Labriola v Morgan
[2017] WASC 256
•30 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LABRIOLA -v- MORGAN [2017] WASC 256
CORAM: TOTTLE J
HEARD: 6 APRIL 2017
DELIVERED : 30 AUGUST 2017
FILE NO/S: SJA 1037 of 2016
MATTER :Criminal Appeals Act 2004 Part 2
and
Prosecution Notice Number BU 5962/2015 in the Magistrates Court of Western Australia at Bunbury
BETWEEN: TOR RICHARD LABRIOLA
Appellant
AND
SEAN IVOR RAYMOND MORGAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE B P MAHON
File No :BU 5962 of 2015
Catchwords:
Application for leave to appeal against conviction - Obstructing a police officer in exercise of power - Criminal Code s 172(2) - Whether reasonable suspicion that appellant had committed serious offence - Criminal Investigation Act s 172(2) - Suspected breach of violence restraining order - Restraining Orders Act s 61(1) - Whether appellant obstructed police officer
Legislation:
Criminal Code 1913 (WA)
Criminal Investigation Act 2006 (WA)
Restraining Orders Act 1997 (WA)
Result:
Leave to appeal in respect of each of the grounds in the appellant's notice refused
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr B Murray
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Caratti v Potts [2015] WASC 86
Elwin v Robinson [2014] WASCA 46
Fox v Beringer [2011] WASC 38
George v Rockett (1990) 170 CLR 104
M v The Queen (1994) 181 CLR 487
Maines v Roy (1990) 1 WAR 508
Ogbonna v Lay (2013) WASC 266
O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286
R v Nguyen [2013] SASCFC 51; (2013) 117 SASR 432
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
TOTTLE J:
Introduction
The appellant was convicted of obstructing a public officer contrary to s 172(2) of the Criminal Code 1913 (WA) on 6 May 2016 following a trial in the Bunbury Magistrates Court. He was fined $800 and ordered to pay costs.
The prosecution case was that the appellant obstructed two police officers, Acting Sergeant Woods and Constable Jones, by resisting arrest. The arrest was made pursuant to s 128(2) of the Criminal Investigation Act 2006 (WA). This provides that a police officer may arrest a person if the officer reasonably suspects that person has committed a serious offence. For the purpose of s 128(2), a serious offence includes a breach of a violence restraining order under s 61(1) of the Restraining Orders Act 1997 (WA).[1] The prosecution case was that the acting sergeant reasonably suspected the appellant of having committed an offence by breaching a violence restraining order.
[1] Section 128(1) of the Criminal Investigation Act provides that the definition of 'serious offence' for the purpose of the s 128(2) includes an offence under s 61(1) of the Restraining Orders Act 1997 (WA). Section 61(1) makes it an offence a person who is bound by a violence restraining order to breach that order.
The magistrate found the arrest was lawful. His Honour was satisfied that Acting Sergeant Woods reasonably suspected the appellant had breached a violence restraining order and that the appellant had obstructed the officers.
The appellant raises a number of grounds of appeal by which he challenges these findings.
The appellant represented himself both at the appeal and at the trial before the magistrate.
Background
On 16 August 2015, the appellant's former partner complained about the appellant's presence at a dog training class attended by her. The appellant's presence was allegedly in breach of the violence restraining order.[2] The complaint caused the police to create an incident report.
[2] The incident report is attached as Annexure A to these reasons.
On 20 October 2015, the appellant and his former partner (the complainant) attended a court hearing at the Bunbury Magistrates Court. After the hearing, the appellant got into his car and drove past the Bunbury police station. The complainant was standing outside the police station with Acting Sergeant Woods and Constable Jones. She identified the appellant.
Acting Sergeant Woods directed the appellant to stop, park and get out of his car. He informed the appellant he was under arrest on suspicion of having breached a violence restraining order. The appellant considered the arrest was unlawful and asked for more information. At some stage, the appellant made a movement that caused the officers to believe that he might try to flee, which in turn caused the officers to take hold of him.
The evidence then diverges. The prosecution case was that after the officers took hold of the appellant he tensed up and pulled away. The officers interpreted this as the prelude to resistance and used rear arm locks to restrain the appellant. Acting Sergeant Woods gave evidence that the appellant continued to resist once the arm locks had been applied by trying to stand up when it would have been easier to bend forward, and by digging in his heels as the officers tried to walk him to the police station.
The appellant, however, submitted that he experienced a moment of shock and surprise when the officers took hold of him, which the officers misinterpreted as resistance. He submitted the rear arm locks forced him in opposite directions, causing him pain, and causing each officer to feel as if he were resisting and non‑compliant.
Acting Sergeant Woods informed the appellant of the reason for the arrest, cautioned him and explained his rights as an arrested person under the Criminal Investigation Act. He then told the appellant the actions that constituted the offence of obstruction.
The magistrate's reasons
The magistrate gave extemporaneous reasons. His Honour directed himself as to the onus and standard of proof, the presumption of innocence and the rules against drawing inferences adverse to an accused.[3]
[3] ts 6 May 2016 (91-95).
The magistrate identified the two issues upon which he considered the case turned as the third and fourth elements of the offence of obstruction which he outlined as follows:[4]
The third and fourth elements are really where this case turns. The third element, in my view, is that the complainant, or in our case, the complainants were performing on account of a function of that public office, and that's one issue which is a point that is fairly and properly taken by Mr Labriola as to whether particularly Acting Sergeant Woods had the necessary prerequisite knowledge and belief as set out in section 128 of the Criminal Investigation Act, which is effectively where the power of arrest arose in this particular case …
[4] ts 6 May 2016 (90).
The magistrate went into the third element in some detail before returning to the fourth element:[5]
the fourth component, of course, is this, that the complainant - or in our case, perhaps the complainants – were obstructed in the performance of the function.
[5] ts 6 May 2016 (91).
After setting out the uncontested facts, the magistrate referred to the evidence of Acting Sergeant Woods' about the incident report:[6]
It seems to me here it's common ground that the facts that we have got - and we know there is an incident report because we have got a copy of it.
The sergeant certainly gave evidence in relation to alert - an alert, and I'm not sure in my own mind as to whether the alert refers to some sort of entry on the computer system or whether the alert, frankly, with a small A. It seems as though - certainly both Woods and Jones both, in my view, alluded to - and Jones certainly said the words 'common knowledge'. It was 'common knowledge' that Mr Labriola was wanted in relation to the alleged breach of violence restraining order.
Now, it seems right, and under cross-examination also, Acting Sergeant Woods maintained his position. He knew about the incident report. Mr Labriola asked him whether he knew, not chapter and verse, but whether there were signed witness statements and those sort of things, and frankly, the sergeant said effectively, 'I believe so but I can't say it with 100 per cent certainty'. That was how the matter came through. But certainly - and the document confirms - and Mr Labriola I don't think takes issue.
[6] ts 6 May 2016 (97).
The magistrate summarised the appellant's positon as follows:[7]
I think effectively the thrust of Mr Labriola's position is that he effectively was saying to the acting sergeant that without the detailed knowledge of the complaint, without the detailed knowledge as to whether the … statement of complaint, for instance, was present and signed, the layout, and the particular merits or otherwise of the alleged offence, it would not be possible for him to form the personal view that was required and set out in section 4 for that reasonable suspicion.
[7] ts 6 May 2016 (98).
The magistrate then summarised the authorities on what it means to have a 'reasonable suspicion':[8]
[8] ts 6 May 2016 (99-100).
I was greatly assisted by a High Court of Australia case. It's George v Rockett (1990) 170 CLR 104. And effectively, although the - the situation is slightly different - it was to do with the issuing of a search warrant - the case headnotes refer to - and this case has been referred to time and time again. It's to do with suspicion or belief, and the facts to found a reasonable suspicion or belief. And of course, our test in section 4 is for an officer perhaps in our case to reasonably suspect, and it was helpful and on point.
The information that I have found, I have to say, perhaps galvanises my position and my initial commonsense approach, and I - and I can say this:
Suspicion -
And I will read straight from the section - straight from the judgment:
Suspicion, as Lord Devlin said in Hussein v Chong Fook Kam (1970) AC 942, at page 948, 'It its ordinary meaning' -
And this is 'suspicion' -
'is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief -
I was about to say even a belief, but it seems to indicate, on my reading, that those in superior in the High Court took the view that a suspicion is perhaps of a lesser standard in terms of proof and a belief, but it seems clear as I read on that the information required - is described in this way. And this is an extract from a case in which the case I have just cited has been referred to and cited. This particular case is the case of R v Nguyen (2013) 117 SASR 432, and it says this:
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction. That the fact is at least more likely to be true than any other alternative fact or facts.
And this is of relevance in our case now:
On the other hand, a suspicion that a fact exists in the context of an investigation of the truth of that fact is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or idle wondering about the existence of the facts is not the same as a suspicion that it exists.
And it then goes on to discuss this:
The additional element of reasonableness -
and, of course, that is an essential test under section 4 and I'm helped greatly, I have to say -
The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicious - a suspicion in the mind of a police officer -
that's within the context of a search warrant, but it's analogous to our situation -
but it must also engender that suspicion in the mind of a person thinking reasonably about the information.
My reading of the case law, I have to say, did certainly indicate to me that, following on from my assessment of a commonsense approach, I took the view that it was never the intention of the Criminal Investigation Act to create that divergence and to prevent the ability of the investigating authorities to operate in a cohesive and teamwork approach. It surely could never be the case that we would end up with the absence of a real police force.
The magistrate was satisfied that the Acting Sergeant had the necessary reasonable suspicion. The magistrate's reasons for being so satisfied were as follows:[9]
Acting Sergeant Woods did not seek to say he knew the chapter and verse on the allegation; that's not what he said. What he said was he was aware that there was an incident report and his evidence, effectively - and I will come to it shortly, but his evidence was he remembers giving the job out, for want of a better term.
And in addition to that, he made mention of the flag or the alert and he was aware that the matter was outstanding and, certainly, his evidence was - it wasn't challenged and, in my view, it was appropriate not to challenge this component. So Acting Sergeant Woods effectively said, 'I was aware there was a person of interest in relation to a serious office,' namely the alleged breach of VRO. 'I was at a location. I saw them. I saw their vehicle,' and he said words to the effect, 'I would have been negligent if I didn't act on it - didn't act on it.'
That was the evidence. I have to say, having looked and considered, I hope the parties can see I haven't taken the decision lightly because I know it's a key facet in Mr Labriola's case. But for the reasons that I set out, I have not been caused any great difficulty in relation to the establishment of a reasonable suspicion on the part of – particularly Acting Sergeant Woods after he is looking at his knowledge overall and his involvement in the case, admittedly at a lesser level than, perhaps, the principal investigating officer who, I think, came along later.
It certainly seems to me that he had a level of reasonable suspicion, based upon his knowledge of the matter, his knowledge of the incident report, the nature of the charge and, in my view, the power of arrest appropriately arose pursuant to section 128 and the section 4 component …
Accordingly, I find that Acting Sergeant Woods and his colleague, Constable Jones, in effecting the arrest, were each of them for probably slightly different reasons. Constable Jones effectively said he was 'reminded' of the situation; that was the word he used.
And one has to allow for good commonsense should come into play here. A senior officer, who is - and I'm sure Mr Labriola noted, Constable Jones - Acting Sergeant Woods, and it sounds to me, and certainly I made a - and I find that it was Acting Sergeant Woods who was the lead officer on the day in question. And as a finding, I take the view and I find that the power of arrest came about on a legitimate and an appropriate and, most importantly, a lawful basis for the reasons I've set out.
And I do find that Acting Sergeant Woods had the necessary reasonable suspicion, as envisaged in section 128, and as perhaps clarified in section 4 of the Criminal Investigation Act of 2006.
[9] ts 6 May 2016 (101).
Having concluded that the arrest was lawful, the magistrate turned to consider the second issue: whether the appellant, in fact, obstructed the officers. The issue before the magistrate was what actually happened between the time that the appellant got out of his car and the time that he was put into a cell in the police station.
The appellant's case was not that the officers were lying but that 'the officers had misunderstood or misinterpreted what was happening':[10]
Mr Labriola does not come to court and say that the officers are lying. That's not his case. Mr Labriola's case is that the officers have misunderstood or misinterpreted what was happening.
[10] ts 6 May 2016 (107).
The magistrate recounted the appellant's evidence:[11]
Mr Labriola, during his evidence, and again to his credit, effectively said there was a slight pause in his behaviour. I don't think he was expecting to be arrested and the impression I had from the evidence was that there was a momentary pause, a degree of surprise or shock to the system, and that, I assume, is where Mr Labriola says it was that that was misinterpreted as a resistance. I have to say it's unfortunate, and I don't doubt that those matters can arise from time to time, but then what - there - what happens thereafter is often a downward spiral I regret to say.
I accept what Mr Labriola had to say about the pain experienced. It's clear from the evidence he had pain to his shoulder and, of course, regrettably, the manipulation, that's the manifestation of how the manipulation works and in a control technique at play. Mr Labriola knows, and there's no way the officer could have known about any - I don't say pre-existing injury but, as Mr Labriola has highlighted, it was about the problem with the shoulder, as he told him before, and that may or may not have made him marginally more susceptible to an elevated level of pain from the manipulation.
He accepts in his evidence that at no time did he cry out in relation to the pain. I don't criticise Mr Labriola. …
He was willing to be cooperative. Of course, the officers had different matters operating in their mind and so on. Mr Labriola strenuously denies that he tensed up, dug his heels and struggled - purposely went to the floor or purposely stood up to try and resist or be difficult. He tried to be compliant and making allowances for the circumstances of pain he felt from either the circumstances as they existed or torsion, as he alleged.
[11] ts 6 May 2016 (116).
The magistrate summarised the evidence of Acting Sergeant Woods on the arrest:[12]
Acting Sergeant Woods described efforts on the part of Mr Labriola to stand upright when it sounds as though it would have been less painful to remain head down. And I could see, basically - it was helpful from Constable Jones, actually. I had a better idea there, I think, there was a change of grasp and change of manipulation, effectively, that causes a person's head to drop towards the floor, or, in the alternative, it's possible to control somebody in a stronger fashion if they're more upright.
But Acting Sergeant Woods certainly detailed that there was some digging in of heels and there was some resistance and some tensioning and some efforts on the part of Mr Labriola, which, frankly, from what - the picture I have in my mind, and the finding that I have is, we've got a distance that, even if it was the extreme edge of the pavement to the front of the police station, it's measured in tens of metres. It would have been covered in a short period of time, so, on any version of events, I don't underestimate the discomfort it would have caused. I don't underestimate that.
But what I'm saying is the level of resistance and obstruction would also have been for a short distance, a short period of time. And I think that's in line with the way the prosecution put their case. The Acting Sergeant's evidence went further. The Acting Sergeant gave evidence he shouted words to the effect, 'Stop struggling. Calm down. Comply,' and his evidence was that Mr Labriola did not calm down.
[12] ts 6 May 2016 (105).
The magistrate was alive to the appellant's 'torsion' argument: that the officers had each applied an arm lock but that one officer was moving him one way and another officer the other way. The magistrate summarised the argument on that point as follows:[13]
Mr Labriola quite properly, again, put his case in broad terms along these lines: that it was, once hands were on, there was the potential risk for a torsion.
Where one officer - the picture I had in Mr Labriola's case was that he felt that one officer was moving him one way and another officer the other way and, effectively, asked whether or not Acting Sergeant Woods took the view that that was a possibility. And Acting Sergeant Woods took the view that, in relation to that - and I will use the term 'torsion argument' - he said this: Acting Sergeant Woods' answer was, 'I can see his arm,' he was referring, I think, to Constable Jones, 'That's why we're trained,' and used 'approved and taught techniques by WA Police.'
[13] ts 6 May 2016 (109).
The magistrate summarised the evidence of Constable Jones on the arrest:[14]
[His] [e]vidence then refers to a general tense tension and that it was the 'step back' component that prompted action to escalate the level of the firm grip, and he grips with more strength. He then believed Mr Labriola to be resisting and tried to pull away. He described Mr Labriola as going 'stiff and rigid'. 'Legs out in front' was the description that was used by Constable Jones, according to my note, which, in my view, was not a million miles away from 'heels dug in'. But in any event, he describes an initial grip and then a firmer grip.
[14] ts 6 May 2016 (111).
The magistrate continued:[15]
He described the types of manipulations in some detail and he, effectively, said he altered his stance on one occasion and the type of manipulation to meet the situation as it developed.
[15] ts 6 May 2016 (112).
The magistrate was aware of a difference between in the evidence of Acting Sergeant Woods and Constable Jones as to the nature of the movement that caused the officers to think the appellant might attempt to leave the scene:[16]
Acting Sergeant Woods had, effectively, referred to a 'turning' movement by Mr Labriola that gave rise to the issue of concern for leaving the scene and escape, for want of a better term. Acting Sergeant Woods was that version. Constable Jones was a 'step back'.
[16] ts 6 May 2016 (111).
The magistrate said that he was not concerned about the divergence, noting that witnesses tend to see things differently:[17]
I – I'm not concerned with the distinction between the step back and the turn. I have to say I would have been far more concerned if it had been chapter and verse exactly the same because it's there. In my experience, both in practice and on the Bench, witnesses tend to see things differently. That's the way things work. Witnesses who tend to say with frightening accuracy precisely what the other says I am far more concerned about concoction and a degree of dovetailing evidence.
[17] ts 6 May 2016 (114).
The magistrate was aware that there was a history between the appellant and Acting Sergeant Woods and Constable Jones. The magistrate disregarded it when assessing the officers' credibility as he understood the appellant did not allege the officers were lying or dishonest:[18]
And so I don't think it's an issue of dishonesty being alleged against the officers. There may be some degree, I hesitate to use 'bad blood', but I have heard the term 'victimisation' and 'a personal interest' on the part of the officer, but it seems to me it's not a matter that I need to go into in any great detail.
[18] ts 6 May 2016 (110) in relation to Acting Sergeant Woods' evidence; and ts 6 May 2016 (114) in relation to Constable Jones' evidence.
The magistrate found that the Acting Sergeant gave his evidence in a 'matter of fact way'; he did not exaggerate or embroider his account; he did not overstate the case; and he had a good accuracy level relating to the key areas. He appeared to be credible, internally consistent and remained firm in his position during cross-examination. His Honour said, 'I certainly found him to be a witness of truth and accuracy and I accepted his evidence. I could find no reason not to.'[19]
[19] ts 6 May 2016 (110).
His Honour found Constable Jones to be a similarly credible witness. He observed that Constable Jones was straightforward, coped well with cross‑examination, remained consistent and did not embellish his story. His Honour found that he was a truthful and accurate witness. [20]
[20] ts 6 May 2016 (115).
The magistrate considered the appellant to be witness who gave his evidence very 'ably'.[21] The magistrate did not think that Mr Labriola had come to court to tell lies.[22] The magistrate found that the appellant's mother was an honest witness, but she was handicapped by not having seen the entire incident, particularly how the interaction began.
[21] ts 6 May 2016 (115).
[22] ts 6 May 2016 (118).
At various stages the magistrate reflected on the appellant's evidence:[23]
Mr Labriola, in my view, certainly set that out clearly in his evidence and, effectively, Mr Labriola set out that he did feel that the arrest was unlawful and he wanted to get further details and I do say that was an - that was, in no small part, in my view, part of how the situation developed.
[23] ts 6 May 2016 (115).
The magistrate contrasted the perspectives of the appellant on the one hand, and the officers on the other; and described how the situation developed through a sequence of reciprocal causes and effects, in which the appellant's resistance, and the officers' increasing use of force to affect the arrest, aggravated each other, and led to a worsening of the situation.[24]
But I have to say it's - in my view, the situation he was in was the more difficult of the two and I think his view was shaped, whether it was - I assume in order to form the view that the arrest was unlawful Mr Labriola had considered the law at some point, rightly, wrongly or accurately or inaccurately, I'm not sure, but, certainly, for him - for Mr Labriola to be able to say the arrest is unlawful it was in his mind and I think matters then went downhill because at that point, as far - from Mr Labriola's perception, he has been the victim of an unlawful assault with escalating levels of manipulation.
To the officers, they have a person who has been lawfully arrested who has an escalating level of resistance, obstruction or injury. Accordingly, I see where the error and the misinterpretation or the interpretation and the understanding between the parties could be of - could be an issue. But, certainly, it's my view that the situation was complicated. I find Mr Labriola's evidence from his perception to be given on a truthful basis based upon the facts as he believed them to be.
I have to say, however, I am of the view that the officers, effecting - giving effect to a lawful arrest upon my finding, were confronted with that initial tensing with a movement, whether a step back or a turn, such that they caused - that it caused them to form the reasonable belief that there would be a potential for Mr Labriola to leave the scene which then escalated and, as we know from the evidence, Constable Jones, it was at that point that he grips more firmly and the matter begins then to escalate rather than de‑escalate.
[24] ts 6 May 2016 (119).
The magistrate concluded that the authorities are very clear on the proposition that the 'hurdle for obstruct' is very low and has been held to mean 'anything that makes the officers job … more difficult'.[25]
The wording of the section is purposely broad and anything that effectively - I think it's a fair way of putting, anything that makes the officers jobs - job more difficult, in my view, would satisfy the terms of the obstruct and I note also, of course that obstruct has been widened out in comparison to the original legislation that was in place and it seems to me that hinder, for instance, is such a low, low level that it doesn't really need to be too much.
…
Just to try and assist in that regard and, again, one of the reasons I was a little late, the case of Ogbonna v Lay (2013) WASC 266 was helpful. It's a - it was an allegation in that case. It was a finding of guilt before Magistrate Cicchini which was appealed through and dealt with Kenneth Martin J on 6 June '13. In relation to the non-delivery of the car keys on a vehicle stop and, certainly, the Supreme Court Justice said this:
The appellant's refusal to hand over the keys made the officer's job more difficult in that the officer had to, as an alternative resort, require the accused to turn on the vehicle so the vehicle could be tested.
This was not his original intention. His original intention was that he carry out the test, that he should turn on the ignition and test the vehicle. He was prevented in doing that by the accused failing to give him his keys. The offence was completed at that stage.
And that, I hope, is a helpful illustration of just how low level obstruct is. It seems to me that that really does set the scene for just how low the hurdle is and I certainly don't think there's any requirements under the section for an act with a small a, or an action with a small a, I think that I doesn't need to be looked at in that way. I think it just needs to be looked at in the way in which the Supreme Court looked at it there which effectively was the - excuse me - the job was made more difficult and that's certainly - I hope that's a helpful illustration and it's one of the reasons I was a little delayed.
[25] ts 6 May 2016 (113).
The magistrate found the appellant had resisted the arrest and thus obstructed the officers in the performance of their function. The magistrate gave the following reasons:[26]
[26] ts 6 May 2016 (121-123).
I am of the view that the officers … giving effect to a lawful arrest … were confronted with that initial tensing with a movement, whether a step back or a turn, [which] caused them to form the reasonable belief that there would be a potential for Mr Labriola to leave the scene.
…
I find that Mr Labriola, as he agreed with in his evidence, was unhappy at the arrest. Whether that arose, I don't doubt, from the matter overall, what he perceived at that time at least to be an unlawful arrest plus the overall circumstances began to shape the incident … I find also that the degree of shock experienced by Mr Labriola in that momentary hesitation, coupled with that startled approach and the fact that he was unhappy with the situation, flavoured this matter and flavoured what happens in that short time between the vehicle and the front of the police station doors.
I find that Mr Labriola, at various points … had certainly tensed up, whether it was in response to the incident as it presented to him and was a momentary hesitation, and it was that then that caused the officers to interpret that, in my view, appropriate, properly and reasonably that they then felt it was necessary to escalate the force that had already been applied. In relation to the step or the turn towards the vehicle, in my view, the officers' interpretation was reasonable … in the circumstances as they saw them to be.
And their laying on of hands in relation to Mr Labriola at that stage, in my view, was lawful and appropriate and necessary and I accept and I find that the level of force used by the officers in the circumstances throughout the incident was reasonable, proportionate and justified in relation to all the circumstances as they existed then …
I don't doubt he became frustrated earlier in the piece and I do find that he became frustrated and tensed during that dynamic and fluid phase. The situation was difficult to manage and I find that his behaviour was of a tensing and a non-compliant nature during the phase where officers sought control by manipulation. I reject the suggestion from Mr Labriola that there effectively were conflicting torsion - there was conflicting torsion in place.
…
… I make a finding that Mr Labriola did not intend to obstruct that day. He has made it clear to the court throughout this case that that was not his intention.
I make a finding that the conduct that was carried out that day by Mr Labriola, which was intentional conduct within the - it wasn't as though he was acting without … beyond his personal control.
I don't think he was acting that way to cause the officers difficulty. That wasn't the issue. But I think that the behaviour did, indeed, cause the officers difficulties and did hinder them in the exercise of their duty.
The grounds of appeal
The appellant included seven grounds for appeal in his appeal notice. The appellant's oral submissions focussed on grounds 1, 4 and 5. By grounds 3, 6 and 7 the appellant indicated that he might seek leave to adduce further evidence in support of his grounds of appeal, but he did not do so. I will not grant leave to appeal in respect of those grounds. The appellant accepted that ground 2 advances a contention that formed part of his case under ground 1.
In summary the grounds contended:
(1)The magistrate erred in finding that Acting Sergeant Woods reasonably suspected the appellant of a breach of a violence restraining order, and thus erred in concluding the arrest was lawful (ground 1).
(2)The magistrate erred in finding beyond reasonable doubt that the appellant resisted arrest (ground 4).
(3)The magistrate erred in failing to find that the charge of obstruction requires a positive act rather than an omission (ground 5).
As the appellant developed grounds 4 and 5 at the hearing of the appeal, it became apparent that entwined in his submissions was the contention that the acts that constituted the obstruction were 'involuntary', in the sense of being a 'reflex action', and that the magistrate erred in holding him criminally responsible for the consequences of those actions. Accordingly, I said that I would consider whether the magistrate erred in failing to consider s 23A of the Criminal Code as an additional ground of appeal. Section 23A provides that a person is not is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
Applicable legal principles
The appellant requires leave to appeal on each of the grounds that he has raised.[27] The court must not grant leave to appeal in respect of a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[28]
[27] Criminal Appeals Act 2004 (WA) s 9(2).
[28] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).
The principles that apply to appeals against convictions which include grounds that challenge factual findings are relevant to this appeal, because the appellant's grounds, despite being framed in terms of questions of law, primarily challenge the magistrate's factual conclusions.
For the reasons explained by Mazza JA in Elwin v Robinson,[29] the approach that I should take to this ground is the approach mandated by the High Court in M v The Queen,[30] adapted to take account into account that the proceedings at first instance were before a magistrate.
[29] Elwin v Robinson [2014] WASCA 46 [65] (Mazza JA, with whom Pullin JA and Newnes JA agreed).
[30] M v The Queen (1994) 181 CLR 487.
The question is whether, on a consideration of all of the evidence, it was open to the magistrate to be satisfied of the appellant's guilt beyond reasonable doubt. Shortly stated, the well-known principles direct me to be mindful of the fact that the magistrate had the primary responsibility for determining the appellant's guilt or innocence and had the benefit of seeing and hearing the witnesses. My role is not to substitute a trial by this court for a trial by a magistrate. Having said that, if I have a doubt, the magistrate ought to have had the same doubt unless his advantage in seeing and hearing the evidence is capable of resolving it.
Ground 1: was Acting Sergeant Woods' suspicion reasonable?
The appellant alleges the magistrate erred in finding the Acting Sergeant Woods had the necessary 'reasonably suspicion' to enliven the power of arrest.
'Reasonably suspect'
The starting point is s 128(2) of the Criminal Investigations Act. This section provides that a police officer may arrest a person, without an arrest warrant,[31] if they reasonably suspect that person has committed a serious offence. For the purpose of the section, a serious offence includes a breach of a violence restraining order.[32]
[31] Section 128 is located in Division 2 of the Criminal Investigation Act. Section 127 of that Act provides that powers in that Division 2 may be exercised without an arrest warrant.
[32] Section 128(1) of the Criminal Investigation Act provides that the definition of 'serious offence' for the purpose of the s 128(2), includes an offence under s 61(1) of the Restraining Orders Act 1997 (WA). Section 61(1) makes it an offence a person who is bound by a violence restraining order to breach that order.
Section 4 of the Criminal Investigation Act states that 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.
There are two aspects to the definition:
(i)The arresting officer must suspect the thing. A suspicion is a state of mind. It has been held to mean 'a state of conjecture or surmise where proof is lacking'; and, 'more than an idle wondering … it is positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence'.[33] In the context of an investigation, a suspicion has been held to mean a 'working hypothesis' for which there is some supporting material, and where there is a rational connection between the suspicion and the supporting material.[34] The information acted on by the arresting officer need not be based on his own observations. He is entitled to form a suspicion based on what he has been told. He may act on hearsay evidence, information from an informant or even an anonymous tipoff.[35]
(ii)The suspicion must be objectively reasonable.[36] That is, the information or material from which the officer's suspicion arises must also engender that suspicion in the mind of a reasonable person thinking about that information.[37] In assessing this, the Court is required to look at the grounds which were in the officer's mind at the relevant time, and judge those grounds objectively against what was known, or reasonably capable of being known by the officer at the time. The question whether the information provided reasonable grounds for the suspicion will depend on the source of the information in its context seen in the light of the surrounding circumstances.[38]
The evidence of Acting Sergeant Woods' suspicion
[33] Caratti v Potts [2015]WASC 86 [45] (Pritchard J), citing George v Rockett (1990) 170 CLR 104, 115.
[34] R v Nguyen [2013] SASCFC 51; (2013) 117 SASR 432 [21].
[35] See O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, 298 (Lord Hope of Craighead delivered the principal judgment, with which the other members of the House agreed); see also Maines v Roy (1990) 1 WAR 508, 514 - 515 (Nicholson J).
[36] Fox v Beringer [2011] WASC 38 [30] - [32] (Murray J), citing O'Hara.
[37] R v Nguyen [22].
[38] Caratti v Potts [47].
When asked in examination in chief why he arrested the appellant, Acting Sergeant Woods gave the following answer:[39]
I believed that he was a wanted person for on suspicion of breaching a violence restraining order.
And? - - - ?---I can - I can remember allocating an incident report out to a constable in one of the teams and I was aware that he was a wanted person and still hadn't been spoken to regarding the breach of violence restraining order.
[39] ts 4 May 2016 (55.9).
The appellant asked Acting Sergeant Woods in cross-examination whether he had been told to arrest him:[40]
ACCUSED: Okay. Did Officer Forster make a request to either the Bunbury Police or to yourself to make an – to arrest me? I'm – I'm not 100 per cent on this but I think you had an alert against your name to say that you were wanted for breach of violence restraining order. Any police officer in Western Australia would have arrested you if found.
[40] ts 4 May 2016 (72).
When asked by the appellant for his reasons for suspecting he had breached the VRO, Acting Sergeant Woods said:
You had an alert against your name. I recall the incident report. There was statements obtained from your ex-partner and an independent witness to state that you had breached the violence restraining order. That was my suspicion.
Yes. And had you viewed these – a formal statement from the witness making the complaint? I knew of their existence.
So you were certain that [the complainant] had made a formal statement, documented and signed before making an arrest? No, not certain.
Acting Sergeant Woods was asked by the appellant to describe his understanding of the allegation made in the incident report:[41]
My understanding is that the allegation was [the complainant] attends a dog walking session at the same place and same time every week and has done for a long period of time. She goes there with the two dogs that you formerly owned together. She has attended this session for - like I say - a long period of time. My understanding is on a date unbeknownst to me right here right now you attended with what I believe to have been a borrowed dog at the same session at the same time and arranged the class to coincidentally meet with her. And then as you were leaving the property you've then drove past her more - on one - more than one occasion and drove in close proximity to her.
[41] ts 4 May 2016 (73).
The appellant asked Acting Sergeant Woods about whether he had spoken to the complainant about the incident:[42]
Right. And you hadn't personally talked to [the complainant] about the allegation - the particulars of the allegation?---Quite possibly.
But you're not certain that you've asked [the complainant] or personally conversed with her about the nature of the allegation?---I quite possibly have.
[42] ts 4 May 2016 (74).
The appellant asked Acting Sergeant Woods about his knowledge of the term of the violence restraining order that alleged to have been breached. Acting Sergeant Woods' recollection was that the violence restraining order provided that the appellant was not to approach within 50 metres of the accused person when in fact the order only provided that he was not to approach within 20 metres:[43]
Did you read the orders in part A of the violence restraining order?---I will have at some point, yes.
Yes. Which order in part A of the violence restraining order did you suspect that the allegation - what part of the violence restraining order did you believe to have been breached?---Approach or communicate was - within 50 metres - approach protected person within 50 metres.
Within 50 metres? You confirm that the violence?---Is it – is it 50 metres?
Well, the question is on you, Officer Woods. Is the – so the violence restraining order that you were referring to, you believed that the breach of violence restraining order occurred because I had approached Ms McDonald within 50 metres, contravening the orders in part A of the violence restraining order?---I might be mistaken on that right now. It's six months ago. I'm not entirely sure.
[43] ts 4 May 2016 (75).
The appellant suggested that incident reports were produced following any complaint to the police. The appellant and Acting Sergeant Woods then had the following exchange:[44]
But the incident report - well, an incident report would be - my understanding - correct me if I'm wrong - is that an incident report would have been generated as per any complaint. So anyone could make a complaint and an incident report would be generated as procedure regardless of whether that complaint was actually a breach of law or not. The complaint still needs to be recorded. Would that not be the case?---No, you're wrong.
So only a complaint which is considered to be a breach of law is reported as an incident report?---No. You've got two different types. You've got an incident report which will go on which carries an offence. So that's when you've got your offences which are - as you put it - a breach of law. And then we have family and domestic violence offences - sorry - incident reports which don't carry any particular offences. And we also have general incidents as well. But in this case if someone would have phoned up and said 'I think Tor Labriola has breached this violence restraining order' the officer would have viewed it and gone 'no, he hasn't breached it' and no incident report would have been put on.
Yes. In any circumstance, the incident report that you viewed did not declare that I had approached Ms McDonald within 20 metres; is that correct? There's an offence attached to it of breach violence restraining order.
Yes. I'm aware of that. However, the - actually, no, I'm not aware of that. I'm not sure that the incident report documents it as a breach of violence restraining order. It appears the narrative just refers to the statement or allegation made. Whether or not that was actually substantiated with a formal complaint which was a formal statement is unknown and hasn't been provided. But the actual narrative appears not to specify a distance of which Ms McDonald was approached within. How did you know for a fact that Ms McDonald had been approached within 20 metres?---I was - I suspected there was a breach of violence restraining order because there was an offence on the incident report attached to it. It's quite - what you're talking about a narrative is a tiny part of the incident report. There's a lot more to it than just that.
[44] ts 4 May 2016 (75).
The magistrate then interjected and summarised the effect of Acting Sergeant Woods' evidence:[45]
HIS HONOUR: … The officer effectively is saying because there was an incident report he relied upon another officer to have - as I understand it - effectively considered the complaint. And had the complaint not given rise to a reasonable suspicion there wouldn't have been an IR generated in this particular way. Am I right on that, Acting Sergeant?---That's pretty perfect, your Honour.
[45] ts 4 May 2016 (76).
The appellant then asked the following question:[46]
ACCUSED: Yes. So given what his Honour just said, just because - your opinion is if there is an incident report in the system that automatically means that person can be arrested. Because of the existence of an incident report that person can be arrested?---No. The alert on your name as well which says 'POI for such and such and such and such, breach violence restraining order, please arrest and interview' also gives me that suspicion.
The incident report
[46] ts 4 May 2016 (77).
The incident report referred to by Acting Sergeant Woods in his evidence was tendered as an exhibit at trial. The report contains the following narrative account of the incident said to constitute a breach of the violence restraining order:
The victim has attended her local dog training class situated at the Park on Sherwood Drive, Dalyellup. The Victim attends this class on a daily basis which is known to the POI [person of interest] LABRIOLA.
Upon arriving at the class the victim has sighted the POI walking his family dog amongst the class of other dogs. Upon the victims [sic] arrival the POI has noticed the Victims [sic] car attend the oval and continued on with the class. The victim remained in her car until the class was finished in fear that the POI may approach her.
The class finished and the victim saw the POI get into his vehicle and drive purposely towards her vehicle. The POI has drove past the Victim again smiling at her.
POI is currently on Bail for breaching the same VRO.
POI's legal representative Michael DEVLIN is aware of this matter after consultation with SC WOODS.
The incident report contains the additional information relevant to the nature of any suspicion formed by Acting Sergeant Woods:
(i)at the top of page 1, in the first caption, the 'Incident Type' is recorded as 'Offence';
(ii)below the heading 'victim details' on page 1, 'Order Breached' is recorded as 'N';
(iii)at the top of page 3 is a section headed 'Remarks', which records who has viewed the report or any actions taken in relation to it; and
(iv)beginning on page 3, is a section titled 'Investigation' which sets out categories titled 'DVIR 1-9'; these categories record information about the relationship between the appellant and the protected person.
The relevant sections of 'DVIR 1-9' are as follows:
DVIR 1-9 … 4. Recoded DVIs Prior Family Domestic Violence Incidents between the Involved Parties? Yes … 7. Risk Factors FEAR: Is the Victim frightened? Yes ... ESCALATION:
Is the abuse happening more often? Yes
Is the abuse getting worse? Yes
PREVIOUS VIOLENCE:
Has the Perpetrator ever previously hurt the Victim? Yes
…
OTHER FACTORS:
Financial Issues: Yes Issues surrounding the ownership of the two dogs
8.Behavioural Factors CONTROL, JEALOUSY, STALKING
Does the perpetrator try to control everything the Victim does? Yes
Is the Perpetrator excessively jealous? Yes
Does the Perpetrator constantly text, call contact, follow, stalk or harass the Victim? Yes
Constant txt of victim, unlocks vehicle-nuisance and sociopathic
tendencies by LABRIOLA
THREATS:
Has the Perpetrator ever threatened to hurt or kill the victim? Yes
STRANGULATION:
Has the perpetrator eve attempted to strangle/Choke/Suffocate/Drown
the victim? Yes
OTHER RELEVANT INFORMATION:
LABRIOLA has grabbed [the complainant] by the throat in Dec 2014 and has tried to strangle one of the two dogs in the past.
Appellant's submissions
The appellant's submissions are lengthy and elaborate. In essence, the appellant contends that Acting Sergeant Woods did not, in fact, suspect he had breached the violence restraining order, but that if Acting Sergeant Woods did so suspect, it was not reasonable to do so.
In support of the first contention the appellant submitted:
(i)Instead of forming his own suspicion, Acting Sergeant Woods simply acted on an alert in the system to arrest him. The appellant submitted that this was so because Acting Sergeant Woods gave evidence that he assumed whoever logged the report had formed a reasonable suspicion, and so acted on vicarious suspicion; and that Acting Sergeant Woods gave evidence that he thought the fact the 'Incident Type' was recorded as 'Offence' justified his arrest.
(ii)When cross‑examined, Acting Sergeant Woods could not recall the particulars of the conduct alleged to constitute the breach, such as the distance within which he allegedly approached the protected person, or the particular terms of the violence restraining order that were said to be breached.
(iii)Even if the acting sergeant had read the incident report, it would not have provided enough information for him to form a suspicion.
In support of his contention that any suspicion formed by Acting Sergeant Woods was not a reasonable suspicion, the appellant submitted:
(i)The contents of the narrative section of the Incident Report are vague and do not suggest he had breached any term of the order. He submitted that nothing in the narrative indicates that he communicated or attempted to communicate with the protected person or breached the distance order.
(ii)The independent witness statements upon which Acting Sergeant Woods said he based his suspicion were subsequently proved to be non‑existent - so the only account of the incident was the narrative attached to the incident report.
(iii)The 'Remarks' section of the report showed that the matter had been relatively dormant for the two months between when it was logged and his arrest.
(iv)The appellant says the information in 'DVIR 1-9' of the report are not relevant to assessing whether the conduct described in the narrative constituted a breach of the order.
(v)He is referred to as a POI (person of interest) in the report as instead of a suspect.
(vi)On page 1, under 'Victim details', it records next to 'Order breached' the letter 'N'.
(vii)The categorisation of the report as 'Offence' under the heading 'Incident Type' means that an offence is being investigated and an investigation does not necessarily mean that an offence has been committed or that they suspect an offence has been committed.
Respondent's submissions
The respondent submitted that suspicion requires something much less than that contended for by the appellant. Irrespective of the nomenclature used, it was eminently sensible for an officer who had read the report to suspect that the appellant had breached the order.
The respondent submitted that the appellant conflated Acting Sergeant Woods' recollection of the grounds for his suspicion when he gave evidence almost a year after the arrest with what he knew at the time.
The respondent submitted that it was a term of the order that the appellant not behave in an intimidatory manner towards the protected person and the impression created by the narrative was that the appellant came quite close to the complainant and did intimidate her.
Disposition
Whether Acting Sergeant Woods suspected the appellant of breaching the order is a question of fact.
The magistrate concluded that Acting Sergeant Woods had formed a suspicion that the appellant had breached the order.[47]
Acting Sergeant Woods did not seek to say he knew the chapter and verse on the allegation; that's not what he said. What he said was he was aware that there was an incident report and his evidence, effectively - and I will come to it shortly, but his evidence was he remembers giving the job out, for want of a better term.
And in addition to that, he made mention of the flag or the alert and he was aware that the matter was outstanding and, certainly, his evidence was - it wasn't challenged and, in my view, it was appropriate not to challenge this component. So Acting Sergeant Woods effectively said, 'I was aware there was a person of interest in relation to a serious office,' namely the alleged breach of VRO. 'I was at a location. I saw them. I saw their vehicle,' and he said words to the effect, 'I would have been negligent if I didn't act on it - didn't act on it.'
… for the reasons that I set out, I have not been caused any great difficulty in relation to the establishment of a reasonable suspicion on the part of - particularly Acting Sergeant Woods after he is looking at his knowledge overall and his involvement in the case …
It certainly seems to me that he had a level of reasonable suspicion, based upon his knowledge of the matter, his knowledge of the incident report, the nature of the charge and, in my view, the power of arrest appropriately arose pursuant to section 128 and the section 4 component …
[47] ts 6 May 2016 (101).
I have set out the magistrate's findings in detail above. The magistrate had benefit of observing the witnesses give evidence and expressly addressed the reliability of Acting Sergeant Woods' and Constable Jones' evidence. As recorded above, the appellant did not contend that the officers were untruthful in giving their evidence.
The conclusion that Acting Sergeant Woods suspected the appellant was open to the magistrate on the evidence and it should not be disturbed.
Whether Acting Sergeant Woods' suspicion was reasonable is a mixed question of law and fact. As stated in O'Hara, what is required is that the 'grounds be examined objectively and that they be judged at the time the power was exercised.'[48] Section 4 of the Criminal Investigation Act makes plain that it does not matter whether the grounds for the suspicion are subsequently found to be false or non-existent.
[48] O'Hara (298).
I consider that there are no grounds to impeach the magistrate's conclusion that Acting Sergeant Woods' suspicion of a breach of the order by the appellant was reasonable. The narrative section of the incident report read in the context of the DVIR section of the report (that is the allegation of breach assessed against what had allegedly taken place in the past) provide a basis for a suspicion that the appellant had breached the order. There was nothing in the evidence to suggest that in this case it was unreasonable for Acting Sergeant Woods to rely on the contents of the incident report to form his suspicion that there had been a breach of the order. I refuse to grant leave in respect of grounds 1 and 2.
Ground 4: did the magistrate err in finding beyond reasonable doubt that the appellant resisted arrest?
This ground challenges the magistrate's factual finding that the appellant resisted arrest. The appellant's primary submission was that the magistrate should have rejected the officers' evidence because they had different recollections of the appellant's movement that caused them to take hold of him: Constable Jones said he saw the appellant 'step backwards'; Acting Sergeant Woods said that the appellant 'turned towards the vehicle'. The magistrate expressly addressed this inconsistency but said that it did not concern him given the length of time between the incident and the trial. The magistrate said that he would have been more concerned had their evidence been the same as this would have suggested an element of concoction.
For the same reason that I considered the magistrates factual findings in relation to ground 1 should not be disturbed, I consider that this factual finding was open to the magistrate on the evidence and it should not be disturbed. I refuse to grant leave to appeal in respect of ground 4.
Ground 5: does the charge of obstruction require a positive act rather than an omission?
As well as alleging an error of law, this ground challenges the magistrate's factual finding that the appellant made a positive act, as opposed to an omission.
The definition of 'obstruct' is broad and includes to prevent, to hinder and to resist.[49] It has been held to mean 'to make it more difficult for police officers to carry out their duty'. It can be an act or omission.[50]
[49] Criminal Code 1913 (WA) s 172(1).
[50] Elwin v Robinson [54] (Mazza JA, Pullin and Newnes JA agreeing).
In Ogbonna v Lay,[51] the appellant refused to provide a police officer with his keys so that the officer could conduct a test on his car, and so the officer had to ask the appellant to start the car himself. Preventing the officer from fulfilling his original intention was held to constitute an obstruction.
[51] Ogbonna v Lay (2013) WASC 266 (K Martin J).
In this case, the magistrate made the following, relevant, factual findings:[52]
I find that his behaviour was of a tensing and a non-compliant nature during the phase where officers sought control by manipulation. I reject the suggestion from Mr Labriola that there effectively were conflicting torsion - there was conflicting torsion in place.
[52] ts 6 May 2016 (122).
This factual finding was open to the magistrate on the evidence and it should not be disturbed. I refuse leave to appeal in respect of this ground.
Were the acts that constituted the obstruction 'unwilled'?
Entwined in the appellant's submissions on grounds 4 and 5 was the submission that the acts constituting the obstruction were 'involuntary', in the sense of a 'reflex action'. I said I would consider, as an additional ground, whether the magistrate erred in failing to consider s 23A of the Criminal Code, which provides that a person is not is not criminally responsible for an act or omission which occurs independently of the exercise of the person's will.
Arguably, there is an element of ambiguity in his Honour's findings about whether the initial tensing was a consequence of a momentary hesitation, surprise or shock to the officers taking hold of the appellant.[53] His Honour said:
I find also that the degree of shock experienced by Mr Labriola in that momentary hesitation, coupled with that startled approach and the fact that he was unhappy with the situation, flavoured this matter and flavoured what happens in that short time between the vehicle and the front of the police station doors.
I find that Mr Labriola, at various points … had certainly tensed up, whether it was in response to the incident as it presented to him and was a momentary hesitation, and it was that then that caused the officers to interpret that, in my view, appropriate, properly and reasonably that they then felt it was necessary to escalate the force that had already been applied.
[53] ts 6 May 2016 (121).
The magistrate, however, unambiguously rejected the appellant's 'torsion' argument and found that the tensing and non‑compliance during the phase where officers sought control by manipulation was willed.
… I find that his behaviour was of a tensing and a non-compliant nature during the phase where officers sought control by manipulation. I reject the suggestion from Mr Labriola that there effectively were conflicting torsion - there was conflicting torsion in place.
The magistrate found that the appellant's acts constituting the obstruction were willed.[54]
I make a finding that the conduct that was carried out that day by Mr Labriola, which was intentional conduct within the - it wasn't as though he was acting without … beyond his personal control.
[54] ts 6 May 2016 (121-123).
This factual finding was open to the magistrate on the evidence and it should not be disturbed.
Orders
For the reasons I have given, I refuse leave to appeal in respect of each of the grounds in the appellant's notice. The application for leave to appeal is dismissed.
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