Mullaley v Western Australia Police
[2016] WASC 53
•16 FEBRUARY 2016
MULLALEY -v- WESTERN AUSTRALIA POLICE [2016] WASC 53
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 53 | |
| Case No: | SJA:1083/2015 | 16 FEBRUARY 2016 | |
| Coram: | MARTINO J | 16/02/16 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDWARD JAMES MULLALEY WESTERN AUSTRALIA POLICE |
Catchwords: | Criminal law Whether Magistrate failed to resolve conflict in evidence Duplicity in charge Whether latent |
Legislation: | Criminal Procedure Act (WA), s 132(5), s 178, cl 2(4) sch 1 |
Case References: | Elwin v Robinson [2014] WASCA 46 Green v The State of Western Australia [2014] WASCA 53 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
WESTERN AUSTRALIA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S SHARRATT
File No : BM 1179 of 2013
Catchwords:
Criminal law - Whether Magistrate failed to resolve conflict in evidence - Duplicity in charge - Whether latent
Legislation:
Criminal Procedure Act (WA), s 132(5), s 178, cl 2(4) sch 1
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D Brunello
Respondent : Ms S Wisbey
Solicitors:
Appellant : Aboriginal Legal Service (WA)
Respondent : Director of Public Prosecutions (WA)
Cases referred to in judgment:
Elwin v Robinson [2014] WASCA 46
Green v The State of Western Australia [2014] WASCA 53
1 MARTINO J: By a prosecution notice lodged in the Magistrates Court on 1 April 2013 the appellant, Mr Mullaley, was charged that on 19 March 2013 at Broome he 'obstructed public officers in the performance of the officer's functions' contrary to s 172(2) of the Criminal Code (WA). He pleaded not guilty to that charge and it went to trial on 21 April 2015 and 9 September 2015.
2 The trial was a joint trial with his daughter, Tamica Mullaley, who was charged with offences arising out of events closely connected with the events with which Mr Mullaley was charged. He was represented by counsel at the trial. His daughter was represented by different counsel.
3 The learned Magistrate reserved his decision, which he delivered on 25 September 2015. His Honour delivered detailed reasons. He found Mr Mullaley guilty of the charge.
4 Mr Mullaley appealed by notice dated 23 October 2015. That notice contained a single ground that, having regard to the evidence, the verdict of guilty is unreasonable and cannot be supported.
5 By an amended notice of appeal dated 8 February 2016 Mr Mullaley sought to amend his grounds of appeal. The amendment was not opposed by the respondent and I granted leave to amend the grounds of appeal at the commencement of the hearing of appeal. The grounds of appeal, as amended, are:
1. The Magistrate erred in fact and in law in finding that the evidence of Ms Zanik and the police (in particular SC Moore) 'dovetailed' and was 'in sync' when, in fact, the evidence was in conflict in a material respect.
Particulars:
(a) The Magistrate misapprehended the effect of the evidence and thereby failed to address the material conflict in the evidence; or, in the alternative,
(b) The Magistrate failed to set out the principles and his reasoning in relation to the material conflict in the evidence.
2. The charge of obstruct police officer on Broome prosecution notice 1179 of 2013 was ambiguous, occasioning a miscarriage of justice.
Particulars:
(a) The prosecution notice charged an offence not known to law; or, in the alternative,
(b) Having regard to the evidence adduced at trial, the charge manifest the defect of latent duplicity.
The trial
7 At the commencement of the trial the prosecutor informed his Honour that he had prepared a more detailed opening, but that after speaking with counsel he would be brief in his opening. The opening, to the extent that it concerned Mr Mullaley was as follows:
Simply put, sir, the police are called to an incident.
The incident they're called to is reported that a four-wheel drive is doing a burnout in Guy Street; there's a naked woman, and it appears she's ejected from the vehicle. They go to the units at 30 Guy Street. They're met there by our first prosecution witness, Tracey Melissa Gilchrist, who advises them of what she had seen and pointed them to Miss Tamica Mullaley who at that stage was in a sheet behind a vehicle parked in the driveway.
Now, whilst they were talking with Ms Gilchrist, that is, the two police officers, Huxley and Moore, Mr Mullaley, Edward, arrives. He is not known to the officers. They didn't know who he was. One of the officers stops him from going towards Ms Mullaley. He stopped. He tells them who he is. He goes down and speaks with them, and Ms Mullaley comes out from behind the car. There's a lot of abuse hurled at the police officers.
At one point they're trying to establish what - well, they're trying to establish what's going on. Clearly she was naked with a bed sheet wrapped round her. The police are trying to work out - trying to find out what has happened with it. She's quite abusive towards them, and at one stage she walks off to their father's vehicle, but then turns back and assault Paul Moore by spitting at him. He goes to arrest her. To do that he was going to take her by the arm to effect the arrest, and he uses the words of, "Right. You're under arrest," and that's where Mr Mullaley steps between the two and prevents them from taking hold, and that blossomed from there and went pear-shaped, sir.1
8 It is clear that the prosecution case against Mr Mullaley was that the event with which he was charged occurred after his daughter spat at police officer Moore. What is not made clear in the opening is which police officer he is alleged to have obstructed. The opening suggests that Mr Mullaley is charged with one charge of obstructing two police officers. This is consistent with the way that the charge is expressed in the prosecution notice.
9 The prosecution called four witnesses - Ms Tracey Gilchrist and Ms Kimberley Zanik, both of whom lived near where the incident occurred and two police officers, Senior Constable Paul Moore and Constable Julia Huxley. The statement of Senior Constable David Pearson was read into evidence. Mr Mullaley gave evidence in his defence. Ms Mullaley did not give or call any evidence.
Reasons for decision
10 The learned Magistrate commenced his reasons by saying that Mr Mullaley was charged with an offence of obstructing a police officer. His Honour stated the legal principles to be applied in deciding a criminal trial. He summarised the evidence of the witnesses in detail. He stated his conclusions as to the reliability of the evidence of the witnesses. He found Ms Gilchrist to be a 'witness of truth'2 but that the passage of time and the raw emotion of the events had left her only with an overall impression of events. His Honour did not accept her evidence of the timing and sequence of events after Mr Mullaley arrived at the scene.
11 He said of Ms Zanik that she was:
an impressive witness to the passage of time, the raw emotion and the bodies in motion did nothing to dim her acuity of recollection.3
- and that she impressed him:
as a truthful and reliable witness who retained an excellent memory of events and their sequence.4
also impressive and was definitely in sync with Ms Zanik's. He appeared measured to be - in recounting an event that was embedded in his memory.5
13 Constable Huxley was found by his Honour to be:
truthful and a reliable historian. What happened had an emotional impact on her. Events were still sharp in her mind.6
14 Of Mr Mullaley, his Honour said:
I have a high regard for Mr Mullaley's honesty and his candour and the manner he gave his evidence. He made admissions against his interest. He told it how he saw it on the night but was short on details.
I assessed as high his honesty but his detail recall as low.7
15 After summarising the evidence and expressing those conclusions as to the reliability of the witnesses his Honour dealt with the charge against Mr Mullaley. His Honour's finding of facts were:
Constable Moore is a police officer. He's informed a female is naked but covered by a sheet. He doesn't know her name. She has blood on her face. She's a witness to an offence. He's entitled to ask her details as a witness. He didn't get the chance. She swore at him and spat at him.
I accept he didn't attempt to arrest her for swearing at his mere presence. He arrested her for spitting in his face. He observed her drawing up spit in her mouth and spit in his face. ….
Constable Moore takes Ms Mullaley to the ground with a straight arm bar takedown manoeuvre. It was demonstrated in the witness box. He wasn't cross-examined about this choice of restraint. In closing Mr Gazia submitted that this move was so violent that it took Constable Moore out of his position of acting in an execution of his duty. I reject that submission and find that it was a force option appropriate in the circumstances.
I cannot find it proven that Mr Mullaley grabbed Constable Moore in an attempt to remove him from Tamica even though Mr Mullaley admitted he might have done so. Constable Huxley says he didn't assault Constable Moore. Constable Moore was busy with a struggling Tamica. There is doubt that that happened. I do found it proven though that he got between Constable Huxley and Constable Moore in an attempt to stop her from assisting Constable Moore. In the end he let her pass. But by then Tamica had got away from Constable Moore.
…
All witnesses agree Ms Mullaley was aggressive. I find as a fact she spat at Constable Moore after drawing spit into her mouth. She violently resisted arrest. She flailed her arms around.
He took her to ground utilising an appropriate force option. He found it hard to handcuff her, was only able to put one handcuff on when he recoiled from the bite on his arm. The police have proven that Constable Moore was in execution of his duty, and I find it proven that Mr Mullaley stood between Constable Huxley and Constable Moore to stop him (sic: her) from assisting Constable Moore. Although he let her pass soon after it was his actions that allowed her to get away from Constable Moore.
In Mr Mullaley's own words, "I was trying to stop him from arresting her."8
16 His Honour found the charge against Mr Mullaley proved.
17 By ground of appeal 1 and in submissions today counsel for the appellant submits that there was a conflict between the evidence of Ms Zanik and the evidence of Senior Constable Moore and Constable Huxley which was not resolved by the learned Magistrate.
18 The evidence to which counsel for the appellant refers is the evidence of Senior Constable Moore,9 the evidence of Constable Huxley10 and the evidence of Ms Zanik.11
19 The evidence of Senior Constable Moore was that Ms Mullaley was shouting abuse at him. Despite that abuse he still tried to speak to her. He did not seek to arrest her for abusing him. When he was trying to speak to her, Ms Mullaley spat at him. He then reached out to grab her and said that she was under arrest. Mr Mullaley said not to touch her and moved in between Senior Constable Moore and Ms Mullaley.
20 The evidence of Constable Huxley was that after that it was after Ms Mullaley spat at Senior Constable Moore that the police officers went to arrest Ms Mullaley and Mr Mullaley stepped between them.
21 The evidence in chief of Ms Zanik was:
Did [Ms Mullaley and Mr Mullaley] get to the vehicle that the man had arrived in?---No.
What happened?---The police tried to intervene, but the whole situation just deteriorated from there with verbal abuse and Tamica's father trying to stop the police trying to arrest her.
Sorry. The police were trying to arrest her?---Well, I think they were trying to get hold of her because she was just verbally abusing them so much.
Okay. Did you see anything happen between the person you refer to as Tamica and the police?---She spat in the male officer's face.
Okay. Where did that take place?---Between the police car and their LandCruiser on my driveway.
And you saw this?---Yes.
Was anything said, or did you hear anything being said by either party at that time?---Not that I can recall.
So, after the spit, what do you recall happening?---The police tried to restrain Tamica but her father was intervening.12
22 Her evidence in cross examination was:
All right. Now, they were going about their business - this is Tamica and her father - and they were preparing to leave, weren't they?---Yes.
Okay. And that's when the police went to intervene. Correct?---Yes. They wanted to speak to them.
All right. And, now, at that point, they wanted to speak to them. I think your evidence was - correct me if I'm wrong, Ms Zanik - that you think that they were trying to get hold of her as they were verbally - as she was verbally abusing them so much. Do you remember that in your evidence before?---Yes.
Now, at that point, now, that's all she had done. Is that correct?---Yes.
All right. And then the police went to grab Tamica, and that's when her father intervened. It was at that point, wasn't it?---Yes.
And that's when he first presented a presence, I suppose, if you like, between the police and his daughter.
Correct?---Yes.13
23 I do not see any difference of substance between the evidence of the police officers and Ms Zanik. It was common between them that Mr Mullaley spoke to the police officers before Ms Mullaley spat at Senior Constable Moore. When asked the open question 'What happened?' Ms Zanik gave a brief answer referring to all that happened. Her evidence was clearly a very truncated description of the events. The evidence was clarified by questions that followed. Her evidence was that after Ms Mullaley spat at Senior Constable Moore they tried to restrain her but Mr Mullaley was intervening. The evidence that the police officers tried to restrain Ms Mullaley after she spat at Senior Constable Moore but Mr Mullaley tried to intervene was consistent with Mr Mullaley's evidence that it was after he heard Senior Constable Moore say that Ms Mullaley had spat on him that Senior Constable Moore said that he was going to arrest Ms Mullaley and Mr Mullaley stepped in because he did not want the police officer to arrest his daughter.14
24 The fact that in her evidence in chief Ms Zanik gave evidence that she thought that the police were trying to arrest Ms Mullaley for abusing them does not detract from her evidence which immediately followed, namely that Ms Mullaley spat in the police officer's face, following that the police tried to restrain her but Mr Mullaley intervened.
25 Similarly, in cross examination, the fact that Ms Zanik gave evidence that when Ms Mullaley was abusing the police officers she thought that the police officers were trying to get hold of her and she agreed with the question from Mr Mullaley's counsel that the police officers went to grab her does not detract from that evidence.
26 Further, the fact that in cross examination Ms Zanik agreed that it was when Ms Mullaley was abusing the police that Mr Mullaley 'first presented a presence … between the police and his daughter' was consistent with the evidence of Senior Constable Moore15 and the evidence of Constable Huxley16 that when Mr Mullaley arrived he went up to his daughter. Their evidence was that once he identified himself as her father they allowed him to go to her. Senior Constable Moore did not give evidence that Ms Mullaley's abuse had commenced at that stage, but Constable Huxley gave evidence that Ms Mullaley had abused the police officers before Mr Mullaley arrived. Ms Zanik's evidence in chief and in cross examination was not inconsistent with the evidence of the police officers.
27 Ground 1 has no reasonable prospect of success. The learned Magistrate did not misapprehend the evidence. There was no material conflict in the evidence of Ms Zanik and the police officers that required resolution. I do not grant leave to appeal on ground 1.
28 By ground 2 the appellant contended that the prosecution charged an offence not known at law or, alternatively, that having regard to the evidence the charge was latently duplicitous. As I have already said the complaint that the prosecution charged an offence not known at law was abandoned during argument.
29 It is clear that the wording of the charge did not reflect the wording of s 172 of the Criminal Code, because the charge contained the words 'obstructed public officers', rather 'obstructed a public officer'. It is also clear both from those words and the fact that the charge description was 'Obstructing public officers' that the charge was patently duplicitous as the charge related to more than one public officer.
30 In Green v The State of Western Australia, McLure P said:
Duplicity occurs when there is a single charge which on its face (patent duplicity) or on the facts adduced at trial (latent duplicity) gives rise to more than one offence.17
31 In this case there was nothing in the evidence or submissions at trial which changed the position that the duplicity patently apparent in the wording of the charge remained throughout the trial. Nothing occurred during the trial to change the duplicity that was patent on the prosecution notice. That duplicity was that it was alleged that Mr Mullaley obstructed more than one public officer.
32 Counsel for Mr Mullaley has submitted that in addition to that patent duplicity there was a latent duplicity, which he says was not clarified in the course of the opening and was exacerbated by the evidence presented at trial. He points to the evidence of Senior Constable Moore18 of two acts by Mr Mullaley obstructing him alone and one act of obstructing the two police officers. He also points to the evidence of Constable Huxley19 of an act of obstructing her alone and of one act of obstructing the two police officers. He also points to the closing submission of the prosecutor,20 immediately after he had answered a question from the learned Magistrate as to how the police officers were executing their duty, that Mr Mullaley stood in the way of Senior Constable Moore.
33 The complaints made on behalf of Mr Mullaley must be assessed having regard to the provisions of the Criminal Procedure Act 2004 (WA). Clause 2(4) of sch 1 to the Act provides that a charge must allege one offence only, unless cl 8 or another written law permits otherwise. Neither clause 8 nor any other written law permitted the alleging of more than one offence in this case.
34 Where a prosecution notice offends cl 2(4) of sch 1, the court may amend the prosecution notice.21
35 Section 178 provides that any objection to the prosecution notice on the ground that it is defective must be made before the prosecutor's opening address.
36 In this case Mr Mullaley was represented by legal counsel. There was no objection taken to the wording of the prosecution notice. The conferral between counsel and the prosecutor before the trial commenced enabled the prosecutor to abbreviate his opening. The facts of this case, where it is alleged that more than one police officer was acting in the performance of his duties and a person has obstructed them in the one incident would not be uncommon. Elwin v Robinson22is another example of such a situation. In that case, as in this case, there was no uncertainty about the actions alleged to constitute the offending behaviour. In that case, as in this case, there was no miscarriage of justice.
37 The finding of the learned Magistrate was that Mr Mullaley stood between the police officers.23 This finding is in very similar terms to the opening of the prosecutor that after Ms Mullaley spat at Senior Constable Moore he went to arrest her and told her that she was under arrest and Mr Mullaley stepped between the two police officers.24 The evidence given of other events in the confrontation did not make the trial unfair or the charge ambiguous. Nor did the closing address of the prosecutor after he had answered the Magistrate's question about how the police officers were acting in the course of their duty that Mr Mullaley had stood in the way of Senior Constable Moore.
38 I do not accept the submission of counsel for Mr Mullaley that the charge was latently duplicitous.
39 The Criminal Procedure Act 2004 covers the field in relation to patent duplicity.25
40 The prosecution notice was defective because it was patently duplicitous. The defect could have been rectified if objection had been taken at trial. No such objection was taken.
41 If there had been an amendment made to the prosecution notice there would not have been any difference in the way that the trial proceeded.
42 Despite the fact that the prosecution notice was defective the appeal should be dismissed because no objection was taken to it at trial and there has been no miscarriage of justice.
43 I grant leave to appeal on ground 2, but dismiss the appeal.
1 ts 3 (21 April 2015).
2 ts 4 (25 September 2015).
3 ts 4 (25 September 2015).
4 ts 6 (25 September 2015).
5 ts 8 (25 September 2015).
6 ts 9 (25 September 2015).
7 ts 9 (25 September 2015).
8 ts 10 - 11 (25 September 2015).
9 ts 37, 40, 47- 48, 53 - 54 (21 April 2015).
10 ts 6 - 7 (9 September 2015).
11 ts 27, 33 (21 April 2015).
12 ts 27 (21 April 2015).
13 ts 33 (21 April 2015).
14 ts 28-29 (9 September 2015).
15 ts 36 (21 April 2015).
16 ts 5 - 6 (9 September 2015).
17Green v The State of Western Australia [2014] WASCA 53 [3] (McLure P).
18 ts 37, 38, 40, 47 (21 April 2015).
19 ts 6, 7, 13 ) 9 September 2015).
20 ts 33 (9 September 2015).
21Criminal Procedure Act 2004 (WA) s 132(5).
22Elwin v Robinson [2014] WASCA 46.
23 ts 11 [2] (25 September 2015).
24 ts 3 [3] (21 April 2015).
25Green v The State of Western Australia [2014] WASCA 53 [12] (McLure P).
2
1