Jason Cameron Elwin v Edward George Robinson - [2014] HCASL 162

JASON CAMERON ELWIN
v
EDWARD GEORGE ROBINSON
[2014] HCASL 162
P15/2014

On 8 June 2011, the applicant was found guilty of obstructing a public officer contrary to s 172(2) of the Criminal Code Act 1913 (WA) in the Magistrates Court of Western Australia (Magistrate Musk). It was the applicant's case that he was unaware that police were involved in the fight which was taking place and that he was under arrest until he was tasered. Magistrate Musk found that the applicant became aware that he was being arrested once he came face to face with the respondent. The applicant also contended that the police exercised an unlawful degree of force, a contention which was rejected by her Honour.
On 31 August 2012, the applicant's appeal to the Supreme Court of Western Australia (McKechnie J) was dismissed. McKechnie J accepted that the Magistrates Court should have identified whether the police were acting in the execution of their duties. However his Honour was satisfied beyond a reasonable doubt that the actions of the police were lawful and that they used reasonable force.
On 28 February 2014, the applicant's appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed. Mazza JA, Pullin and Newnes JJA agreeing, found that the use of force by the police was reasonable and lawful, and held that the applicant's refusal to comply with the respondent's instructions and his physical resistance amounted to the offence of obstruction.
The applicant requires an extension of time within which to file his application for special leave to appeal to this Court. His draft notice of appeal raises no question of principle. Further, the applicant's argument asserts a version of events that has not been accepted by any of the courts below. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. Special leave should be refused. The grant of an extension of time would accordingly be futile.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
11 September 2014 P.A. Keane

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] HCASL 162
Decision Date

CaseChat Overview and Summary

Jason Cameron Elwin, the applicant, sought an extension of time to lodge an application for special leave to appeal against his conviction for obstructing a public officer in the Supreme Court of Western Australia. The original conviction was upheld by the Supreme Court of Western Australia and subsequently by the Court of Appeal of the Supreme Court of Western Australia. The High Court was tasked with deciding whether special leave should be granted, and if an extension of time was appropriate.

The central legal issue was whether the applicant had sufficient prospects of success in appealing to the High Court, given the consistent findings of the lower courts that the police acted lawfully and reasonably in arresting the applicant. The applicant argued that he was unaware of the police presence and the arrest until he was tasered, and that the police used excessive force. However, all previous courts had rejected these claims. The High Court needed to determine if these findings were so compelling that an appeal to the High Court would be futile.

The High Court found that the applicant's version of events had not been accepted by any of the lower courts, and that his appeal raised no new or significant questions of principle. The consistent findings of the lower courts on the lawfulness of the police actions and the reasonableness of the force used indicated that the applicant's appeal would not succeed. The High Court concluded that an extension of time would be futile and dismissed the application for special leave to appeal.

The High Court ordered that the Registrar should prepare, sign, and seal an order dismissing the application for special leave to appeal. This order effectively brought an end to the applicant's legal efforts to challenge his conviction in this matter.

Orders