Hounslow v Woodward

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HOUNSLOW -v- WOODWARD [2007] WASC 27

CORAM: JOHNSON J

HEARD: 24 MARCH 2006

DELIVERED : 9 FEBRUARY 2007

FILE NO/S: SJA 1074 of 2005

BETWEEN: ROSS ALEXANDER HOUNSLOW
Appellant
AND
GREGORY JOHN WOODWARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram  :MR K T FISHER SM
File No  :CH 4598 of 2004

Catchwords:

Failing to give personal details - Whether defence under s 22 and s 24 Criminal Code open - Whether reasonable excuse

Legislation:

Criminal Code
Criminal Investigation (Identifying People) Act 2002
Sentencing Act 1945

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S W O'Sullivan
Respondent: Mr T C Russell

Solicitors:

Appellant: Young & Young
Respondent: State Solicitor's Office

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

Basso-Brusa & Ors v City of Wanneroo [2003] WASCA 103
Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129
Maines v Roy (1990) 1 WAR 508
Manley v Tucs (1985) 40 SASR 1
Molina v Zaknich (2001) 24 WAR 562
O'Garey v King [1972] Tas SR 136
Pearce v Paskov [1968] WAR 66
Pennings v Williams, unreported; SCt of WA; Library No 960512; 13 September 1996
R v Lavelle [1978] 2 Crim LJ 105
Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942
Taikato v The Queen (1996) 186 CLR 454

JOHNSON J: This is an appeal from the decision of a Magistrate at the Bunbury Magistrates Court on 22 June 2005 convicting the appellant of the offence of failing to give personal details when requested to do so, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 ("the Act"). Following conviction the appellant was fined $400 and a spent conviction order was made pursuant to s 45 of the Sentencing Act 1945.

The evidence

The appellant was at the relevant time a Minister of religion and Pastor of the Potters Church which leased premises in the Paisley Centre in Bunbury.
The evidence at trial revealed that, on 18 December 2004, just prior to midday, an off duty Senior Ranger from the City of Bunbury, Lewis Ronald Winter, went to the Centrepoint Shopping Centre in Bunbury to do some shopping. Mr Winter had been a ranger with the City of Bunbury for approximately six years. In an area outside the shopping centre Mr Winter saw approximately 10-15 people standing in a group singing religious songs accompanied by guitar. He then saw a member of the group leave the group and start walking up and down in front of the group shouting religious messages. Mr Winter noted that members of the public were giving the group a wide berth. He described the location of the group as a public place which was a number of metres outside of the public toilets on the paved area in an "enclosure sort of area, a little bit of a courtyard sort of thing" in between the Paisley Centre and the Stirling Centre shops at the northern side.
Mr Winter was concerned because of complaints received over the previous three to four months from the shopping centre and from shops in the vicinity about groups which sang religious songs and proclaimed loudly in the paved area in the Paisley Centre, because they were upsetting and disruptive to people in the area. In particular, complaints had been received about the Potters House group. Mr Winter approached the group, introduced himself and asked who was leading the group. A member of the group indicated the appellant, who was not known to Mr Winter at that time and who was at the rear of the group. The appellant was standing on the walkway side of the Paisley Centre and participating in the singing of songs with a religious and Christmas theme.
When he was pointed out he came forward two or three paces to speak to Mr Winter. Mr Winter identified himself and explained that he was a ranger but was out of uniform. Mr Winter asked the appellant if the group had a permit to be there because a permit was required to have a function or a group gathering in a public area. The appellant said "No, we don't have a permit" and maintained that it was their constitutional right to do what they were doing. Mr Winter then asked him and the group to leave the area. According to Mr Winter, the appellant continued to maintain that it was their constitutional right to do as they were doing. During his contact with the group, Mr Winter became aware that the group were from the Potters House. Mr Winter's manner was calm throughout his contact with the appellant and the group.
As Mr Winter was not in uniform and was not on duty, and the group were not going to leave, he decided to withdraw and ring the duty ranger to deal with the situation officially. The group continued singing while he did so. Mr Winter contacted Dean Raymond Host who was the duty ranger and also contacted the police to advise them that the duty ranger might need assistance. While he was waiting for Mr Host to arrive Mr Winter observed another male member to leave the group and start walking backwards and forwards in the paved area shouting and proclaiming loudly within that area. Mr Host attended very soon afterwards and Mr Winter explained the situation to him and left the matter in his hands from then on. On the evidence of Mr Winter, the police arrived within minutes of Mr Host and the three of them conferred for a short time. Mr Winter could not hear the conversation between them and the appellant but he remained there until Mr Hounslow was taken away by police.
Under cross-examination Mr Winter agreed that he was unaware of the precise local law which prohibited the conduct but he made it clear that he considered that having a function or public gathering without a permit was in breach of the local laws. Mr Winter denied that the area where the group were was part of the premises leased by the group.
Mr Host also gave evidence. At the time of the incident he had been a ranger with the City of Bunbury for four years. On the date of this incident, having received a phone call from Mr Winter, he attended at the shopping centre entrance. When he arrived there was a group of approximately 20 people on the paved area outside the public toilets who were singing. Mr Host maintained that this area was an access area and he denied that it was part of the Paisley Centre which was leased by the group. Mr Host said these issues had arisen in the past and, to his knowledge, if the area was under an awning or a verandah it was part of the building. If it was not, then it was a public thoroughfare. On Mr Host's evidence, singing, as well as other activities, comes under Pt 7, Div 3 of the Local Government laws dealing with street entertainers and requires a permit.
Mr Host spoke with Mr Winter who told him that he had noticed one or two of the people in the group acting aggressively towards the public. According to Mr Host, not much more was said because his department had previous dealings with the group. Mr Host approached the group who continued with their singing. The first person he approached and asked if he had a permit motioned him towards another member of the group, the appellant, and said he was the pastor. Mr Host approached the appellant, who had also been singing, and asked him if he had permission to be in that location and he said "No, we don't". Mr Host told him that the group would have to move on. The appellant then commenced to say that they were a church group and had a constitutional right to be there. He also said that they had been carrying out this type of activity for 20 years. Mr Host responded by saying that he was aware that in the past a ranger from the City of Bunbury, Ranger Brett Lepan, had told them that they needed to have a permit.
Mr Host told the appellant it was likely that he would infringe him and he would require his name and address in order to do that. The appellant said: "Look, no; I'm not going to give you my name and address, so you will have to arrest me". Mr Host told the appellant that he could not do that but the police could. He then left and went over to where Mr Winter was and found out that he had already called the police so he waited with Mr Winter until they arrived about five minutes later. According to Mr Host, when the police officers arrived the group had ceased singing, Whilst waiting, Mr Host saw one of the men in the group walk up to someone and stand in their way to hand out a leaflet inviting members of the public to a showing of a religious film.
Mr Host informed the police officers as to why he had required the name and address and that the appellant had refused. He told the police officers that he believed the group did not have a permit and did not have permission to conduct their business there. However, he was unable to advise police of the specific provision with which he intended to charge the appellant. He said that he intended to infringe the man he had been speaking to, however, he could not because he did not have his name and address.
He and the two police officers then went over to the group and spoke to the appellant. According to Mr Host, they had some discussion as to the reason why the ranger was there; the fact that they had received phone calls in the past and on that day from shop owners who were saying that the Potters House were there harassing people in a somewhat aggressive manner. Mr Host pointed out two young girls not 15 metres away who did have a permit to perform and whose mother had come up to Mr Host on his arrival and complained that the girls were being drowned out by the singing of the Potters House group. Mr Host told the appellant that he was "going to infringe him" under the local laws, as permission was required to use local government property, and he requested the appellant's name and address. The appellant again refused and re‑stated his belief that he did not need to provide his name and address because it was his constitutional right as part of a church group to be there without permission.
On Mr Host's evidence, one of the police officers, Constable Woodward, then stepped in and explained to the appellant that it was not difficult to get a permit and it did not cost anything. Constable Woodward then said that he needed the appellant to give him his name and address. He also said that if the appellant did not provide his name and address he would be arrested. The appellant responded: "No, I'm not going to give them to you, you'll have to arrest me". He was then arrested and taken to the police station. Mr Host said that he did not know the appellant and had never met him before. Mr Host followed the police officers to the police station and was given the appellant's details when Constable Woodward obtained them at the police station.
In cross-examination, Mr Host explained that the City has a machine which prints out modified penalties. A name and address and a birth date was needed, as was the local law which had been infringed. All local laws appear in the machine and it is only necessary to look up which law it is by scrolling down the machine to find the appropriate one. However, at the time the City was changing over the machine and the particular law may not have been in there. If that were the case then, providing he had the person's details, the infringement could be posted out. On that day, however, they never got to that point because Mr Host did not have any of the appellant's personal details.
Mr Host was also questioned in cross-examination about the effect on him of the appellant's assertion that the group had a constitutional right to be there and express their religion and why he did not look into this explanation. Mr Host said:
"I felt that whether it would be his constitutional right or not, I was going to infringe him because he was using local government land. I am employed to enforce the local government laws, and he didn't have a permit to be there."
Senior Constable Woodward was the only one of the two police officers who gave evidence at the trial. For that reason, and for convenience, I will refer to the police presence in the singular. Constable Woodward's account of events started with his observation that 20 or so persons were congregated in the pathway area and at least one of them had a guitar. He then spoke with Mr Winter and Mr Host. Mr Winter advised him that he had rung the police. Mr Winter told him that he had observed the group singing and he then contacted Ranger Host, who was on duty, to attend and speak to the group. Ranger Host said that he had observed the group singing and had seen members of the group moving out onto the pathway and aggressively preaching. Constable Woodward was told that Mr Host had spoken to the leader of the group and asked him if they had a permit and was told that they did not. Mr Host's request that the group move away from the area was also refused. Mr Host advised Constable Woodward that he "intended to issue them with an infringement" as the group required a permit to conduct their activities because they were being conducted on council property. He had therefore asked the leader for his name and address but that, too, was refused.
Constable Woodward then approached the group together with Mr Host. Mr Host explained to the appellant that the group required a permit to conduct their activities there and asked him if he would move the group out of the area. The appellant responded by stating that it was his constitutional right of freedom of religious speech to conduct their activities wherever and whenever they wanted to and they did not have to have a permit. There was some further conversation about that proposition between Mr Host and the appellant and then Mr Host asked the appellant for his name and address details so he could issue an infringement. The appellant refused to provide that information and said that the group would come back in the future and again conduct their activities without a permit.
Constable Woodward then spoke to the appellant and advised him that he was breaching the council by-laws by conducting business there without a permit and asked him to comply with the request to move the group out of the area. The appellant responded once again with the proposition that it was his right under the Australian Constitution of religious freedom of speech for him to do what they want to do there. He declined to move on. Constable Woodward then requested the appellant's name and address details for his records and the appellant replied: "Well, I'm not going to give you my name". He was advised by Constable Woodward that if he refused to do so he could, and would, arrest him. Several more times the constable asked the appellant for his name and address but on each occasion he refused to give those details. The appellant was advised that he was under arrest and was taken by the arm and led towards the police van. As this was happening the appellant turned to the group and said "Quick; someone ring the reporter from the Bunbury Mail". Constable Woodward then said to him, "That's all you wanted, wasn't it, to get publicity for your group". The appellant was then taken to Bunbury Police Station where his personal details were taken from his driver's licence in his wallet. He was then charged with this offence.
In cross-examination, Constable Woodward was asked about the information he received from the rangers on his arrival at the scene. Prior to then the only information he had was that a ranger might need some assistance because there was some sort of disturbance with a group of people who were refusing to move on. On arriving he spoke to Mr Winter and was told that he was off duty and in the area when he observed the group "doing what they were doing". Constable Woodward was unable to remember his exact words but it was to do with the group conducting their business. He was told that Mr Winter had approached them and they did not have a permit to be doing what they were doing.
In cross‑examination Constable Woodward was asked about, and elaborated on, his dealings with Mr Winter, Mr Host and the appellant. Constable Woodward said that he spoke to Mr Host. He was told that Mr Host had been called by Mr Winter and he approached the group and spoke to a person who indicated that the appellant was the pastor and leader of the group. Mr Host advised the appellant that he was breaching council by-laws by not having a permit and requested the appellant to move the group out of the area. According to Constable Woodward, when he arrived the group was together and one had a guitar and he thought they may have been just finishing a song. That belief was based on the fact that he heard some voices coming from that direction. Constable Woodward said that the group were in a paved area adjacent to some public toilets and slightly set back from the path area.
Constable Woodward said in cross‑examination that he went with Mr Host over to the appellant and Mr Host spoke with the appellant again. Constable Woodward stood back and listened as Mr Host went through the matters which he had previously raised with the appellant and of which he had informed Constable Woodward on his arrival. Again the appellant took the point that he had a constitutional right to express his religious views. Mr Host explained to the appellant that the group required a permit to conduct their activities there and, as he had established that they did not have one, he then asked them to move on but they refused. Mr Host then advised the appellant that he would be "infringed" for a breach of the by-laws and asked the appellant for his name and address. The appellant refused to comply with the request.
Constable Woodward then asked the appellant if he would comply with the request to move the group away from the area as he had been asked to do by Mr Host because he was breaching the council by-laws by not having a permit to conduct their activities there. The appellant refused to do so on the basis that he had a right under the Australian Constitution of religious freedom of speech.
Constable Woodward was also asked in cross‑examination what inquiries he made to see whether the appellant was breaching the council by‑laws. He said that he took the words of the two senior rangers that were there at the scene. He had been told that the area was council property and that the group was breaching the by-laws by being in that area. When asked what was the basis upon which he decided to ask the appellant for his personal details, Constable Woodward said he had a reasonable belief that the appellant had breached the council by-laws because he had been told that this was the case by two rangers, one of them the senior ranger, who he believed would know what the council by‑laws were. He agreed that he had made no other inquiry of his own. When asked whether he had investigated the appellant's assertion that he had a right of religious freedom of speech under the Australian Constitution which entitled the group to carry out the activities, Constable Woodward said that he did not see that he could investigate that matter at that time.
In re-examination, Constable Woodward was asked how he was going to find the appellant to follow up the incident if he did not know who he was. He said that he had no way of finding him.
Constable Woodward was also asked how he knew of the appellant's position in the group. He said that it was conveyed to him that the appellant was the leader and he portrayed himself as the leader by acting as spokesperson for the group. The appellant also told Constable Woodward that he was the pastor and was the one that was doing all the talking on behalf of the group both to him and to the rangers.
The appellant gave evidence on his own behalf. He said that on 18 December 2004 he was standing outside the Paisley Centre adjacent to the public toilet area singing Christmas and other church songs with a group of parishioners from his congregation. He was the pastor of the congregation at that time. He maintained that he and the members of his congregation regularly went out on the streets to express their faith by personal testimony, preaching and singing. The appellant said that the area in which the group carried out their activities outside the Paisley Centre was near the public toilets in a slightly recessed area which was not an area controlled by the council or belonging to the shopping centre but was part of the premises leased by the congregation. The appellant maintained that the group was at pains not to block the access to the public toilets.

The appellant was questioned about whether he was the leader of the group. He said that he was the pastor of the church, and the spiritual head of the church, but within the structure of the church other people took responsibility for other aspects of the church's activities and hence he was not the only leader. However, he indicated that he would probably be seen by other people as being the leader and added that "it seems that way in this case".
According to the appellant, when the church council, of which the appellant was a member, worked out its monthly programme it generally slotted in a time where the parishioners were given an opportunity to come and express their faith through singing, through personal and public testimony of their faith which involves raising your voice in order to be heard above the normal hubbub of the shopping centre. The appellant denied that he had personally organised the activities on 18 December 2004, although it was apparent from his evidence that he was one of the group of councillors who did arrange the event as part of the monthly programme. On the appellant's evidence, two others of the group who had organised the activities of 18 December 2004 were also present on that day. One of them led the singing. The appellant denied that he had any role in the organisation of the activities on the 18 December 2004 other than being there as the minister supporting his church. He maintained that he had no right to tell the group to stop what they were doing and leave the area.
The appellant maintained that when the group gathered together he just stood in the midst of them towards the back and sang the songs and observed people go out and share their testimonies, come back, and sing more songs. His account of the conversation with Mr Winter differed somewhat from the account given by Mr Winter. The appellant said that he did not see what happened as Mr Winter came up to the group but he later became aware that Mr Winter had asked who the leader was and had been referred to him. According to the appellant, he told Mr Winter that he did not think what the group was doing was wrong and he had a constitutional right as a minister of religion to express his faith in Christ. He maintained that the only thing said by Mr Winter as to the nature of the offence was that he kept saying what the group was doing wasn't right. He denied that he had been asked for his name or personal details by Mr Winter. He said that Mr Winter told him he was going to get the police. He also said that he told Mr Winter to go away.
According to the appellant, when Mr Host arrived he said to the appellant that he had been told before that he was not to be there and asked why he just did not get a permit. He responded by stating that he did not believe he needed a permit. Apparently Mr Host had pointed to some nearby buskers and said that those people had permits and the appellant's group did not. The appellant's response was that his group weren't busking but they were, of course, singing. The distinction drawn by the appellant was that his group were not soliciting for money like the buskers. The appellant denied that Mr Host asked for his name and address or that he had said anything about the consequences of what the appellant was doing, although he later said that Mr Host may have said that the situation would have to be dealt with by the police. According to the appellant, because Mr Host was getting nowhere he returned to Mr Winter.
The appellant said that the police arrived approximately four or five minutes later and conferred with the rangers for what he described at one point as "quite some time" and at another point as "for a considerable amount of time". He then amended that to a reasonable amount of time, and said he could not put a figure on it. No one was singing or proclaiming at that time.
The appellant said that he was then approached by the police officers and Mr Host. Mr Host kept asking why he did not just get a permit and the appellant kept reiterating that he had a right to be there as Christians expressing their faith. He considered they had broken no laws. Constable Woodward asked him the name of the group and where it was located. He is then alleged to have said this: "You have been told to move on and you haven't. You have to have a permit to be in this area and you haven't". According to the appellant, he responded that he did not believe they needed a permit to be there because they have a right under the constitution of Australia to express their religious faith. He maintained that he kept asking what law he had broken and what he had done, but no one was able to tell him which by-law or what law he personally or even the group had broken. The appellant said that his questions were ignored. Constable Woodward then asked for his name. The appellant's evidence was that he then asked why he needed to give him his name and the officer's response was "Well, I've been called down here and I have a report to make out and so I need your name". The appellant then replied that he did not consider that a good enough reason for him to provide his name because he wanted to know what he had done. Constable Woodward is alleged to have ignored that question and continued to ask the appellant for his name. Ultimately, the appellant asked what would happen if he did not give his name and he was told he would be arrested. The appellant then said that the officer had better arrest him because he was not going to give him his name. He was then arrested and taken to the police station.
The appellant maintained that he had done nothing wrong but stood and sung with the rest of his group. He said in his evidence that he did not believe that he was in a position where he had to give his name because he did not think he had contravened or broken any laws.
The appellant said that he wasn't trying to be a representative of the group he was just responding to the questions being asked of him. He also said that he was never asked about his role within the group. However, it is clearly the case that at no point did the appellant suggest that the rangers or the police should be talking to some other person who represented the group and nor did he ask why they had singled him out to be questioned. There was nothing in what he said or what he did that was inconsistent with a conclusion that he was the leader. He in no way distanced himself from that role. Further, despite his allegation that he had no responsibility for or control over the group, at no stage did he ask the other members of the group whether they wished to leave as requested or to obtain a permit as they had been advised to do.
The appellant's view was that he did not require a permit for the group's activities. He had heard that a ranger had approached the group on a previous occasion and said that a permit was required and someone would have to go to the council and discuss the issue. The appellant had not gone to the council.
In cross-examination, the appellant maintained that the activities which would occur at the scheduled event were not organised by the council. He said that the invitation was simply for any member who wanted to express his or her faith to attend. He disputed that he knew the group would sing songs. Ultimately he did make this admission:
"I had a fair idea that it [sic] there were certain people there that wanted to sing and were wanting to be involved in that, then yes, we probably would sing."
The appellant denied that he was told he needed a permit. He maintained that he was told that he did not have a permit and was never asked if he had one. He also said that Mr Host told him that he had been told before that he needed a permit. He then said that Mr Host said this: "You're not doing - - you're in breach of whatever law". That statement would seem to indicate that he had been told the law which he had breached. This conflicts with the appellant's earlier evidence, although perhaps he had only been told in general terms. The appellant also said that the conversation with Mr Host was about busking and the appellant did not believe they needed a permit to busk because they were not busking. According to the appellant, he was being singled out amongst a group of 20 people and he kept asking what he had done, although, based on the appellant's own evidence, he had been told he was busking without a permit. The appellant also disputed much of Constable Woodward's account of their conversation.
The witness, Matthew O'Donohue, was called on behalf of the defence. He said in his evidence he had been a member of the Potters House Christian Church for 18 years and members of the church regularly went to the same area of the Centrepoint Shopping Centre as the group were at on 18 December 2004. Mr O'Donohue said that on that day members were handing out leaflets and they would preach, although the appellant had told them not to preach for more than three minutes, and they would sing in between preaching.
Mr O'Donohue said that on that day he was approached by Mr Winter, who asked "Who runs this mob?", and he said, "Well, that's our pastor over there" and indicated the appellant on the other side of the group. Mr Winter then went and spoke to the appellant. Mr O'Donohue said that another ranger turned up later and also spoke to the appellant but he had no knowledge of what was said. According to Mr O'Donohue, the police also turned up and spoke to the appellant but by that time the group had finished singing and were just hanging around. Mr O'Donohue heard the police officer ask the appellant for his name and at a later point told him he had to arrest him.

Legislative framework

Section 16(2) of the Act provides –
"If an officer reasonably suspects that a person whose personal details are unknown to the officer –
(a)has committed or is committing or is about to commit an offence; or
(b)may be able to assist in the investigation of an offence or suspected offence,
the officer may request the person to give the officer any or all of the person's personal details."
Section 16(6) is in the following terms:
"A person who, without reasonable excuse, does not comply with a request made under subsection (2)….commits an offence.
Penalty: Imprisonment for 12 months."
Personal details are defined in s 16(1) to mean the person's full name, date of birth and the address of where the person is living or where the person usually lives.
Section 4 provides the meaning of the term "reasonably suspects". It states:
"For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she, acting in good faith, personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable."

Grounds of appeal

The grounds of appeal are as follows:
1.The learned Magistrate erred in law and fact and reached conclusions on the evidence which were either not supported by the evidence or by the weight of the evidence and therefore his findings that the charge was proved were erroneous.
2.The learned Magistrate in his decision either misstated the law and/or incorrectly applied the law and in so doing failed to properly consider the defences raised under sections 22 and 24 of the Criminal Code ("the Code").
Both grounds of appeal are extensively particularised and some particulars of Ground (1) are also particulars of Ground (2). In my view, the better approach to the resolution of this appeal is to identify the specific issues of which complaint is made and determine whether they manifest error on the part of the Magistrate and consider the impact of that error on the appellant's conviction. The following is a list of those issues:
(a)The evidence did not establish that the police officer personally had grounds for suspecting that the appellant had committed an offence.
(b)There was no evidence that the police officer did not know the appellant's personal details and in making his finding on this issue the Magistrate reversed the onus of proof.
(c)In dealing with the defences raised by the appellant the Magistrate erred by misdirecting himself as to the onus and burden of proof and erred in making the following findings:
(i)That a permit was required for carrying out the particular activity;
(ii)The appellant knew that a permit was required;
(iii)The area of activity was a public area;
(iv)The appellant was the leader of the group in any relevant sense;
(v)The appellant claimed he was only a participant in the activity and, therefore, could not put forward a defence of honest claim of right;
(vi)That the mistake under s 24 on which the appellant relied was a mistake of law;
(vii)That the appellant did not have an honest belief that he was entitled to do what he was doing and therefore, an honest and reasonable, even if mistaken, belief that no police officer could on objectively reasonable grounds personally suspect him of having committed an offence.

"Reasonably suspects"

On behalf of the appellant, it was submitted that the prosecution did not establish beyond a reasonable doubt that the officer making the request had a reasonable suspicion that the appellant had committed, was committing or was about to commit an offence. In particular, emphasis was placed on the fact that the police officer had no personal knowledge of the commission of an offence, only information provided by others.
In written submissions, the appellant identified the evidence said to support a conclusion that the police officer did not hold a reasonable suspicion or, if he did suspect that the appellant had committed an offence, that suspicion was not based in reason:
"(a) The officer relied upon the word of the rangers that the group was in breach of council by-laws;
(b)The officer had no personal knowledge of the law allegedly being breached;
(c)The officer made no inquiry as to the law being breached;
(d)The officer knew that the appellant challenged any need for a permit and/or that he was committing any offence;
(e)The officer did not observe any breach;
(f)The officer had no idea whether the area in which the group was standing was part of the Paisley centre or not;
(g)The officer made no enquiries as to the nature of the area involved or the boundaries of it;
(h)The officer made no enquiries as to the role in the group of the appellant;
(i)The officer did not personally observe or even inquire into any breach of the law committed by the appellant personally."
In effect, the appellant attacks the existence of a reasonable suspicion on the basis of the police officer's source of information, the fact that he did not observe the offence, that he made no inquiries about the offence and the fact that the appellant disputed the commission of the offence.
It is apparent from the definition of the term "reasonably suspects" in s 4, which is outlined above, that the police officer must personally have grounds at the time for suspecting the thing and those grounds, even if they are subsequently found to be false or non-existent, must be objectively reasonable. In this case the "thing" for which there must be reasonable grounds to suspect is that the appellant had committed or was committing an offence: see s 16(2)(a).
In Maines v Roy (1990) 1 WAR 508, Nicholson J considered the meaning of the expression "reasonably suspects" in the context of the power to detain and search a person reasonably suspected of committing an offence. The reasonable suspicion of the police officer in that case was based, in part, on statements made to him by members of the public that an assault had taken place. His Honour stated (at 514):
"From the wording of s 49 itself and from this examination of authorities I consider the following propositions emerge:
1.There must be an actual or concrete suspicion actually entertained by the relevant police officer.
2.The suspicion must be held at the time the power of stop, search and seizure is exercised…..
3.The reasonableness of the suspicion must be established by examination of the facts upon which it was formed.
4.It is not essential that the relevant officer should actually swear he held such a suspicion.
5.The existence and reasonableness of the suspicion may be inferred from a combination of the proved facts themselves and the way in which the complainant acted.
6.It is appropriate for the above purposes for the police officer to state the nature of information received either in examination or cross-examination.
7.Evidence of possession of information simpliciter will not materially assist the prosecution to discharge its onus unless more is known about its credibility."
Significantly, it is apparent from Nicholson J's analysis of the authorities from which the above propositions were derived, and also from his finding that the constable did reasonably form the suspicion that the respondent had been involved in an assault, that Nicholson J considered that hearsay evidence could be taken into account and could provide the basis of a reasonable suspicion.
His Honour referred to the decision of Chambers J in O'Garey v King [1972] Tas SR 136 at 141 in which hearsay evidence was treated as a legitimate basis of a reasonable suspicion, although the situation where the evidence came from unidentified informants was considered problematic. The decision in Manley v Tucs (1985) 40 SASR 1 was also referred to and relied upon by Nicholson J in reaching his conclusion (at 514). In that case, Matheson J determined (at 12 ‑ 13) that it was permissible to take into account hearsay evidence in considering whether there was a reasonable suspicion and relied on the decisions of Lord Devlin in Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942 at 949 ‑ 50 and by Cantor J in R v Lavelle [1978] 2 Crim LJ 105 at 106 in support of that conclusion.
It is, therefore, the case that Constable Woodward was entitled to rely on information received from the rangers. The evidence of the rangers was to the effect that the appellant was a member of a group which was in a public place and which was carrying out an activity, in this case singing, for which a permit from the City of Bunbury was required. The group did not have a permit as the appellant had admitted and therefore the senior ranger was intending to issue an infringement notice to the appellant for a breach of the City's by-laws.
Mr Winter was unaware of the particular by-law which applied in these circumstances. He said that information was usually obtained from the machine which printed out modified penalties. All local laws are included in the machine and can be identified by scrolling down to find the appropriate one. Mr Host considered the group's conduct fell within Pt 7 Div 3 of the by-laws but could not be more precise. Part 7 Div 3 of the City of Bunbury Local Government and Public Property Law deals with street entertainers. Clause 7.29 provides that a person must not perform in a public place unless he or she is the holder of a valid permit to do so. The term "perform" is defined to include playing a musical instrument and singing. As the concern of the rangers was that the group were singing in a public place, it is clear that Mr Host was quite accurate as to the source of the offence in the legislation but could not cite the specific clause of Pt 7.
It is apparent from the evidence of Constable Woodward that he had been told by the rangers that the group, of which the appellant was a member, had been observed singing in a public place and they did not have a permit and it was intended to issue an infringement notice for the breach of the City's by-laws. It is also important to consider the evidence of the appellant that the conversation between Constable Woodward and Mr Winter and Mr Host took an appreciable amount of time. That supports a conclusion that the Constable was given a reasonably detailed account of events and not a mere cursory review of the activities of the appellant or a brief recitation of the opinion of the rangers. Indeed, the Magistrate concluded:
"Constable Woodward's attendance necessarily involved his speaking for some significant but short time with each Mr Winter and Mr Host. It's apparent on the evidence that he was informed, fully informed, as to what had transpired, what was the issues, what the concerns were and all the circumstances historically, that which had occurred both by [sic] between Mr Winter, the accused and Mr Host and the accused."

Of course, the evidence of the rangers was not the only evidence available to Constable Woodward. He saw the group on arrival. He was aware that the group were in a paved area adjacent to the public toilets and was able to make his own observations about the nature of the area in which they were located, for example, whether it appeared to be consistent with public or private land. He knew that at least one of the group had a guitar and he thought that they may have been just finishing a song when he arrived because he had heard voices coming from that direction. He was also aware from being present when Mr Host spoke to the appellant that the group did not have a permit.
In this case, the information available to the officer concerning a breach of local government by-laws comes from two experienced local government rangers charged with the responsibility for enforcing the by‑laws and who might reasonably be expected to know about such matters. Further, some of the information from the rangers was consistent with the officer's own observations and with statements made by the appellant to the officer. Personal knowledge does not mean that the factual basis of the knowledge must have been viewed or heard by the officer, as the authorities above reveal. The definition of the term "reasonably suspects" does not limit the means by which an officer may be informed so as to give rise to a reasonable suspicion.
Neither is it the case that the officer must have personal knowledge of all elements of the offence such as, in this case, whether the land was public or private. Nor need he make inquiries to ascertain such matters. If that were the case then it would defeat the aim of the legislation which is designed to facilitate access to or apprehension of people who witness or commit offences. In many cases, if the time were taken to make investigations of the type suggested, the person would have departed and this particular means of identifying them would be lost. In rejecting the proposition put on behalf of the appellant at trial that Constable Woodward did not have a reasonable suspicion, the Magistrate emphasised that "reasonable suspicion" does not mean that the police officer must know the precise offence alleged to have been committed providing the general nature of the offence is known. The Magistrate rightly observed that, in many circumstances, the occasions when an officer might need to rely on s 16(2) are often at the inception of an inquiry before all relevant details necessary to identify with precision the offence committed are actually known. The construction of s 16(2) pressed on behalf of the appellant would significantly limit the usefulness of the power.
In the same way, if one were to accept the view of people who are believed to have committed an offence as to whether they have indeed done so before asking for their particulars, it is unlikely that s 16(2) would provide any real operational benefit to police officers.
Another issue raised on behalf of the appellant was that the officer made no inquiries as to the appellant's role within the group. Again, in my view, Constable Woodward was entitled to act on what he was told by the two rangers and on what was said by the appellant who kept maintaining a right to do that which the rangers said the group was not entitled to do and at no stage asserted any lack of involvement in the group's activities. It must be emphasised that the police officer is only required to have a reasonable suspicion; he is not required to be satisfied to the usual standard that an offence has been committed by the person whose details are requested.
As I have indicated, Constable Woodward was entitled to rely on the information of the two rangers, as he said that he did, providing it was reasonable for him to do so in the particular circumstances. In considering the reasonableness of Constable Woodward's suspicion based, as it was, primarily on what he was told by the rangers, the Magistrate had the benefit of hearing the evidence of the rangers. Thus, the concerns expressed by Chambers J in O'Garey v King at 141 as to the reliability of the hearsay information did not arise in this case.
The Magistrate clearly had little difficulty in concluding that the officer had the suspicion he alleged and that it was reasonable to hold such a suspicion. None of the matters raised on behalf of the appellant and outlined above persuade me that the Magistrate fell into error in reaching that conclusion.

Knowledge of personal details

On behalf of the appellant, it was submitted that in order to prove the offence with which he was charged, the prosecution must prove that the appellant's personal details were unknown to the officer making the request. There can be no argument with that proposition as it is evident from the terms of s 16(2) that the threshold requirement before a request for a person's personal details can be made is that the person's details are unknown to the officer. However, the appellant further submits that in this case there was no evidence that Constable Woodward did not know the appellants details.
The expression "personal details" is defined in s 16(1) to mean full name, date of birth, where the person is living and where the person usually lives. An absence of knowledge of any one of these details justifies a request under s 16(2). I believe it is fair to say that it would be unusual for a person to know all that information about another person, other than if they were relatives or close friends.
The evidence revealed that Mr Host asked the appellant his name and address but he declined to provide it. The purpose of obtaining the appellant's name and address, on Mr Host's evidence, was in order to serve him with an infringement notice. An inference can be drawn from the evidence that Mr Host conferred with Mr Winter after making the request, but did not issue an infringement to the appellant, that neither Mr Winter or Mr Host already knew the appellant's personal details. It is clearly the case then that the two rangers could not have advised Constable Woodward of the appellant's personal particulars and that is one possibility that may be excluded.
The evidence that Constable Woodward did not know the appellants personal details is as follows:
1.Constable Woodward asked the appellant for his name and address;
2.In his evidence Constable Woodward referred to the appellant as "the leader of the group who I now know as Ross Alexander Hounslow", indicating that he did not know who he was at the time;
3.Constable Woodward obtained the appellant's personal details from the appellant's wallet after his arrest;
4.Constable Woodward asked the appellant for his name and address details "for his records" which indicates that he could not have known the appellant's details from his records;
5.Constable Woodward was asked how he was going to find the appellant to follow up the incident if he did not know who he was and he said that he had no way of finding him;
6.The infringement notice that Mr Host clearly intended to issue and for which he required the appellant's name was not issued despite the fact that Mr Host conferred for some time with Constable Woodward. Clearly Constable Woodward did not tell Mr Host of the appellant's name and address leading to the inference that he did not have that information.
As I have noted above, it is apparent from the fact that neither Mr Winter nor Mr Host issued the appellant with an infringement notice that they did not know the appellant's name and address. Hence they could not have provided Constable Woodward with that information despite having the opportunity to do so.
On behalf of the appellant it is said that Constable Woodward's evidence that he obtained the appellant's personal details from his driver's licence is silent upon the issue of the officer's prior knowledge. I cannot accept that proposition. It is an unnatural and unusual expression to use if there was some other source of the information or the information was already known. It is, in my view, implicit in the statement that Constable Woodward neither knew the personal details already nor had he obtained them elsewhere.
The question put to Constable Woodward concerning how he was going to find the appellant if he did not know who he was, and his response that he had no way of finding him, is said by the appellant not to provide the necessary evidence. Again, I consider that proposition to have no merit. A person who has no way of finding another person cannot have their name, date of birth, current address and usual address because each of things would obviously assist in finding any living person. It is also said that the question assumes the fact to be proved. The question does include the proposition "if you didn't know who he was" but the response deals expressly with the first part of the question of how Constable Woodward would find the person.
Principally, the appellant relies on the proposition that at no point did Constable Woodward say that he did not know the appellant's personal details. With respect to counsel, direct evidence of that nature is not the only way in which a fact may be proved beyond a reasonable doubt. At trial, counsel for the appellant submitted that the Court was not entitled to presume that Constable Woodward was unaware of the appellant's details. That may be so, however, the Court is entitled to infer that conclusion from other evidence.
On the evidence, it was clear that the rangers were keen to issue an infringement notice to the appellant but that they needed his name and address which he would not give to them. In my view, it cannot seriously be suggested that if Constable Woodward had known the appellant's name and address he would not have told the rangers. Such a conclusion defies common sense. That, of course, is only one aspect of the available evidence from which the relevant inference can be drawn
In my view, when the whole of the evidence is considered, in particular the matters that I have referred to above, the only reasonable inference which can be drawn is that Constable Woodward did not know the appellant's personal details and it was therefore necessary to ask the appellant to provide that information. I am not persuaded that the evidence on this issue is equivocal or capable of any other reasonable conclusion.
The final aspect of this issue is the appellant's submission that the Magistrate reversed the onus of proof in deciding the issue in favour of the prosecution. The Magistrate responded in the following way to the proposition that definitive proof was required that the appellant's personal details were unknown to the office:
"There was no question with that intent put to Constable Woodward. Nor was there any question put to Constable Woodward which would suggest that he had any prior dealings or knowledge of the accused. In fact the evidence led by the accused himself is as to good character and that he has no record and has not had occasion to be brought before the court. And the only occasion that he's had dealing with police officers is for some very minor indiscretions in the vehicle sense in terms of speeding, and otherwise occasions when he has had to call upon the local constabulary for assistance by reason of some wayward person who was attended either the church or had been a problem whilst engaging in a function of the church.
There is not now any suggestion that Constable Woodward was either the officer associated with the traffic stops or the officer attending those functions. And it would seem to me that in the absence of that inquiry or course of evidence led directly, it's implicit in all the circumstances of the evidence of the constable, and as to what was said by the constable for the purposes of inquiry and also information provided to him by Mr Winter and Mr Host, that the personal details and the identity of this accused was clearly unknown to the officer and I'm so satisfied."
Much of this extract from the Magistrate's reasons addresses the fact that, as the appellant stated in his evidence, he had no prior record and has had limited contact with police, and hence it is highly unlikely that the appellant became known to Constable Woodward in the course of his duties as a police officer. That discounts two of the more usual ways a person becomes known to a police officer.
I do not accept that this extract from the judgment reverses the onus of proof. In my view, the reference to the failure to ask questions simply acknowledges that, where the body of evidence justifies the inference that the police officer did not know the appellant, the submission that he did know the appellant could only be based on answers to questions directed specifically to that issue.

The defences

At trial, the appellant raised defences under s 22 and s 24 of the Code. It was also argued by way of a defence to the charge that the appellant had a reasonable excuse for not complying with the request. Each of these defences was rejected by the Magistrate.

Section 22

Counsel for the appellant submitted on the hearing of the appeal that reliance on s 22 in the circumstances of this case requires a two step process. The first step is the claim that a permit is not required because the appellant has a constitutional right to proclaim his religion in a public area. The second step is that, because of that constitutional right to be in that public place, the police officer was not entitled to request him to provide his personal details, and hence he was entitled to refuse to comply with the request. In other words, the way that one gets to the right to property is through the suspicion that the officer must have before he can ask the question. Counsel described the proposition as an extrapolation of a claim of right.
Applying the general proposition to the facts of this case, the offence of failing to comply with a request to provide personal details is an offence relating to property because the offence which gave rise to the request to provide personal details was one involving a claim to property or involved an act done with respect to property.
Section 22 of the Code states:
"Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud."
Second 22 makes it clear that a claim of right can only be made on a charge of "an offence relating to property". It is also clear that the claim of right must be honestly held. In that regard, the appellant relies on the finding of the Magistrate that:
"there was a continuing belief in the accused that he was not then obliged to provide the details as had [sic] not to either Winter or Host and was not then prepared to provide it to the constable".
The more interesting question is whether the offence of, without reasonable cause, failing to comply with a request of a police officer to give personal details, under s 16(6) of the Act, is "an offence relating to property".
Support for the appellant's submission is said to be found in the case of Molina v Zaknich (2001) 24 WAR 562. In Molina v Zacknich, the relevant charge was one of remaining on premises without lawful authority, contrary to s 82B(1) of the Police Act. The Court disapproved (at 579) the decision of Virtue J in Pearce v Paskov [1968] WAR 66 at 72 that the phrase "offences relating to property" in s 22 should be construed as applying exclusively to offences of the character of those defined in Pt VI of the Code. McKechnie J (with whom Malcolm CJ and Templeman J agreed) concluded (at 579) that a broad rather than a restricted approach should be adopted in determining the application of s 22 of the Code. He said (at 579):
"In my opinion, it is at least consistent with three judgments in Walden v Hensler [(1987) 163 CLR 561] to say that s 22 should be given its literal and broad effect. It follows that it can have application to offences such as the Police Act, s 82B."
I do not understand the reference in Molina v Zacknich to a "broad effect" to mean that the application of s 22 can be extended to offences other than "offences relating to property". Indeed, such an interpretation would be inconsistent with the balance of the conclusion; that s 22 is to be given its literal effect. Neither do I accept that the decision supports a conclusion that an offence becomes "an offence relating to property" simply because a claim with respect to property is part of the background factual circumstances of the offence.
The respondent submits that a defence under s 22 of the Code can only arise in respect of offences in relation to property, and where the act or omission constituting the offence was done or committed with respect to property: s 22 the Code; Basso-Brusa & Ors v City of Wanneroo [2003] WASCA 103 at 16. I accept that proposition to be an accurate statement of principle.
The offence in this case was an offence of failing to comply with a request of a police officer to give personal details. I do not consider that offence to be an offence relating to property, irrespective of whether the approach taken to the construction of s 22 is restricted or broad. Further, in my view, the appellant's failure to provide his name and address upon request was not an act or omission that was done with respect to property.
Consequently, the appellant has failed to establish error in the Magistrate's decision to deny the availability of a defence under s 22, either on the evidence or as a matter of law.

Section 24

Under s 16(2) of the Act a police officer must reasonably suspect that the person asked to provide his personal details has committed, is committing or is about to comment an offence.
On behalf of the appellant, it was contended that he honestly and reasonably, but mistakenly, believed that the police officer could not and did not hold a reasonable suspicion that the appellant committed the offence. In support of that contention the appellant relies on the following evidence:
"So the question that you were being asked, Mr Hounslow, was: from what the constable did and from what he said, did you have any indication of him having any offence, any particular offence, in his mind at the time that he was asking you for your name and address and personal details? - - - No; and the reason I formed that view is because I repeatedly asked to be told what I had done. And there was no response to that.
Mm. All right. So you reached the point where you couldn't get any good out of him in that regard and you refused to give him your name and address? - - - Yes."
The effect of this evidence is said to be that the appellant believed that the Police officer did not have a reasonable suspicion that the appellant had committed an offence and that belief was reasonable because it was based on the fact that the police officer was unable to identify the offence. It was also said that, in circumstances where the group had been carrying out the same or similar activity for 18 years with no suggestion that an offence was being committed (although there was other evidence to contradict that assertion), a belief that the police did not have a reasonable suspicion that an offence had been committed must be reasonable. Finally, it was submitted that the prosecution had not negated the defence under s 24 beyond reasonable doubt.
It is well established that, while the prosecution bears the onus of negativing a defence under s 24 of the Code beyond a reasonable doubt, an accused has an evidentiary onus to adduce evidence capable of laying a foundation for the defence: Geraldton Fishermen's Co-op Ltd v Munro [1963] WAR 129 at 134 ‑ 5 per Hale J. To discharge the evidentiary onus, it will be necessary for an accused to place evidence before the court: evidence which is capable of showing that at the time of the alleged offence the accused had specifically turned his mind to the relevant fact and formed a relevant and positive (although mistaken) belief in relation to that fact: Pennings v Williams, unreported; SCt of WA; Library No 960512; 13 September 1996 at 9.

On behalf of the respondent, it is submitted that there was no evidence that the appellant turned his mind to the requirements of s 16 of the Act and formed a view that Woodward did not have grounds that were sufficient for the purposes of s 16(2) and s 4 of the Act. The respondent further asserts that the evidence of Woodward was that he told the appellant he had committed an offence against the by-laws, stated the nature of the offence and said that he therefore required him to provide his name and address. Consequently, the respondent submits that the belief, even if held by the appellant, was not a reasonable belief as he had been told repeatedly by Mr Host and Mr Woodward that he was committing an offence, had been told of the nature of the offence and that he would be issued with an infringement notice. He was also aware that Constable Woodward had been spoken to by the rangers and that Constable Woodward was present when Mr Host advised the appellant that he was in breach of the by-laws and would be "infringed".
In those circumstances, it is not surprising that the Magistrate concluded that the appellant did not hold such a belief, and I am not persuaded that the Magistrate fell into error in reaching that conclusion. The exchange referred to above, and on which the appellant relies, is more consistent with a belief that the police officer was unable to identify the specific provision which the appellant is said to have breached, as opposed to a belief that the police officer did not reasonably suspect that the appellant had committed an offence. The two propositions are not the same. The balance of the evidence is, in my opinion, consistent only with the view that Constable Woodward did indeed suspect that the appellant had committed an offence.
In any event, based on the evidence to which I have referred in general terms, in particular the conversations between the appellant and Constable Woodward, if the appellant held a belief that the police officer did not reasonably suspect that the appellant had committed an offence, that belief could not have been reasonably based. For this reason, I do not accept that the Magistrate erred in concluding that any belief the appellant may have held was not reasonable in all the circumstances.
Having carefully considered the appellant's evidence, I share the view of the Magistrate that the only belief the appellant laboured under was that he had not committed an offence. That, of course, would not be a mistake of fact. The Magistrate summarised the position in his reasons for decision in the following terms:
"The tenor of his evidence in all the circumstances was loosely put, that he [had] done nothing wrong. It was not an inquiry as to what he had done wrong, but more generally he was in denial as to any wrong doing, absolute wrong doing. And as he would suggest, the discussion that he was having, certainly with each of the rangers and in particular Mr Host and later Constable Woodward, was convoluted to the suggestion that it was in some degree confusing, because each was trying and certainly he was trying to impose upon, certainly Constable Woodward, his point of view."
I must confess to some difficulty with the proposition that it is a defence to a charge under s 16(6) of failing to provide personal details, which can be requested when a police officer reasonably suspects that a person has committed an offence that the person reasonably believes that the police officer did not hold such a suspicion. If that were the case it could readily be anticipated that every person charged under s 16(6) would raise such a defence. However, as s 24 applies to all the statute law of Western Australia unless there is a clear legislative intention to the contrary (see Geraldton Fishermen's Co-op Ltd v Munro at 133), and therefore to this Act, the necessary protection must lie in the requirement under s 24 that the belief be not only honest but also reasonable.
For the reasons that I have here expressed I am not persuaded that the Magistrate erred in the way in which he dealt with the defence raised by the appellant under s 24 of the Code.

"Reasonable excuse"

The appellant submits that the Magistrate erred in law in so far as he found that, in the circumstances, the appellant did not have a reasonable excuse for refusing the police officer's request.
It is well established that what constitutes a "reasonable excuse" depends upon the circumstances of the individual case and the purpose of the provision to which the defence of "reasonable excuse" is an exception: Taikato v The Queen (1996) 186 CLR 454 per Brennan CJ, Toohey, McHugh and Gummow JJ at 464. I accept the respondent's submission that in the context of the Act, the purpose of s 16(2) is to enable a Police officer to identify a person suspected of committing an offence. In that regard it is a significant forensic tool. The provision also facilitates identification of those suspected of being involved in offences, and those who have witnessed offences, who might not otherwise wish to assist the police in their inquiries. The imposition of the penalty emphasises the importance of the power and must have been intended to influence those who might not wish to assist the police to do so. In those circumstances, I believe that the term "reasonable excuse" was not intended to have a broad operation.
Under s 16(7), the fact that the officer requesting a person's personal details does not, when requested by that person, identify himself, constitutes a reasonable excuse. I would imagine that the rationale behind s 16(7) is that, as the section requires personal details to be provided, a person should not have to divulge identifying information to a person who will not identify themselves. In that way, identifying information is not divulged to an unknown officer and the potential for misuse of the information is restricted. Otherwise, s 16(7) provides little assistance in identifying the scope of a reasonable excuse. One can readily imagine situations which would constitute a reasonable excuse but which would not adversely impact on the effectiveness of the provision. For example, a person would have a reasonable excuse if because of injury or other reason he was unable to answer the police officers request, or if he had a hearing difficulty which prevented him from understanding the nature of the request.
However, when one considers the purpose of the provision and the fact that one aspect of the power allows personal details to be requested of persons who are suspected of committing offences, I am not persuaded that the fact that a person does not accept that he or she has committed an offence or simply believes he or she has a defence to the charge, could ever have been intended by Parliament to amount to a reasonable excuse. If those situations amounted to a reasonable excuse, s 16 would be of very limited effect indeed.
The Magistrate put the consequences somewhat higher. He considered that if it were the law that the position taken by the defendant in this case, that he had not committed an offence because he had a constitutional right to profess his religion in public, was capable of being properly ventilated at the street side as a reasonable excuse for not complying with a request for personal details, it would be "the first triggers to anarchy". Irrespective of whether the potential for such a dire consequence is accepted, the Magistrate's comment does acknowledge the unlikelihood of a legislative intention that a defence, more properly ventilated at trial, should constitute a reasonable excuse for the purpose of s 16(6) of the Act.
For these reasons I do not accept that the Magistrate erred in concluding that the appellant did not have a reasonable excuse for failing to comply with Constable Woodward's request for his name and address.
On behalf of the appellant, it is also alleged that the Magistrate misdirected himself on the burden of proof upon the issue of "reasonable excuse". Reliance is placed on the following statement of the Magistrate in his reasons for decision:
"And as regards the extension so called in subsection (6), it would seem to me that the arrests within that provision, lay onus and burden of proof on an accused to satisfy to the requisite civil standard on the balance of probability that there is in fact a reasonable excuse."
No authority is referred to in support of this proposition.
The respondent does not attempt to justify the Magistrate's conclusion that, with respect to a defence that an accused had a reasonable excuse for not complying with a request for personal detail, the burden of establishing the excuse lay on the accused. In my view, as with most defences, the appellant had an evidentiary burden but I consider that the position with respect to the standard and burden of proof of establishing a reasonable excuse does not differ from the position on establishing a defence under s 22 or s 24 of the Code. To that extent the Magistrate did indeed fall into error. However, having considered the nature of the defence of "reasonable excuse", the excuse relied upon by the appellant and the evidence available with respect to the issue, I consider that the conclusion that the appellant did not have a reasonable excuse would have been reached even on the higher standard of proof. Therefore, I am of the view that there has been no substantial miscarriage of justice arising from the Magistrate's error.

Remaining particulars

There remain a number of particulars contained in the grounds of appeal which have not been specifically referred to in the course of addressing the primary issues referred to above. These particulars are said on behalf of the appellant to relate more to whether the elements of the offence were established than to any defence raised. To my mind, they do not specifically relate to either. The particulars are that the Magistrate erred in finding:
(i)      That a permit was required for carrying out the particular activity;
(ii)     The appellant knew that a permit was required;
(iii)     The area of activity was a public area; and
(iv)     The appellant was the leader of the group in any relevant sense.
With respect to the first three matters, in so far as the Magistrate may have made such findings, he was not required to do so. Matters (i) and (iii) fell to be established in the event that the appellant was charged with the offence contemplated by the rangers. As he was charged with failing to provide his personal details to a police officer, all that the prosecution was required to establish, as indicated above, was that the police officer had a reasonable suspicion that an offence had been committed and the appellant's details were unknown. It is the case that the evidence established that the appellant was aware that the rangers believed that the appellant required a permit. It is also the case that the facts reveal that the offence which Constable Woodward reasonably suspected had been committed by the appellant involved conducting a particular activity without a permit. However, whether or not the appellant knew that a permit was required was not something it was necessary to prove in any situation.
As to the final matter, the prosecution were not obliged to establish that the appellant was the leader of the group on a charge of failing to comply with a police request for personal details. The issue of the appellant's leadership arose from an exchange between counsel for the appellant and Mr Host in cross‑examination. In the course of being questioned on his belief that the appellant was using local government land, Mr Host was asked:
"And you thought that Mr Hounslow was using that land in some way that was requiring a permit? --- As the leader of the group, yes.
As the leader of the group? ---Yes.
Not by what he was doing himself, but as the leader of the group? ---Correct."
Based on that exchange it could be understood that it was only in the appellant's capacity as a representative of the group that the appellant was thought to have done something wrong. When the general nature of the offence considered by the rangers to have been committed by the group is considered (gathering, performing and proclaiming in a public place without a permit) it is difficult to identify any basis on which a person's representative role should have any impact on a charge of that type. However, it may well be the case that it was a belief that the appellant had a role as an organiser of the event which was the basis of the expressed intention to charge the appellant rather than each member of the group.
It is apparent from Mr Host's responses to subsequent questions that the point that Mr Host was attempting to convey in the above exchange was that it was because of the appellant's role as leader or representative of the group that he was being questioned about the use of the land. He was not being charged in any capacity as leader or representative.
Mr Host was asked:
"So if he wasn't the leader of the group, all your assumptions are wrong, aren't they?---Not really, because I just needed to speak to somebody involving the group. I was – he was pointed as being the leader of the group; the pastor, the gentleman said.
…
So it's only in his capacity as a representative of the group that he could be doing anything wrong, in your view?---No.
No. Well, what else is he doing then?---He's part of the group that I believed did not have a permit to be there.
All right. S - -?---He was the representative that was pointed out to me.
So who do you infringe? Him? The group? All the individuals? The church? Who do you infringe if you're going to? --- I -realistically - - realistically I'd probably have the right to infringe every member of the group there.
For doing what?---None of them had a permit to be there."
It is the case that a little later in his evidence Mr Host agreed with the proposition that he felt he could infringe the appellant on no other basis than because he was pointed out to him. However, in my view, that does not detract from the clear, and quite accurate statement, that although Mr Host was talking to the appellant because he had been pointed out as the leader of the group, The fact is that Mr Host was entitled to charge not only the appellant but every member of the group participating in the activities of the group on that day. In my view, in so far as it might have been necessary to establish the appellant's involvement with the group, there was evidence to establish that the appellant was singing with the group and was a participant in the activities of the group which the rangers considered to be in breach of the City's by-laws.

Conclusion

I have concluded that there is no merit in the matters raised on behalf of the appellant which are said to establish error on the part of the Magistrate, other than his conclusion with respect the burden of proof for establishing a defence of "reasonable excuse" under s 16(6) of the Act. However, in my view, this error did not result in a miscarriage of justice. I consider the appellant to have been properly convicted, and I would dismiss the appeal.

[2007] WASC 27

9 FEBRUARY 2007

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Reasonable Excuse