Ogbonna v Lay

[2013] WASC 266

OGBONNA -v- LAY [2013] WASC 266

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 266
Published:	31/07/2013
Case No:	SJA:1136/2012	Heard:	6 JUNE 2013
Coram:	KENNETH MARTIN J	Delivered:	6/06/13
No of pages:	14	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	CELESTINE IFEANYI CEEFYNE OGBONNA JADE ANDREW LAY
Catchwords:	Appeal Three grounds for appeal Obstructing public officer Power of police officer
Legislation:	Criminal Appeals Act 2004 (WA) s 9 Criminal Code (WA) s 1, s 24, s 172 Road Traffic (Vehicle Standards) Regulations 2002 (WA) reg 62(1), reg 62(2)
Case References:	Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Haywood-Jackson v Mason-Walshaw [2012] WASC 107 Ostrowski v Palmer [2004] HCA 30; (2004) 205 ALR 422 Semaan v Poidevin [2013] NSWSC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : OGBONNA -v- LAY [2013] WASC 266 CORAM : KENNETH MARTIN J HEARD : 6 JUNE 2013 DELIVERED : 6 JUNE 2013 PUBLISHED : 31 JULY 2013 FILE NO/S : SJA 1136 of 2012 BETWEEN : CELESTINE IFEANYI CEEFYNE OGBONNA

Appellant

AND

JADE ANDREW LAY
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE G CICCHINI

File No : PE 9797 of 2012

Catchwords:

Appeal - Three grounds for appeal - Obstructing public officer - Power of police officer

Legislation:

Criminal Appeals Act 2004 (WA) s 9

Criminal Code (WA) s 1, s 24, s 172
Road Traffic (Vehicle Standards) Regulations 2002 (WA) reg 62(1), reg 62(2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr C Miocevich
Respondent : Mr J Newton-Palmer

Solicitors:

Appellant : C & G Miocevich Law Offices Pty Ltd
Respondent : Director of Public Prosecutions (WA)

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

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Haywood-Jackson v Mason-Walshaw [2012] WASC 107
Ostrowski v Palmer [2004] HCA 30; (2004) 205 ALR 422
Semaan v Poidevin [2013] NSWSC 226

KENNETH MARTIN J:

(These reasons were delivered extemporaneously on 6 June 2013 and have subsequently been edited from the transcript.)

1 This is an appeal against a decision of his Honour Magistrate Cicchini of whose decision on 31 August 2012, which convicted the appellant, Mr Ogbonna, in respect of an offence of obstructing a public officer in the course of their duty.

2 The relevant provision of the Criminal Code, is:

172. Obstructing public officer

(1) In this section -


obstruct includes to prevent, to hinder and to resist.

(2) A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer's functions is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 18 months and a fine of $18 000.

3 For the purposes of s 172(2), the term 'public officer' refers back to a definition in s 1 of the Criminal Code. This says the term 'public officer' means any of an identified number of public officers. Relevantly, s 1(a) refers to a police officer.

4 By particulars provided for this offence as charged, the police officer said to have been obstructed on the relevant day (18 January 2012) was Constable Jade Lay.

5 The circumstances in which Constable Lay was obstructed were fully considered by the learned Magistrate. These are set out comprehensively in the Magistrate's reasons, delivered 31 August 2012.

6 In addition to the obstruction charge, the learned Magistrate also dealt with a number of other charges put against Mr Ogbonna. These other charges were dismissed and are irrelevant to the present appeal.

7 In respect of the obstruction charge, the learned Magistrate found this offence to be proved, however, he ordered a spent conviction. His Honour did not make any costs order against Mr Ogbonna.

8 On 13 November 2013, a notice of appeal was filed against that decision. This was filed out of time. Four appeal grounds were raised by the notice of appeal.

9 On 10 January 2013, McKechnie J granted leave to appeal (as is required under s 9 of the Criminal Appeals Act (WA)) on all four grounds. The fourth ground sought to argue the charge should have been dismissed on the basis of de minimis considerations (ie the charge is so trivial that the court should disregard it out of hand). The fourth ground was abandoned by counsel for the appellant at the hearing. Hence, only three grounds of appeal remain for me to consider.

10 The remaining grounds of appeal arise out of circumstances found by the learned Magistrate to have transpired when Mr Ogbonna's vehicle was pulled over by WA police at a random breath testing and inspection station at East Perth in 18 January 2012. Mr Ogbonna's breath was tested and found to not be of any concern. There was a licence check conducted in respect of Mr Ogbonna's vehicle. That was also found to be perfectly in order. Somewhere in this period the vehicle's engine was stopped and its keys removed from the ignition by Mr Ogbanna. There was no issue that Mr Ogbonna had his car keys on his person at this time.

11 The issues with which I am concerned arose where the police officer, Constable Lay, advised Mr Ogbonna that he wished to conduct a test of his vehicle due to the noise his vehicle was making and required Mr Ogbonna to give him his car keys for that purpose.

12 Mr Ogbonna became unhappy at what was occurring. He turned on a recording device on his iPhone. Mr Ogbonna's recording of events was subsequently admitted into evidence at his trial and played before the learned Magistrate. Ironically, its content details the unassailable evidence of the underlying facts, which provide the foundation upon which Mr Ogbonna was ultimately convicted of obstructing Constable Lay.

13 The iPhone recording made by Mr Ogbonna is found within the transcript of the trial materials before me. It can be found at pages 20 - 22 of the appeal book. What is recorded there is at times a little indistinct. But overall it records that, after a licence check was found to be in order, this exchange followed:

MR OGBONNA: I need to go. I need to (indistinct) because he's trying to victimise me.

CONSTABLE LAY: You're talking, sir, and (indistinct).

MR OGBONNA: What are you doing? What are you doing? Alcohol, alcohol.

CONSTABLE LAY: I'm doing a breath test.

MR OGBONNA: Yeah, random breath test. Now, why am I being – why am I being stopped here?

CONSTABLE LAY: Your vehicle was making a noise.

MR OGBONNA: It wasn't making a noise.

CONSTABLE LAY: The vehicle was making a noise, sir, and it was not normal for a vehicle to (indistinct) keys for the ignition, thank you, sir.

MR OGBONNA: Why?

CONSTABLE LAY: The keys for the ignition, sir. I need the keys for the ignition so I can conduct my tests.

MR OGBONNA: Why? I'm not - I'm not - I'll just cut my chances. If you want my vehicle (indistinct) I'm really tired, man.

CONSTABLE LAY: Sir, I need the keys now.

MR OGBONNA: (indistinct) if you want to book me, book me. I'm going out. I'm running late.

CONSTABLE LAY: You're obstructing me from my duty.

MR OGBONNA: I'm not obstructing you (indistinct). I'm not obstructing you. I'm going to bring my – are you going to bring my car back?

CONSTABLE LAY: No, I'm not, sir.

MR OGBONNA: I'm running late. I've told you I'm running - - -

CONSTABLE LAY: Sir, just calm down.

MR OGBONNA: No, I've not done anything. I've not done anything.

CONSTABLE LAY: You are preventing me from doing my job.

MR OGBONNA: No, listen, listen, listen.

CONSTABLE LAY: No, you're preventing me from doing (indistinct).

MR OGBONNA: I'm not preventing. I'm not preventing, I'm not preventing you because (indistinct) racist.

CONSTABLE LAY: Because you are going off your head, you are preventing me from doing our job.

MR OGBONNA: I'm not (indistinct).

CONSTABLE LAY: We haven't finished. Let us complete what we've got to do and then you will be free to go, sir (indistinct) ignore

…

14 The recording by Mr Ogbonna's iPhone continued, but that extract is sufficient for the purposes of the appeal.

The Magistrate's reasons and decisions

15 As I have said, the learned Magistrate found the obstruction charge proven. On 31 August 2012, his reasons included these observations (see appeal book page 166, pages 55 - 56 of transcript):

As I've indicated earlier, Mr Ogbonna has given evidence in an acceptable manner, in a straightforward manner and a credible manner. I cannot exclude his version of events, and accordingly I find the facts to be as Mr Ogbonna has said they occurred. However that does not complete the matter because the question is whether on the review of his version of events, most of which is [uncontroversial] and which is reflected on the recording in any event, it can be established by the prosecution that he has obstructed Constable [Lay] and the prosecution say that it can, even on his version of events.

The prosecution submitted that police Constable [Lay] was obstructed in the issuance of a compliance notice, and that the obstruction commenced when the accused failed to give the police his keys, and continued right through to the end to make it impossible for the accused to be personally served with a notice which accompanies the yellow sticker, and which is with respect to the compliance issues relating to the vehicle. Pursuant to regulations 62(1) and 62(2) of the Road Traffic (Vehicle Standards) Regulations 2002, police officers can inspect a vehicle and they can test a vehicle. They are empowered to do those things.

In order to test a vehicle, the keys are required. There cannot be a testing in any other way in my view. The officer was therefore empowered to ask the accused for the keys in order to test the vehicle. The accused refused to hand over the keys. He did so because he was under the mistaken belief that he did not have to do that. That mistaken belief was a mistake as to his positioning at law. The elements of this offence which must be proved beyond reasonable doubt are as follows: firstly, that Constable [Lay] was a public officer; secondly that at the time in question, Constable [Lay] was acting in the performance of his office; and thirdly that the accused obstructed Constable [Lay] by preventing him, hindering him, or resisting him in the performance of the functions of his office.

16 The learned Magistrate continued (see page 56 of the transcript):

In this case, the accused was repeatedly asked to produce his keys so that the vehicle could be tested. The police, as I have indicated earlier, were empowered to do that. His refusal to hand over the keys made the officer's job more difficult in that the officer had to, as an alternative resort, require the accused to turn on the vehicle so the vehicle could be tested. That was not his original intention. His original intention was that he carry out the test, that he should turn on the ignition and test the vehicle. He was prevented in doing that by the accused failing to give him his keys. The offence was completed at that stage.

The three grounds

17 I turn to assess the three grounds of appeal.

18 Ground one essentially raises a legal question over whether Constable Lay, held power, as a question of law, to require Mr Ogbonna to provide to him his car keys upon request that day. The first ground contends the learned Magistrate was wrong in reaching a conclusion that Constable Lay held that power.

19 The second ground goes directly to the issue of obstruction. It raises a question of fact over whether or not Constable Lay was indeed obstructed in the course of his duty, by reason of Mr Ogbonna's refusal and failure to provide his keys, upon request, for the purposes of a test. The second ground proceeds on an assumption that the first ground fails. Thus, the lawful power to require car keys for a purpose of conducting a test is accepted, but it is nevertheless said there was no obstruction in what happened here overall.

20 The third ground invokes s 24 of the Criminal Code as a defence to the obstruction charge on the basis there was a mistake of fact by the appellant as to his conduct in refusing to hand over his keys when requested by Constable Lay.

21 I should mention s 24 of the Criminal Code which provides:

A person who does, or omits to do an act under an honest and reasonable, but mistaken, belief in the exercise of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

22 Section 24 must be read in context of pt I ch V of the Criminal Code. The chapter includes s 22 which says:

Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.

Ground 3: Disposition

23 The third ground of appeal is easy to dispose of at the outset as clearly without merit. It is plain that, if there was any mistake about the extent of the power held by Constable Lay to require Mr Ogbonna's car keys from him, that this was a mistake of law, not fact. It is clear from a plethora of case authority on s 24 that it does not apply to mistakes of law. It can only apply to excuse a mistake of fact.

24 Recently, that outcome was accepted by Rothman J in a New South Wales decision, Semaan v Poidevin [2013] NSWSC 226, delivered 22 March 2013. There, Rothman J provides a helpful summary of the law from [63] - [86], including by providing some hypothetical examples. At [70] Rothman J said this:

Because of the effect of the majority judgment in Reynhouldt, the mistake of fact in proceedings for resisting or hindering a police officer in the execution of duty cannot be a mistake as to whether the person is a police officer whether the police officer is acting in the exercise of duty. Whether particular conduct falls within the class of conduct that would be in the execution of the duty of the police officer is not a question of fact but rather a question of law. Honest and reasonable mistake is confined to a mistake of fact (emphasis added).

25 I also mention, of course, the leading High Court authority of Ostrowski v Palmer [2004] HCA 30; (2004) 205 ALR 422. This was an appeal in relation to s 24 of the Criminal Code of Western Australia. Relevant passages in the reasons for decision of Gleeson CJ and Kirby J are at [10] - [12]. The position is clear.

26 Ground 3 must fail.

Ground 1: Disposition

27 I turn back to the primary ground 1, raising a question over power, which the learned Magistrate was satisfied was held by Constable Lay as a police officer to demand the car keys of Mr Ogbonna for the purpose of testing his vehicle.

28 The learned Magistrate considered a number of relevant provisions including reg 62(1) and reg 62(2) of the Road Traffic (Vehicle Standards) Regulations 2002 (WA),

29 The appellant essentially makes a new implication argument, over how far some undoubted power conferred upon the police extends. Does it extend to car keys requested for a purpose of conducting a test of a vehicle that needs to have its engine started?

30 I first refer to reg 62(1)(d). It reads:

For the purpose of deciding whether to issue a compliance notice for a vehicle a police officer may do all or any of the following:

…

(d) examine the vehicle and any equipment or load carried on it;

31 By comparison, I note reg 62(2) whose preface is not in relation to a decision about issuing a compliance notice. Regulation 62(2) is about examining a vehicle, its equipment or its load. Regulation 62(2) (referred to by the learned magistrate) provides:

For the purpose of examining the vehicle or its equipment or load, a police officer may do any or all of the following:

(b) test, or require the driver to test, any equipment on the vehicle that is required to comply with these regulations or the Vehicle Standards;

(c) test drive the vehicle, or accompany the driver while it is being test driven;

32 (I need not refer to the balance of the regulations.)

33 The appellant relies on a well-known decision Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427. The appellant argues that, in the present case, the law does not, in clear or express terms, afford a police officer the power to demand the car keys of a vehicle. Further, it is argued that unless such a power is conferred on the police officer in express terms, there can be no implication that the power exists, because to adopt such an approach would be to curtail individual liberty. The common law does not arrive at a conclusion which impinges against individual liberties easily. However, it is plain that a power to test a vehicle is conferred in express terms, particularly by reg 62(2), as regards a purpose of examining a vehicle or its equipment or its load.

34 A number of things need be said in rejection of ground 1. First, an examination of a vehicle obviously needs to be a proper, real and viable examination, not an ineffective one. I can ascertain no reason to infer any indication on the part of the legislature through reg 62(1)(d) that some lesser, truncated or constrained examination of a vehicle would be permissible. To the contrary, there is every reason to sensibly assess this regulation, which ultimately carries public road safety implications as its underlying rationale, as a viable conferral of power to support an effective examination of a vehicle, its equipment or its load.

35 Second, like considerations apply in relation to reg 62(2)(b) and reg 62(2)(c). There should be a meaningful and viable test, not a fettered or truncated test as regards a vehicle or its equipment or its load. In considering what may be required for a viable test of a vehicle it is also obvious that the vehicle may need to have its engine started in order to conduct what is a viable test. Here, I find myself in total agreement with the stance of the learned Magistrate at pages 55 - 56 of the transcript (referred to above). There is nothing within the regulations to indicate that a vehicle test should be fettered so as to not proceed in a viable way as thought appropriate in all the presenting circumstances.

36 In order to conduct a test of a vehicle's muffler, exhaust, brakes or lights, the vehicle's engine probably needs to be running. If the vehicle is stopped then, without keys, absent some other form of intervention, it may not be possible to start the engine of the vehicle and so, for the engine to run, for its equipment to work in order for it to be viably tested.

37 In my view, it is a more than reasonable implication of power for this particular regulation that, to the extent a vehicle needs to be started in order for a test to be conducted or in order for the starting of the vehicle (or even an unlocking of a vehicle, if it is locked) to be implemented, that its keys be passed over to a police officer upon request made to the person ostensibly in charge of the vehicle and in possession of those car keys. Toohey J said in a passage to which I was taken in Coco v The Queen (455) when a legislature confers a power on a public officer it ought not to be taken to have conferred only half the power needed in order for the task to be performed.

38 A viable test of a vehicle is plainly in the interests of the safety for those people who drive on our roads. For a viable test to occur the vehicle must be accessed and may require the engine to be started. That requires the car keys.

39 For this appeal, I assess it as significant to my conclusion, particularly by reference to the iPhone transcript of the conversation between Mr Ogbanna and Constable Lay to which I have referred, that there was not a bare, unexplained, request by a police officer for the car keys and nothing else. If there had simply been a demand for the keys alone, I may have reached a different conclusion. But, it is clear from the iPhone transcript, that first there was a reference by Constable Lay to Mr Ogbonna's vehicle making a noise.

40 When his car keys were asked for, Constable Lay then said:

I need the keys for the ignition so I can conduct my tests.

41 Mr Ogbonna's sustained negative responses to that clear demand were unequivocal. His conduct manifested a deliberate and sustained refusal to provide his keys in response to the request to him. Accordingly, it then became impossible for a test of the vehicle, let alone a test drive of the vehicle, to be unilaterally conducted by Constable Lay.

42 It is true there are further powers afforded within reg 62(2)(b) and reg 62(2)(c) enabling a test of a vehicle to be conducted in other ways - by a driver's participation, either in the testing, or as an accompanying driver. But the fact that there are other options for a different regime of test to be conducted does not implicitly constrain the earlier discrete power which is plainly given to a public officer to proceed as the circumstances dictate, with any or all of the available options, including their own testing of the vehicle. It does not matter whether the required test is of the vehicle itself, the equipment on the vehicle, a load of the vehicle or a test drive of the vehicle by the officer. It is for the police officer to decide which regime of testing is appropriate in a particular case.

43 In the present case, the transcript shows that there had been some reference by Constable Lay to noise. The vehicle noise caused Constable Lay to embark on the test. For this, he needed the car keys as the car's engine was then switched off. This was not, then, a case of Constable Lay merely asking for Mr Ogbonna's car keys with no accompanying explanation as to why he needed them. That, in the end, Constable Lay was driven to follow on a fall-back testing position, whereby the appellant eventually himself inserted the keys in the car's ignition - and then (it is not quite clear), somehow, that inserted key was turned in the ignition and the engine started - is not at all to the point. That outcome was a fall-back testing option occasioned by Mr Ogbonna's sustained refusal of Constable Lay's earlier request for the keys.

44 Nor can there be any question of the police, in the proper exercise of public powers, being required to engage in a negotiation with a citizen over how they come to exercise those powers. If a police officer decides a test is required and makes a clear request for the car keys to conduct that test, then, in my view, it should be implied in the regulation, as a matter of common sense, that the police officer holds the power to require the car keys.

45 I conclude, therefore, that the argued absence of power in a police officer to require the car keys for the purpose of conducting a vehicle test, fails. Ground 1 is dismissed.

Ground 2: Disposition

46 This ground effectively raises a mere question of disputed fact. Was Constable Lay in fact obstructed by Mr Ogbonna's conduct on 18 January 2012?

47 The appellant argues that because Mr Ogbonna eventually agreed to insert his keys in his vehicle's ignition so his car could be started and a test conducted, that there was no obstruction. The appellant argues a test was effected and a 'yellow sticker' was applied to the vehicle. Hence, he says there was no obstruction for the purposes of s 172(2) of the Criminal Code.

48 The learned Magistrate found Constable Lay was obstructed. I agree with his decision. The law is helpfully summarised in Haywood-Jackson v Mason-Walshaw [2012] WASC 107, a decision of EM Heenan J in this Court. I respectfully adopt his Honour's analysis of s 172 at between [12] - [25]. I note the learned Magistrate referred to this very decision and indicated that the elements of the offence required proof of three elements at [13]:

(a) the person who was obstructed should be a public officer;

(b) that at the time of the commission of the offence the public officer was acting in the performance of his or her functions;

(c) that the conduct complained of obstructed, prevented, hindered or resisted the public officer in the performance of his or her functions.

49 Plainly, there can be no argument over Constable Lay fulfilling the criteria in the first element. Given my conclusion reached as regards the basis of power to test, the second element is also fulfilled.

50 The third element is the arena of controversy for ground 2. In this case, the conduct complained of was the refusal of Mr Ogbonna to provide his car keys. What is clear from the facts is that the test Constable Lay was minded to implement alone - by obtaining the appellant's car keys, then inserting them into the car's ignition so its engine could be started and then to conduct his test of the vehicle's ostensibly noisy muffler - was denied him by Mr Ogbonna's sustained refusal to hand him his keys. Constable Lay was forced to follow a different testing course, as I have indicated. Denial of the ability to conduct the test as Constable Lay had first sought, ought not to be diminished or down played as some legitimate negotiation process which ultimately ended up in a different way of testing being permissibly conducted.

51 Effectively, Constable Lay was forced to undertake a different course of testing by Mr Ogbonna's sustained refusal to hand over his keys when requested for the purposes of a test. It is clear, as Heenan J indicated in Hayward-Jackson v Mason-Walshaw that the degree of hindering, for the purposes of constituting an obstruction of a public officer, does not have to be for long in a temporal sense. It does not even have to be physical. His Honour had said at [31]:

The entire episode during which it is alleged the offence was committed was very short. A matter of only 30 seconds or less between Sergeant Baldock approaching Mr Haywood-Jackson and the appellant being arrested and dragged away. According to one of the officers, Sergeant Heesters, the verbal interchange between Sergeant Baldock and the appellant took about 20 to 30 seconds.

52 The question of fact here was correctly resolved by the conclusion well open to be reached on the evidence by the learned Magistrate. I refer again to his reasons, which I have already mentioned (see transcript page 56, appeal book page 167):

[The appellant's] refusal to hand over the keys made the officer's job more difficult in that the officer had to, as an alternative resort, require the accused to turn on the vehicle so the vehicle could be tested. This was not his original intention. His original intention was that he carry out the test, that he should turn on the ignition and test the vehicle. He was prevented in doing that by the accused failing to give him his keys. The offence was completed at that stage.

53 Accordingly, there has been a fulfilment of all the required elements of this offence.

54 I dismiss ground 2.

Conclusion

55 In the circumstances, the three live grounds of the appeal all fail. I dismiss the appeal. No order as to costs has been sought by the respondent.