Major v Powell
[2020] WASC 57
•3 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MAJOR -v- POWELL [2020] WASC 57
CORAM: TOTTLE J
HEARD: 18 FEBRUARY 2020
DELIVERED : 3 MARCH 2020
FILE NO/S: SJA 1114 of 2019
BETWEEN: MERILYN ALYX MAJOR
Appellant
AND
CAMPBELL TODD POWELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T R WATT
File Number : PE 29400 of 2019
Catchwords:
Criminal law - Appeal against decision of magistrate - Appeal against acquittal - Whether no case to answer - Whether magistrate took prosecution evidence at its highest - Where magistrate engaged in weighing evidence - Error of law - Appeal allowed
Legislation:
Public Transport Authority Act 2003 (WA), s 65, s 69
Public Transport Authority Regulations 2003 (WA), reg 40, reg 41, reg 43
Result:
Leave to appeal granted
Appeal allowed
Verdict of acquittal set aside
Category: B
Representation:
Counsel:
| Appellant | : | Ms D Van Nellestijn |
| Respondent | : | In person |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | In person |
Case(s) referred to in decision(s):
Cook v Couacaud [2016] VSC 791; (2016) 263 A Crim R 527
Director of Public Prosecutions v Farmer [2010] VSC 343; (2010) 56 MVR 137
Halley v Kershaw [2013] VSC 439
Hurst v Ninyett (1992) 16 MVR 397
Labriola v Morgan [2017] WASC 256
Matich v Egan [2000] WASCA 368; (2000) 32 MVR 449
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Police v Zare-Saisan [2011] SASC 46
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1
R v Bilick (1984) 36 SASR 321
The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124
The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155
TOTTLE J:
Introduction
On 7 August 2019, following a trial in the Magistrates Court, the respondent was acquitted of one charge of obstructing a security officer in the course of her duties, contrary to reg 40 of the Public Transport Authority Regulations 2003 (WA) (the Regulations). The appellant seeks leave to appeal against the acquittal.
The Regulations are made under s 69 of the Public Transport Authority Act 2003 (WA) (the Act); the Act establishes the Public Transport Authority of Western Australia (the Authority).
The ground of appeal relied on by the appellant is that the magistrate erred in law in finding that the respondent had no case to answer in circumstances where the evidence, taken at its highest, was capable of establishing the offence charged. The appellant seeks an order that there be a new trial before a differently constituted court.
The prosecution case at trial
The facts alleged by the prosecution were as follows:[1]
(a)Shortly before 9.30 pm on 12 April 2019 the respondent was on a train that was going from Fremantle to Perth.
(b)The respondent had become a nuisance to a group of people, and as a result two transit officers, Officers Major and Cocks, intervened.
(b)The respondent became disorderly and abusive.
(c)The officers told the respondent that he was being 'refused passage' under reg 41(1)(i) of the Regulations and that he was required to leave the train at the next station. The respondent was directed to leave both the train and Authority property but he refused, and was physically removed from the train by the officers.
(d)When on the platform the respondent resisted the officers, and in so doing he obstructed Officer Major in the course of her duty. The respondent was arrested.
(e)The respondent committed the offence while on the train station platform by obstructing Officer Major in the course of her duties as she attempted to remove the respondent from Authority property pursuant to s 65(4) of the Act.
[1] ts 8 - 9.
The prosecution relied on oral evidence given by Officers Major and Cocks and a third officer who tendered CCTV footage. The CCTV footage contained images taken from inside the train carriage and images taken on the platform. I will refer to the evidence of Officers Major and Cocks in greater detail later in these reasons.
The respondent's case
The respondent represented himself both before the magistrate and on the application for leave to appeal. The respondent made an opening statement at trial. The respondent's version of events was that after getting on the train he approached a group of other travellers and engaged in friendly conversation with them. A short while later the two officers entered the carriage and, after watching the conversation, approached the respondent accusing him of being racially abusive and directing him to leave the train. The respondent said he felt confused and upset, and asked the officers why they were directing him to leave the train.[2]
[2] ts 10.
The respondent alleged that the officers behaved in an aggressive manner and that, contrary to the prosecution case, he did not resist being removed from the train. The respondent contends that he fell when the officers pushed him off the train, at which point they 'jumped' on him and arrested him.[3] The respondent argued that the officers had misread the situation, and reacted with overzealous antagonism.[4] The respondent maintained a strong denial that he used the language (described later in these reasons) that was attributed to him by the officers.
[3] ts 10.
[4] ts 35.
Relevant statutory provisions
The respondent was charged with an offence under reg 40 of the Regulations which states:
40.Obstructing an authorised person
A person who obstructs, hinders, impedes or attempts to obstruct, hinder, or impede an authorised person or a security officer in the course of his or her duties commits an offence.
Section 65(1) of the Act confers power on a security officer to direct a person to leave Authority property in circumstances prescribed by the Regulations.
One of the circumstances in which an authorised person is empowered to direct a person to leave Authority property, prescribed by the Regulations, is that the person has been advised under reg 41 that he or she must not travel on or remain on a conveyance. This circumstance is prescribed by reg 43(g):
43.Ejecting people from Authority property: section 65 of the Act
For the purposes of section 65(1) of the Act, the circumstances in which a person who is in or on Authority property may be directed to leave that property are -
...
(g)the person has been advised under regulation 41 that he or she must not travel on or remain on a conveyance;
Regulation 41(1) states:
41. Refusal of passage
(1) A driver, master or authorised person may advise a person that that person must not travel on or remain on a conveyance if the driver, master or authorised person has reasonable grounds to believe that the person -
...
(i)is abusive or disorderly;
Section 65(3) of the Act provides that a security officer whose direction under s 65(1) has not been complied with may warn the person to whom the direction is given that the person may be physically removed if the person does not comply with the direction.
Section 65(4) of the Act permits a security officer to use any force reasonably necessary to remove from Authority property, a person who has been warned under s 65(3) that they may be removed if they fail to comply with the direction, and who has still not complied with the direction.
There was no dispute that Officers Major and Cocks were security officers and authorised persons, and the train and station were Authority property.
Decision of the magistrate
The no case to answer issue was raised by the magistrate. At the conclusion of the prosecution case the magistrate asked counsel for the prosecution why the court should be satisfied that the respondent had a case to answer. The magistrate heard submissions from counsel after which she delivered oral reasons explaining why she was not satisfied that there was a case to answer.
The structure of the magistrate's reasons was as follows:
(a)The magistrate outlined the operative effect of the statutory provisions - s 65 of the Act, reg 41(1)(i) and reg 43(g).[5]
[5] ts 35.
(b)The magistrate referred to the requirement that an authorised person must have reasonable grounds to believe that the person the subject of a refusal of passage 'is abusive or disorderly'. The magistrate recorded that neither officer had given any evidence of conduct that would constitute 'disorderly behaviour'. It appears from the magistrate's reasons as a whole that her Honour approached the case on the basis that 'disorderly' conduct involves some form of physical action rather than just speech.[6]
[6] ts 35 - 36.
(c)The magistrate then referred to the evidence in some detail. She referred to Officer Major's evidence to the effect that she heard the respondent say to Officer Cocks that he 'could stick his fucking truncheon up his arse'. Her Honour referred to Officer Major's evidence that she had told the respondent that if he continued to speak like that he would be directed to leave the train and as she was walking away she heard 'further language'. Her Honour then described the beginning of the sequence of events that led to the physical removal of the respondent in the following terms:[7]
[7] ts 36.
But what starts this process is that she said she heard Constable Cocks telling him that he was refused travel and that he needed to leave at the next station. She said that he walked towards the door and stopped, and he stood still against the panel and he did not leave. He said Constable Cocks said you need to leave, or you will be physically removed, and he said, 'Make me'. We took one arm each and left. He pulled against us, making it difficult and he dropped his weight to the ground, tensed his arms and I said, 'Stop resisting. You need to leave the station.' She said that the accused continued to pull his arms in and drop his weight. She said that 'if you do not get up, you will be arrested and if you didn't leave, you will be arrested.'
But he did not stand up and then, of course, we see from the footage that he is dragged into the garden bed, effectively, in that position and she says at some point that he was under arrest and he was trying to gain control, but he continued to resist. And I kept saying stop resisting, stop resisting. Constable Cocks gave evidence and I must say - well, I don’t need to make comments about credibility at this point in time, but his memory wasn't, perhaps, as clear as Constable Major. He said that the accused seemed angry and told him that it was fucking ridiculous at various times and that, subsequently, he also heard him say that could [sic] stick the truncheon up his arse and he then refused him travel and directed him to leave at the next station.
(d)The magistrate recorded that Officer Cocks did not make any observation as to how he perceived the language used by the respondent (according to Officer Cocks' evidence). Her Honour said:[8]
[8] ts 36 - 37.
Now, he doesn't go on to make any comment about that as to regulation 41, how he perceived that. He certainly doesn't conclude that it is disorderly behaviour. It therefore comes to me to be invited to see whether it can be drawn as an inference that it's abusive behaviour and to draw an inference against the accused, of course, I can only draw an inference if it's the only reasonable inference open on the evidence and I'm not sure that it is in all of the circumstances that are before me. Because the behaviour that was on the train that I observed in the CCTV footage was of a group. (my emphasis)
(e)The magistrate stated her view as to whether the respondent's conduct was abusive. Her Honour said:[9]
[9] ts 37.
It was not disorderly. It didn't appear to be abusive in any way and there is conflicting evidence between the two officers as to what they observed. One of the officers gives evidence about something that clearly isn't on the CCTV and that's Officer Cocks and I must say, I am concerned about that. The degree of evidence that was given to substantiate issuing an order pursuant to regulation 41 of the refusal of passage and section 65 was really minimal. And then there's nothing that happens. And he gets up at the station, stands at the door and says, well, I've done nothing wrong. Why do I have to get off and the officers tell him to get off and really, they are relying on regulation 41 to do that.
I do not think I can be satisfied, on the evidence that I heard from Officer Cocks, that he was invoking regulation 41 in the appropriate way …
I interpolate that there was no evidence to the effect that the respondent said, 'Well, I have done nothing wrong. Why do I have to get off'.
(f)The magistrate described the sequence of events that unfolded as the respondent was removed from the train. The magistrate referred to the CCTV footage showing the respondent either falling to his knees or going to his knees. The magistrate observed that, at no stage that her Honour could see, was the respondent given the opportunity to get up and leave, as her Honour observed, 'he necessarily needed to be'. Her Honour observed, '[the respondent] still has not committed an arrestable offence'.[10]
(g)The magistrate made some observations which were critical of the officers' attempts to control and arrest the respondent. Her Honour considered whether the officers were acting in the course of duty and said:
… And I know there was evidence about them saying he was struggling but there has to be an action in the course of a duty. There has to be an arrestable offence and I can't see that there was an arrestable offence here or that Officer Major, at that point in time, was acting in the course of her duty. And even then, if I could be satisfied that there was an arrestable offence, on the basis of what I saw in the CCTV footage, I would have to conclude there was excessive force which would make it unlawful.
(h)The magistrate concluded her reasons with the following observations:[11]
I really - taking the prosecution at its highest for all of those steps - can’t be satisfied that there's a case to answer in relation to this matter. In bringing a prosecution on the public transport, you must be very clear as to the evidence that you rely upon to ground an order given under the regulations - regulation 41 and section 65 - and that evidence must be very clear and concise from the person particularly that is issuing it. Because it presents as the beginning of a process, as we've seen here, that should not have ended in the way it did.
For those reasons I don't think I could reach - I can't reach, even on a no case to answer submission from the prosecution case at its highest - when I look clearly at the words that the officer spoke in relation to their evidence and the contradictory evidence on the CCTV footage, I just simply could not be satisfied and for that reason, Mr Powell, I'm acquitting you of the charge ...
[10] ts 37.
[11] ts 37 - 38.
No case to answer - relevant test
The following summary of the relevant principles is drawn from the appellant's submissions which I accept accurately state the law.
The test to be applied by a trial judge in determining whether there is no case to answer at the close of a prosecution case is whether the evidence of the prosecution, taken at its highest, is capable of establishing the guilt of the accused beyond reasonable doubt.[12]
[12] Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489 (Malcolm CJ, Kennedy & Ipp JJ agreeing).
This is a matter of determining 'not whether, on the evidence as it stands, the accused ought to be convicted, but whether, on the evidence as it stands, he or she could lawfully be convicted.'[13] This does not entail an evaluation or weighing of the evidence. Rather, the evidence is to be taken as being correct, drawing all inferences which are open on the evidence at their most favourable to the prosecution.[14]
[13] The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 [12] (Buss JA, Martin CJ & Mazza JA agreeing).
[14] The State of Western Australia v Montani [2007] WASCA 259; (2007) 182 A Crim R 155 [37] - [38] (Martin CJ, Pullin & Miller JJA).
Inconsistencies and imperfections in the evidence of prosecution witnesses cannot justify the finding of no case to answer at law.[15]
[15] Police v Zare-Saisan [2011] SASC 46 (David J) [17], citing R v Bilick (1984) 36 SASR 321, 337 (King CJ, Mohr J agreeing).
In a case that depends on circumstantial evidence or inferences, the test is the same as that depending on direct evidence:[16]
… Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?
[16] R v Bilick, 337.
If all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, and the evidence is still not capable in law of supporting a conviction, then a court may find that there is no case to answer.[17]
[17] The State of Western Australia v Burke [14], citing Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 [5] (King CJ, Bollen J agreeing).
Disposition
For the reasons expanded upon below the magistrate's reasoning discloses an approach to the determination of whether the respondent had no case to answer which leads me to conclude that she did not consider whether the evidence, taken at its highest, was capable of establishing the obstruction charge. In summary, and with respect, I consider:
(a)the magistrate misdirected herself by asking the wrong question in the context of considering whether Officer Cocks had reasonable grounds to believe that the respondent was abusive;
(b)the magistrate failed to consider important evidence on the issue of whether the respondent was abusive;
(c)the magistrate erroneously introduced the existence of an arrestable offence as a condition that had to be satisfied before concluding that Officer Major was acting in the course of her duty; and
(d)in some respects, the magistrate approached the evidence as if she was determining whether the respondent was guilty at the end of the trial rather that determining whether there was a case to answer.
The magistrate was required to be satisfied that there was evidence capable of establishing the following:
(a)An authorised person had reasonable grounds to believe and did believe that that the respondent was abusive or disorderly and had advised the respondent that he must not travel or remain on the train: reg 41(1)(i).
(b)An authorised person had directed the respondent to leave Authority property in the circumstances prescribed by reg 43 ‑ the relevant circumstance being that prescribed by reg 43(g) ‑ that the respondent had been advised that he must not travel or remain on the train.
(c)The respondent had not complied with the direction given by an authorised person, and the authorised person had warned the respondent that he might be physically removed if he did not comply with the direction: s 65(3).
(d)The authorised person had used such force as was reasonably necessary to remove the respondent after he had been warned that he might be physically removed if he did not comply with the direction to leave Authority property: s 65(4).
(e)The respondent obstructed an authorised person in the course of his or her duties: reg 40.
Regulation 41(1)(i)
Both officers gave evidence that the respondent was told by Officer Cocks that he was refused travel and would need to leave the train at the next station.[18] The magistrate's reasons should be understood as involving an acceptance by her Honour that the evidence was capable of establishing that the respondent had been advised that he was being 'refused passage'. The issue, which was the focus of the magistrate's consideration, was whether there was a basis upon which it was open to Officer Cocks to advise the respondent that he was being refused passage. I turn now to the evidence relating to that issue and the magistrate's approach to it.
[18] ts 17, 25.
There was evidence from both Officer Major and Officer Cocks that the respondent called Officer Major a 'fucking slut' and said to Officer Cocks that 'you can stick your fucking truncheon up your arse' and, at various points, said 'fuck that', 'fuck off', and 'this is fucking ridiculous' or words to that effect.[19]
[19] ts 17, 25.
It is not clear from the magistrate's reasons what consideration was given by her Honour to the evidence referred to in the preceding paragraph. Other than a general reference to Officer Major hearing 'further language', her Honour made no reference to the evidence that the respondent called Officer Major a 'fucking slut'.
The appellant suggests that it is to be understood from the remarks reproduced at [16(d) - (e)] that her Honour was not satisfied that Officer Cocks had reasonable grounds to believe that the respondent was abusive as referred to in reg 41. There are, however, aspects of the way in which her Honour expressed her reasoning - in particular posing the question 'whether it can be drawn as an inference that it's abusive behaviour' - which suggest that her Honour undertook the exercise of determining whether the respondent was being abusive or disorderly, and not the exercise of determining whether Officer Cocks had reasonable grounds to believe that the respondent was abusive or disorderly and, although it is not entirely clear, I think this is what her Honour did.[20] In so doing, the magistrate misdirected herself.
[20] ts 36.
The appellant accepted that a prerequisite that a person 'has reasonable grounds to believe' requires that the person has both reasonable grounds to believe and did in fact did so believe.[21] The test is not whether the court holds or agrees with the belief, but whether the officer held such a belief and whether he held that belief on reasonable grounds.[22]
[21] Hurst v Ninyett (1992) 16 MVR 397, 401 (Wallwork J); Matich v Egan [2000] WASCA 368; (2000) 32 MVR 449 [25] - [34] (Scott J); Labriola v Morgan [2017] WASC 256 [45] - [46] (Tottle J) (in relation to 'reasonable suspicion' as provided for in s 4 of the Criminal Investigation Act 2006 (WA)).
[22] Halley v Kershaw [2013] VSC 439 [41] (Kaye J); Cook v Couacaud [2016] VSC 791; (2016) 263 A Crim R 527 [30] - [31], [41] (Lasry J); Director of Public Prosecutions v Farmer [2010] VSC 343; (2010) 56 MVR 137 [14] - [18] (Bell J).
There were two questions: did Officer Cocks believe that the respondent was abusive or disorderly and, if so, did he have reasonable grounds for that belief?
Officer Cocks did not give direct evidence that he believed that the respondent was being abusive or disorderly. Both officers gave evidence of the language they heard the respondent use and Officer Cocks gave evidence that he told the respondent that he was being refused travel. As the authorities make clear, in determining whether there is a case to answer all inferences most favourable to the prosecution which are reasonably open are to be drawn. Taking Officer Cocks' evidence of what he heard the respondent say and his evidence that he told the respondent that he was being refused travel at its highest, it was a reasonable inference to draw that Officer Cocks held the belief that the respondent was abusive.
I turn next to the question of whether the evidence was capable of establishing that there were reasonable grounds for the belief that the respondent was abusive.
Determining whether there were reasonable grounds for Officer Cocks to believe that the respondent was being abusive involves a question of fact, which was capable of being determined on the basis of the direct evidence of the two officers. There was no requirement for the magistrate to draw any inferences and, in so far as her Honour appeared to rely on inferential reasoning for the purpose of determining whether she was satisfied that the respondent was abusive, this involved a departure from the requirement to take the evidence - the direct evidence - at its highest.
Further, as counsel for the appellant submitted, her Honour approached the drawing of an inference as if she was drawing an inference for the purpose of determining the charge at the conclusion of the trial, that is, the inference should only be drawn if it was the only reasonable inference open on the evidence, as opposed to taking the approach required by the authorities of drawing the most favourable inference to the prosecution that was reasonably open.
I have no hesitation in concluding that the evidence of the language used by the respondent, to which I have referred above (and which the respondent denies he used) - in particular, the evidence of the language directed to Officer Major - was sufficient to constitute reasonable grounds for a belief on the part of Officer Cocks that the respondent was abusive. The language was grossly repugnant to community standards and by its very nature was abusive.
I have already mentioned that in the passage of the magistrate's reasons dealing with the nature of the alleged conduct on the part of the respondent (the passage of the reasons extracted at [16(c)] above), the magistrate did not make any direct reference to the evidence of the language used by the respondent - in particular, her Honour made no reference to the evidence of the remark directed to Officer Major. As expressed in her reasons, the focus of her Honour's attention was what could be seen on the CCTV footage. With respect to the magistrate, the absence of a reference to the evidence of the language allegedly used by the respondent directed at Officer Major was surprising. Taking a generous view of her Honour's reasons I am not satisfied that I can assume that it was implicit in her Honour's reasoning process that this evidence was taken into account. As a consequence, I cannot be satisfied that her Honour took all the prosecution's evidence, at its highest, into account in the course of her reasoning process.
There was evidence capable of establishing the respondent was advised that he was being refused passage and that Officer Cocks had reasonable grounds to believe and did believe that the respondent was abusive.
Regulation 43 and s 65(3)
It is convenient to deal with the evidence adduced to satisfy these provisions together. Both officers gave evidence that the respondent did not leave the train at the next station and that the respondent was told that if he did not leave he would be physically removed.[23] There was some difference between the evidence of each officer as to how this warning was given but there was evidence taken at its highest that was capable of establishing that a warning was given.[24] Moreover, both officers gave evidence that the respondent said 'make me', which, as the appellant submits, tends to establish that the warning was given.[25] The respondent was further warned by both officers to leave the station once on the platform.[26] I am satisfied that there was evidence capable of establishing that the respondent had been directed that he must leave Authority property and that if he did not leave he would be physically removed.
Section 65(4)
[23] ts 17, 25.
[24] ts 17, 25.
[25] ts 17, 25.
[26] ts 17, 25.
There was evidence from the officers that the respondent did not comply with directions to leave the train or the station.[27] There was also evidence from both officers that they took the respondent by the arms and removed him from the train onto the platform. The CCTV (taken from a camera on the platform) shows the officers and the respondent coming out of the train carriage quite rapidly with the officers holding opposite arms of the respondent on either side.[28] Officer Major gave evidence that once on the platform the officers applied force to try to gain control of the respondent.[29] Accordingly, there was evidence capable of establishing that the respondent had not complied with the direction to leave Authority property and that Officer Major used reasonable force to remove him from the train and platform. I note that despite prompting from the magistrate neither officer was cross‑examined on the use of physical force in removing the respondent from the train.[30]
[27] ts 17, 25.
[28] Exhibit 1, CCTV '1. Mos 201-20' at 00:27 seconds (21:34:28).
[29] ts 17.
[30] See ts 27 - 28.
The evidence referred to in the preceding paragraphs was capable of establishing that as Officer Major was acting in the course of her duty as she removed the respondent from the train and stepped onto the platform. It was not necessary for the magistrate to find that the respondent had committed an arrestable offence in order to determine whether Officer Major was acting in the course of her duty. The existence of an arrestable offence was not an element of any of the relevant statutory provisions.
Regulation 40
There was evidence from both officers about the respondent's actions as he was being removed from the train. It is sufficient to refer to Officer Major's evidence to the effect that as she stepped on to the platform the respondent dropped his bodyweight and ended up on his knees, and tensed the muscles in his upper body and arms, and she said to him 'Stop resisting. Get up. You need to leave the station'.[31] This was evidence capable of establishing that the respondent had obstructed Officer Major as she was acting in the course of her duty.
The magistrate's approach to the evidence
[31] ts 17.
There are passages in the magistrate's reasons that point to the magistrate departing from the approach her Honour was required to take to determine whether there was a case to answer, that is to take the evidence adduced by the prosecution at its highest, and that her Honour weighed and evaluated the strength of the evidence. I have already mentioned her Honour's approach to inferential reasoning in the context of whether the respondent was abusive. That the magistrate engaged in weighing the evidence is apparent also from her Honour's references to: conflicts in the evidence given by the officers; a suggested inconsistency between the evidence of Officer Cocks and the CCTV footage; and to the evidence relied upon to establish a refusal of passage as 'really minimal'.
The respondent's submissions
I should explain why in the preceding paragraphs I have not made any reference to the respondent's submissions. The respondent filed and served cogent written submissions but, understandably, given that the respondent was unrepresented, the submissions were directed to establishing that he was not guilty of the obstruction charge by pointing to what he maintained were weaknesses and inconsistencies in the prosecution case. The respondent's submissions were not directed to the central and critical issue on this application, which is whether the magistrate determined whether there was no case to answer in accordance with the established applicable legal principles. As stated at [20], inconsistencies or imperfections in the evidence relied upon by the prosecution cannot justify a finding of no case to answer unless the inconsistencies or imperfections are of such a nature that they destroy all probative value that might otherwise have been derived from the material relied on so that it can no longer be considered evidence. The inconsistencies or imperfections relied upon by the respondent are not of that nature and they are not sufficient to justify the conclusion that he has no case to answer.
Conclusion
For the reasons stated, I consider that the magistrate made an error of law in determining that there was no case for the respondent to answer. The appellant has made out the ground of appeal. I grant leave to appeal and allow the appeal and direct that the matter be remitted to the Magistrates Court for a new trial before a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle3 MARCH 2020
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