Kerber v Towler - [2014] WASC 419

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: KERBER -v- TOWLER [2014] WASC 419

CORAM: KENNETH MARTIN J

HEARD: 25 JUNE 2014 AND ON THE PAPERS BY SUBMISSIONS OF 3 & 9 JULY 2014

DELIVERED : 12 NOVEMBER 2014

FILE NO/S: SJA 1132 of 2013

BETWEEN: GAVIN WAYNE KERBER
Appellant
AND
ANDY WILLIAM JOHN TOWLER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R S HUSTON
File No  :PE 56335 of 2012

Catchwords:

Criminal law - Appeal against acquittal - Assault occasioning bodily harm - Selfdefence - Whether harmful act done to defend person from a harmful act that was lawful - Whether defence reasonably open at trial - Security officer - Citizen's arrest - Non-communication of basis for arrest and detention - Lawfulness of arrest

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 248, s 317
Criminal Investigation Act 2006 (WA), s 25

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Ms T McArthur
Respondent: Mr D Ryan

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Chelmsford Legal

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

Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385
AK v The State of Western Australia [2008] HCA 32; (2008) 232 CLR 438
Christie v Leachinsky [1947] AC 573
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422
Manonai v Burns [2011] WASCA 165
May v Thomas [2014] WASCA 176
Micalizzi v The State of Western Australia [2013] WASCA 96
O'Neill v The State of Western Australia [2013] WASCA 158
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Staskos v Johnson [2014] WASC 137
State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Thomas (1992) 65 A Crim R 269
KENNETH MARTIN J:

Overview

The respondent, Mr Andy William John Towler, stood trial in the Magistrate's Court of Western Australia during September 2013 at Perth. Mr Towler was charged with infringing s 317(1) of the Criminal Code (WA) by unlawfully assaulting Mr Grant David O'Neil and thereby doing him bodily harm on 2 December 2012, at Burswood.
Mr Towler was also charged with other offences arising out of events in the early hours of that Sunday morning, outside Eve Nightclub at the Burswood Resort (now Crown Resort). Those other charges were dismissed and are now irrelevant.
As regards the material charge of assault occasioning bodily harm to Mr O'Neil, Mr Towler pleaded not guilty.
A Magistrate's Court trial then proceeded for three days across September 2013, at which many prosecution witnesses gave evidence. Mr Towler elected not to give evidence, as was his right.
The trial proceeded on the accepted basis Mr Towler made the admissions that he had struck Mr O'Neil and, consequently, had done him bodily harm. Mr O'Neil's injuries were a fractured distal right clavicle (collar bone) and depressed fracture of the left zygoma (cheekbone) (see exhibits 1, 7.1 - 7.3).
The only live issue at the trial concerned Mr Towler's invocation of s 248(4) of the Criminal Code (WA). In other words, Mr Towler contended in his defence that he had been acting in self‑defence, in striking Mr O'Neil.
At the conclusion of three days of evidence and submissions, Magistrate Huston reserved his decision. On 22 October 2013, he delivered oral reasons - which have since been transcribed (across 26 pages of transcript provided to me).
The learned magistrate acquitted Mr Towler of the assault charge on the basis that the prosecution had failed to negate self‑defence (ts 19).
In short, the learned magistrate reached a conclusion that the prosecution had not discharged its burden of proof towards negating self‑defence. This was, as I said, in circumstances where Mr Towler, as was his right, elected not to give evidence at his trial.
There was, however, a Police video record of interview (VROI) of Mr Towler recorded on the Sunday morning - some hours after the events in question. The VROI was tendered by the prosecution. It was introduced into evidence as exhibit 9 at the trial.
Pursuant to s 8(1) of the Criminal Appeals Act 2004 (WA), the prosecution (appellant) seeks leave to advance three grounds of appeal. The grounds challenge Mr Towler's acquittal, contending for errors of both law and fact in the learned magistrate's acquittal decision. In the event that any of these grounds succeed, the prosecution expressly seeks orders only that Mr Towler face a retrial, before another magistrate.

Grounds of appeal

Initially, the prosecution had only raised two proposed grounds of appeal under an appeal notice filed 19 November 2013.
Subsequently, the prosecution sought to raise a further ground (which effectively expands the first ground) by filing an amended appeal notice on 26 February 2014. No objection was taken to this proposed amendment and further ground.
Accordingly, the three grounds of appeal advanced, and in respect of which leave to appeal is contemporaneously sought, are as follows:
1.The learned magistrate erred in fact in finding that the witness, Grant David O'Neil, had conceded in evidence that he might have been mistaken that the respondent had assaulted another security officer immediately prior to Mr O'Neil attempting to restrain the respondent.
2.The learned magistrate erred in fact and in law in finding that the prosecution had failed to negate the defence of self‑defence.
3.The learned magistrate gave reasons that were inadequate and failed to disclose his reasoning for concluding that the appellant had not negated self‑defence beyond reasonable doubt, such as to give rise to a miscarriage of justice.
For the reasons which follow, I am of the view that leave to appeal must be granted in respect of all grounds.
Further, as I explain, each of the grounds of appeal must be upheld and Mr Towler's acquittal overturned.
Accordingly, Mr Towler must stand trial again in respect of the same assault charge, before a different magistrate.

Procedural background

The appeal was initially due to be heard before me, on 19 March 2014. Unfortunately, due to a temporary loss of all the trial exhibits (which had been returned by the Magistrates Court to the Police) the appeal hearing was not able to proceed that day.
I convened a directions hearing in early May 2014 on a hopeful hypothesis that the missing exhibits might by then be relocated at the Kensington police station. Fortunately, the exhibits were eventually relocated. The matter was heard on 25 June 2014, with further written submissions on s 248(5) of the Criminal Code received on 3 and 9 July 2014.

Underlying facts

Evidence was received at trial from the complainant, Mr Grant O’Neil, and a number of other privately employed Burswood Resort security officers, namely Mr Shariff Mahia, Mr Andrew Gschiedle, Mr Mark Teehara, Mr Steven Skivinis and Mr Benjamin Mariotti. Further evidence was received from Burswood surveillance camera operator Ms Jessica Stewart and the Police Investigating Officer, Sergeant Gavin Kerber.
The relevant events of the night the subject of this appeal began after there was a confrontation on the dance floor at the Eve nightclub at Burswood Entertainment Complex involving two groups. The first group comprised Mr Jake Brewer-Joyce and some other people who were friends of Mr Towler. The second group was a party of males, said to be of Indian ethnicity. Burswood's security officers then ejected both groups from the nightclub. Mr Shariff Mahia, a Burswood security officer, gave evidence about the Indian group of patrons (9 September 2013, ts 49 - 62). Apparently, they ultimately left quietly (9 September 2013, ts 51).
At the time of the dance floor confrontation, Mr Towler had already left the nightclub and was at the taxi rank outside. He had been part of the group which included Mr Brewer‑Joyce when he was inside, but not involved in any way in the altercation within the nightclub.
The group with Mr Brewer‑Joyce had been more reluctant to leave. They eventually moved outside rather more slowly. Eventually, they spilled across to the adjacent side of a road outside the nightclub, Bolton Avenue. At this point they were rejoined whilst outside by Mr Towler.
These outside events were unfolding in rather dimly lit circumstances of artificial light and after 3.00 am in the morning, as between the group of ejected patrons and a considerable number of intervening Burswood private security officers. Overall, the participant numbers appear to have been about 30, of which the breakdown was evenly divided as between the ejectees and the security officers.
Ms Jessica Stewart operated a series of security cameras that evening as an employee for Burswood Resort, (9 September 2013, ts 25 - 31). Those cameras she operated had captured what I have viewed as some rather dark looking and unclear video footage of outside events in Bolton Avenue. The video footage was identified at trial by Ms Stewart and it became exhibit 3 at the trial (9 September 2013, ts 29 - 30).
One ejectee from the group at the Eve Nightclub who presents as having behaved aggressively in the group was Mr Brewer-Joyce (reasons, 22 October 2013, ts 15). He was described in evidence as a 'half caste Maori', who 'looks like Sonny Bill Williams' (10 September 2013, ts 48), according to prosecution witness, Burswood security officer, Mr Mark Teehara.
An already tense situation then escalated, when somebody unidentified from the ejected group threw a bottle at a security officer (see reasons, 22 October 2013, ts 14 - 15). Mr Andrew Gschiedle, another security officer, had been on the job four weeks (9 September 2013, ts 62 - 89). He had dealt with the crowd once they were outside. Mr Gschiedle saw the bottle being thrown at the security officers (9 September 2013, ts 65, 77).
Mr Gschiedle was then directed to disengage by his supervisor at the time, Mr O'Driscoll, who did not give evidence at the trial (9 September 2013, ts 66).
Another security officer, a Mr Stephen Skivinis, also a witness at trial, had been calmly talking to some members of the group, asking them to disperse. Mr Gschielde had also seen Mr Skivinis talking to the group.
For a time, Mr Skivinis appeared to be succeeding in having the group disperse. However, another security officer, Mr Teehara executed what was called a 'palm‑thrust' against Mr Brewer-Joyce (10 September 2013, ts 43). Palm thrusts are a security technique that officers are apparently taught to use, when necessary. Mr Teehara was wearing a high visibility shirt (10 September 2013, ts 40).
At the trial, Mr Skivinis had identified his fellow security officers, Aaron Quinn and Mark (Teehara) as present in the CCTV footage (exhibit 3; 9 September 2013, ts 34, 39).
A fight then broke out generally. Another security officer, Mr Mahia, gave evidence that Mr Quinn executed a palm strike or palm thrust - which he thought had actually started off the fight (9 September 2013, ts 60).
Mr O'Neil, the complainant, was a security officer employed at Burswood for nine months (10 September 2013, ts 2 - 34). That night/early morning he had been out on bicycle patrol. He was called by radio to what was then an unfolding fracas at 3.00 am. At the time he had his bike helmet on, rendering him distinctive in that headgear. He was also wearing a distinctive security officer's uniform, including a high visibility yellow shirt with 'Security' labelled on it. After being called to the incident outside the nightclub over his radio, Mr O'Neil had dismounted his bicycle. At first he just watched the fracas unfold from the outer between the group members and other Burswood security officers.
Mr O'Neil gave evidence at trial he had then seen another (unidentified) Burswood security officer being struck by an individual in the brawling crowd outside the Eve Nightclub. He then moved into the crowd with hands raised - seeking to apprehend the person whom he thought he had just seen strike the security officer (10 September 2013, ts 7).
Mr O'Neil made physical contact with and eventually took the intended crowd participant to the ground (10 September 2013, ts 9). More correctly, the male person Mr O'Neil grappled with, fell on him, in the process injuring Mr O'Neil's shoulder and breaking his bike helmet. Nevertheless, Mr O'Neil was able to retain and hold on to the person he had now restrained and detained in the crowd (10 September 2013, ts 9).
Security officer Gschiedle gave evidence that he had witnessed Mr O'Neil had being struck to the face - whilst held in a headlock (9 September 2013, ts 68) by a male. Mr Gschiedle said he saw the brawling participant holding security officer Mr O'Neil in a reverse headlock, whilst that person was punching Mr O'Neil to the right side of his face.
Mr O’Neil required the assistance of another security officer, Mr Benjamin Mariotti (10 September 2013, ts 35-39).
Mr O'Neil gave evidence about eventually detaining and, with assistance, handcuffing the male who he had identified, approached, grappled with and taken to the ground - and who in the process had punched Mr O'Neil to the face (10 September 2013, ts 17).
Mr Mariotti gave evidence that he had assisted Mr O'Neil and put handcuffs on the person he had seen punch Mr O'Neil (10 September 2013, ts 36-37). That handcuffed person was Mr Towler. Mr Mariotti's evidence was that the striker had been wearing a dark top and jeans (10 September 2013, ts 39).
Subsequently, Mr Towler was taken away, and detained for a period at Burswood. He eventually ended up at the Kensington police station. There, he was interviewed by Police and participated in the VROI. Evidence was received at trial from Sergeant Kerber regarding the VROI and photos. The VROI was tendered as exhibit 9.
Mr Towler, at some point after his detention, was seen again by Mr O'Neil. Mr O'Neil gave a statement to the police on 17 December 2012 (some days later), after receiving treatment for his injuries. In Mr O'Neil's statement he said the person he saw punch the unidentified security officer, and then detained, had been wearing a pale blue shirt.
However, from tendered photographs at trial it seems very clear that Mr Towler was not wearing a pale blue shirt (see exhibit 11) during these events. If anything, the relevant person in a pale blue shirt that evening and early morning was Mr Jake Brewer‑Joyce (see exhibit 10).
But shirt colours aside, Mr O'Neil was adamant in his trial evidence under cross-examination he had restrained and apprehended the correct person. This was the person who he had earlier seen punch the unidentified security officer (cross‑examination of Mr O'Neil, 10 September 2013, ts 9). That, he said, was Mr Towler, the person eventually detained.
The learned magistrate's transcribed reasons look to have proceeded on a basis of his accepting that Mr O'Neil had made an error in terms of wrongly identifying the person who he had seen punch the unidentified security officer. The learned magistrate seems to have concluded, in effect, that Mr O'Neil had charged into a mob of unruly persons with his hands raised, but then tackled, effectively, the wrong person, making an honest identification mistake in the process.
The learned magistrate seems to have assessed Mr Towler as being fairly passive during the outside events and someone who had (from the video footage) been largely retreating within the crowd of ejectees, rather than being an active or aggressive participant in the fracas (see reasons, 22 October 2013, ts 13 - 14). That behaviour was in contrast to Mr Brewer‑Joyce, who was assessed as very much more active and aggressive during the evening's events (see reasons, 22 October 2013, ts 15).
The learned magistrate's perceived identity error by Mr O'Neil, as to being mistaken about the correct crowd participant that had earlier punched another security officer, looks largely to be based on the 'wrong shirt colour' evidence. As I will explain below, the workings of the term 'reasonably suspects' are very significant, in a context of s 4 of the Criminal Investigation Act 2006 (WA), as regards mistaken identities.
The learned magistrate reached, in the end, what he called a 'line ball' assessment, ultimately accepting Mr Towler's defence of self‑defence as having not been negated by the prosecution (see reasons, ts 19 - 20). This was, as mentioned, without Mr Towler giving any evidence at his trial.
Nevertheless, Mr Towler, in the assessment of the learned magistrate, was able to rely on self‑defence or, more correctly, that self‑defence had been an enlivened issue at his trial, and that this defence had not, in the end, been negatived by the prosecution.

Key statutory provisions

First, it is necessary to set out the text of the assault offence that was alleged against Mr Towler.
Section 317(1) of the Criminal Code s 317(1) provides:
317.Assault causing bodily harm
(1)Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -
(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or
(b)in any other case, to imprisonment for 5 years …
Summary conviction penalty:
(a)…
(b)in a case to which paragraph (b) above applies: imprisonment for 2 years and a fine of $24,000.
Second, I need to set out from s 248 of the Criminal Code, at this stage, only s 248(5), which says:
(5)A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.
It was contended at Mr Towler's trial by the prosecution that the defence of self‑defence was not even arguably open to Mr Towler by reason of s 248(5). The prosecution asserted that Mr O'Neil had only ever executed what was a wholly lawful act against Mr Towler, even if it was a harmful act (see appellant's submission of 21 February 2014, pars 12 - 13). Mr O'Neil's trial evidence was that he had been attempting to effect a citizen's arrest upon Mr Towler (10 September 2013, ts 8, 19). Mr O'Neil at the time was an employed security officer at the Burswood Resort. His attempted citizen's arrest was in the context of his entry into what, by then, had become something of a running brawl, occurring outside the Eve Nightclub.
The prosecution's plenary argument at trial was that Mr O'Neil had been effecting a lawful citizen's arrest under s 25(2) of the Criminal Investigation Act 2006 (WA). By virtue of Mr O'Neil's conduct being a lawful act by s 248(5), Mr Towler did not hold any legitimate recourse to s 248(4) and a defence of self-defence to the assault charge to be faced.

Criminal Investigation Act 2006 (WA)

The circumstances in which a private individual may exercise their power of effecting a citizen's arrest are addressed by s 25 of the Criminal Investigation Act.
Sections 25(1) and (2) of the Criminal Investigation Act provide:
25.Citizen's arrest
(1)In this section -
arrestable offence means an offence the statutory penalty for which is or includes imprisonment.
(2)Any person may arrest another person (the suspect) if he or she reasonably suspects that the suspect has committed or is committing an arrestable offence.
As an employed Burswood security officer at the time, Mr O'Neil, as mentioned, had been on bicycle patrol in the resort's precincts during the early hours of Sunday 2 December 2012.
Being privately engaged, Mr O'Neil did not enjoy the arrest powers of a police officer or, correspondingly, the protections of a police officer under the Police Act 1892 (WA) (see, for example, s 137 - Protection From Personal Liability). I do find it most surprising that there is no specific legislation in Western Australia addressing how a privately engaged security officer, like Mr O'Neil, who is gainfully employed to keep the peace, might exercise powers of arrest when needed against unruly persons - otherwise than to effect a citizen's arrest. For example, the Security and Related Activities (Control) Act 1996 (WA) is wholly silent on the powers of arrest for a private security guard.

In the context of that apparent lacuna, it becomes necessary to consider the rights and responsibilities Mr O'Neil exercised as an ordinary member of the community towards Mr Towler in the prevailing circumstances.
Before leaving s 25(2) of the Criminal Investigation Act, I must draw attention to its significant term 'reasonably suspects'. That term is defined expressly by s 4 of that legislation (the definition of 'reasonably suspects' under s 3 being, 'has the meaning given by s 4'). Section 4 says:
4. Reasonably suspects, meaning of
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she 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. (emphasis added)
That definition of the phrase 'reasonably suspects' was clearly relevant to, and bears heavily upon, any sensible interpretation of s 25(2).
But the terms of s 4 were not mentioned to the learned magistrate during Mr Towler's trial.
The omission to note s 4 as regards its repercussions bears upon grounds of appeal 1 and 2, concerning alleged errors by the learned magistrate. It undermines a key factual premise of the reasons.
The premise was that Mr O'Neil, whilst under cross‑examination, conceded he might have been mistaken in his earlier evidence, as to having personally witnessed Mr Towler punch another person (another unidentified Burswood security officer) (see reasons, 22 October 2013, ts 15). That observation is what led Mr O'Neil to enter the crowd, move towards Mr Towler, seek to physically restrain him, and then ultimately restrain Mr Towler (with Mr O'Neil sustaining facial injuries in the process).
The asserted error sought to be raised under ground 1 challenges the learned magistrate's finding Mr O'Neil ever made such a concession.
The appellant argues that, on a proper analysis of the evidence, no such concession was made. This was in circumstances in which the learned magistrate had said at the outset of his reasons that all the witnesses who had given evidence before him, were impressive. That general observation obviously included Mr O'Neil. Accordingly, there was no finding Mr O'Neil was an unreliable witness.
As mentioned, the appellant advances three grounds, which all require leave. The question of leave was referred to the actual hearing by Hall J on 9 December 2013. The appellant, in the name of the police prosecutor Mr Kerber, has sought to add a late third ground in respect of an alleged failure by the learned magistrate to consider s 25 and s 4 of the Criminal Investigation Act as regards the defence of self‑defence.
Ground 1 of the appeal is:
1.The learned magistrate erred in fact in finding that the witness Grant David O'Neil had conceded in evidence that he might have been mistaken that the respondent had assaulted another security officer immediately prior to Mr O'Neil attempting to restrain the respondent.

Ground 1: evaluation

The following extracts are from the evidence given during Mr O'Neil's examination-in-chief (10 September 2013, ts 7 - 9): and see par 17 of the appellant's outline of written submissions dated 21 February 2014:
Yes?---I saw a security officer was punched by a person.
…
Okay. So you were there and you saw someone - a security officer get punched, is that right?---Yes. I don't recall which particular security officer was punched, merely that I saw someone wearing a security uniform be punched.
…
Okay. All right, thank you. Now, you saw that?---Yes.
What did you do?---I (indistinct) went forward to the person who had punched him - - -
Okay?---to restrain him, to - - -
…
Okay. Right. It's the male person?---So I was moving forward to restrain the person who had punched the other security officer.
…
Okay. And what happened when you approached this person?---As I approached this person, he punched me.
…
What did you do next, sir?---I immediately grabbed in a - it's a restraint technique that we train in at Crown. It's a body - a side control body hold.
Right. Was it effective?---Semi-effective. He was struggling so we're grappling together for a few moments, lost our footing and fell to the ground. I was to his right side. So we fell over onto my right shoulder.
…
So the person that you saw hitting a security officer, the person who then hit you, the person that then you put a restraint one [sic], who was then further handcuffed is the same person all the way through?---There's no possibility it could have been anyone else, because I maintained eye contact with him from the moment he punched the security officer to the moment I was punched to the moment I had restraint on him, and from that moment I didn't let go.
Mr O'Neil was directed again to this issue at ts 17:
Yes. All right. Okay. Now Mr O'Neil, how certain are you that there was a security guard there. You thought you apprehended to attempted to - or you did apprehend him, but before you start to engage the man, or the accused, how certain are you that there was another security officer in between you and him and that the accused assaulted that security officer?---110 per cent certain. I saw with absolute clarity a security officer being punched. (emphasis added)
Yes?---And I then focussed on the person who punched the security officer.
Yes?---I didn't, as I recall, use any words to say that I was effecting an arrest, but my intention was to effect an arrest.
That evidence-in-chief stands to be contrasted against Mr O'Neil's evidence under cross-examination (ts 23):
So, Mr O'Neill, [sic] now that we've talked about this issue with the pale blue shirt and you've agreed with me that my client is not wearing a pale blue shirt, it is possible that you could have been mistaken - - - ?---No.
- - - about that?---No. I may subsequently have been mistaken in my recollection of the shirt that I saw, but there's no possibility of any mistake as to who punched a security officer and who it was that punched me and I subsequently restrained, because I maintained constant visual observation. (emphasis added)
Further in the cross-examination (ts 33 - 34):
All right. Having seen that footage again and you've agreed with me that there is a very clear distinction between the guy in the light shirt and the shirt that my guy's wearing?---Yes.
The fact that you agree that you were wrong about another security guard coming in to restrain my client. So clearly from the footage he wasn't restrained by anyone until you came along. I want to put it to you one last time, Mr O'Neil, and there's no shame in this, but given the circumstances on that night, the poor lighting, the fluids, [sic] movement, everything else, is there any possibility that you could have made a mistake about my client punching the security guard?---No. (emphasis added)
But you agree with me you've [been] wrong about other things?---I acknowledge that I have been mistaken in some of the other details but - - -
That you told police?---I distinctively remember seeing him punch a security guard (indistinct) and I maintained visual contact with that person and moved forward to apprehend him. (emphasis added)
Out of all this evidence, the learned magistrate's evaluation was that Mr O'Neil had acted honestly, but mistakenly, in his assessment Mr Towler had earlier struck another security officer.
But, in my view, that is not a position that can be reached on the basis of Mr O'Neil ever conceding the point. Instead, I assess the overall trial evidence of Mr O'Neil as having remained steadfast to the contrary. In any event, an identity error is not necessarily decisive. Even if Mr O'Neil's identification was erroneous, the definition of 'reasonably suspects' under s 4 of the Criminal Investigation Act would need to be weighed as a consideration as regards a citizen's arrest being made.
It may, for instance, have been open to the learned magistrate, on the evidence, to conclude he was not satisfied Mr Towler had in fact struck another (unidentified security officer) prior to Mr O'Neil's attempts to restrain him. But given the terms of s 4, that still would not dictate that the citizen's arrest was unlawful.
Hence, even the premise of an identification error by Mr O'Neil concerning Mr Towler's prior assault conduct does not of itself undermine Mr O'Neil's ability to execute a lawful citizen's arrest upon Mr Towler, invoking s 25(2) of the Criminal Investigation Act.
What was required for s 25(2) to apply was only for Mr O'Neil to 'reasonably suspect' Mr Towler had committed, or was committing an 'arrestable offence'. An event of Mr Towler striking another security officer outside Burswood, which is what Mr O'Neil thought he saw, would clearly constitute an arrestable offence, namely an assault.
A necessary following question as to whether it was reasonable for Mr O'Neil to hold that suspicion, bearing in mind, for example, familiar issues of identification in such settings, raises only another question of fact. As such, it is to be decided and resolved on all the evidence at the trial.
It is clear, nevertheless, that a reasonable suspicion for the purposes of s 25(2) may be held, even if ultimately the factual basis underlying the suspicion proves to be mistaken. So much, I would have thought, is evident already from the text ('reasonably suspects') of s 25(2) itself.
But any lingering doubts about that outcome are removed by s 4 of the Criminal Investigation Act. The words in parentheses from s 4 (set out above) clearly recognise some scope for error, as regards the facts relied upon to found a reasonable suspicion. The question is whether, judged objectively, the grounds for suspicion were reasonable at the time. Regrettably, none of this was even raised before the learned magistrate.
Instead, his Honour appears to have been otherwise diverted. First, he made an incorrect evaluation Mr O'Neil had conceded that he may have been wrong as regards the conduct of Mr Towler he thought he had seen (reasons, 22 October 2013, ts 15).
Second, the diversion from the essence of the case, in the form of the heavy disputation over the colour of the shirt worn during the events by Mr Towler at the time when Mr O'Neil had attempted to effect a citizen's arrest upon him. As mentioned, Mr O'Neil, having been injured, gave a statement to police only some days after the events of 2 December 2012, on 17 December 2012. He then referred to Mr Towler as wearing a pale blue shirt. In fact, indisputable photographic evidence (see exhibits 10 and 11) renders it plain that another participant in the brawl, namely, Mr Jake Brewer‑Joyce (also apprehended by security officers) was the person wearing a pale blue shirt that morning. Photographic evidence shows Mr Towler had been wearing a grey coloured shirt (see exhibit 11).
Mr O'Neil's visual assessment over who he had earlier seen throw a punch at another (unidentified) security officer was heavily challenged at the trial under cross‑examination. This was essentially by reference to photographic evidence of the shirts worn respectively by Mr Towler and Mr Brewer‑Joyce before their respective arrests (O'Neil cross-examination, 10 September 2013, ts 21 - 23). On my reading of the evidence, the only concession made by Mr O'Neil was that he might have been mistaken over the colour of the shirt worn by the person he said he saw punch another security guard (O'Neil cross-examination, 10 September 2013, ts 22). But this was not a case where a witness says he saw a participant in a brawl, lost sight of the person, and then identified them later based on recollection of what they were wearing.
Shirt colours aside, Mr O'Neil's evidence was always adamant that Mr Towler was the person who he had earlier seen punch the unidentified security officer. Mr O'Neil said he kept his eye on the person who had struck that blow right up to the point at which he had restrained that person. Mr O'Neil said he had kept unbroken eye contact upon the person whom he had identified as the striker as he had entered the crowd to apprehend that person (10 September 2013, ts 34). The same person he restrained had then struck him at least twice to the face (causing Mr O'Neil to sustain a fractured cheekbone), which was an assault occasioning bodily harm to Mr O'Neil for the purposes of s 317(1) of the Criminal Code. Mr O'Neil's evidence was that he had retained his hold and restraint upon the person he had grappled with and who had struck him as the two men eventually fell to the ground. It appears Mr Towler landed on Mr O'Neil as the two men grappled and fell together, injuring Mr O'Neil's shoulder in the fall. With the assistance of another security officer Mr Towler was then handcuffed and subsequently detained at Burswood before being handed over to Police.
On that basis, ground 1 must be upheld. However, this conclusion alone does not mean the appellant's appeal must necessarily succeed.

Implications of success on ground 1

From the platform of now making out its ground 1 challenge, as it has, the appellant advances once again at the appeal its plenary contention, rejected at trial (reasons 22 October 2013, ts 15), that upon the basis of Mr O'Neil having, in effect, implemented a lawful citizen's arrest upon Mr Towler, he was performing a lawful act and s 248(5) applies.
A corrected assessment of the underlying facts upon the success of ground 1 provides a platform for the allied contention that Mr O'Neil's restraint of Mr Towler was entirely lawful for the purpose of s 25(2) of the Criminal Investigation Act.
From that premise, it is submitted s 248(5) dictates the conclusion that any 'harmful act' by Mr O'Neil upon Mr Towler was always 'lawful'. The required application of s 248(5) in such circumstances thereby precludes any defensive recourse by Mr Towler to s 248(4), by the self‑defence provisions of the Criminal Code.
That prosecution submission looks relatively straightforward, after ground 1 is upheld. However, there are two concerns I must express before that submission can be accepted. The first concern is that from my assessment of the evidence, at no time did Mr O'Neil ever communicate to Mr Towler anything by way of an indication to him that Mr Towler was then being arrested under a citizen's arrest (cross‑examination of Mr O'Neil, 10 September 2013, ts 17 - 18).
The second concern is more theoretical. A scenario of a lawful citizen's arrest for the purposes of s 248(5) could, depending on the facts, possibly escalate to one of unlawful arrest - were excessive force to be used by the arresting party: see Thomas (1992) 65 A Crim R 269. However, on the reviewed facts presented to date there has been no suggestion of excessive force being deployed by Mr O'Neil. Hence I say nothing more about that hypothetical.
As to the lack of any communication about any arrest, a need for an arrestor party to actually speak to convey that information as to arrest as well as the reason for the arrest to a person sought to be detained is, strangely, not a requirement seen to be expressly addressed, under s 25(1) or (2) of the Criminal Investigation Act. Of course, where the arresting party is an on duty uniformed police officer, then wholly different considerations, including visual cues, must apply.
The scenario of a plain clothed police officer's arrest without warrant possibly raises circumstances perhaps closer to the present. Here, of course, Mr O'Neil is not any kind of police officer. He was only a security officer privately engaged at the Burswood Resort. He had been on bicycle patrol that early morning before being called out by radio to attend the unruly events unfolding outside the Eve Nightclub. As we have seen, he was resorting to the rights of an ordinary private citizen to detain Mr Towler.
As he arrived at this scene, Mr O'Neil, as mentioned, was wearing his Burswood security officer's uniform, including his high visibility shirt. Because he had been on bicycle patrol, Mr O'Neil was still wearing his bicycle helmet. Those visual indicators as to some position of authority at Burswood were likely discernible from Mr O'Neil's attire. They may well have been visible to Mr Towler as Mr O'Neil approached him within the unhappy crowd that early morning. But that is a question of fact. There were, as the CCTV footage shows, a number of other guards, similarly attired in the engaged crowd that evening.
What then is the position in terms of information (if any) Mr O'Neil needed to communicate to Mr Towler, as Mr O'Neil approached, and attempted to effect a citizen's arrest to restrain Mr Towler? Was it still lawful conduct being manifested for s 248(5) purposes as Mr O'Neil eventually restrained Mr Towler, first by placing hands upon him, and thereby engaging in conduct that in the ordinary course would amount to an assault upon Mr Towler?
At this point it is necessary to divert to assess s 25 in a context of the common law, concerning the effecting of a valid citizen's arrest.
As we have seen, s 25 of the Criminal Investigation Act does not display by its language any guidelines, let alone a code of conduct, as regards an implementation of a valid citizen's arrest. Hence the need to consider the common law.
In assessing requirements for implementing a valid citizen's arrest it is necessary to import the assistance of the common law towards rendering an overall assessment as to what is required. Undoubtedly, however, in that process the unique presenting scenarios attending each underlying fact situation for a citizen's arrest will need to be afforded a bespoken evaluation.
Part 12 of the Criminal Investigation Act specifies when a person may be arrested, but does not specify how an arrest is to be effected. The common law still determines how a lawful arrest is to be effected: Staskos v Johnson [2014] WASC 137 [13] (Le Miere J).
Surprisingly, there looks to be a paucity of cases addressing the situation of a private citizen actually effecting an arrest when acting as a private security officer. Much case authority relates to the situation of a plain clothes police officer effecting an arrest without warrant, but that is somewhat different to a private security guard attempting to effect a citizen's arrest, as in the instant case. Nevertheless, the leading authority, Christie v Leachinsky [1947] AC 573, says the same principles that apply to police officers effecting arrests without warrant apply equally to arrests by private citizens (588).
There is a series of questions to be grappled with in order to assess whether an arrest was a valid one under the common law. Critically, for the instant case, the question is what, if any, words were required to be uttered by Mr O'Neil to Mr Towler in order for his power to validly effect a citizen's arrest to be used legitimately.
Beazley JA (as her Honour the President of the New South Wales Court of Appeal then was) in Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 recently and comprehensively sets out the principles and leading cases explaining the common law relating to a citizen's arrest. In that case, the appellant was found on private, railway owned land and asked for identification by transit officers. In response, he provided, amongst other things, his Medicare card, and his wallet, containing a Mine Rescue card. When the transit officers handed back the wallet but not the Medicare card, the appellant tried to reclaim that card and, in the process, pushed one of the officers. He was then told he was under arrest. A brawl then occurred. It was held on appeal that the officers did not meet their obligation to inform the appellant of the true reason for his arrest, and his arrest and detention therefore amounted to assault and wrongful imprisonment. The principles summarised by Beazley JA look to be equally applicable in a Western Australian context. Consequently, I propose to set out from her Honour's reasons paragraphs [29] - [32], [35] - [45] and [56] - [58], in full, below:
Principles governing arrest at common law:Christie v Leachinsky
[29]T]he arresting officer is required to inform the person arrested of the true ground on which the arrest is being made: Christie v Leachinsky.
[30]In Christie v Leachinsky Viscount Simon summarised the principles that govern a lawful arrest in the following propositions, at 587 - 588:
'(1)If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(2)If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
(3)The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
(4)The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed.
(5)The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away.'
His Lordship observed that there may be exceptions (other than those stated in propositions (3) and (5)) to the general rule that a person is entitled to know the substance of the reason he is being deprived of his personal liberty. His Lordship also indicated that the propositions he had enunciated were not intended to constitute a formal or complete code. Rather, they indicated 'the general principle of our law on a very important matter'.
[31]Viscount Simon considered, at 586, that according to 'text books of acknowledged weight and in cases actually decided' it was established that:
'… in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested.'
[32]The terminology used in these old authorities varied somewhat and may be the cause of some variation of the language used by their Lordships. This in turn raises a question whether there is a difference in the statement of principle amongst their Lordships, a matter considered by Ipp JA in New South Wales v Delly [(2007) 70 NSWLR 125] to which I return below.
…
[35]The next major opinion was that of Lord Simonds, who approached the consideration of whether an arrest was lawful first by looking at the position where a person was arrested upon a warrant. His Lordship observed that in that case, 'the warrant should state the charge upon which the arrest is made'. His Lordship continued (at 592):
'I can see no valid reason why this safeguard for the subject should not equally be his when the arrest is made without a warrant. The exigency of the situation, which justifies or demands arrest without a warrant, cannot as it appears to me, justify or demand either a refusal to state the reason of arrest or a mis-statement of the reason.' [emphasis in reasons of Beazley JA]
(Having regard to the facts of Christie v Leachinsky, it is likely that his Lordship's comment as to the misstatement of the reason was directed to the circumstances where a person was purportedly arrested without warrant for one offence, when in fact the arresting person had in mind another offence altogether. This statement has importance to the matters before the Court for reasons to which I will return.)
[36]    At 593, his Lordship stated that 'the arrested man is entitled to be told what is the act for which he is arrested', although it was not necessary for there to be any technical precision in the words used. As his Lordship observed, at 593:
'… it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The "charge" ultimately made will depend on the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary: for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. This is, I think, the fundamental principle, viz., that a man is entitled to know what … are "the facts which are said to constitute a crime on his part." If so, it is manifestly wrong that a constable arresting him for one crime should profess to arrest him for another. Of what avail is the prescribed caution if it is directed to an imaginary crime? And how can the accused take steps to explain away a charge of which he has no inkling?' [emphasis in reasons of Beazley JA; citation omitted in those reasons]
[37]    Lord du Parcq, after reviewing the old authorities, stated, at 598:
'The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative.'
[38]His Lordship considered, at 599 - 600, that the following cross‑examination of the arresting officer correctly stated the duty imposed by the common law:
'(Q) -- When a man is arrested, immediately on arrest he is told what he is arrested for, is he not? -- By me; I always tell him what he is arrested for.
(Q) -- The law is, even if you be a police officer of the highest rank, you cannot detain a man without telling him why he is detained, can you? -- He should be told why he is detained.
(Q) -- At once? -- Yes.
(Q) -- Meaning by "at once" the earliest reasonable moment? -- The earliest reasonable moment.'
[39]His Lordship then stated, at 600:
'The omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a mere irregularity. Arrest and imprisonment, without a warrant, on a charge which does not justify arrest, are unlawful and, therefore, constitute false imprisonment, whether the person making the arrest is a policeman or a private individual.'
[40]Finally, Lord du Parcq observed, at 601:
'If when a charge which does not justify arrest has been expressly made the person charged is entitled to resist apprehension, I find it impossible to suppose that the law will hold the arrest good if it subsequently appears that the officer had in his own mind an unexpressed suspicion that a felony had been committed … But, if a reason has been stated which is, on the face of it, insufficient to justify arrest without warrant, no man could safely defend his liberty if some other ground for the arrest, which the officer had deliberately chosen to conceal from him, could subsequently be brought forward by way of justification.'
(Lords Thankerton and Macmillan each agreed with the opinions of the other members of the House of Lords.)
[41]The rationale for the principle stated in Christie v Leachinsky was explained by Ipp JA in New South Wales v Delly at [9], where his Honour said:
'The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591 - 592) per Lord Simonds; Taylor v Chief Constable of Thames Valley Police [[2004] 1 WLR 3155 at [21]] per Clarke LJ.'
[42]In a case such as the present, one could add to the factors referred to by his Honour above, the proposition that if a person is sufficiently informed that a failure to comply with an official direction is an offence, the person may have an opportunity to conduct herself or himself in such a way that no offence is committed.
[43]Ipp JA’s observation that persons are entitled to know why they are being arrested, itself has an underlying rationale, namely, that a person is not to be deprived of her or his liberty without lawful cause. Indeed, a person’s personal liberty has been described as the most basic human right or freedom: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 per Gleeson CJ at [19]. The corollary is that 'arrest is the deprivation of freedom': Donaldson v Broomby [1982] 40 ALR 525; (1981) 60 FLR 124 per Deane J at 126:
[44]    That this fundamental entitlement to personal liberty underpins the principles stated in Christie v Leachinsky, is apparent from the observation of Viscount Simon, at 585, that:
'… a citizen who is prima facie entitled to personal freedom should know why for the time being his personal freedom is interfered with.'
[45]    His Lordship stated that this principle was a 'matter of substance'.
…
[56]… What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what that suspected offence is.
[57]The question whether what the person was told was sufficient 'has to be assessed objectively having regard to the information which is reasonably available to the officer': Abbassy v Cmr of Police of the Metropolis [1990] 1 All ER 193 per Woolf LJ at 197. His Lordship referred to Taylor v Chief Constable of Thames Valley Police at 3164. In Taylor, Clarke LJ considered that the 'best statement' of these principles was to be found in Fox v UK (1991) 13 EHRR 157, where the European Court of Human Rights stated:
'… any person arrested must be told in simple, non‑technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness … Whether the content … of the information conveyed [is] sufficient is be assessed in each case according to its [own] special features.'
A similar approach had been taken by Manse LJ in Wilson v Chief Constable of the Lancashire Constabulary [2000] All ER (D) 1949.
[58]The reference in Fox v UK to the need to state the 'legal grounds' for arrest undoubtedly derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 5(2), which provides that a person must be told the reason for the arrest and any charge against him. The common law principle does not require a statement of the charge. Nonetheless, there may be circumstances in which the crime has to be indicated.

From that extensive discussion, I can discern two crucially important common law principles. The first is that ordinarily a person purporting to place another under arrest must sufficiently communicate that fact. Second, it is not enough merely to communicate the fact of a purported arrest - it is necessary also to disclose the reason for the arrest, albeit the extent of the information required will depend on the circumstances of the particular case.
More recently, in Staskos v Johnson [2014] WASC 137, Le Miere J has clarified some further principles in relation to citizen's arrests relevant to this appeal. His Honour explained:
[18][I]t is a condition of a lawful arrest that the person arrested is entitled to know the grounds for the arrest and to be informed of the reasons for the arrest. There are exceptions to the requirement that the arrested person be informed of the reasons for arrest. One exception is where the arrested person must have known the general nature of the offence for which the person is being arrested. Knowledge that the arrested person has committed some offence is not sufficient. It is the circumstances of the arrest that govern the issue, not the subjective knowledge of the arrested person that she has engaged in conduct that would justify arrest: State of New South Wales v Delly (2007) 70 NSWLR 125 [17] - [18] (Ipp JA).
…
[19]A further exception referred to by Viscount Simon in Christie v Leachinsky is that the person arrested cannot complain that she has not been informed of the reasons for her arrest if she herself produces the situation which makes it practically impossible to inform her, for example by immediate counter-attack or by running away.
…
[22]The lawfulness of an arrest may fluctuate between lawful and unlawful: see Michaels v The Queen (1995) 184 CLR 117; Mackenzie v The Queen [2004] WASCA 146 [53] - [60] (Wheeler J); Norton v The Queen [2001] WASCA 207. After the appellant had been taken to the ground Senior Constable Robinson informed her that she was under arrest for disorderly conduct. At that stage the arrest may have been lawful. However, that occurred after the appellant had assaulted Senior Constable Robinson. At the time the appellant assaulted Senior Constable Robinson, Senior Constable Robinson had not effected a lawful arrest. Senior Constable Robinson was not acting in the performance of her functions at the time she was assaulted by the appellant.
It emerges from those cases, first, that it may not be necessary in the presenting circumstances to verbalise the fact of the intended arrest although that would certainly seem the norm. Nevertheless, the circumstances may render such a communication redundant. Next, there is usually a communication of the basis of an arrest which, however, does not need to be explained to an arrestee in the same detail as an indictment. Nevertheless, the arrested person needs to know what they are alleged to have done: State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125 [8] (Ipp JA). But again, the presenting circumstances may be enough.
As a general rule, the accused person is entitled to know the grounds for the arrest, although that might change if the person resists arrest, or flees, or is 'caught red‑handed and the crime is patent to high Heaven': Staskos v Johnson [16], Christie v Leachinsky, 593. Moreover, in Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385, Woolf LJ pointed out that the issue of whether the information conveyed is adequate has to be approached objectively on the basis of what is reasonably available to the arresting officer (or citizen, as here). His Honour gave the example of a police officer explaining the reasons for an arrest to a person who, unbeknownst to the officer, is actually deaf - the question is 'what a reasonable person would have done in the circumstances': 392.
If a citizen's arrest has been validly executed, and is therefore a lawful use of force, then the arrested person is not entitled to resist. Conversely framed, if a purported citizen's arrest is incorrectly executed with insufficient words and thereby becomes unlawful, then the affected person is entitled to resist. Such an arrest amounts to an unlawful deprivation of liberty.
In light of all this, I will need, in the end, to leave the questions as to the overall lawfulness of Mr O'Neil's attempted citizen's arrest of Mr Towler to the finder of fact (magistrate) upon any rehearing of the trial.
Depending on the issues arising as they appear from the evidence, the learned magistrate may need to determine whether the arrest was and remained lawful, and whether Mr Towler was entitled to resist his arrest by Mr O'Neil in the way he did.

Conclusions as to ground 1

It is clear that Mr O'Neil by his evidence accepts he said nothing at any stage to Mr Towler (10 September 2013, ts 17 - 18).
As we have seen, at common law a citizen's arrest can be validly effected even by brief words to the effect of 'I am arresting you' or words to that effect. But here, not even that was said.
If Mr O'Neil's attempted citizen's arrest of Mr Towler is ultimately assessed as lawful conduct by Mr O'Neil, then by reason of s 248(5) of the Criminal Code, there will be no occasion to consider any potential activation of s 248(4) in Mr Towler's defence. In such circumstances, the issue of self‑defence would not be live.
On the other hand if Mr O'Neil's attempted arrest is assessed as unlawful conduct, and then s 248(5) does not apply, it will still remain necessary to assess whether, in terms of all underlying circumstances, the defence of self-defence was enlivened and not negated at Mr Towler's trial. To that end it remains necessary to consider the underlying law concerning the establishment of a defence by s 248(4) of the Criminal Code.
Towards those residual circumstances, I need to proceed to consider ground 2, in relation to the prosecution's further contention on this appeal that, aside from the plenary work of s 248(5) in terms of taking self‑defence off the table completely, nevertheless the overall state of the trial evidence was such that s 248(4) was not factually enlivened or, if it was, that it was negated by the prosecution on the evidence.
As will be seen, the decision of Mr Towler at his trial not to give evidence in his defence now becomes a crucial ingredient in that overall assessment.

Ground 2: did the prosecution fail to negate self‑defence?

Appeal ground 2:
The learned magistrate erred in fact and in law in finding that the prosecution had failed to negate the defence of self defence.
Mr Towler made significant admissions at his trial, pursuant to s 32 of the Evidence Act 1906 (WA). He accepted that he hit and struck Mr O'Neil and that, as a result, Mr O'Neil had sustained a fracture to his collarbone and cheekbone from the incident (reasons, 22 October 2013, ts 10 - 15).
Nevertheless, Mr Towler invoked self-defence under s 248(4). It was found by the learned magistrate, in the end, that the prosecution failed to prove beyond reasonable doubt Mr Towler did not act in self-defence (reasons, 22 October 2013, ts 19).
Given Mr Towler did not give any direct evidence in his own defence at his trial, it is intellectually challenging to contemplate how Mr Towler was able to put into play self‑defence under s 248(4), which requires, amongst other things, the proof of the defending person's subjective beliefs, as key required elements under s 248(4) of the Criminal Code.

Legal principles: self‑defence

It is necessary to render some observations concerning the law as to the defence of self-defence at the time of this incident.
Section 248 relevantly provided:
248.Self‑defence
(1)In this section -
harmful act means an act that is an element of an offence under [Part V] other than Chapter XXXV [ie, provisions relating to criminal defamation].
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
(3)…
(4)A person's harmful act is done in self‑defence if -
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
(5)A person's harmful act is not done in self‑defence if it is done to defend the person or another person from a harmful act that is lawful.
(6)For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
It is of some utility to first recall the position in relation to self‑defence at common law, recently examined by the Western Australian Court of Appeal in May v Thomas [2014] WASCA 176 [37]:
[37]Self-defence at common law was succinctly described by Wilson, Dawson & Toohey JJ:
'[T]he law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self‑defence to do what he did. (citing Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645, 661).'
The current Criminal Code (WA) statutory iteration of self-defence by s 248, whilst starting from the same underlying premises, encapsulated under Zecevic, is rather more complicated.
For the statutory defence of self-defence in Western Australia a leading decision is Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 (Martin CJ, Buss & Mazza JJA). I note dissection of the statutory elements of s 248(4) of the Criminal Code by Buss JA at between [84] - [98]. I need only set out [95] - [96].
[95]So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
[96]If the accused satisfies the evidential onus in relation to self‑defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt.
Unpacking the criteria as explained in Goodwyn, towards a potential application of s 248(4) to presenting circumstances, the core questions here for resolution look to be:
(a)Did Mr Towler (subjectively) believe that punching Mr O'Neil in the face was necessary to defend Mr Towler from being tackled and restrained by Mr O'Neil (s 248(4)(a))?
(b)Was the punching of Mr O'Neil in the face by Mr Towler a reasonable (objective) response by Mr Towler in all the circumstances as Mr Towler (subjectively) believed them to be (s 248(4)(b))?
(c) Were there reasonable (objective) grounds for Mr Towler's (subjective) belief that punching Mr O'Neil in the face as he did was necessary to defend Mr Towler (s 248(4)(a) read with s 248(4)(c))?
(d)Were there reasonable (objective) grounds for Mr Towler's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c))?
It can be seen factors (a) and (b) above envisage there must be some trial evidence concerning the state of mind of Mr Towler as to his beliefs, first, as to his necessary defence against a harmful act to him, then second, as to the presenting circumstances which Mr Towler believed to exist at the time. There must then be some evidence addressing the subjective state of mind of Mr Towler upon those issues, before his beliefs and actions are then tested as required against objective standards as being reasonable. It may be, depending upon the precise evidence, the issue of subjective beliefs could be gathered as a matter of overall inference from underlying facts.
Once an evidential basis (see Goodwyn at [96]) to enliven self‑defence emerges, then the burden passes to the State to negative self‑defence, by excluding (at least) one of the key elements beyond any reasonable doubt.
Against that legal standard to raise self‑defence, and particularly to show the four key elements of s 248(4) identified in Goodwyn, I now move to assess the trial evidence.
Because Mr Towler elected to not give evidence at his trial, the key evidence became Mr Towler's VROI.
The essence of the VROI has been captured and summarised, without challenge, by the appellant's outline of submissions of 21 February 2014, at par 10. From it there are summarised some key statements bearing upon the task of ascertaining the s 248(4) essential beliefs of Mr Towler at the time of his attempted arrest by Mr O'Neil. This evidence was essentially, as summarised:
'Shit got out of hand', 'I lashed out I guess', 'Can't remember much of that; they carried me to the cell', 'Boys were getting pretty lippy to them', 'Someone must have done something to my right as the "shit hit the fan"', 'One of the boys was on the ground and that's when I stepped in. There was another fight to my left straight away. Everyone started jumping in since the first fight. We were up against the fence', 'This is where I was stupid and I jumped in. I didn't even know the guy who was on the ground. I didn't even know what he had done for them to get him. They seemed to be a bit excessive', 'It's just a blur. It just goes blank straight there. I guess I lost it. I think someone tried to get me and I started losing it. Started pushing them and shit with my hands, pushing them away from me. I think they tried to push me away', 'Then I ended up punching them, I guess. We ended up getting tackled and wrestled', 'I don't recall doing anything. I don't even know what happened. I ended up punching the guys that were attacking us. Didn't remember hitting or striking them or grabbing them by the head. I was pissed. I was really drunk. Adrenaline, I guess', 'I remember resisting. I didn't want a bar of it. I wanted to get out of there. One of the guys wearing a pushbike helmet was one of the guys that was arresting me. I resisted arrest by not letting him arrest me. They didn't need to arrest me', and finally, 'Didn't remember hitting the guy with the helmet or anyone in the face. Don't know why I punched him … ' (my emphasis)
Accepting that is a truncated summary, nevertheless, looked at in its entirety, the crucially important VROI evidence of Mr Towler, measured as regards the Goodwyn criteria to raise self‑defence, was as incoherent as it was inconsistent.
How from the VROI evidence was self‑defence ever enlivened as to the s 248(4) subjective beliefs of Mr Towler? That was required as was explained in Goodwyn, as regards the doing of a harmful act to Mr O'Neil by Mr Towler being necessary (by striking Mr O'Neil repeatedly to the head) to defend Mr Towler from a harmful act from Mr O'Neil or any other security guard (presumably by being restrained by Mr O'Neil), and further as to an existence of a subjective belief in Mr Towler as to the presenting circumstances - to provide a basis for a self‑defence response.
Apart from that (unhelpful) VROI, there was no other meaningful evidence about the subjective beliefs of Mr Towler at the time, for the purposes of activating s 248(4) in his favour. That is the key forensic difficulty for Mr Towler. Evidently, this gaping deficiency was not appreciated by the learned magistrate in reaching what he called his 'line‑ball' decision.
By analogy, I mention the law concerning a distinct, but related, defence of duress. In Micalizzi v The State of Western Australia [2013] WASCA 96 Buss JA observed that in the circumstances of that case
[i]t was necessary for the appellant to give sworn evidence at the trial to satisfy the evidential onus in relation to his alleged belief that he was transporting cash and his alleged defence of duress. There was no evidence, apart from the appellant's sworn evidence, on these issues. As to the necessity for evidence from the appellant about the alleged duress, see Smith v The State of Western Australia [2010] WASCA 205 [17] ‑ [18] (McLure P, Owen JA agreeing). (my emphasis in bold) [116]
That position is consistent with observations in the High Court, as regard a defence of compulsion under the Queensland Criminal Code, see Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 [5] (French CJ, Heydon, Crennan, Kiefel & Bell JJ).
The position accords with appellate authority upon s 248(4). To that end, I mention observations of Mazza JA in O'Neill v The State of Western Australia [2013] WASCA 158:
Based on the testimony of Ms Shiminski, there was evidence that the appellant had done a harmful act (biting the ear) to the complainant. However, there was no evidence, taken at its highest in the appellant's favour, that the appellant did so believing that the act was necessary to defend his son John. The appellant did not give evidence to that effect and there was nothing from the surrounding circumstances that would enable a jury to reasonably infer that the appellant had that belief. No jury, properly instructed, could have had a reasonable doubt that this element of the defence under s 248(4) had been negatived [122]. (my emphasis in bold)
To the same end were observations of Pullin JA at [19] ‑ [25]. The thrust of those observations was, in practical terms, that s 248(4) requires a close enquiry into the state of mind of the accused when raising such defences.
One may obviously accept a court could draw inferences about the state of mind of an accused, based wholly on externally observable facts. An obvious case is, say, where a person shoots at a police officer, then the officer fires back. Such circumstances are themselves such as to suggest there may be a reliable inference drawn about why the police officer responded in an act of self‑defence. But the present facts are not so clear and this assault incident as between Mr Towler and Mr O'Neil presents as complex to evaluate from Mr Towler's self‑defence perspective, just as a matter of bare inference.

Evaluation: ground 2

Forensically, it may be necessary for a defendant claiming to have acted in self-defence to elect to give evidence in their own defence at trial. This is especially so, given that their own state of mind (ie, beliefs) at the time of an offence are essential to the establishment of two elements of s 248(4), as elucidated by Goodwyn.
An accused is a competent witness for the defence but, of course, not a compellable witness for the prosecution. An accused shall not be so called upon except upon his own application (Evidence Act 1906 (WA), s 8(1)(a)):
8.Accused persons in criminal cases
(1)Except as in this Act it is otherwise provided, every person charged with an offence shall be a competent but not a compellable witness at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person. Provided as follows:
(a)a person so charged shall not be called as a witness except upon his own application;
…
Here, Mr Towler elected not to give evidence. The only other viable direct trial evidence available to ascertain Mr Towler's state of mind at the time is from his unsworn VROI to police, immediately after he was arrested. That is unhelpful as seen.

Absent Mr Towler's direct evidence there is nothing else I can ascertain in the trial record helpful to him so as to suggest as reasonably open Mr Towler's requisite subjective beliefs for the purpose of meeting an evidential burden to enliven self‑defence, under s 248(4). The key evidence appears to be Mr Towler's unsworn out of court VROI. But the VROI is unhelpful to Mr Towler. It fails by a considerable measure to deliver any exculpatory evidence of Mr Towler's requisite s 248(4) beliefs at the time. In fact, quite the contrary. Absent necessary evidence as to belief, a basis to proceed further to an evaluation of the objective reasonableness of beliefs held by Mr Towler did not arise at this trial.
Beyond the VROI, it is impossible to ascertain how, on the trial evidence, it was ever open to assess Mr Towler's conduct against Mr O'Neil as being a 'reasonable response', for the purposes of s 248(4), if it was relevant in the circumstances.
In submissions, Mr Ryan referred to a number of surrounding circumstances as arguably relevant. These included the fact that Mr Towler did not initiate the brawl with the security guards (that having been Mr Brewer‑Joyce); that the group which Mr Towler was part of was backed up against a fence; that Mr Towler did not punch one of the security guards; and that he appeared to be moving backwards as Mr O'Neil approached him, arms raised. On this basis, it was submitted, the Court could draw the necessary inferences about Mr Towler's state of mind, at least at the level of a reasonable hypothesis. The difficulty is that the notion of drawing any hypothesis about a definite state of mind runs up against the total confusion presented by Mr Towler in his VROI, which seems to alternate between ill-defined objections to being unnecessarily 'arrested', and admissions about 'lash[ing] out', 'adrenaline' or indeed punching Mr O'Neil when he doesn't 'know why'. A finder of fact should be highly cautious about drawing an inference about the state of mind of an accused under s 248(4), where that is inconsistent with the inference arising from admissions by the accused about their state of mind: see, for example, O'Neill v The State of Western Australia [19], [22] - [24] (Pullin JA), [122] - [123] (Mazza JA) (referred to above).

Evaluation - reasonable response s 248(4)

Even if there was no lawful s 25 citizen's arrest being effected by Mr O'Neil, in evaluating a s 248(4) defence of Mr Towler it was necessary to consider whether Mr Towler's harmful act was a 'reasonable response', in the circumstances as Mr Towler believed them to be.
For this appeal, Mr Towler's evidence, emanating significantly from the content of his VROI, was essentially, 'I think someone tried to get me', 'I think they tried to push me away', 'We ended up getting tackled and wrestled', 'I resisted arrest … . They didn't need to arrest me'.
The situation in Mr Towler's mind at the time, putting things kindly, is quite unclear.
Taken at its highest, it may just be open to conclude Mr Towler believed that Mr O'Neil (or someone else) was seeking to take a hold of him, bring him to the ground, and restrain him there. How, in that situation, it would be open to conclude that punching Mr O'Neil repeatedly, with force sufficient to break his cheekbone (zygoma) was a 'reasonable response', is not apparent. The phrase 'reasonable' imports a degree of proportionality between the original offence and the response, which here seems to be lacking on the facts.
Ground 2 must be allowed.

Ground 3: inadequacy of the learned magistrate's reasons

As ground 2 succeeds, it is strictly unnecessary to consider ground 3. Nevertheless it was argued and I deal with it.
3.The learned magistrate gave reasons that were inadequate and failed to disclose his reasoning for concluding that the appellant had not negated self-defence beyond reasonable doubt, such as to give rise to a miscarriage of justice.
As regards the trial conclusion of self-defence, this later ground is that no adequate reasons were provided.
It is necessary to more closely examine what the learned magistrate said.
I set out these further extracts from the transcript of the reasons on 22 October 2013:
But the issue for me is was the accused acting unlawfully and even within the video record of interview, there is an expression of some degree of remorse by Mr Towler. But the issue for me is was Mr Towler acting unlawfully at the time, quite apart from those injuries. In terms of the elements of the offence, there is the admission that there was an assault. There's an admission that there was bodily harm. The issue really is whether or not, as I have said, the accused was acting unlawfully and the accused claims to have acted in self‑defence, and it's important that in making that assessment that I also turn my mind to the issue of whether the force used or the response by Mr Towler was excessive (ts 11 ‑ 12).
There is a discernible paucity in the reasoning of the learned magistrate in relation to his addressing of self-defence; particularly in relation to s 248(4) (reasons, 22 October 2013, ts 8). The four required elements from Goodwyn were mentioned. However, that is as far as the learned magistrate seemed to take it (reasons, 22 October 2013, ts 19). Significantly, there presented no attempted application of those elements as against the particular presenting facts of the case within the reasons. This was, rightly, conceded by counsel for the respondent at the appeal (ts 41).
Nevertheless, the respondent's written submissions then raised six asserted findings by the learned magistrate, in order to support a self‑defence outcome. The six points were set out in par 19 of the respondent's submissions:
1.The respondent had not been involved in the altercation on the dance floor in the nightclub (reasons, 22 October 2013, ts 12 ‑ 13);
2.There had been no decision by Crown staff to withdraw consent for the respondent to remain on the Crown venue (reasons, 22 October 2013, ts 13);
3.There was no evidence of any misconduct by [Mr Towler] at the point when Mr O'Neil rushed at him and there was no suggestion that at that point of time or prior to that point in time there had been any misconduct or aggression by Mr Towler (reasons, 22 October 2013, ts 16);
4.[Mr Towler's] behaviour, as demonstrated by CCTV footage, was not aggressive, disruptive or provocative and for all intents and purposes, prior to the blows being struck [by Mr Towler to Mr O'Neil], [Mr Towler] was passive, cooperative and compliant (reasons, 22 October 2013, ts 16);
5.It was Mr O'Neil who had rushed towards [Mr Towler]. [Mr Towler] had not moved towards Mr O'Neil; it was Mr O'Neil who was the aggressor (reasons, 22 October 2013, ts 17);
6.The contact between [Mr Towler] and Mr O'Neil was initiated by Mr O'Neil and it was [Mr Towler] who responded to that aggression (reasons, 22 October 2013, ts 18).
The respondent also relied on a summary of the learned magistrate's reasoning:
That being the case, that is, the finding that on the prosecution has not discharged the burden of proof which rests entirely with the WA Police to prove the guilt of the accused beyond a reasonable doubt, that he was not acting in self‑defence at the critical moment when Mr O'Neil, in security clothing and in the presence of many others, when he rushed at Mr Towler with his arms raised, whilst alongside Mr Towler, his best mate [a reference to Mr Jake Brewer‑Joyce] was on the ground with security persons over him, including holding his head to the ground - in all of those circumstances - the guilt of the accused has not been proved beyond a reasonable doubt (ts 19).
Reference to Mr O'Neil having his arms raised was explained during the course of the appeal. Correctly understood, it was a reference to the CCTV footage which showed Mr O'Neil with his arms extended horizontally in the direction of Mr Towler whilst advancing towards him, in the act of attempting to restrain Mr Towler (appeal, 25 June 2014, ts 31, 42, 45). There is no suggestion, for instance, that Mr O'Neil had raised his arms in any action of seeking to punch, strike, or inflict any blow to Mr Towler. Mr O'Neil's extended arms were a part of efforts to restrain Mr Towler (see evidence of Mr O'Neil, 10 September 2013, ts 30 ‑ 31).
The obligation to provide reasons for decision is an important adjunct of a criminal trial before judge sitting alone, or magistrate: see in particular the extensive discussion by Heydon J in AK v The State of Western Australia [2008] HCA 32; (2008) 232 CLR 438 [89] - [108] (that case dealing with a charge on indictment tried before a judge). As to the standard applicable to magistrates, I refer to the reasons of Hall J (Pullin and Murphy JJA agreeing) in Manonai v Burns [2011] WASCA 165 [51] - [61]. At [54], Hall J quoted the following passage from the reasons of Steytler P in Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525:
While it is true that overly elaborate reasons are not required from a trial judge, especially so in criminal trial proceedings in which a prompt outcome is necessary, where one set of evidence is accepted over a conflicting set of significant evidence a trial judge is required to set out his or her findings as to how it is that the one has been accepted over the other: Beale v Government Insurance Offıce (NSW) (1997) 48 NSWLR 430 at 443 per Meagher JA; Mount Lawley Pty Ltd v Planning Commission (WA) (2004) 29 WAR 273 at 282-283. Moreover, it is essential that the reasons adequately disclose the intellectual processes which have resulted in the decision: Garrett v Nicholson (1999) 21 WAR 226 at [73] - [74] per Owen J. It is well accepted that, where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party cannot know whether there has been a mistake of law or of fact: Carlson v King (1947) 64 WN (NSW) 65 at 66 per Jordan CJ; Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 - 388 per Moffitt JA; Lloyd v Faraone [1989] WAR 154 at 162-163 per Malcolm CJ; Mount Lawley (at 282-283). [32]
Hall J further noted the effect of s 31 of the Magistrates Court Act 2004 (WA), applicable to both civil and criminal proceedings, and limiting the need for elaborate canvassing of all evidence, factual or legal arguments or arising issues. As his Honour said, it is necessary to bear in mind the 'summary nature of proceedings in the Magistrates Court', and focus on the 'substantive content of the reasons rather than their length' [56]. Even so, in the present case, there is a demonstrable paucity of reasoning concerning how it came to be that the learned magistrate was satisfied that some coherent evidence had emerged touching upon Mr Towler's subjective beliefs relevant to s 248(4) for the purpose of enlivening that defence.
Counsel for Mr Towler made sustained endeavours to buttress and rehabilitate the reasons of the learned magistrate. However, it was always in the end clear that there was a complete failure by the learned magistrate to engage against four key requirements of s 248(4). This difficulty manifested, in particular, regarding, first, the state of the evidence concerning beliefs subjectively held by Mr Towler at the time, as regards Mr Towler's harmful act (of punching Mr O'Neil) being necessary. Second, there is no discussion about what the presenting circumstances were, as Mr Towler believed them to be, for the purpose of assessing whether his striking Mr O'Neil was a 'reasonable response' to those circumstances as he believed them to be. That exercise was not even attempted for the present case. But it was a necessary precondition even before any objective exercise under s 248(4)(c) as regards assessing reasonable grounds for such subjective beliefs was applied. In that regard, Mr Towler did not, as mentioned, give evidence on his behalf at the trial. Nevertheless, there was his VROI, the content of which I set out at page 32.
Analysis of Mr Towler's incoherent VROI evidence provides no assistance towards identifying why it was Mr Towler might have thought it necessary for him to strike Mr O'Neil as he did, at least twice to the face and thereby inflict bodily harm on him by fracturing his cheekbone. This issue is not found addressed at all in the learned magistrate's reasons as it should have been.
Ground 3 of the appeal must be upheld as well.

Conclusion

The appeal must, therefore, be allowed on all grounds and the matter, as requested by the prosecution, will be remitted for a retrial before another magistrate.