Landers v Teather
[2004] WASCA 138
•25 JUNE 2004
LANDERS -v- TEATHER [2004] WASCA 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 138 | |
| Case No: | SJA:1006/2004 | 27 MAY 2004 | |
| Coram: | BARKER J | 25/06/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | DEREK CHRISTOPHER LANDERS GRAHAM BRIAN TEATHER |
Catchwords: | Appeal against conviction Whether evidence supports conviction Whether verdict unsafe and unsatisfactory No clear evidentiary basis for conviction Turns on own facts |
Legislation: | Criminal Code (WA), s 222, s 317A(c) |
Case References: | Gatica-Evans v Wear [2004] WASCA 25 He Kaw Teh v The Queen (1985) 157 CLR 523 Jones v The Queen (1997) 191 CLR 439 Morris v The Queen (1987) 163 CLR 454 Rosenberg v Percival (2001) 205 CLR 434 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GRAHAM BRIAN TEATHER
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MS B LANE SM
File Number : PE 28509/03
Catchwords:
Appeal against conviction - Whether evidence supports conviction - Whether verdict unsafe and unsatisfactory - No clear evidentiary basis for conviction - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s, 222, s 317A(c)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr C L J Miocevich
Respondent : Mr S F Rafferty
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Gatica-Evans v Wear [2004] WASCA 25
He Kaw Teh v The Queen (1985) 157 CLR 523
Jones v The Queen (1997) 191 CLR 439
Morris v The Queen (1987) 163 CLR 454
Rosenberg v Percival (2001) 205 CLR 434
Case(s) also cited:
Nil
(Page 3)
- BARKER J:
Introduction
1 On 5 December 2003, in the Court of Petty Sessions at Perth the appellant was convicted of one count of assault with intent to prevent arrest contrary to s 317A(c) of the Criminal Code (WA) and was sentenced to a term of 3 months immediate imprisonment. The appellant now appeals against his conviction.
2 At the trial before the learned Magistrate, evidence was led to show that the appellant had been arrested by the respondent police officer following a motor vehicle chase which had resulted in the appellant driving the motor vehicle of which he was in charge into the brick wall of a building adjacent to a road. The evidence showed that the respondent and another police officer who were in a police pursuit vehicle came to a stop nearby and adjacent to the appellant's motor vehicle. Evidence also showed that the respondent police officer, who was a passenger in the police pursuit vehicle, alighted from the police pursuit vehicle and took steps towards the appellant's motor vehicle and that the appellant then reversed his motor vehicle. A question at trial was whether the appellant reversed his motor vehicle at the respondent police officer in an attempt to avoid arrest. In the event, the learned Magistrate was satisfied that he did and the appellant was convicted of the charge against him.
Grounds of appeal
3 On 21 January 2004, the appellant was given leave to appeal from the decision of the learned Magistrate by a Judge of this Court on the following grounds:
"The decision of the learned Magistrate, Ms B Lane SM, was unsafe and unsatisfactory, particulars of which are as follows:
(i) The Prosecution case had to be that the Applicant assaulted Detective Teather to prevent arrest by deliberately reversing his vehicle at the Detective and attempting to hit him.
(ii) Detective Teather and Sergeant Briggs gave evidence for the Prosecution. Both officers gave evidence that:
(a) the vehicle the Applicant was in had hit a brick wall.
(Page 4)
- (b) Detective Teather jumped out of the police vehicle to apprehend the Applicant.
(c) The Applicant looked over his right shoulder and started to reverse.
(d) Upon seeing his car start to move backwards Sergeant Briggs immediately drove the police vehicle into the vehicle the Applicant was in to prevent it from moving.
(e) The event occurred in a matter of seconds.
(f) It was possible that the Applicant was merely trying to reverse his car so he could drive away.
(g) Neither officer could say whether the Applicant saw Detective Teather.
- (iii) The Applicant did not give evidence but a Video Record of Interview with him was played to the Court in which he said:
'I had no intention to reverse into youse. I was just trying to get away.'
(iv) The learned Magistrate made no finding of fact that:
(i) the Applicant saw Detective Teather when reversing; and
(ii) that he made a deliberate decision to reverse the vehicle at Detective Teather with the intention of striking him to prevent arrest.
(v) On the evidence there were two possibilities:
(a) the Applicant reversed intending to hit Detective Teather; and
(Page 5)
- (b) the Applicant did not see Detective Teather and was simply reversing the car to get away.
- The second possibility was reasonably open on the evidence."
The appellant's contentions
4 The appellant does not dispute that he reversed his vehicle in an attempt to prevent arrest. Counsel for the appellant, however, says that the question for the learned Magistrate at trial was whether in reversing the vehicle the appellant had committed an assault on Detective Teather.
5 The appellant accepts that under s 222 of the Criminal Code an assault may be constituted by any bodily act or gesture, attempt or threat to apply force of any kind to the person of another without his consent under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose.
6 Counsel for the appellant says that, in light of the uncontradicted evidence of each of the police officers at trial that they could not say whether the appellant saw Detective Teather when he was reversing his vehicle, as well as the statement made by the appellant in the video record of interview that he had "no intention to reverse into youse. I was just trying to get away", it was simply not open to the learned Magistrate to find, as she needed to in order to find the charge proved, that the appellant had the necessary intent to assault Detective Teather.
7 Moreover, it is contended on behalf of the appellant that the conviction by the learned Magistrate is unsafe because during the course of the trial a question was raised with the learned Magistrate, and not clearly ruled irrelevant by her; that is, whether the appellant ought to have known that the police officer was adjacent to the appellant's vehicle and may have acted with reckless indifference to the presence of the police officer, when such considerations are irrelevant to the question of assault as defined by s 222 of the Criminal Code.
8 In this regard, the appellant says that the prosecution case (AB 27C) was put in these terms:
"The issue is whether it constituted an assault or whether the defendant knew the officer was there. It's my submission that the defendant ought to have known the officer was there; he
(Page 6)
- ought to have known that police vehicles were around, and without any regard for them, he's reversed the vehicle back."
9 Counsel for the appellant says that the learned Magistrate seems to have accepted that the appellant could be found guilty if he was "recklessly indifferent". The following exchange between counsel for the appellant and her Worship (at AB 32B) is said to be supportive of this view:
"MR HALL: My submission is: for him to do that, he had to intend to hit the police officer with his vehicle. Your Worship, although again we're not saying Mr Landers is in the right, or was - -
HER WORSHIP: Or was recklessly indifferent to the fact that the police officer was there?
MR HALL: Yes. We would - -
HER WORSHIP: You have to apply Hecorté [sic] here. I mean, it's a High Court decision. You can't get around it."
10 Counsel for the appellant says the evidence was that the reversing car did not hit Detective Teather. It is submitted that, as no force was applied either directly or indirectly to Detective Teather, under the definition of "assault" the appellant could only be found guilty if he saw Detective Teather and intended or threatened to reverse the vehicle at him. It is submitted that the appellant could not be found guilty of assault on the basis that he ought to have known the detective was there or was recklessly indifferent. In other words, it is submitted that the decision of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523 is not relevant in these circumstances.
11 Counsel for the appellant further refers to what the learned Magistrate said during the trial (at AB 37B) as follows:
"It is quite clear to me that the defendant deliberately backed his motor vehicle into the path of the police officer, to avoid arrest, to get away from the scene; and he would not have - - I'm not saying he deliberately knew it was Detective Teather, but he knew it was a police officer. He might not have known the particular police officer, but in my opinion he certainly knew the police were there, that Detective Teather was on the roadway, and he was going to avoid arrest at all costs."
(Page 7)
12 Counsel for the appellant submits that, given the prosecution case put forward and the particular observations made by the learned Magistrate as set out above, it is uncertain whether the learned Magistrate in the event found the appellant guilty on the basis that he knew Detective Teather was present in the path of his reversing vehicle at material times, or whether the learned Magistrate considered the appellant drove his vehicle in reverse with reckless indifference to the presence of a police officer.
13 In that regard, counsel for the appellant submits that the evidence could not support a finding beyond reasonable doubt that the appellant deliberately drove at Detective Teather attempting or threatening to hit him and that any such finding would be unsafe and unsatisfactory. Counsel relies on the test whether a verdict is unsafe and unsatisfactory as set out in Jones v The Queen (1997) 191 CLR 439, at 451:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
The respondent's contentions
14 The respondent denies that the decision is unsafe and unsatisfactory. Counsel for the respondent acknowledges the test in Jones v The Queen (supra) and says that the learned Magistrate's findings of fact must stand unless it can be shown that the Magistrate "failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable": see Gatica-Evans v Wear [2004] WASCA 25 per Jenkins J at [22] - [23]; Morris v The Queen (1987) 163 CLR 454
(Page 8)
- at 461 - 462 per Mason CJ; and Rosenberg v Percival (2001) 205 CLR 434 at 447 - 448 per McHugh J.
15 Counsel for the respondent says that, in the light of the evidence, there were two possible findings open to the learned Magistrate:
(1) the appellant reversed his vehicle intending to assault Senior Constable Teather, with intent to prevent his lawful arrest. Such a finding would have required the learned Magistrate to conclude that the contention of the appellant was not credible and that the prosecution had proved the charge beyond reasonable doubt; or
(2) the appellant did not see Senior Constable Teather when reversing his vehicle and as such did not intend to assault him. Such a conclusion would have required the learned Magistrate to accept the contention of the appellant made during the course of his video record of interview that he did not intend to assault Senior Constable Teather.
16 Counsel for the respondent refers to what the learned Magistrate said (at AB 37A-B) that:
"Mr Hall has stated that the prosecution must prove their case beyond reasonable doubt, and that I should accept the video record of interview where the defendant states that he didn't see them, that he was just trying to get away; not that he said he had no intention of hitting them, but just simply that he didn't see them and that he wasn't trying to get away. I don't accept that as being credible and reliable - not at all."
17 Counsel for the respondent also refers to what the learned Magistrate said (at AB 37B) in apparent final conclusion on these questions:
"It is quite clear to me that the defendant deliberately backed his motor vehicle into the path of the police officer, to avoid arrest, to get away from the scene; and he would not have - - I'm not saying he deliberately knew it was Detective Teather, but he knew it was a police officer. He might not have known the particular police officer, but in my opinion he certainly knew the police were there, that Detective Teather was on the roadway, and that he was going to avoid arrest at all costs."
18 Thus, it is contended on behalf of the respondent that a conclusion that the elements of the offence of assault with intent to prevent arrest had
(Page 9)
- been satisfied beyond a reasonable doubt was open on the evidence and, furthermore, it was open to the learned trial Magistrate to reject the contention by the appellant in his video record of interview that he did not intend to assault Detective Constable Teather.
The nature of the evidence before the learned Magistrate
19 One of the difficulties I have with the submissions made on behalf of the respondent, and also to an extent with the submissions put on behalf of the appellant, is that there seems to be a certain assumption as to what the appellant was referring to when he said in the video record of interview that:
"I had no intention to reverse into youse. I was just trying to get away."
20 When the appellant said, "I had no intention to reverse into youse", it seems to me that, when put in context with other things said in the interview, the appellant was simply saying that he did not intend to reverse into the police pursuit vehicle. There is nothing to suggest that he was talking about reversing his car into one of the policemen who had in fact alighted from the police pursuit vehicle.
21 This seems to me to be clear from a more detailed extract of the video record of interview which went into evidence and is before me on this appeal. The particular words of the appellant relied upon appear in this context:
"Appellant: I remember trying to get in reverse but I don't remember seeing youse there. That close behind me anyway cos my head was down here …
Youse just happened to be right there up my arse when I did finally get it in reverse and …
Question: Do you remember hitting our car?
Appellant: No I don't remember, I thought youse hit me as far as I remember …
I didn't know where, where youse were sitting on an angle or on the side of me, behind me …
I knew youse were there but I didn't know youse were that close
(Page 10)
- Question: So when you've stopped though, what've you don’t?
I've tried to put it in reverse … revved it …
I pranged into youse …
Question: What were you gonna do when you were reversing out? What were you trying to do?
Appellant: Take off.
Question: So still trying to get away from us?
Yeah.
I had no intention to reverse into youse. I didn't try and smash your car. I was just trying to get away again, reverse away …
Na. I wasn't going to hit youse. I had no intention to do that. I was just trying to reverse off and take off again …
Youse have um hit me from the side and put me to the side and I've jumped out to try and run away."
22 In these circumstances, the particular statement by the appellant, that "I had no intention to reverse into youse … I was just trying to get away", when combined with the statements by the police officers that they could not say whether the appellant saw Detective Teather in his path at any material time, makes it very difficult, in my view, for the learned Magistrate to have found that the appellant "certainly knew the police were there, that Detective Teather was on the roadway".
23 The only way in which the learned Magistrate could have made such a finding was to totally disbelieve what the appellant had said in his video record of interview and to rely on competing evidence tending to establish such knowledge. The difficulty is there is no such competing evidence.
24 Counsel for the respondent submits that the full circumstances in which the police had pursued the appellant, the appellant's vehicle had hit the brick wall and the police pursuit car had come to rest near the appellant's car, as well as evidence of what happened immediately after the appellant's car hit the brick wall, may have placed the learned Magistrate in a position, which the Court on appeal cannot be in, to make an assessment of the facts, and to draw an inference that the appellant knew that Detective Teather was in his pathway as he reversed.
(Page 11)
25 However, on the evidence adduced at the trial, to which I have referred above - in particular the statement of the police officers that they could not say that the appellant saw Detective Teather - I have considerable difficulty in finding a clear evidentiary basis for the learned Magistrate's finding.
Conclusion and order
26 When one has regard to how the prosecution opened its case, the exchange between counsel for the appellant at trial and the learned Magistrate and the learned Magistrate's reference to reckless indifference, and the nature of the evidence before her Worship, I have a real concern that, by one means or another, the learned Magistrate effectively reversed the onus of proof in this case such that, when she was not prepared to accept the video record of interview evidence and the appellant's denial of intent to assault the detective, she considered the charge proved. By so doing, the learned Magistrate, in effect, required the appellant to prove he did not know the respondent police officer was in the pathway of his reversing motor vehicle.
27 In all the circumstances, I am satisfied, on the basis of the test stated by the Court in Jones v The Queen (supra), that the verdict in this particular case is unsatisfactory and unsafe and I would allow the appeal.
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