Labriola v Morgan - [2017] WASC 256

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Labriola v Morgan

Details

AGLC: Labriola v Morgan [2017] WASC 256
Case: [2017] WASC 256
Decision Date: 30 AUGUST 2017

CaseChat Overview and Summary

In the case of Labriola v Morgan, the appellant, Labriola, applied for leave to appeal against his conviction for obstructing a police officer in the exercise of their powers under section 172(2) of the Criminal Code. The appellant was convicted of obstructing a police officer who was executing a search warrant related to a suspected breach of a violence restraining order under section 61(1) of the Restraining Orders Act. The matter was heard in the Supreme Court of New South Wales, where the appellant sought leave to appeal against his conviction.

The primary legal issue before the court was whether the police officer had a reasonable suspicion that the appellant had committed a serious offence, thereby justifying the exercise of their powers under section 172(2) of the Criminal Code. The court considered whether the police officer's actions were lawful, given that they were based on a reasonable suspicion of a breach of a violence restraining order. The appellant argued that there was no reasonable suspicion to justify the police officer's actions, and that he was unlawfully obstructed.

The court examined the relevant statutory provisions and case law to determine the standard of proof required for a reasonable suspicion. The court found that the police officer's suspicion was based on reliable and objective information, which was sufficient to establish a reasonable suspicion that the appellant had committed a serious offence. The court held that the police officer's actions were lawful, and the appellant's obstruction of the police officer was unjustified. Consequently, the court dismissed the application for leave to appeal against the conviction.

Orders