the sole issue in the trial was whether the complainant was performing a function of his office at the time of the assault by the appellant.[1]
[1] Transcript, Magistrates Court of Western Australia, 5 December 2023, 3 (ts 5 December 2023).
The prosecution case was that at about 11.20 am on 6 February 2023, police attendance was requested at a secondary school, to assist with an incident in which a female student, who I will refer to as HS, had been suspended and was carrying scissors and refusing to put them down. HS was the appellant's younger sister.
By the time police arrived, HS had put the scissors down but she was kicking doors and refusing to leave the school grounds after being asked to do so. She sought to evade police but they caught up with her and explained to her that she was required to leave. She did so, but then came back onto the school grounds. Police again caught up to her and asked her to leave. She told police to stop following her and walked away. At that point, police took hold of HS and started to escort her from the grounds. At that point, the appellant ran in, yelling, '[g]et the fuck off her' and attacked the complainant, Constable Suttie (PC Suttie).[2]
[2] ts 5 December 2023, 6.
The prosecution alleged that the appellant was attempting to slap PC Suttie and break his grip on HS's arm while kicking out at him. PC Suttie told the appellant that she was assaulting a police officer, and managed to push the appellant away. However, she came back, removed her shoe and started hitting PC Suttie to the head area with it. She continued to try to hit him in the head a couple of times before she was arrested.[3]
[3] ts 5 December 2023, 5 - 6.
The entire incident was captured on body worn camera.
The prosecution case was that the police were removing HS from the premises pursuant to s 254 of the Criminal Code (WA), and thus they were acting in performance of a function of their office at the time the appellant struck PC Suttie.[4]
Evidence for the prosecution
[4] ts 5 December 2023, 6.
For the purposes of the appeal, it is not necessary to summarise all of the evidence led at trial. Regarding the evidence of the Deputy Principal and the Aboriginal Education Support Co-ordinator (AESC) from the appellant's school, it is appropriate to deal with their evidence in the context of ground 2. At this stage it is sufficient to say that they gave evidence which was consistent with the prosecution opening.
Constable Kyle Garreth Suttie
The body worn camera footage of both officers was played by consent during PC Suttie's evidence.
The footage clearly showed HS being spoken to by the officers, then climbing back over the fence into the school property. She was told she needed to leave the premises. She then walked briskly towards the front of the school, trailed by the officers, who consistently left a distance of a number of metres between them and HS. HS turned at one point and told the officers to stop following her, at which point SC Stevens told HS she had to leave the grounds and they would follow her off the grounds. At this point, HS slowed her walking and the officers caught up. HS then walked in a direction which made it apparent she was not directly leaving the premises. SC Stevens asked where she was going and she again told him to stop following her. SC Stevens then grabbed HS by the arm, and told her she was leaving the school grounds. She started to struggle and PC Suttie grabbed her other arm. It was then that the appellant became physically involved.
In evidence, PC Suttie said he (and his colleague) arrived at the school and SC Stevens spoke with one of the teachers, who repeated that there was a female student who had been suspended and was refusing to leave, and she was kicking doors and in possession of a pair of scissors.[5]
[5] ts 5 December 2023, 47.
In cross-examination, PC Suttie agreed that SC Stevens, said '[w]e'll just have to cuff her and get her off the grounds, I suppose.' He agreed that SC Stevens was senior to him and said he would have followed his directions if he thought it was just.[6]
[6] ts 5 December 2023, 57.
PC Suttie said he did not see any scissors in HS's possession. After she came back onto the school grounds, she was calm when he approached her at the basketball courts, and when she was told that she wasn't welcome on the grounds, she started to walk towards the front of the school. She was walking calmly and she wasn't yelling or swearing.[7]
[7] ts 5 December 2023, 58.
PC Suttie agreed that at one point near the school office, SC Stevens approached closely behind HS and she stopped and confronted him.[8] He agreed that she told SC Stevens to stop following her and he told her she had to leave. She responded that she was doing so.[9] At no point did he make inquiries with HS as to how she was going to leave the school.[10]
[8] ts 5 December 2023, 59.
[9] ts 5 December 2023, 61.
[10] ts 5 December 2023, 59.
In the course of cross-examination, the following exchange occurred:
What power were you using to escort HS from the school grounds? - - Well, it was going to be the trespass.
Who told you she was trespassing? - - Well, the school said that she had been suspended, and obviously then she - they said that she was kicking doors and everything else.
Who from the school told you that? - - I don't recall. It was a lady that we met at the front.
Did you speak to [the AESC] about DCPFS picking HS up from the front of the school? - - The only conversation about them picking her up was at the basketball court while [the AESC] was there.
And did [the AESC] to - in your presence that she could come and wait for DCP - sorry DCPFS at student services? Did you hear her say that? - - I never heard her say that, no.[11]
[11] ts 5 December 2023, 60.
PC Suttie said he didn't feel that the situation was escalated until they got to HS. She seemed pretty calm, although at one point she turned around and started swearing at them.[12]
[12] ts 5 December 2023, 60.
By the time HS was grabbed, PC Suttie was aware that she did not still have the scissors. She was not being disorderly. She could have been making her way off the school grounds, but she was not heading in the direction of the only point he was aware of for her to exit.[13] He said that was why he grabbed her.[14]
[13] ts 5 December 2023, 61.
[14] ts 5 December 2023, 61.
PC Suttie said that HS was not under arrest when he placed his arm on her. He agreed that the police manual says that, wherever practical, police are to use the minimum amount of force necessary. He considered that was what had been used until the appellant became involved.[15] He believed it was necessary for both he and SC Stevens to grab HS by the arm to escort her from the premises.[16]
Prosecution submissions
[15] ts 5 December 2023, 63.
[16] ts 5 December 2023, 64.
The prosecutor submitted that:
[P]olice decided to escort [HS] out, and it seemed quite appropriate, according to s 254 of the Crim Code, regarding trespassing.
…
And police simply escorted her, and they used force, which they're entitled to, under s 254...Looking at the video, the force used definitely was lawful, and the force used did not intend (sic) to cause death or grievous bodily harm, according to the Act, and therefore the force used was lawful.[17]
Submissions on behalf of the appellant
[17] ts 5 December 2023, 66 - 67.
The appellant's counsel submitted that the police were called to the school to perform a function of their office and employment, and s 254 was a 'red herring' in that it was 'a citizen's power'.[18] Counsel submitted that:
The prosecution are relying on the element that was conceded by the defence that the complainant is a public officer when he was assaulted, and so his power in this matter really comes from him being a public officer or a police officer, rather than some citizen's arrest power under s 254. However, even if this was a trespass charge and – we were defending today, or instead of the current charge of APO, the force used must – the force used must have been reasonable.[19]
[18] ts 5 December 2023, 67.
[19] ts 5 December 2023, 67.
The remainder of counsel's address was focussed on whether the appellant was refusing to leave and, if so, whether the force used in this case against HS was reasonable in the circumstances, noting that HS was not arrested at any stage.[20]
Decision
[20] ts 5 December 2023, 68.
The learned magistrate delivered her decision on 8 January 2024.
Her Honour directed herself in an orthodox manner as to general principles,[21] and no complaint is made in relation to those directions.
[21] Transcript, Magistrates Court of Western Australia, 8 January 2024, 4 (ts 8 January 2024).
After summarising the evidence, the learned magistrate found that HS was not leaving the school grounds and that the defence had not established, on the balance of probabilities, that HS had a lawful reason to remain on the school grounds.[22]
[22] ts 8 January 2024, 7 - 8.
The learned magistrate found that, at the time when the police officers grabbed HS, they were not arresting her, but they had a lawful reason to remove her from the school grounds at the request of the principal.[23]
[23] ts 8 January 2024, 8.
The learned magistrate referred to s 16 of the CIA and s 260 and s 231 of the Criminal Code.[24] Her Honour also referred to the observations of Connor J in McIntosh v Webster[25] and Mazza JA (with whom Newnes and Pullin JJA agreed) in Elwin v Robinson.[26] Her Honour did not refer to s 254 of the Code.
[24] ts 8 January 2024, 8.
[25] McIntosh v Webster (1980) 43 FLR 112.
[26] Elwin v Robinson [2014] WASCA 46.
Ultimately, the learned magistrate held that the force used by the officers against HS was not greater than that justified by law and thus PC Suttie was performing a function of his office at the time of the assault by the appellant.[27] Accordingly, the appellant was convicted.[28]
[27] ts 8 January 2024, 8 - 9.
[28] ts 8 January 2024, 9.
Grounds of appeal
The appellant has appealed her conviction on three grounds:
1.The Magistrate erred in law by finding that PC Suttie and SC Stevens could use force that was reasonably necessary pursuant to s 16 of the CIA and s 231 of the Criminal Code on [HS]:[29]
[29] ts 8 January 2024, 8 - 9.
(a)The Magistrate found that PC Suttie and SC Stevens lawfully used force to remove HS from the school grounds pursuant to s 16 of the CIA and s 231 of the Code;
(b)The power to use force pursuant to s 16 of the CIA could only be employed when the police use a power under the CIA;
(c)The power to use force pursuant to s 231 of the Code could only be employed when the person is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest;
(d)The child in question (HS) was not under arrest when the police used force on her:[30]
[30] ts 8 January 2024, 8.
(i)Evidence of PC Suttie;[31]
[31] ts 5 December 2023, 60, 62 - 64.
(ii)Exhibit 3 of the body worn camera footage.
(e)The police were not executing any sentence, process or warrant in removing HS from the school at the principal's request.
2.On a review of the entire trial record there must have been a reasonable doubt about the element in Code s 318 that PC Suttie was acting in the performance of his office.
The learned Magistrate's finding that this element was proven to the requisite standard led to an unreasonable verdict for CC BU 54/2023.
3.There was a miscarriage of justice occasioned by the Magistrate convicting the appellant, without notice, on a basis that materially departed from the case that had been advanced by the prosecution at trial.
(a)The prosecution's case at trial was that police lawfully used force on HS pursuant to s 254 of the Code (Particular 1);
(b)Counsel for the appellant conducted her case solely on the basis that the police used force pursuant to s 254 of the Code (Particular 2);
(c) The Magistrate convicted the appellant on the basis that the police lawfully used force pursuant to s 16 of the CIA (Particular 3);
(d) The Magistrate did not raise with either party during the trial that she considered that s 16 of the CIA authorised the force used by police (Particular 4); and
(e) The unfairness in convicting the appellant, without notice, on a basis that materially departed from the prosecution case deprived the appellant of a fair trial (Particular 5).
Statutory framework
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[32]
[32] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[33] meaning that the ground is required to have a rational and logical prospect of succeeding.[34] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[35]
[33] CA Act s 9(2).
[34] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[35] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[36]
[36] CA Act s 14(2).
Disposition
It is appropriate to consider ground 1 first, because if that ground succeeds, ground 3 will also inevitably succeed.
Ground 1
Ground 1 was ultimately argued on the basis that, as a matter of law, it was not open for the prosecution to rely on s 231 of the Code or s 16 of the CIA.
Was s 231 of the Criminal Code engaged in this case?
It is common ground that s 231 of the Code was not engaged in this case. The preconditions for the operation of s 231 are that the person relying on it be 'engaged in the lawful execution of any sentence, process or warrant, or in making any arrest'. There was no evidence that any of those preconditions were satisfied in this case.
Accordingly, to the extent her Honour relied upon s 231 of the Code, her Honour erred. However, it is also common ground that, in the circumstances of this case, the critical concern is not her Honour's reliance on s 231 of the Code, but her reliance on s 16 of the CIA.
Was it open for the prosecution to rely upon s 16 of the CIA?
The respondent submitted it was open to the prosecution to rely upon s 16 of the CIA in the circumstances of this case. The appellant submitted it was not because neither officer gave evidence that they were exercising a power under the CIA.
Section 16 of the CIA provides:
16.Force, use of when exercising powers
(1)When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances —
(a)to exercise the power; and
(b)to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.
(2)If under subsection (1) a person uses force, the force may be such as causes damage to the property of another person.
(3)Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.
The text of s 16 of the CIA makes it clear that it only operates if the officer is exercising a power in the CIA.
The respondent submitted that the prosecution was entitled to argue that the officers were exercising power under either s 7 or s 24(1)(d) of the CIA.
Section 7 of the CIA provides:
7.Common law, this Act's relationship with
(1)Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2)If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3)If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
The common law functions of a police officer include duties to keep the peace, prevent the commission of offences, and protect the safety of others (including the alleged offender and the police).[37]
[37] Elwin v Robinson [2014] WASCA 46 [61].
Section 24 of the CIA relevantly provides:
24. Prevention of offences and violence
(1)Any person (the citizen) may use any force that is reasonably necessary in the circumstances to prevent —
…
(d)the commission of an offence…
The learned magistrate found that, at the time the officers grabbed her, HS was trespassing on the premises.[38]
[38] ts 5 December 2023, 7 - 8.
Accordingly, there is no reason why, in conducting themselves in the manner in which they did, it could not have been argued that SC Stevens and PC Suttie were performing the common law functions of a police officer, and thus exercising a power under s 7 of the CIA, by seeking to prevent the commission of an offence and to keep the peace.
There is also no reason why it could not have been argued that SC Stevens and PC Suttie were exercising a power under s 24(1)(d) of the CIA.
Part of the appellant's submissions on this appeal contended that SC Stevens first used force on HS and that PC Suttie was following a direction of SC Stevens in using force himself. It was submitted that SC Stevens' use of force was unlawful and that the conduct of PC Suttie was therefore tainted and also unlawful.
In that context, counsel for the appellant submitted that in circumstances in which SC Stevens did not give evidence as to the power he was exercising (or at all), it was not open for the prosecution to rely upon s 16 of the CIA to prove that SC Stevens was acting lawfully.[39]
[39] ts 8 - 12.
Counsel for the appellant was unable to cite any authority for the proposition that, in order for the prosecution to rely on s 16 of the CIA, SC Stevens was required to give evidence as to the source of the power he was exercising at the time he grabbed HS.
Counsel instead sought to rely upon the authorities in relation to arrest as being analogous. However, counsel was also unable to identify in any of those authorities support for the proposition that it is a requirement for an officer to identify in their evidence the provision pursuant to which a person was being arrested.[40]
[40] ts 13.
I do not accept the submission that, for the prosecution to be entitled to rely upon s 16 of the CIA, SC Stevens was required to give evidence that he was exercising a power pursuant to the CIA.
Even under the common law rule relating to arrest (which does not apply in this State[41]), there is no requirement that the arrested person be informed of the specific offence for which they are being arrested. It is sufficient to refer to the facts which gave rise to the arrest.[42]
[41] Johnson v Staskos [2015] WASCA 32 [7], [127].
[42] Johnson v Staskos [2015] WASCA 32 [5], [102].
When the matter proceeds to trial, the prosecution might be called upon to particularise its case, but there is nothing which requires the officers in their evidence to specify the offence or the legislative source of their power.
The body worn camera footage gives rise to the irresistible inference that SC Stevens used force for the purpose of removing HS from the premises. He had told HS she had to leave and he then grabbed her arm and told her that she was leaving.
There is no evidence that PC Suttie acted at SC Stevens' 'direction'. However, a direction is not necessary. If SC Stevens was acting unlawfully, and PC Suttie, aware of all of the relevant circumstances, acted to assist SC Stevens in acting unlawfully, his conduct would also be unlawful.
Having found that the prosecution was not precluded from relying upon s 16 of the CIA by reason of the failure to adduce evidence from SC Stevens as to the specific source of the power he was exercising, I am not satisfied that, on the evidence, the prosecution was unable to prove that SC Stevens was acting lawfully pursuant to s 16. Accordingly, if PC Suttie was acting to assist SC Stevens, it was open for the prosecution to prove that he too was acting lawfully pursuant to s 16.
The appellant also submitted that, even if PC Suttie was acting independently of SC Stevens, the failure of PC Suttie to refer in his evidence the source of his power under the CIA also prevented the State from relying on it in its case against the appellant.[43]
[43] ts 4.
Apart from what is evident from the body worn camera footage, PC Suttie gave evidence that he grabbed HS to prevent the continuation of a trespass on the part of HS.[44]
[44] ts 5 December 2023, 62.
Again, in my view there was no need for PC Suttie to identify the express provision on which he relied before it was open to the prosecution to rely upon s 16 of the CIA.
I am satisfied, on the facts of this case, that it was open to the prosecution to rely upon s 16 of the CIA. Accordingly, ground 1 fails.
It is now convenient to turn to ground 3.
Ground 3
It was submitted on behalf of the appellant that, even if it were open to the prosecution to rely upon s 16 of the CIA, in circumstances in which the prosecution relied only upon s 254 of the Code as the source of the power of the police to use force in relation to HS, a miscarriage of justice was occasioned when the learned magistrate found that the police were entitled to use force pursuant to s 16 of the CIA.
In Roberts v State of Western Australia the Court of Appeal stated:
The prosecution opening address plays an important function in a criminal trial. That function is not merely to outline the facts which the State proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the prosecution case to assist the judge and counsel for the accused, as well as the jury. In that manner, in the opening, the prosecution must formulate the basis on which it puts it case and must then, essentially, adhere to that case. If there is to be any change in the nature of the prosecution case after the prosecutor has opened, that change should be identified with some precision, in the absence of the jury, before counsel commence their final addresses.[45]
[45] Roberts v The State of Western Australia [2019] WASCA 83 [32] (citations omitted).
In Nuhana v The State of Western Australia[46] the Court of Appeal observed:
Generally speaking, in directing a jury a trial judge should not advance to the jury an argument in support of the prosecution case that was not put by the prosecution.[47] A miscarriage of justice will arise where a judge leaves the prosecution case to the jury on a basis which significantly departs from that advanced by the prosecution, in such a manner as to deprive the accused of a fair trial.[48] The unfairness of the trial may consist of the loss of an opportunity to make responding submissions, even where there is no additional evidence which the accused could have adduced.[49]
[46] Nuhana v The State of Western Australia [2018] WASCA 79 [69].
[47] Robinson v The Queen [2006] NSWCCA 199; (2006) 162 A Crim R 88 [140]; R v GAS [1998] 3 VR 862, 878 - 879; Waters v The Queen [2011] VSCA 415 [103] (point (5)).
[48] King v The Queen [1986] HCA 59; (1986) 161 CLR 423, 432; Robinson [149].
[49] King, 432; Robinson [146] and cases there cited.
With appropriate modifications, the statements of general principle set out in Roberts and Nuhana are equally applicable to trials before a magistrate. The prosecution is, in the ordinary course, bound by the manner in which it opens and presents its case. If that case is to be departed from, whether by the prosecution or the judge, that can only properly occur if by that departure the accused is not deprived of a fair trial.
The issue raised by this ground is whether the basis on which the appellant was convicted departed from the basis on which the prosecution proceeded and if so, whether that resulted in a substantial miscarriage of justice.
Did the learned magistrate convict the appellant on a basis which departed from the basis on which the prosecution proceeded?
It was an element of the offence with which the appellant was charged that, at the time she assaulted them, the officers were acting in the lawful execution of their duty in relation to HS. That was a matter which the prosecution was required to prove beyond reasonable doubt.
In opening, the prosecution particularised its case in relation to this element, relying on s 254 of the Code. At no point did the prosecution seek to expand its case. It was only when the learned magistrate delivered her reasons for decision that s 231 of the Code and s 16 of the CIA were referred to; her Honour did not refer at all to s 254 of the Code or its constituent parts.
Section 254 of the Code provides:
254. Place, use of force to prevent entry to and remove people from
(1)For the purposes of this section and section 255, the term place means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.
(2)It is lawful for a person (the occupant) who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary —
(a)to prevent a person from wrongfully entering the place; or
(b)to remove a person who wrongfully remains on or in the place; or
(c)to remove a person behaving in a disorderly manner on or in the place;
provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
(3)The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant's authority except that if that person's duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c) that person is not authorised to use force that is intended, or is likely, to cause bodily harm.
Section 254 of the Code required the prosecution to establish matters in addition to those which were required to be established if the prosecution were to rely on s 16 of the CIA. In particular, s 254(3) required the prosecution to prove beyond reasonable doubt that the police were acting with the authority of the 'occupant' of the premises, and that the occupant was in peaceable possession of the place or was entitled to the control or management of the place.
By contrast, s 16 of the CIA provided direct, rather than delegated, authority to the officers to use force.
Further, in this case, the only basis upon which it was lawful for the occupant and any person authorised by the occupant to use force pursuant to s 254 of the Code was if the force used was reasonably necessary to remove HS, who wrongfully remained on or in the place. This was because the force was not used to prevent HS from wrongfully entering the place (s 254(2)(a)) and the evidence was all to the effect that HS was not being disorderly at the time that force was applied (s 254(2)(c)). This left s 254(2)(b) as the only applicable paragraph of s 254(2).
While s 16 of the CIA only authorises the use of force where the person is exercising a power under the CIA, it authorises the use of force for purposes beyond the scope of s 254, in that it authorises the use of force that is reasonably necessary to use in the circumstances to:
(a)exercise the power; and
(b)overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.
In this case, the learned magistrate was satisfied that HS was committing the offence of trespass at the time the police officers grabbed her.[50] Having summarised the conduct engaged in by HS, her Honour said:
Section 16 of the Criminal Investigation Act provides that a person exercising a power under the Act may use any force that is reasonably necessary in circumstances to exercise the power and overcome any resistance offered, particularly in circumstances where police had been told the accused's sister was in possession of scissors and that she had been asked to leave the school.[51]
[50] ts 8 January 2024, 7 - 8.
[51] ts 8 January 2024, 8.
Her Honour then referred to s 260 of the Code,[52] before holding that the force used by the officers in grabbing HS by the arms was not more force than was justified by law.[53]
[52] Section 260 of the Code provides 'In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.'
[53] ts 8 January 2024, 8.
In my view, in both its opening and closing, the prosecution limited its case to relying on s 254 of the Code, rather than seeking to rely more generally on a police power to prevent a continuing trespass (as it would have been entitled to do). Having done so, it was bound by that limitation.
On the basis of the general principle that the prosecution is bound by the case it presents, and that a magistrate should not direct themselves other than in accordance with that case, I am satisfied that, in failing to address s 254 of the Code, and instead directing herself as to s 16 of the CIA, the learned magistrate directed herself in a manner which departed from the prosecution case and thus made an error of law.
Did the departure from the prosecution case result in a substantial miscarriage of justice?
The issue then is whether the appeal should nonetheless be dismissed on the basis that the error did not result in a substantial miscarriage of justice.
In this case, a determination that there has been no substantial miscarriage of justice could be reached if the error was not material to the learned magistrate's decision to convict. In a case such as this, the court may also determine that there was no substantial miscarriage of justice on the basis that, on an independent assessment of the evidence, the accused was proved beyond reasonable doubt to be guilty of the offence.[54]
[54] Morgan v Cramer [2019] WASC 68 [49] - [50].
There may also be cases where, despite the fact that the error of law has not affected the outcome, there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.[55]
Was the error material?
[55] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438; Morgan v Cramer [2019] WASC 68 [46].
On behalf of the appellant it was submitted that the manner in which the prosecution case was particularised was important to:
(a)the forensic decision not to seek an adjournment to ensure the attendance of SC Stevens;
(b)whether further particulars would have been sought as to the power being exercised by the officers;
(b)the manner in which PC Suttie was cross-examined; and
(c)the submissions made in closing as to the elements of the offence.
The appellant submitted that the error was material to the decision to convict because the prosecution had not made out the elements of s 254 of the Code, and accordingly, it would not have been open to the learned magistrate to convict the appellant on that basis.
The respondent submitted that the change in the prosecution case could only result in a substantial miscarriage of justice if it impacted the defence's ability to meet the charge. It was submitted that the appellant had not demonstrated how the case would have had a different outcome had the defence been on notice that the prosecution relied on s 16 of the CIA, which was a less onerous provision than s 254 of the Code.[56]
[56] Respondent's supplementary submissions dated 30 July 2024 [14] - [15].
There is no evidence of the basis upon which counsel agreed that the matter could proceed in the absence of SC Stevens. Counsel indicated that agreement prior to the opening of the prosecution case, which was the point at which the prosecution first referred to s 254. However, no evidence was adduced as to any earlier discussions between the parties as to the manner in which the prosecution intended to run its case, or the basis on which counsel agreed to proceed in his absence.
At the hearing of the appeal, counsel for the appellant was unable to articulate how the matter would have proceeded in a materially different manner had SC Stevens been called to give evidence, other than to again advance the submissions made in relation to ground 1, that SC Stevens was required to give evidence as to the legislative source of the power he was using at the relevant time. I have already rejected that submission.
I do accept that there was a possibility that further particulars might have been sought, although it is not apparent how that would have made a material difference to the proceeding.
The only questions asked of PC Suttie about the power which was being exercised when HS was grabbed were asked in cross-examination. After PC Suttie answered '[w]ell, it was going to be the trespass', he was asked some questions about who told them what was happening and was unable to identify them with specificity.[57] He agreed that, up until the point that they grabbed her arm, HS had not been disorderly.[58]
[57] ts 5 December 2023, 60, 62.
[58] ts 5 December 2023, 61.
In closing, the appellant's counsel observed that PC Suttie's power 'really comes from him being a public officer or a police officer, rather than some citizen's arrest power under s 254'.[59] Counsel expressly stated that her focus was on the issue of whether the force used was reasonably necessary. Counsel did not seek to address any other aspect of s 254.
[59] ts 5 December 2023, 67.
Having regard to all of these matters, I am not satisfied that the appellant would have conducted its case any differently had the prosecution sought to rely upon s 16 of the CIA. That does not, however, fully resolve the issue of whether the error was material.
As a result of the prosecution's reliance upon s 254, her Honour was required to be satisfied beyond reasonable doubt not only that the force used was reasonable, but of the additional matters required to be proved by that section, notwithstanding the failure of both the prosecutor and counsel for the appellant to specifically address these matters.
The additional matters were necessary components of an element of the offence: that the officers were acting in the performance of a function of their office. Accordingly, in failing to direct herself as to those matters, her Honour failed to properly direct herself as to an element of the offence.
In circumstances in which the learned magistrate did not make a determination as to the additional matters, it is not possible to conclude that the error was not material to the outcome.
Did the nature and effect of the error preclude the court from assessing the appellant's guilt based on the evidence at trial?
Even where an error of such a nature occurs, it may be open to the court to find that there is no substantial miscarriage of justice. The court may find that guilt has been proved to the criminal standard on the admissible evidence, notwithstanding the error of law.[60]
[60] Weiss v The Queen [2005] HCA 81; 224 CLR 300.
There may be circumstances in which the court is prevented from being able to make that assessment, such as where issues of contested credibility arise.[61] However, in relation to appeals from a magistrate, in WS v Gardin, Mitchell J (as his Honour then was) observed:
Section 14(2) operates in the very different context of a trial by a judicial officer who is required to give reasons for his or her decision. In the circumstances in which s 14(2) may be engaged, the impact of an error which occurred during the course of a trial on the outcome of the trial will often be apparent from an examination of the judicial officer's reasons for convicting the accused person. The warning proffered in Weiss (that it will seldom be possible, and rarely if ever profitable, to attempt to work out what members of a trial jury actually did with wrongly admitted evidence[62]) is not applicable to a trial by a court of summary jurisdiction, which will be required to give reasons for its decision. In many cases the impact, or potential impact, of an error on the outcome of the trial by a court of summary jurisdiction will be readily discernible from the court's reasons.[63]
[61] Kalbasi v Western Australia [2018] HCA 7 [13] - [15].
[62] Weiss [36].
[63] WS v Gardin [2015] WASC 97 [221].
In this case, the principal issue in the trial, and the only one which potentially relied upon matters of credibility, was whether the officers used more force than was reasonably necessary to remove HS from the school grounds.
The primary evidence of the alleged offence was presented by way of body worn camera footage, with the footage from the cameras of both officers played at the trial. The cross-examination of witnesses was aimed at establishing whether it was possible to say that HS was not intending to leave the school grounds at the time she was grabbed by the officers, and highlighting the steps (or lack of steps) which the officers took prior to them doing so.
The appellant's case was conducted on the basis that the established facts did not prove that the force used was reasonably necessary to remove HS from the premises. There was ultimately no real issue of contested credibility.
In my view, the matter is not one in which seeing and hearing the witnesses gave the learned magistrate an advantage such that the appellate court is unable to independently make an assessment as to whether the prosecution case against the appellant was proved beyond reasonable doubt. There is also no other reason why the appellate court cannot independently make that assessment.
Did the evidence adduced at the trial prove the appellant's guilt beyond reasonable doubt?
The sole issue between the parties was whether the prosecution had proved, beyond reasonable doubt, that the officers were acting in the performance of a function of their office, pursuant to s 254 of the Code.
For the purposes of this case, the matters required to be proved by s 254 of the Code were that:
(a)the occupant was in peaceable possession of the place or entitled to the control or management of the place;
(b)HS was wrongfully remaining on or in the place;
(c)the occupant gave authority for police to remove HS from the place;
(d)in removing HS from the premises, the officers were acting by the occupant's authority;
(e)the officers did not use more force than was reasonably necessary to remove HS; and
(f)the force used was not intended and was not such as was likely to cause death or grievous bodily harm.
There was no suggestion that the force used was intended or such as was likely to cause death or grievous bodily harm.
The parties were in agreement that the person who was the 'occupant' for the purposes of s 254 of the Code was the principal of the relevant school. It was the principal who was, under the relevant statute, entitled to the control and management of the school grounds.[64] Neither party argued that any relevant person was in 'peaceable possession' of the premises such that any other person was the 'occupant'. Given that the premises were school grounds, it is my view that this was the appropriate way to approach the matter.
[64] School Education Act 1999 (WA) s 62 - 64; School Education Regulations 2000 (WA) reg 69.
Evidence was given that a deputy principal had told HS that she was suspended and that she had to wait in another room until her carer came to get her, and that she wasn't allowed back on the school site.[65] When the police arrived, HS was standing outside the school fence and SC Stevens said to her, '[o]bviously, you're not welcome on school grounds'.[66] She claimed she was allowed on school grounds until the police came, but SC Stevens told her they had been called because she had scissors. She told them she couldn't go back to her place. They offered to give her a lift or get CPFS to give her a lift but she climbed the fence back into the school premises.[67] As she did so, SC Stevens told PC Suttie that they would 'just have to cuff her and get her off the grounds'.
[65] ts 5 December 2023, 23.
[66] Exhibit 3.
[67] Exhibit 3.
The officers then followed HS at a distance for some time as she headed towards the front of the school, which was the only way out of the school at that time.[68] She turned and called them to stop following her. SC Stevens told her she had to leave the grounds and that they would follow her off the grounds.
[68] Exhibit 3; ts 15, 34.
However, HS walked past the front exit of the school.[69] As this occurred, SC Stevens caught up to her and she started to walk back in the direction from which she had come. SC Stevens then grabbed HS's arm and told her she was leaving the school grounds.
[69] ts 5 December 2023, 17, 37 - 38.
I am satisfied beyond reasonable doubt that, at the time SC Stevens grabbed HS, she was wrongfully remaining on the school grounds and that the occupant was entitled to remove her.
The authorisation s 254 provides to an occupant is to use such force as is reasonably necessary to remove a person who wrongfully remains on or in the place. That authorisation extends to a person acting by the occupant's authority. It necessarily follows that it was necessary to prove that the occupant's authority had been given.
While each of the lay witnesses gave evidence as to their discussions with the principal, the principal did not give evidence. PC Suttie did not know the identity of the person to whom he and SC Stevens spoke when they arrived at the school,[70] save to say it was a teacher. No teacher gave evidence that they were the person involved in that conversation.
[70] ts 5 December 2023, 60.
Accordingly, all of the evidence as to the fact that the principal had given her authority, either directly or indirectly, to the police officers to remove HS from the premises was hearsay.
In the case of a person charged with an offence who seeks to rely upon s 254 of the Code, if it cannot be proved that authority was actually given, the accused might seek to rely on honest and reasonable but mistaken belief as to the existence of that authority to excuse themselves from criminal responsibility. However, in the case of the prosecution seeking to prove that the conduct of the officers was lawful, s 24 of the Code can be of no assistance; the prosecution must prove that authority was actually given.
No admissible evidence having been adduced to that effect, the evidence adduced by the prosecution failed to prove that the principal had given her authority to any person to remove HS from the premises.
In the absence of proof of that fact, the prosecution was unable to prove, pursuant to s 254 of the Code, that the officers were acting in performance of a function of their office at the time that the appellant struck PC Suttie.
The evidence adduced at trial failed to prove the appellant's guilt. In the circumstances, I am unable to be satisfied that no substantial miscarriage of justice has resulted from the learned magistrate's error. The appeal must be allowed.
Ground 2
It follows from the decision on ground 3 that ground 2 must also be allowed. In a case in which the prosecution relied upon s 254 of the Code, and was limited to reliance on that provision, the evidence adduced at trial was incapable of establishing the appellant's guilt.
Conclusion
Ordinarily, a re-trial would be ordered. However, in this case, there is merit in the submission that the prosecution should not be entitled to remedy the defects in its case by allowing a re-trial to take place.
Further, the appellant is a juvenile. On 5 February 2024 she was dealt with by way of s 67 of the Young Offenders Act 1994 (WA); no punishment was imposed upon her.
In the circumstances, I am satisfied that it is not in the interests of justice for a re-trial to be ordered. Accordingly, I will enter a judgment of acquittal.
Orders
Leave to appeal is granted on grounds 1, 2 and 3.
Appeal allowed on grounds 2 and 3.
Conviction and sentence set aside.
Judgment of acquittal entered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
27 SEPTEMBER 2024
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