O'Callaghan v MacDonald
[2000] WASCA 88
•3 APRIL 2000
O'CALLAGHAN -v- MACDONALD [2000] WASCA 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 88 | |
| Case No: | SJA:1210/1999 | 30 MARCH 2000 | |
| Coram: | MILLER J | 3/04/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | DYLAN ROSS O'CALLAGHAN PAULINE MACDONALD |
Catchwords: | Criminal law Appeal Justices Act 1902 Applicability of Criminal Code s 251 and s 254 to charges of unlawful assault of public officer and resisting arrest Turns on own facts |
Legislation: | Criminal Code, s 251, s 254, s 318(1), s 564(4) Police Act, s 20 Road Traffic Act 1974 |
Case References: | Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PAULINE MACDONALD
Respondent
Catchwords:
Criminal law - Appeal - Justices Act 1902 - Applicability of Criminal Code s 251 and s 254 to charges of unlawful assault of public officer and resisting arrest - Turns on own facts
Legislation:
Criminal Code, s 251, s 254, s 318(1), s 564(4)
Police Act, s 20
Road Traffic Act 1974
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr S Strbac
Respondent : Ms C L Morgan
Solicitors:
Appellant : Legal Aid Commission
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993
Case(s) also cited:
Nil
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1 MILLER J: The appellant was charged in the Court of Petty Sessions at Perth that on 15 May 1999 at East Cannington he unlawfully assaulted one Craig Haven, a public officer then performing a function of his office; resisted Haven, a member of the Western Australian Police Force, then acting in the execution of his duty; and resisted Pauline MacDonald, a member of the Western Australian Police Force, then acting in the execution of her duty. These offences were preferred under the provisions of s 318(1)(D) of the Criminal Code (the first charge) and s 20 of the Police Act (the second and third charges).
2 The matter came before Mr S Malley SM on 6 August 1999 when the appellant pleaded not guilty. After hearing evidence the learned Magistrate convicted the appellant and imposed in relation to the three offences of which he was convicted a global penalty of $2500 with costs. From that conviction the appellant was given leave by McKechnie J on 30 November 1999 to appeal on two grounds:
1. That the learned Magistrate erred in law by finding that s 251 of the Criminal Code was not applicable;
2. That the learned Magistrate failed to consider the application of s 254 of the Criminal Code in excusing the application's actions.
3 The facts as found by the learned Magistrate were that on the late afternoon or evening of 15 May 1999, Constables MacDonald and Haven went to premises at 5 Cosmos Place, East Cannington. There they approached the front door and spoke with the appellant and also with a Ms Goddard, who was seated in one of two vehicles parked in the driveway to the house. The evidence of Constable MacDonald, which was accepted by the learned Magistrate, was that the appellant, who had summoned the police to the house, came out in an agitated state. The police went to the motor vehicle in which Ms Goddard was seated and when the appellant approached the vehicle he was advised by police that Ms Goddard could not be removed from the vehicle. This he refused to accept and after stating that he was entitled to use reasonable force to remove Ms Goddard, he put his hands in the window of the vehicle, unlocked the door, opened it and attempted then to pull Ms Goddard from the vehicle. She in turn held onto the steering wheel. Each of the Constables took the appellant by an arm and a struggle then developed in which Constable MacDonald observed the appellant trying to punch Constable Haven, leading to a point when Constable Haven crouched on the ground, saying "He's trying to grab my balls". According to the learned Magistrate, Ms MacDonald testified to an ongoing struggle on the
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- ground and that it took some time before the appellant was subdued. She conceded in the course of her evidence that the appellant had requested the officers to remove Ms Goddard and that she in turn had told them that the vehicle in which she was seated was registered in the name of the appellant but was a vehicle she was purchasing and paying off. Constable MacDonald asserted in evidence that she had arrested the appellant because she believed that in grabbing Ms Goddard in the vehicle the appellant was assaulting her. She testified that the appellant had been warned to desist or that he would be arrested, but had continued to grab Ms Goddard before the officers took hold of him.
4 The learned Magistrate accepted the evidence of Constable Haven, which he said was given in a "clear credible manner". It was to the effect that he and his colleague had attended the address in question on a relatively minor matter, being a request to remove somebody from the premises. When he arrived he saw two vehicles in the front yard and upon approaching the front door of the house, observed a female in the front driver's seat of one of those vehicles. The appellant requested the police to remove Ms Goddard from the house, his attitude being described by the officer as "aggressive and abusive", which fact the learned Magistrate found to be undisputed. Constable Haven and the appellant walked to the motor vehicle in which Ms Goddard was seated in order that the appellant might have further discussions with Ms Goddard, but according to Constable Haven, without warning the appellant reached into the window, unlocked the door, opened it and grabbed Ms Goddard by the arm. Constable Haven testified that he had warned the appellant that if he continued to behave as he did he would be arrested and when the appellant again tried to pull Ms Goddard from the vehicle he went to place his hands on the appellant's shoulder to place him under arrest but was pushed against the door by the appellant who swung his arm at him. Thereafter, Constable Haven placed the appellant in a headlock, in response to which the appellant starting punching him in the stomach and groin region. Constable Haven struck the appellant with a torch but to no effect and he threw it away. The appellant then grabbed Constable Haven by the testicles, whereupon they both went to the ground and a violent struggled developed, which lasted for some time before the appellant was subdued. Constable Haven's evidence was that from information he had received at the scene he believed Ms Goddard had been living at the premises for some two months and that she had clothing and possessions there. He believed there were discussions as to who was the registered proprietor of the vehicle in which she was seated, the contention being that the appellant was the registered proprietor but that Ms Goddard was
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- paying money to the appellant for the vehicle. The learned Magistrate took the view that ownership of the vehicle was clearly in dispute and the question of residence at the house was also unclear.
5 The appellant and Ms Goddard each gave evidence. The appellant testified that he had called police to get Ms Goddard off the property and to prevent violence because of the dispute between the two of them. He claimed that he told the police that Ms Goddard was a house guest, that they had been in a relationship and that the police refused to act in the matter. He claimed that he had said the vehicle in which Ms Goddard was seated was registered in his name and that he had approached the vehicle to speak to Ms Goddard and ask her politely to leave, lightly touching her on the elbow to assist her and prompt her removal. According to him the police told him not to do that or he would be imprisoned. He thereupon told the police to remove Ms Goddard and when they refused to do so said that he would exercise his legal right to remove her, after which he was grabbed and slammed against the door. The essence of his evidence was that Constable Haven had initiated the attack upon him. He denied being told at any stage that he would be arrested. He did, however, agree that he had grabbed Constable Haven by the testicles during the scuffle and had resisted attempts to arrest him. Ms Goddard gave evidence to the same effect as the appellant, stating that the appellant had only "touched her elbow lightly" when asking her to leave and that the police had grabbed the appellant and pushed him against the car door.
6 The learned Magistrate found the evidence of the police officers to be reliable and that of the appellant and Ms Goddard to be lacking in credibility and plausibility. He found their evidence to be "simply unreliable". His Worship also found that on the evidence he had heard, the police had acted in a calm and professional manner but the appellant had acted in an angry and abusive manner. He was satisfied that the police had received conflicting advice as to the ownership of the motor vehicle in question and that in relation to the question of residence of the house, they had clearly been told that the parties were in a defacto relationship and Ms Goddard had been living in the house for a number of weeks at least. The conclusion the learned Magistrate reached was that the police had an honest and reasonable ground to believe that the presence of Ms Goddard had "some legitimacy" and in his view whether they were right or wrong was immaterial. He was satisfied that the appellant was angry due to police inaction and had attempted to pull Ms Goddard from the motor vehicle in a forceful manner, in response to which the police officers had an honest belief that his actions constituted an arrestable offence and that he was warned of being arrested if he
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- continued. His Worship was satisfied that Constable Haven was entitled to and was in the process of arresting the appellant when a fight broke out between the appellant and the Constable. He was unable to find any justification for the appellant's behaviour, particularly that of punching Constable Haven and grabbing him by the testicles. He therefore found the three charges proven.
7 In the course of submissions to the learned Magistrate it was put by counsel for the appellant that the provisions of s 251 of the Criminal Code were applicable. That is, the appellant, as a person in peaceable possession of the motor vehicle in which Ms Goddard was seated, was lawfully entitled to use such force as was reasonably necessary in order to resist the taking of that vehicle by Ms Goddard (a trespasser), or in order to re-take it from Ms Goddard. The learned Magistrate expressed the view that s 251 of the Criminal Code simply had no application to the case. No submission was made to the learned Magistrate that s 254 of the Code was of any application.
8 At the hearing of this appeal, counsel for the appellant submitted that the appellant had a lawful right to remove Ms Goddard from his motor vehicle, with the result that the arrest of the appellant by Constable Haven was an unlawful arrest and therefore the appellant had not acted unlawfully in resisting arrest. It was put that the assault upon Constable Haven by the appellant was excused in law because he (the appellant) was acting in self-defence in relation to an unlawful assault upon him by Constable Haven.
9 In my view, s 251 of the Code had no application to the case. In the first place, a person who is in "peaceable possession" of any moveable property within the meaning of that section is a person who is "entitled to possession without challenge". In Kennedy v Kuzma, unreported; SCt of WA; Library No 930729; 22 December 1993, Scott J (at 16) put it this way:
"The original scheme of defences provided for in the 1880 Bill, together with the ordinary meaning of the word 'peaceable', which is 'free from disturbance', (Concise Oxford Dictionary, 8th Ed), leads, in my view, to the conclusion that in this context, peaceable means entitled to possession without challenge (so long as that possession is not intended or to likely to cause a breach of the peace). So, for example, the householder entitled to be in possession of his or her dwelling house and the property therein, without challenge, who has done nothing intended or
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- likely to breach the peace, may lawfully defend the property therein in accordance with s 251."
10 In the present case, there was a very live challenge as to whether or not the appellant was entitled to possession of the motor vehicle in which Ms Goddard was seated. The police had conflicting evidence in relation to the matter, knowing on the one hand that the vehicle was registered in the name of the appellant, and therefore under the provisions of the Road Traffic Act 1974 he was deemed to be the owner of the vehicle, but with evidence from Ms Goddard that she had an interest in the vehicle by reason of the fact that she was purchasing it. In any event, a person in peaceable possession of any moveable property is only entitled to use such force as is reasonably necessary in order to resist the taking of such property by a trespasser, or an order to re-take it from a tresspasser. There was no evidence here that Ms Goddard was taking the vehicle. She had, in fact, arrived at the house in the vehicle and had been followed to the house by the appellant who had parked another vehicle (owned by her) behind it. Nor was there any evidence that the appellant was seeking to "re-take" the vehicle. To the contrary, he seems to have been simply intent upon removing Ms Goddard from the premises and pulling her from the vehicle for that purpose, not to re-take possession of the vehicle in which she was seated.
11 The provisions of s 251 of the Criminal Code may have afforded the appellant a defence to a charge of assault upon Ms Goddard although for the reasons that I have outlined it seems unlikely that such a defence would succeed. It did not, however, establish in my view that the appellant had a lawful right to remove Ms Goddard from the motor vehicle and that the actions of Constable Haven in arresting the appellant were therefore unlawful. The question (as submitted by the respondent) was whether the police officer had reasonable grounds for suspecting that an arrestable offence had been committed. It was then lawful for him to arrest without warrant any person whom he suspected on reasonable grounds to have committed the offence: Criminal Code, s 564(4). That was the evidence of both Constables MacDonald and Haven. They said they believed the appellant was committing an arrestable offence. That offence was said to be one of assault upon Ms Goddard. The learned Magistrate was satisfied that the officers had an honest belief that the actions of the appellant constituted an arrestable offence and on the evidence before him, that conclusion was clearly open. To the extent that the learned Magistrate considered the provisions of s 251 of the Criminal Code inapplicable, he was, in my view, entirely correct.
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12 Nor, in my view, were the provisions of s 254 of the Criminal Code of any application whatever. That section makes it lawful for a person in peaceable possession of any place to use such force as is reasonably necessary to remove a person who wrongfully remains on or in the place. Assuming for present purposes the appellant can raise as a ground of appeal this issue when it was not argued before the learned Magistrate, the fact is that there was evidence from the police officers that they understood Ms Goddard to have some connection with the residence of the appellant, she (on the appellant's own admission), having lived there for some period in recent times. Further, she had clothing in the house and according to testimony of the appellant at trial, she had not collected that clothing, and shifted to other premises and had slowly been sorting "stuff out". On any view of it, there was a live issue as to whether or not Ms Goddard was entitled to be at the house or whether she was wrongfully remaining on the property. Again, the provisions of s 254 of the Code may have been applicable had the appellant been charged with assaulting Ms Goddard, but they were of no application to the charges faced by the appellant. In my view, it was entirely open to the learned Magistrate to find that the police had honest and reasonable grounds for believing that the appellant and Ms Goddard were in a defacto relationship and that her presence at the premises had some legitimacy. Likewise the learned Magistrate was entitled to conclude that the officers had an honest belief that the actions of the appellant constituted an arrestable offence.
13 I have no reservations in concluding that the grounds of appeal cannot be sustained and accordingly I dismiss the appeal.
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