LVC v Greenshaw - [2011] WASC 42

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: LVC -v- GREENSHAW [2011] WASC 42

CORAM: MAZZA J

HEARD: 2 DECEMBER 2010

DELIVERED : 25 FEBRUARY 2011

FILE NO/S: SJA 1071 of 2010

BETWEEN: LVC
Appellant
AND
CHRISTOPHER PAUL GREENSHAW
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P J HOGAN
File No  :MI 211 of 2009

Catchwords:

Criminal law - Appeal against conviction - Assaulting a public officer - Whether magistrate failed to warn himself of the dangers of disputed identification evidence - Whether appellant's prior offending established a propensity to violence - Whether verdict unreasonable or cannot be supported

Legislation:

Criminal Code (WA), s 318(1)(d)

Result:

Appeal allowed
Finding of guilt and sentence imposed by magistrate set aside

Category: B

Representation:

Counsel:

Appellant: Mr K P Bates
Respondent: Ms H K Watson

Solicitors:

Appellant: Ken Bates
Respondent: Director of Public Prosecutions (WA)

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

Domican v The Queen (1992) 173 CLR 555
M v The Queen (1994) 181 CLR 487

MAZZA J: The appellant was charged with assaulting the respondent, a public officer who was performing a function of his office, contrary to s 318(1)(d) of the Criminal Code (WA). He pleaded not guilty and was tried before his Honour Mr P Hogan in the Children's Court at Midland. His Honour convicted the appellant. The appellant now appeals against that conviction.
There are three grounds of appeal which, in essence, are:
1.His Honour erred in law by failing to warn himself as to the dangers of convicting on evidence of identification, the reliability of which is disputed.
2.His Honour erred in law by treating evidence of previous bad character as showing that the appellant had a propensity to drink alcohol and be violent.
3.His Honour erred in fact because, having regard to the evidence, the verdict of guilty is unreasonable or cannot be supported.
The respondent concedes the first and second grounds, but not the third. Those concessions do not bind the court, although they must be accorded due weight. It is the court's duty to independently assess the merits of the grounds of appeal. It is only if the court itself forms the view that the grounds of appeal have merit that they will be upheld.

The evidence at trial

On 7 February 2009, police officers became aware that a man named Sidney Bintley was at the Rangeview Tavern in Eden Hill. Mr Bintley was wanted on a return to prison warrant. At about 9.30 pm, Constable Greenshaw and First Class Constable Hugo arrived at the tavern in a police vehicle. Other police officers were also in attendance, including Sergeant Armstrong and Detective Senior Constable Burrows.
Constable Greenshaw and Detective Burrows approached Mr Bintley in the driveway outside the tavern. A struggle ensued, which left Mr Bintley on the ground, with the two police officers trying to restrain him. As this was occurring, Constable Greenshaw was struck in the area of his left forehead, leaving a small graze which did not require medical attention. Constable Greenshaw did not see who had hit him. Constable Greenshaw was unable to give any detail at all about the person (ts 10 ‑ 11). Constable Greenshaw testified that six people in total were arrested and taken to the Midland police station. The appellant was one of those people. Of these six, five were male and one was female (ts 15).
While the two police officers were struggling with Mr Bintley, a group of people assembled in the tavern driveway. Some of these people were plainly hostile to the police presence. The police were outnumbered. Sergeant Armstrong ran towards the area where he saw Detective Burrows and Constable Greenshaw wrestling with a male on the ground. He also saw a large group of males approaching in what he believed to be an aggressive manner. He drew his taser in response and raised it at the group, telling them to back off.
One of the males in the group, Raymond Lawrence, struck Sergeant Armstrong to the side of the face with some force. The blow caused Sergeant Armstrong to stumble backwards (ts 18). As Sergeant Armstrong was getting up, he saw Mr Lawrence about to rush in to where Constable Greenshaw, Detective Burrows and Mr Bintley were. As a result, Sergeant Armstrong tasered Mr Lawrence, who then fell to his knees. Sergeant Armstrong then went towards Mr Lawrence and, as he did so, he saw a man, whom he later identified as the appellant, rush in from his left and kick out towards the head area of Constable Greenshaw and Detective Burrows. He said that he saw Constable Greenshaw's head move backwards as a result of the impact of the foot (ts 19).
Sergeant Armstrong said that he was two or three metres '[g]ive or take a metre' away when he observed Constable Greenshaw being kicked. He said that the person who assaulted Constable Greenshaw was an Aboriginal male who was 'a lot younger than the other males that were part of the group' (ts 20).
Immediately, Sergeant Armstrong went over to the male, put his arm around his shoulders and applied his taser directly into the male's shoulder area. He then put the male down to the ground, rolled him over and handcuffed him. He remained with the male until back‑up arrived. At that point, another officer came and placed the male in the rear of a police vehicle and he was then conveyed to the Midland police station.
Later that night, Sergeant Armstrong attended the Midland police station where he saw the male and Mr Lawrence and identified them as being the people he had arrested. The male he identified at the police station was the appellant.
In cross‑examination, Sergeant Armstrong agreed that the blow struck by Raymond Lawrence was 'pretty forceful'. He agreed that when he was struck, he exclaimed that he thought his jaw had been broken (ts 29).
He said that he did not notice whether the man he thought was the appellant was wearing a shirt or not, but he agreed that in his police statement he had said that the person who struck Constable Greenshaw had his shirt off. He said that the person who struck Constable Greenshaw did not run away because he grabbed him and restrained him immediately.
Sergeant Armstrong said that the area in which the incident occurred was partially illuminated.
Sergeant Armstrong said that when he saw the appellant in the lock‑up, the appellant had his shirt off and he could see where the taser had made contact with the appellant's skin. At ts 35, the following exchange took place between defence counsel and Sergeant Armstrong:
I'll suggest to you that he did in fact have a shirt on. In fact, he had a shirt on at all times?‑‑‑See, at the lockup, when I saw him there, I could actually see where the taser had made contact with his skin, where the cables from the taser had actually gone across his skin and scorched it[.]
Detective Burrows, who was the other officer trying to restrain Mr Bintley, said that he felt someone come over the area of his left shoulder and lunge towards Constable Greenshaw. He saw Constable Greenshaw fall backwards onto the ground. He said that he saw the person who had 'collided' with Constable Greenshaw 'get up and sort of run off' (ts 39).
Detective Burrows did not see the person who had 'collided' with Constable Greenshaw either kick Greenshaw or strike him with a fist. When he was asked to explain what he meant when he said that the person who collided with Constable Greenshaw ran away, he said that he saw him take 'two very quick steps to the right' (ts 43).
Detective Burrows was unable to identify the person who collided with Constable Greenshaw. All he could say was that the person was a male of slim build.
The appellant elected to give evidence.
The appellant was, at the time of trial, 17 years of age.
He said that on 7 February 2009, he went to Justin Lawrence's 21st birthday party. He said that while he was at the party, he had three full‑strength beers. He said that he left the party at some point and went to the Rangeview Tavern. He went there with members of the Lawrence family, including Jamie and Raymond Lawrence, and Mr Bintley. He said that he was wearing a white T‑shirt and blue jeans. He said that while he was at the tavern he 'probably [had] a beer, if that' to drink (ts 50).
He agreed that while he was at the tavern, he got into an argument with one of the bar staff and was told to leave, which he did (ts 65). When he got outside, he saw some police officers apparently arresting someone.
He said that he saw Raymond Lawrence and then '[j]ust everything just went black' (ts 54). The next thing he recalled was being on his stomach on the ground in handcuffs.
He said that he was taken to the police station where he was asked to remove his shirt. He said that he 'had like taser marks or something on me' (ts 56) under his left arm and going towards his chest.
He denied striking any police officers that day.
In examination‑in‑chief, his counsel asked him if he had been 'in trouble before with the law' (ts 56). In fact, his own counsel showed him his criminal history, which was later tendered in evidence. That document showed that on 27 February 2009, in the Perth Children's Court, the appellant was convicted and sentenced for offences of driving without a licence, careless driving, driving with a blood alcohol content in excess of 0.02% but less than 0.05%, and unlawful damage. The first three offences occurred in one incident on 16 February 2008, while the unlawful damage offence was committed on 14 December 2008. According to the appellant, the unlawful damage charge arose after he became so intoxicated that he lost consciousness. Although he had no recollection of it, the police arrested him, alleging that he had thrown rocks at a taxi.
In cross‑examination, the appellant agreed that he was close, perhaps four or five metres away, when he saw Raymond Lawrence being tasered (ts 68). He said that it was at this point that he blacked out.
He maintained under cross‑examination that he had not assaulted Constable Greenshaw.
Cassandra Martin and the appellant's sister, SC, also gave evidence on behalf of the appellant.
Ms Martin said that she saw Jamie Lawrence, Raymond Lawrence and a man named Clive Turton being tasered (ts 80 ‑81). She said that '[i]t was chaos' (ts 81). She saw the appellant in some bushes. She said that he was wearing jeans and 'a creamy' T‑shirt (ts 82). Ms Martin thought that it was daytime when the incident occurred (ts 86). She said that she did not see the appellant kick a police officer in the face (ts 92).
SC said that she was at the Rangeview Tavern on the day in question. She said that she saw Raymond Lawrence being tasered (ts 100). She said that when she first saw the appellant he was on the ground with 'three police on his back' (ts 101). She said that the appellant was wearing jeans and a white T‑shirt (ts 103).

The cases

The real issue to be determined by his Honour was whether the prosecution had satisfied him beyond reasonable doubt that the person who assaulted Constable Greenshaw was the appellant. The prosecution case was that Sergeant Armstrong, the only witness who had identified Constable Greenshaw's assailant as the appellant, clearly saw Constable Greenshaw struck, and then immediately placed the assailant under arrest. A short time later, at the Midland police station, he identified the appellant as Constable Greenshaw's assailant and the person he had arrested.
The defence case was that Sergeant Armstrong had wrongly identified the appellant at the Midland lock‑up as Constable Greenshaw's assailant. Defence counsel gave particular emphasis to Sergeant Armstrong, in his police statement, identifying the assailant as having no shirt on, when the unchallenged evidence of Ms Martin and SC was to the effect that he was wearing a T‑shirt.

His Honour's reasons

His Honour correctly identified the key issue for him to determine as whether the prosecution had satisfied him beyond reasonable doubt that the appellant was the person who had assaulted Constable Greenshaw.
After directing himself as to the onus and standard of proof, he referred to the evidence of the appellant's criminal history. His Honour said:
He has given evidence of what the circumstances were of those previous incidents, written here on his record, the damage and the driving offence in particular. That evidence of previous bad character does not necessarily mean that, because he did those things, therefore he did this one. Nevertheless, it's evidence in the case and I do take it into account. It shows in my view that he has a propensity to drink alcohol … to some extent, because that's what he said when he was explaining his unlawful damage conviction.
I also find as a fact that it shows a propensity to be violent, as in the unlawful damage offence that he pleaded guilty to; although he told us in evidence something different he did plead guilty to it. It's propensity evidence properly admitted, although it doesn't prove he did this one it is, as I say, evidence of propensity to be violent. That's how one takes into account that evidence (ts 2 ‑ 3 of his Honour's reasons).
His Honour then proceeded to summarise and analyse the evidence given by all witnesses.
He was impressed by the evidence of Sergeant Armstrong, whom he described as providing 'the best, most detailed description' (ts 5 of his Honour's reasons). He accepted that Sergeant Armstrong may have been incorrect in his description, in his statement, of the appellant not having a shirt on. His Honour thought this was a mistake which did not otherwise affect his assessment of Sergeant Armstrong's credibility. He accepted that Sergeant Armstrong was 'a witness of accuracy as well as truth, that it was [the appellant] who did the assault' (ts 6 of his Honour's reasons).
His Honour was not impressed with the evidence of the appellant. His Honour was of the view that the appellant was adversely affected by alcohol, that he was aggressive and that he assaulted Constable Greenshaw.
His Honour did not expressly have regard to the dangers involved in convicting on evidence of identification, the reliability of which is disputed.

Merits of the grounds of appeal

Ground 1

The prosecution relied upon the identification evidence of Sergeant Armstrong to establish that the appellant was the person who assaulted Constable Greenshaw. Sergeant Armstrong apparently had no dealings with the appellant prior to the night in question.
In Domican v The Queen (1992) 173 CLR 555, 561 ‑ 562, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ in a joint judgment said:
Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. The attention of the jury 'should be drawn to any weaknesses in the identification evidence'. (citations omitted)
In a trial before a magistrate sitting alone, it is necessary for a magistrate to give express effect to what was said in Domican v The Queen. In the present case, his Honour completely omitted to do so.
Ground 1 has been made out.

Ground 2

It is difficult to conceive of a rational forensic reason why defence counsel would have wanted to elicit evidence of the appellant's prior offending. However, Mr Bates, on behalf of the appellant, did not argue that the admission of the evidence itself constituted a miscarriage of justice. Rather, he submitted that his Honour misused the evidence by concluding that it established, in particular, that the appellant had a propensity to violence.
I agree with the submissions of both the appellant and the respondent that the evidence of the appellant's prior offending did not establish that he had a propensity to violence. The appellant had not been convicted of any offence involving violence. The unlawful damage charge involved the appellant throwing rocks at a taxi, but there was no evidence that the appellant was doing that with any intent to be violent towards anyone who was, at the time, travelling in the taxi.
There is nothing else in the appellant's record from which a propensity to violence could be inferred.
Ground 2 has been made out.

Ground 3

The test to be applied by a court considering whether a verdict should be set aside on the ground that it is 'unsafe and unsatisfactory or it is unreasonable or cannot be supported, having regard to the evidence' is well‑known and is set out in M v The Queen (1994) 181 CLR 487, 492 ‑ 493:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'. But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. …
...
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (citations omitted)
Mr Bates submitted that when regard is paid to the following matters it was not open to his Honour to be satisfied on Sergeant Armstrong's evidence that the appellant assaulted Constable Greenshaw:
(a)Immediately before Sergeant Armstrong saw Constable Greenshaw struck to the head, he was himself struck forcefully in the side of the face, causing him to stumble backwards.
(b)Sergeant Armstrong had not previously seen the appellant. His only opportunities to identify the appellant were very brief, being just before and just after the appellant allegedly kicked Constable Greenshaw in the head.
(c)The incident occurred in the context of a melee involving at least six police officers, alleged assaults by two persons on police, the use of tasers, a number of people being arrested and a number of people either involved or watching the incident.
(d)The incident occurred at night when it was dark, the only lighting being street lighting and lighting that was coming from the nearby Rangeview Tavern.
(e)Sergeant Armstrong, in his statement, said that the person who kicked Constable Greenshaw had his shirt off. In his evidence, he was unable to say whether the assailant was wearing a shirt or not.
(f)The prosecution did not challenge the evidence of Ms Martin and SC that the appellant was wearing a shirt at about the time Constable Greenshaw was assaulted.

Ms Watson, for the respondent, submitted it was open to his Honour to be satisfied beyond reasonable doubt that the appellant was Constable Greenshaw's assailant, based on Sergeant Armstrong's identification at the police station. She referred to the following matters:
(a)Although Sergeant Armstrong did not previously know the appellant, he watched him assault Constable Greenshaw and then immediately grabbed him, tasered him and handcuffed him. The assailant remained with Sergeant Armstrong until back‑up arrived. The respondent submits that in these circumstances, Sergeant Armstrong had a good opportunity to note the assailant's features for a later identification.
(b)The appellant was in the vicinity of the alleged assault, having seen Raymond Lawrence tasered.
(c)Sergeant Armstrong described Constable Greenshaw's assailant as a young Aboriginal male, a general description which is consistent with the appellant.
(d)Sergeant Armstrong said that he tasered Constable Greenshaw's assailant in 'his shoulder area, so into the pec‑type muscle area' (ts 20). The appellant, in his evidence, said that he had taser marks under his left arm and going towards his chest area (ts 56). The location of the taser marks found on the appellant is consistent with the location of the tasering, described by Sergeant Armstrong, on Constable Greenshaw's assailant.
(e)Sergeant Armstrong said that Constable Greenshaw's assailant was 'a lot younger than the other males that were part of the group' (ts 20). However, as the respondent fairly observes, the appellant testified he was with Michael Lawrence, who was 19, and Justin Lawrence, who was 21. Ms Martin testified that Michael Lawrence and Justin Lawrence were leaning on a car some distance away from the incident. Neither was wearing a shirt (ts 83).
I have undertaken an analysis of the whole of the evidence. I have carefully read the transcript and viewed the exhibits which were tendered at the trial. Of course, I have not had the advantage of seeing and hearing the witnesses.
Having undertaken this task, I remind myself of the dangers of identification evidence, particularly that an apparently convincing witness can be wrong.
Sergeant Armstrong was the only witness who identified the appellant as Constable Greenshaw's assailant. He did so at the Midland police station lock‑up.
Earlier that night, Sergeant Armstrong had seen a young Aboriginal male assault Constable Greenshaw. He then apprehended that person and kept him in his custody until another police officer took the assailant away to a police van and then, one might safely assume, to the police station. I do not think that there can be much doubt that the person who assaulted Constable Greenshaw was the same person that Sergeant Armstrong arrested. Further, it may be inferred that the person who was arrested by Sergeant Armstrong was one of the five males taken to the Midland police station.
The only opportunity that Sergeant Armstrong had to take note of the features of the person he arrested was when he observed the assault, apprehended the assailant and kept the assailant in his custody until back‑up came. There is no evidence as to how long this period was. Sergeant Armstrong himself testified that while he was keeping the assailant of Constable Greenshaw at bay, he was also keeping at bay another person or group. He said that he was doing this with his taser, which suggests that he was looking at this person or group (ts 32).
The clear preponderance of the evidence was that the incident occurred at night. One witness, Ms Martin, said that the incident occurred in the daytime, but she was the only person who said this. No witness had any apparent difficulty seeing the events they testified to.
A matter which must be considered is Sergeant Armstrong's acknowledgement that, in his police statement, he said that Constable Greenshaw's assailant was not wearing a shirt. Sergeant Armstrong gave evidence some eight months after the events in question, and six months after he gave his police statement. He readily acknowledged that he would not have put into his statement that the assailant was not wearing a shirt if that was inaccurate. This evidence must be viewed against the unchallenged evidence at trial that the appellant was seen in the vicinity of the commotion in the carpark, wearing a white (or creamy) T‑shirt. This evidence points to the appellant not being Constable Greenshaw's assailant.
As against this, the appellant himself acknowledged that he had taser marks under his left arm and going towards his chest area. These marks are in approximately the same area on his body as where Sergeant Armstrong said he applied his taser to Constable Greenshaw's assailant. This evidence, which potentially offers support to Sergeant Armstrong's identification, has limitations. First, the appellant was not the only person tasered on the night. The exact number of people who were tasered is unknown. Second, because Sergeant Armstrong had already deployed his taser on Raymond Lawrence, using probes attached to wires, the only way which he said he could use his taser to subdue Constable Greenshaw's assailant was to directly apply the taser to the assailant's skin and cycle an electrical charge. In other words, the taser was not deployed by using probes attached to wires.
Sergeant Armstrong's evidence about the marks that he saw on the appellant referred to marks left by 'the cables' of the taser. This appears to be a reference to the wires which are attached to the probes. If, as Sergeant Armstrong says, there were marks left by 'the cables', that would suggest that the appellant was not tasered in the way Sergeant Armstrong tasered the assailant.
In my opinion, while there is, as a matter of law, evidence which could sustain a verdict of guilty, there are inadequacies in the evidence revealed in the record of the trial which give rise, in my mind, to a significant possibility that Sergeant Armstrong mistakenly identified the appellant as Constable Greenshaw's assailant. I do not think it was open to his Honour to find the appellant guilty.
Ground 3 has been made out.

Conclusion

Having upheld all three grounds of appeal, I allow the appeal and set aside the finding of guilt and the sentence which was imposed by his Honour.

Orders

I propose to make the following orders:
1.The appeal is allowed.
2.His Honour's decision to find the appellant guilty of the charge of assaulting a public officer is set aside.
3.The sentence imposed by his Honour is set aside.
4.There is no order for a re‑trial.