Pargin v Kelly
[2012] WASC 68
•29 FEBRUARY 2012
PARGIN -v- KELLY [2012] WASC 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 68 | |
| Case No: | SJA:1027/2011 | 25 JULY 2011 | |
| Coram: | MAZZA J | 29/02/12 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on grounds 1, 3 and 5 Leave to appeal refused on grounds 2 and 4 Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GILES TIMOTHY PARGIN MICHAEL GRAHAM KELLY |
Catchwords: | Criminal law Application for leave to appeal against decision Discharging a firearm to cause fear Whether wrong test applied when considering s 233 of the Criminal Code (WA) Whether irrelevant considerations taken into account to assess 'reasonable necessity' Whether wrong test applied when considering s 23(9a) of the Firearms Act 1973 (WA) Whether decision to acquit unreasonable because of the weight of evidence Whether discharge of firearm was not to the danger of the occupants of the homestead |
Legislation: | Criminal Appeals Act 2004 (WA), s 8(1)(b), s 30(4) Criminal Code (WA), s 25, s 231, s 233, s 235, s 248, s 283, s 304(1), s 378(2) Criminal Investigation Act 2006 (WA), s 16, s 127, s 128(1), s 128(2) Firearms Act 1973 (WA), s 23(9a) |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 House v The King [1936] HCA 40; (1936) 55 CLR 499 Lovell v Fullman [2011] WASC 312 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PARGIN -v- KELLY [2012] WASC 68 CORAM : MAZZA J HEARD : 25 JULY 2011 DELIVERED : 29 FEBRUARY 2012 FILE NO/S : SJA 1027 of 2011 BETWEEN : GILES TIMOTHY PARGIN
- Appellant
AND
MICHAEL GRAHAM KELLY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R YOUNG
File No : DY 1520 of 2009
Catchwords:
Criminal law - Application for leave to appeal against decision - Discharging a firearm to cause fear - Whether wrong test applied when considering s 233 of the Criminal Code (WA) - Whether irrelevant considerations taken into account to assess 'reasonable necessity' - Whether wrong test applied when considering s 23(9a) of the Firearms Act 1973 (WA) - Whether decision to acquit unreasonable because of the weight of evidence - Whether discharge of firearm was not to the danger of the occupants of the homestead
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Legislation:
Criminal Appeals Act 2004 (WA), s 8(1)(b), s 30(4)
Criminal Code (WA), s 25, s 231, s 233, s 235, s 248, s 283, s 304(1), s 378(2)
Criminal Investigation Act 2006 (WA), s 16, s 127, s 128(1), s 128(2)
Firearms Act 1973 (WA), s 23(9a)
Result:
Leave to appeal granted on grounds 1, 3 and 5
Leave to appeal refused on grounds 2 and 4
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms L A Eddy
Respondent : Ms K A Vernon
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : WA Police Legal Services
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lovell v Fullman [2011] WASC 312
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
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- MAZZA J:
Introduction
1 On the night of 27 February 2009, the respondent, a police sergeant, was a passenger in a police vehicle pursuing a stolen utility being driven by a man named Scott Travis Ningella. The pursuit started in the township of Derby and eventually reached an unsealed road leading to the Birdwood Downs Station homestead. The respondent, while the two vehicles were travelling on the unsealed road, fired two warning shots above the stolen vehicle. Later, the respondent was charged with discharging a firearm to the danger of Mr Ningella or in a manner to cause him fear contrary to s 23(9a) of the Firearms Act 1973 (WA).
2 At trial, the defence case was primarily that the respondent's actions were reasonably necessary to prevent Mr Ningella's escape from arrest: s 233 of the Criminal Code (WA). The learned magistrate found that the respondent had not fired to the danger of Mr Ningella, or the occupants of the homestead but he had fired to cause Mr Ningella fear. However, his Honour was not satisfied that the appellant had negatived s 233 of the Criminal Code and so acquitted the respondent of the charge.
3 The appellant appeals against this acquittal on five grounds. Shorn of the many particulars which accompany some of these grounds, they are:
1. The learned magistrate erred by applying the wrong test when considering s 233 of the Criminal Code.
2. The learned magistrate erred by finding that the discharge of the firearm was not to the danger of the occupants of the homestead.
3. The learned magistrate took into account the irrelevant consideration of what the public would have expected when considering whether the respondent's actions were reasonably necessary to prevent Mr Ningella's escape from arrest.
4. The learned magistrate erred by applying the wrong test when considering whether the respondent had discharged his firearm to the danger of Mr Ningella. Had he done so, it is said, his Honour should have found that the weapon was discharged to Mr Ningella's danger.
5. The learned magistrate's decision to acquit the respondent was unreasonable because it was against the weight of the evidence.
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4 Leave to appeal has not yet been granted in respect of these grounds.
Overview of relevant events
5 At about 8 pm on 27 February 2009, the respondent and Senior Constable Johnston (Constable Johnston) were on patrol in the Kimberley town of Derby in a marked police troop carrier, registration number ED 101. Constable Johnston was the driver of this vehicle. At that time, Mr Ningella was driving a Toyota Landcruiser traytop utility which he had stolen nine days previously.
6 The respondent and Constable Johnston's attention was drawn to Mr Ningella's vehicle by the manner in which it was being driven. Once Constable Johnston read the utility's registration, she realised that it was an outstanding stolen vehicle and she activated the emergency lights and siren to pull Mr Ningella over: reasons [1] and ts 44, 27/10/2010.
7 Mr Ningella did not pull over. He kept driving until he came to Wodehouse Street. There, Mr Ningella turned the stolen vehicle 180 degrees and came to a stop on the road verge. Constable Johnston positioned ED 101 so that the front of the stolen vehicle faced the left passenger side of her vehicle where the respondent was seated. The stolen vehicle was about 11 to 12 m away from ED 101: reasons [2].
8 As the police vehicle stopped, the respondent opened the passenger door, with the intention of approaching Mr Ningella. In response, Mr Ningella revved the engine of his vehicle and drove forward quickly. Constable Johnston reversed her vehicle, and the respondent hurried back into it. The stolen vehicle then collided heavily with the passenger side of ED 101, near the engine block, after which it drove away. Constable Johnston and the respondent believed that if ED 101 had not reversed, the stolen vehicle would have struck the respondent, or the passenger side door where he was sitting, with the potential to cause fatal or serious injury: reasons [3].
9 The collision did not disable ED 101. Constable Johnston commenced to pursue Mr Ningella. She felt that her vehicle was in a condition to continue the pursuit: ts 47, 27/10/2010. The pursuit that followed was long and erratic, through various streets and laneways in the Derby townsite. Although the pursuit never reached any excessive speeds, it was clear that Mr Ningella had no intention of stopping for the police. At one point during the pursuit, both vehicles drove through the forecourt of a service station where some people had gathered. At other points, when ED 101 drove alongside the stolen vehicle, Mr Ningella
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- rammed the police vehicle: reasons [4]. Constable Johnston testified that during the pursuit the emergency lights on the top of the roof might have been knocked backwards but they were still working: ts 51, 27/10/2010.
10 Eventually the stolen vehicle headed south, out of Derby, onto the Derby Highway. A radio call was made for backup. Another marked police troop carrier, ED 102, driven by Constable Taylor, with Senior Constable Dodson as the passenger, with its lights and sirens on, drove in a northerly direction towards the Derby townsite to assist. As ED 102 neared the stolen vehicle, Mr Ningella suddenly swerved into the northbound lane, causing Constable Taylor to take evasive action. ED 102 then turned around and joined the pursuit: reasons [5].
11 As ED 101 had been damaged, it was agreed that ED 102 would become the lead vehicle in the pursuit. At the time the Derby police had no stingers (a device with spikes, set down on a roadway, for the purpose of disabling a vehicle by puncturing the tyres). Nor did they have extra personnel who were on duty to assist: ts 52, 84, 27/10/2010. It was decided that ED 102 would overtake the stolen vehicle, leaving ED 101 behind it. The strategy was to hem the stolen vehicle in and bring it to a stop: reasons [6]. As Constable Taylor indicated and drove into the northbound lane in order to overtake the stolen vehicle, Mr Ningella swerved into that lane and braked heavily, causing ED 102 to collide with the rear of the stolen vehicle. As a result, ED 102 lost control and turned over onto its side. After the respondent and Constable Johnston ascertained that the occupants of ED 102 were uninjured, ED 101 resumed the pursuit: reasons [7].
12 The stolen vehicle continued its southerly route on the Derby Highway until it turned onto the Gibb River Road. The respondent and Constable Johnston knew that radio and mobile telephone communication could only be sustained for about 30 km along that road, and they decided that they would abort the pursuit at that point because they would have had no means of communication.
13 Approximately 13 km along the Gibb River Road, the stolen vehicle suddenly turned left onto an unsealed road leading to Birdwood Downs station. The stolen vehicle drove along the access road bursting through the closed gates of the station without stopping, and continued towards the homestead: reasons [8].
14 Both the respondent and Constable Johnston were aware that Birdwood Downs was a working station which also provided backpacker
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- accommodation, camping facilities to the public and attractions for tourists. Constable Johnston knew that a number of local workers were staying there. However, neither the respondent nor Constable Johnston knew precisely how many people were at the station that night. The evidence about the location of buildings on the station was scant. Constable Johnston testified that the station homestead and a shed were 1 to 1½ km 'down the track': ts 58, 27/10/2010.
15 The police continued their pursuit of Mr Ningella. While doing so, they assessed their remaining options. Both officers were very concerned that Mr Ningella appeared to be heading towards an area where they thought people would be at that time. In light of Mr Ningella's desperation to avoid capture, both officers held concerns for the safety of anyone who may be on the station and who may, wittingly or unwittingly, impede Mr Ningella's attempts to escape: reasons [9].
16 The respondent, after discussing the matter with Constable Johnston, decided that the only remaining option to compel Mr Ningella to stop the stolen vehicle was to fire warning shots over it with his police issued Glock .40 calibre handgun: reasons [10].
17 The respondent opened the passenger door of ED 101, braced himself against the door frame, removed his firearm and discharged two warning shots, at a 45 degree angle, over the stolen vehicle. According to the respondent, the two vehicles were at the time travelling at about 70 km per hour. Both shots were fired a relatively short distance inside the entrance gates to Birdwood Downs. Spent cartridges were later discovered 35 m and 62 m inside those gates: reasons [33] - [34] and [74]. ED 101 was approximately 30 m behind the stolen vehicle at the time the shots were fired. The expert evidence of Senior Constable Robert Meeks was that a round fired from a Glock travels almost 1,100 feet per second, and can travel almost 3 km when fired at an elevation of 27 degrees or thereabouts: ts 77, 10/1/2011.
18 The first shot had no apparent impact on the behaviour of Mr Ningella, which led to the firing of a second shot. After the second shot, the stolen vehicle slowed down. ED 101 pulled alongside it. As it did so, Mr Ningella swerved to the right, forcing ED 101 off the road, into a tree. Constable Johnston reversed the vehicle from the tree and continued the pursuit. Eventually, the stolen vehicle left the access road and travelled through paddocks, becoming entangled in fencing wire, and came to a stop. Mr Ningella got out of the vehicle and tried to escape on foot, but he was apprehended: reasons [13].
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19 A police investigation into the night's events was immediately launched. The stolen vehicle was forensically examined. This examination revealed a perforation in the windscreen on the passenger side. At trial, the prosecution case was that the respondent had fired three shots at the stolen vehicle in quick succession and that one of those rounds went through an open window at the back of the cabin and penetrated the windscreen: reasons [26]. A great deal of evidence, which is not material to this appeal, was led on this issue. His Honour was not satisfied that the damage to the windscreen was caused by a bullet fired from the respondent's weapon: reasons [129] and [130]. The appellant does not challenge this finding: appeal ts 6.
20 Mr Ningella was charged with a number of serious offences arising out of the theft of the vehicle and his driving on the night in question. In due course, he pleaded guilty to these offences in the District Court and was sentenced to 3 1/2 years' immediate imprisonment.
21 In September 2009, following a police internal investigation, the respondent was charged. Originally, the respondent was charged with discharging his firearm, to the danger of Mr Ningella. At trial, over objection, the charge was amended to allege that the respondent discharged the firearm to the danger of, or in a manner to cause fear to, Mr Ningella.
22 Not surprisingly, the Western Australia Police Force has issued to its members various documents concerning their duties. Amongst those documents are instructions as to urgent duty driving and the use of force. The relevant documents were tendered at trial, being exhibit 20, with respect to urgent duty driving, and exhibit 23, with respect to the use of force. They were referred to in the trial as the Urgent Duty Driving Policy and the Use of Force Manual.
23 There was no issue that the pursuit of Mr Ningella's stolen vehicle constituted urgent duty driving. The Policy states that a police vehicle can only be driven in such circumstances where it is safe to do so and approval has been given. In this case, as the incident occurred in a country area, the respondent, as the senior member on duty, had the authority to grant the necessary approval: exhibit 20, 7.4.
24 Pursuits are divided into Priority One and Priority Two categories. Constable Johnston was an authorised Priority Two driver. This enabled her to undertake urgent duty driving, including driving at a speed that is no more than 20 km per hour in excess of the statutory speed limit and use
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- emergency lights and sirens. A Priority Two driver may only proceed when it is safe to do so: exhibit 20, 7.4.1.
25 The Policy further states that a pursuit shall be discontinued in a variety of situations, including where the vehicle of interest travels to the incorrect side of any carriageway against oncoming traffic or where the relevant police vehicle is involved in a crash or where the driver is not otherwise authorised to continue: exhibit 20.7.4.3.
26 The Use of Force Manual states:
Firearms should not be used for the purpose of stopping a vehicle unless such use is justified by law: exhibit 23, 12.
27 The reasons for this are explained later in the manual in these terms:
It is not recommended that officers utilise firearms against vehicles for the following reasons:
• Difficulties associated with a hitting a vehicle (moving);
• It is an unreliable method of stopping a vehicle within an effective distance;
• Erratic bullet deflection and/or ricochet through vehicle body or glass could result in the injury or death of passengers or innocents within close proximity of the vehicle;
• Penetration through glass and vehicle body reduces the velocity and effectiveness of the round on an intended threat (driver not vehicle);
• The potential of the dead or wounded driver behind the wheel may be more hazardous than the incident itself: exhibit 23, 29.
28 Another document referred to at trial was titled Fundamentals of Pistol Shooting: exhibit 22. Part of that document concerned the stance to be adopted by the person who intends to discharge his or her firearm. The document stated that:
The main consideration is that [the shooter] [is] comfortable and stable: exhibit 22, 59.
29 According to the document, the stance:
… must provide at least three critical components:
• A stable shooting platform that is capable of being maintained for lengthy periods of time.
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- • Balance capable of being sustained during movement.
• Eyes and sights on the same plane, when the firearm is raised to a firing elevation: exhibit 22, 59.
The cases at trial
30 The prosecution case was that a loaded firearm is an extremely dangerous thing and the duty of care that attaches to its use is very high: ts 29, 14/1/11. It was submitted that if the discharge of the weapon by the respondent was not dangerous to Mr Ningella, it was done to cause him fear.
31 The prosecution argued that the pursuit of Mr Ningella and the use by the respondent of his firearm was contrary to the written instructions given to members of the WA Police Force.
32 It was argued that the police should have desisted with the pursuit when ED 101 was damaged and later, after the collision between the stolen vehicle and ED 102.
33 The prosecution emphasised that part of the Use of Force Manual that said a firearm should not be used for the purpose of stopping a vehicle. It was submitted that the shooting stance adopted by the appellant was not comfortable or stable.
34 The prosecution submitted that the respondent fired his weapon towards the stolen vehicle in an uncontrolled and dangerous environment. Amongst the factors said by the prosecution to lead to this conclusion were:
(a) both vehicles were travelling at a speed of 60 to 70 km per hour;
(b) the vehicles were travelling on an unsealed dirt track;
(c) it was dark, and the visibility was poor;
(d) it either was or had recently been raining;
(e) the respondent had not travelled on the track before;
(f) the respondent knew that the track led to a homestead and was not aware of who else may have been present in the area or where they may have been located. There was a danger that an errant bullet could have hit anyone in the vicinity;
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- (g) by firing warning shots, there was a potential that Mr Ningella would have become more desperate to escape, thus causing a heightened danger to occupants of the homestead; and
(h) there was a risk that the shots could have caused Mr Ningella to take sudden evasive action so as to cause him to lose control of his vehicle, thus exposing him to a risk of injury.
35 It was also argued that firing the gun was unnecessary because Constable Johnston could have continued to follow Mr Ningella and if he came to the vicinity of the homestead she could have sounded her horn to warn any occupants or used the public address system that was installed in ED 101. As to this latter point, Constable Johnston said she was not aware of any such system in the vehicle.
36 The prosecution placed considerable weight upon the evidence of Senior Constable Meeks. In examination-in-chief, the following exchange took place:
What environment is necessary to maximise the chance of a shot hitting its target?---You need to be in control of the firearm of what you're doing. You need to control the environment. The target needs to be stationary, you need to be stationary, have a good stance, a good grip of the firearm where you are, staying still. You need to be in control of the firearm. You need to be mentally at your best to hit the target. Extra stresses will reduce the chances of the bullet striking the target. You need to be in control of the environment or have that environment controlled as much as possible.
How important is a stable base in ensuring that a target is hit?---Very important because if the firearm is moving as you are squeezing the trigger the bullet will move off target from where you thought the sites were located as you were squeezing.
…
For instance, you stand with the firearm pointing that way but with your head watching where the target comes from and then you watch the target and then as you turn with the target your shotgun is on and you are compensating for the travel of that target. The opposite would occur if the target was stationery, you were moving. You would need to know those movements.
How does the chance of hitting a stationary target compare to hitting a moving target?---It's diminished depending on how much practice you have at hitting moving targets, and the target moving at a consistent rate rather than moving and - the rate of that movement changing.
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- Thank you. If I was [to] ask you to assume that a Glock is discharged from a moving vehicle that's travelling at least 50 kilometres an hour on Birdwood Downs station track by an officer who is standing in the passenger footwell, wedged between the frame and the open door with one arm with the firearm pointed forward and at a 45-degree angle upwards at night, with poor visibility, how would you describe that environment, in judging shooting dynamics?---Uncontrolled.
The vehicle is moving, the track was not a smooth track so the vehicle is bouncing. Even if you rest the firearm on the vehicle so that it's stable in relation to the vehicle, the vehicle is moving. Then if you have the firearm just held by your arm, you are also moving with the vehicle as the vehicle moves so your arm is therefore moving. At night time it's difficult to see targets unless they are illuminated. It's not controlled and I think dangerous: ts 77 - 78, 10/1/2011.
37 The prosecution submitted that it had negatived, beyond reasonable doubt, any potential 'defence' open on the evidence. Submissions were made with respect to s 248 of the Criminal Code (self-defence) and s 25 of the Criminal Code (emergency). With respect to the defences pursuant to s 231 (force used in overcoming resistance to arrest) and s 233 of the Code (force used to prevent the escape of a person sought to be arrested), each limits the use of any force to what is 'reasonably necessary'. It was submitted that in all the circumstances the respondent's use of his firearm was excessive and was not 'reasonably necessary'.
38 The respondent's case, based largely upon his evidence and, perhaps to a lesser extent, upon the evidence of Constable Johnston, was as follows. Mr Ningella had committed serious offences and was desperate to avoid arrest. In the light of his conduct on the night, he posed a danger to anyone who might come into his path. It was submitted that the respondent held justifiable concerns about the safety of those at the homestead. The respondent's case was that he had no further viable options to effect an arrest, apart from discharging his firearm in the direction of the stolen vehicle.
39 It was submitted that the Urgent Duty Driving document is for the guidance of police officers only and that the circumstances were such that it was safe to proceed with the pursuit. Although the emergency lights in ED 101 were damaged, they were, to some extent, still functioning, and despite the collisions between the stolen vehicle and ED 101, the latter was still mechanically sound.
40 In relation to the Fundamentals of Pistol Shooting, it was argued that they were guidelines only and they were predicated on the shooter aiming
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- to hit a target and in the present case the respondent's intention was not to hit a target. The respondent was an experienced shooter and that the firing position he adopted was not as contended by the prosecution, uncontrolled and dangerous. Rather, he was stable and comfortable, had safely elevated his weapon 45 degrees and had fired well over the stolen vehicle. In effect, the argument was that there was no risk of Mr Ningella being hit.
41 As to the question of whether an errant bullet could have hit anyone in the vicinity, the respondent's case was that the charge referred only to the firearm being discharged to the danger of Mr Ningella and not anyone else. Further, having regard to the evidence of Senior Constable Meeks as to the distance a round fired from a Glock handgun could travel and its trajectory, there was no realistic prospect of anyone in the vicinity being hit.
42 The respondent argued that the discharge of the firearm was neither dangerous to Mr Ningella, nor was it done in a manner to cause fear. However, if the prosecution made out those elements, it was submitted that the respondent's actions were excused by s 231 or 233 of the Criminal Code. The respondent left open the possibility that s 248 of the Criminal Code applied on the basis that he discharged his firearm in defence of others, and that what he did was also a sudden or extraordinary emergency and was justified by s 25 of the Criminal Code.
The learned magistrate's reasons for decision
43 His Honour's reasons for decision were detailed and thorough.
44 Upon a reading of his Honour's reasons as a whole, it is apparent that, in general terms, he accepted the evidence of the respondent and Constable Johnston.
45 His Honour found that on the night in question the unsealed road on Birdwood Downs station was in good condition. It was solid underfoot, not slippery and that ED 101 had good traction: reasons [133]. He further found that Constable Johnston was driving the police vehicle in a safe and controlled manner. He found that the respondent was an experienced shooter who adopted a position from which to discharge his firearm which was both comfortable and balanced. In such a position, his Honour observed that 'it would not be unduly difficult to discharge the firearm in the intended direction': reasons [133].
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46 His Honour found that the decision to discharge the firearm was not made unilaterally: reasons [138]; and was not reached without a consideration of all of the other options, including the option of simply allowing the driver to evade capture: reasons [139].
47 His Honour said that he was not satisfied that the discharge of the firearm was likely to cause death or grievous bodily harm to Mr Ningella, because he was unable to discount the respondent's evidence that he felt comfortable and stable enough to safely discharge the firearm well away from the stolen vehicle: reasons [137]. Further, although his Honour recognised that the discharge of the firearm was not without risk, he was not satisfied that it was to the danger of those who might be at Birdwood Downs station: reasons [139] and [140].
48 His Honour considered the instructions given to police in the Urgent Duty Driving and the Use of Force documents. As to the former document, his Honour considered any potential breach prior to the vehicles reaching Birdwood Downs as 'only [of] marginal relevance': reasons [141]. His Honour found that, in light of the prevailing circumstances, including the seriousness of the offences committed by Mr Ningella and the risk he posed of further offending, 'it would be unfair and unrealistic' to criticise the police for continuing the pursuit on Birdwood Downs station: reasons [143]. He found that the respondent and Constable Johnston did not show 'an abject disregard for the Urgent Driving Policy such that it might bear upon the reasonableness of the decision to discharge a firearm on Birdwood Downs station': reasons [143].
49 His Honour noted that the Fundamentals of Pistol Shooting constituted guidelines only: reasons [132]. He considered that the document was concerned with shooting at targets and that it had less weight when, as in the present case, the intention of the person discharging the firearm was not to hit a target: reasons [132].
50 His Honour observed that the Use of Force Manual was 'silent on the issue of firing warning shots'. He said that 'the firing of shots into the air as a warning must logically be seen as a lesser use of force option than shooting at a target': reasons [136].
51 His Honour found that the firing of the warning shots was not to the danger of Mr Ningella, but was in a manner to cause fear to him: reasons [149].
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52 His Honour acknowledged that submissions had been made with respect to self-defence and emergency. He remarked that while they 'may be arguably open' he did not intend to deal with them in light of his findings in respect of s 233 of the Criminal Code. As to s 233 he said:
Given the circumstances of this case, that is, an attempt by Police to apprehend a serious offender fleeing from arrest, s 233 is clearly the justification most appropriate to those facts: reasons [162].
53 His Honour then said:
As a matter of common sense, the arrest of a person must encompass wider considerations than exposing that person to punishment for offences already committed. It must include preventing the person from committing any further offences that police reasonably suspect he may commit. In s 128 of the CIA, arrest powers for an offence that is not a serious offence require consideration of, inter alia, whether the person will continue to commit the offence or will commit other offences or endanger another person's safety or property or conceal a thing relevant to the offence. Similar considerations exist in the Urgent Duty Driving policy, in governing a decision whether to pursue an offender or not.
Those considerations must apply also to arrest for a serious offence and must bear upon the question of whether any force used by police is 'reasonably necessary.' That is, the more serious the offences committed and the greater the danger posed by the suspect to other members of the public, the greater the public interest is in effecting an arrest. That in turn is relevant to the question of what degree of force might be reasonably necessary to make the arrest: reasons [163] - [164].
54 As to what was reasonably necessary in the circumstances, his Honour considered that upon the pursuit reaching the track to Birdwood Downs station, the police had four remaining options, being to:
1. abort the pursuit;
2. follow the stolen vehicle to Birdwood Downs homestead and react, if and when any danger was presented to people or property in that area;
3. fire warning shots; or
4. shoot directly at the stolen vehicle in an attempt to disable the vehicle or injure or kill the driver: reasons [177].
55 At [168] of his reasons, his Honour said:
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- … In my view, it is self-evident that it would have been untenable to prevent a serious, desperate and violent offender from reaching a place occupied by civilians. Whatever concerns may have been held, there was a clear public interest in not only apprehending Ningella for what he had already done, but also to protect people and property at Birdwood Downs from the realistic possibility that he might commit further serious offences.
56 His Honour thus described the option of aborting the pursuit as 'unrealistic'. He said 'a similar conclusion may be reached' with respect to the option of allowing the vehicle to reach the homestead. As to this, his Honour said that it 'may have presented more danger than the first, given that Ningella would have been likely to have continued in his desperate attempts to evade apprehension to the danger of people and property at the homestead': reasons [178].
57 His Honour then said:
In either of those two situations [options (1) and (2)] there would be a public expectation that police take all reasonable measures to ensure that an offender who had proven to be persistently dangerous and desperate not be allowed to reach a place where further offences may be committed. At the same time, the last option [option 4] mentioned, that of shooting at the vehicle, or the driver thereof, intending to strike the vehicle or driver, may well be seen to be unnecessary and excessive. The public justifiably expect police officers to be robust, though not reckless, in the pursuit of serious offenders: reasons [179].
58 His Honour found that the firing of the warning shots which were aimed well away from the stolen vehicle could not be said to be more than was reasonably necessary in the circumstances: reasons [180].
59 His Honour said:
The [respondent] was shooting from a moving vehicle in darkness. … The [respondent] was unable, given the prevailing circumstances, to fully observe the Fundamentals of Pistol Shooting. However, I do not believe that the Use of Force Manual means that a firearm cannot be used unless and until those things can be observed. Moreover, given the [respondent's] evidence that he felt stable and comfortable, that [Constable] Johnston felt the road was solid with good traction and that the [respondent] was not aiming at a target, I do not find that the admittedly less than ideal shooting environment elevated the decision to discharge a firearm to a level that amounts to more force than was reasonably necessary: reasons [181].
60 His Honour concluded that the prosecution had not established, beyond reasonable doubt, that the firing of the warning shots was more than what was 'reasonably necessary'. In doing so, he said:
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- That finding was made on the basis of the matters referred to above: the [respondent] was justified in concluding that there was an urgent need to prevent Ningella reaching Birdwood Downs and that he and [Constable] Johnston had no means to do so other than [by] the firing of warning shots; reasons [183]
61 His Honour then added:
Had the accused discharged his firearm in circumstances where the rationale would have been only to prevent Ningella's escape rather than concerns as to the safety of the occupants of Birdwood Downs, then the decision to discharge a firearm may have been more than was reasonably necessary: reasons [184].
The fact that no shooting occurred prior to the vehicles reaching Birdwood Downs is significant. It demonstrates that when the threat presented to Ningella was only towards police, and where the only concern was that he might escape punishment for the offences committed, no consideration was given to the use of firearms, even though ample opportunity existed to do so. However, when the risk represented by Ningella was elevated by his turning into Birdwood Downs station, smashing through the gates as he did, a considered decision was made to discharge the accused's firearm in a last ditch attempt to prevent him engendering [sic: endangering] people and property at the homestead. I am not satisfied beyond reasonable doubt that the prosecution has negatived that in those circumstances the discharge of the firearm was reasonably necessary: reasons [185].
Ground 1
The submissions
62 The appellant submitted that the learned magistrate, in effect, misapplied s 233 of the Criminal Code. The appellant's contention is that the test his Honour was required to apply was whether the use of force was reasonably necessary to prevent Mr Ningella's escape from arrest, but instead, his Honour erroneously considered whether the firing of the warning shots was reasonably necessary to stop Mr Ningella reaching Birdwood Downs homestead: appellant's written submissions par 7.
63 The appellant asserted that when considering s 233, a court must focus on the narrow issue of what force was required to prevent the escape without other considerations such as the safety of the officers effecting the arrest or the safety of bystanders. The appellant submitted that where force is used in the defence of others, s 248 of the Criminal Code must be considered rather than s 233.
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64 The appellant pointed to a number of passages in his Honour's reasons to illustrate the alleged error but particularly highlighted [184] of his reasons.
65 The respondent submitted that the learned magistrate did not misapply s 233. It was submitted that the assessment of what force was reasonably necessary to prevent an escape must include an assessment of whether the person sought to be arrested poses a danger to others: respondent's written submissions par 20.
The law
66 Sections 127 and 128(1) and (2) of the Criminal Investigation Act 2006 (WA) (the Act) provide that a police officer may without warrant, arrest a person for a serious offence (defined to include an offence, the penalty for which includes imprisonment for 5 years or more or life) if the officer reasonably suspects that the person has committed, is committing or is just about to commit the offence.
67 It is not disputed that the respondent had the power to arrest Mr Ningella without warrant. There were ample grounds for the respondent to reasonably suspect that Mr Ningella had committed several serious offences including stealing a motor vehicle and driving it recklessly (s 378(2) of the Criminal Code), doing an act which endangered the life, health or safety of another (s 304(1) of the Criminal Code) and attempted murder (s 283 of the Criminal Code).
68 Section 16 of the Act states:
(1) When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances —
(a) to exercise the power; and
(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.
….
(3) Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.
69 Within Chapter 26 of the Criminal Code are ss 231, 233 and 235.
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70 These sections deal with the force that may be used to overcome resistance to arrest (s 231) or to prevent the escape of someone sought to be arrested (s 233) or to prevent the escape of someone who has been arrested (s 235). The common factor in these provisions is that it is lawful in each case to use 'such force as may be reasonably necessary'.
71 The precise terms of s 233 are:
(1) When any person is proceeding lawfully to arrest, with or without warrant, another person, and the person sought to be arrested takes to flight, or appears to be about to take to flight, in order to avoid arrest, it is lawful for the person seeking to make the arrest, and for any person lawfully assisting that person, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested.
(2) Subsection (1) does not authorise the use of force that is intended or is likely to cause death or grievous bodily harm unless -
(a) the person who uses that force is a police officer or a person assisting a police officer; and
(b) the person sought to be arrested is reasonably suspected of having committed an offence punishable with imprisonment for life; and
(c) the person sought to be arrested is called on to surrender before that force is used.
73 The overarching limit to the use of force is that it must be no more than is reasonably necessary: s 233(1). Further, force that is intended or is likely to cause death or grievous bodily harm, can only be used by a police officer or someone assisting a police officer and only if the escapee is reasonably suspected of having committed an offence punishable by life imprisonment: s 233(2). In this case s 233(2) was not engaged because the learned magistrate was not satisfied that the firing of the warning shots was likely to cause death or grievous bodily harm to Mr Ningella. However, s 233(1) was engaged and it is to that subsection that I focus my attention.
74 The words 'reasonably necessary' are commonplace in the criminal and civil law: see Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR
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- 307 [20] - [27]. In the context of s 233(1), they permit a level of force no greater than the situation under consideration reasonably requires. What level of force is reasonably necessary to prevent a suspect escaping arrest is a value judgment to be made by the court having regard to all of the relevant circumstances as they existed and were known by the accused at the time the force was used.
75 Arrests and escapes from arrest occur in widely varying circumstances. It is not uncommon for an escaping suspect to be sufficiently desperate to endanger those who are in pursuit, bystanders or who may get in their way. While the purpose of the use of force is to prevent the suspect escaping arrest, the level of force which may be reasonably necessary to deal with the suspect's conduct in escaping may be judged by such factors as:
(a) the known dangerousness of the suspect;
(b) the offence or offences that he or she is reasonably suspected of committing;
(c) the behaviour of the suspect while fleeing arrest;
(d) the risk that behaviour posed to the safety of others; and
(e) the risk the use of force posed to the safety of the suspect and others.
76 This list of factors is not intended to be exhaustive.
Did the learned magistrate misapply s 233?
77 In my opinion, the learned magistrate did not misapply s 233.
78 The flaw in the appellant's argument is the failure to recognise that the words 'reasonably necessary' in s 233(1) require an examination of all the relevant circumstances giving rise to the use of force including such factors as I have just mentioned. Thus, the focus of the appellant's submissions is far too narrow.
79 It was relevant for his Honour to take into account the potential threat Mr Ningella posed to those at the homestead.
80 His Honour accepted that once Mr Ningella turned onto the Birdwood Downs access road and was heading towards a populated area,
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- the level of dangerousness he posed increased, as did the need to arrest him before he got to the homestead.
81 The effect of the evidence of the respondent and Constable Johnston was that in light of all of the surrounding circumstances relevant to preventing Mr Ningella's escape from arrest, the 'tipping point' which led to the firing of the warning shots (which up to then had not been necessary) was the need to stop Mr Ningella from reaching the homestead with the real potential of endangering the safety of the occupants.
82 The passage of the learned magistrate's reasons at [184] which came under particular criticism from the appellant is, in substance, an acceptance of this position. The threat Mr Ningella posed to the safety of the occupants at Birdwood Downs was relevant to a consideration of what force was reasonably necessary to prevent Mr Ningella's escape from arrest. His Honour gave that factor considerable weight which, as the finder of fact, he was entitled to do.
83 For these reasons, the leaned magistrate did not misapply s 233. Ground 1 has not been made out
Ground 2
84 The appellant asserts that there was no basis in the evidence for his Honour's finding that the discharge of the firearm was not to the danger of the occupants of the homestead. If this error is made out, the appellant says that it is relevant to the consideration of s 233 and particularly to whether the firing of the warning shot was reasonably necessary. The respondent submitted that what his Honour said was not a finding as alleged and that if it was, it was in any event open on the evidence.
85 The critical part of his Honour's reasons in respect of this ground is [140] which states:
The State further submitted that the accused's actions were dangerous because the firearm was discharged close to the Birdwood Downs Homestead. However, the charge is that the discharge was to the danger of Ningella, not to occupants of Birdwood Downs or the public at large. In any event, for the same reasons as expressed in relation to Ningella, I would not be satisfied that the discharge was objectively to the danger to occupants at the Homestead. I do not say that the discharge of the firearm was without risk. However, the issue is whether I am satisfied beyond reasonable doubt that the circumstances under which the accused discharged the firearm were such as to be objectively dangerous and I am not so satisfied.
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86 It is correct that his Honour did not make an express finding of fact that the discharge of the firearm was not to the risk of the occupants of the homestead. More correctly, his Honour said that he was not satisfied that the discharge of the firearm was a risk to those who might have been at Birdwood Downs.
87 If by this ground of appeal the appellant was really submitting that the learned magistrate should have found that the discharge of the firearm was to the risk of the occupants of the homestead, that submission must be rejected. This is because there was no expert evidence or any other evidence which would have enabled the learned magistrate to make a finding that the trajectory of any of the bullets he fired was anywhere near the location at which it was thought other people on the station were location, or might be located. In the absence of such evidence, his Honour could not have arrived at the conclusion contended for by the appellant.
88 Ground 2 has not been made out.
Ground 3
89 This ground concerns a portion of the learned magistrate's reasons where, in respect of the issue of the police aborting or continuing the pursuit of Mr Ningella, he took into account the 'public's expectations that police take all reasonable measures to ensure that an offender who had proven to be persistently dangerous and desperate not be allowed to reach a place where further offences may be committed': reasons [179].
90 The appellant submits that there was no evidence as to the public's expectation and furthermore, it was irrelevant to whether the respondent's actions were reasonably necessary to prevent Mr Ningella's escape from arrest. The latter point is conceded (correctly in my view) by the respondent.
91 This ground of appeal must be upheld for the reasons given by the appellant. There was no evidence as to the public expectation and in any event, it is not a matter relevant to whether the respondent's use of force was reasonably necessary. However, I consider that no substantial miscarriage of justice has occurred as a result of his Honour's error. The error was made in the context of the continuation of the pursuit and not to the key issue in the case which was whether the firing of the warning shots was reasonably necessary to prevent Mr Ningella's escape from arrest.
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92 While I would uphold ground 3, it does not give rise to any substantial miscarriage of justice: s 14(2) Criminal Appeals Act 2004 (WA).
Ground 4
93 This ground of appeal alleges that the learned magistrate erred in law in considering whether the discharge of the firearm was to the danger of Mr Ningella by applying a subjective rather than an objective test and judging the respondent's actions with the benefit of hindsight rather than at the time the conduct occurred. Further, it is submitted that based on the evidence of Senior Constable Meeks, the respondent discharged his weapon in an uncontrolled environment, so that an unexpected jolt may have potentially endangered Mr Ningella.
94 The respondent submitted that there is nothing in the learned magistrate's reasons which indicate that he applied a subjective, rather than an objective test as to what force was reasonably necessary, nor did he assess the respondent's actions with the benefit of hindsight. The respondent also submitted that on the facts as found by his Honour, the respondent did not discharge his firearm to the danger of Mr Ningella.
95 His Honour correctly acknowledged that the words 'reasonably necessary' require an objective test: reasons [183]. A consideration of his reasons as a whole reveal that he applied an objective test. Although, his Honour did not say that the respondent's actions had to be judged at the time the conduct occurred, the reasons do not show a hindsight approach.
96 His Honour analysed the question of whether the warning shots were to the danger of Mr Ningella between [131] - [139] of his reasons.
97 The question for his Honour to decide was whether the prosecution had proved beyond reasonable doubt that the discharge of the firearm was to the danger of Mr Ningella. His Honour concluded that he was not so satisfied: reasons [139]. In doing so his Honour considered the prosecution's submission that the manner in which the shooting occurred was 'uncontrolled'. Although he did not expressly refer in this part of his reasons to the evidence of Senior Constable Meeks, the reference to the word 'uncontrolled' is clearly a reference to Senior Constable Meeks' opinion that the manner in which the firearm was discharged, was uncontrolled. His Honour considered the Use of Force Manual and the surrounding circumstances, including that at the time the firearm was discharged it was dark, the speed of the vehicle in which he was travelling
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- was approximately 60 - 70 km per hour, and that ED 101 on an unsealed road, in such circumstances the respondent might be unable to properly control the angle at which he intended to shoot.
98 As against these considerations, his Honour weighed the evidence of the respondent and Constable Johnston. On the basis of this evidence he found:
(a) the track on which they were travelling was in good condition;
(b) the track was solid underfoot and not slippery or dangerous;
(c) the vehicle in which they were travelling had good traction;
(d) the respondent was an experienced shooter;
(e) the respondent felt comfortable and stable enough to shoot well over the stolen vehicle; and
(f) firing shots into the air did not require the same degree of precision as aiming at a target.
99 Senior Constable Meeks' opinion was based in part on an assumption that the vehicle in which the respondent was travelling was bouncing, an assumption which his Honour apparently did not accept, having regard to his findings as to the road conditions.
100 In light of his Honour's findings of fact, it was open to his Honour to conclude that the appellant had not proved beyond reasonable doubt that the firing of the warning shots was to the danger of Mr Ningella.
101 I am not satisfied that his Honour made the errors alleged by the appellant. Ground 4 has not been made out.
Ground 5
102 In essence, the appellant alleges in this ground that his Honour's decision to acquit the respondent of the charge was unreasonable and consequently there has been a miscarriage of justice: s 8(1)(b) Criminal Appeals Act.
103 In the context of an offender's appeal against conviction by a magistrate, the test in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 applies. Of course, this appeal is a prosecution appeal against an acquittal. It appears to me that the principles in M v The Queen apply to the present appeal with appropriate modifications to take into account its
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- nature. In my opinion, the test that should be applied is whether the appellant has established upon a consideration of the whole of the evidence, it was not open to the learned magistrate to acquit the respondent.
104 The process requires me to make my own independent assessment of the evidence. However, I must not disregard the benefit the learned magistrate had of seeing and hearing the witnesses. Where findings of fact are based on the credibility of a witness, those findings cannot be set aside because an appellate court thinks that the probabilities of the case are against the finding. Such findings must stand unless it can be shown that the magistrate, has failed to use, or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [66]; Lovell v Fullman [2011] WASC 312 [10].
105 The appellant acknowledged during the hearing of the appeal, that the task it undertook was 'very difficult'. Counsel, with admirable candour, bluntly said 'we don't place a lot of reliance on ground 5 on its own': appeal ts 14.
106 The appellant expressed his position in respect of this ground in his written submissions as follows:
The appellant does not seek to have the court overturn any of the learned magistrate's findings of fact based on credibility. Rather it is asserted that the conclusion that the discharge by the respondent was reasonably necessary in the circumstances was unreasonable in such a way that an error may be inferred when regard is had to the relevant factual findings and to the documentary evidence before the learned magistrate: Fox v Percy (2003) 214 CLR 118; House v The King (1936) 55 CLR 499 at 505; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
107 I make two observations about this submission. First, the learned magistrate did not make a finding that the respondent's discharge of his firearm was reasonably necessary. His Honour in fact found that the prosecution had failed to satisfy him beyond reasonable doubt that the discharge of the firearm was not reasonably necessary. There is an obvious and important difference between an actual finding of fact and a decision-maker being unable to find a fact to the requisite criminal standard. The second observation to be made is that the references to House v The King [1936] HCA 40;(1936) 55 CLR 499 and to Associated
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- Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 are not apt. These cases concerned the making of discretionary decisions. The case of House v The King involved the imposition of a sentence and Wednesbury Corporation involved an administrative decision. Neither case assists here because the task of the learned magistrate was to decide whether the prosecution had proved its case beyond reasonable doubt. Thus, he was not exercising a discretion which invoked the principles set out either House v The King or Wednesbury Corporation.
108 I have undertaken my own assessment of the trial record. In doing so, I have been considerably assisted by each party providing to me, after the hearing of the appeal, a schedule setting out in detail the evidence led at trial. These schedules focused upon the issue of whether the prosecution had satisfied the magistrate beyond reasonable doubt that the respondent's discharge of his firearm was reasonably necessary to prevent Mr Ningella's escape. I have already, in these reasons, referred to much of the evidence that was relevant to this issue.
109 The appellant submitted that the verdict to acquit was unreasonable because:
(1) the respondent's fear that Mr Ningella might pose a danger to those who were staying at the station was merely speculative;
(2) the respondent, having regard to the Urgent Duty Driving Policy, should have ordered the abandonment of the pursuit because, amongst other things, the damage that had been done to ED 101's emergency lights, the multiple collisions between the stolen utility and ED 101 and the collision on the Derby Highway between ED 102 and the stolen utility;
(3) the respondent discharged his firearm in circumstances contrary to the Use of Force Manual having regard to, amongst other things, his inability to adopt the recommended shooting stance and that he used his weapon 'against' a vehicle;
(4) there was no material difference between firing at a target and firing to miss a target;
(5) the following circumstances made the discharge unsafe:
(a) the speed at which the vehicles were travelling;
- (b) the road surface;
(c) it was dark; and
(d) it either was, or had, just been raining;
- (6) Senior Constable Meeks' evidence showed that the discharge of the weapon was uncontrolled and dangerous; and
(7) there was no need for the respondent to fire his weapon because there was another reasonable alternative course available, namely followed the stolen vehicle at a safe distance until the police were able to effect an arrest.
110 The evidence clearly demonstrates that Mr Ningella on the night in question had committed a number of serious offences and was desperate to avoid arrest. It was unlikely, in light of his conduct, that he would, give up and quietly submit to his arrest. He posed a serious and continuing danger to police and to anyone else who got in his way.
111 The need to arrest Mr Ningella increased when he turned onto the Birdwood Downs station access road, burst through the closed station gates, and headed towards what was reasonably thought to be a nearby populated area of the station. It was not so late at night as to think that no-one would be around the area of the homestead.
112 In these circumstances, it was reasonable for police to regard it as urgent that they arrest Mr Ningella before he got to the area of the homestead. The obvious difficulty faced by the respondent was how to stop Mr Ningella, bearing in mind that there was no readily available backup after Mr Ningella had disabled ED 102. ED 101 was behind Mr Ningella. Given the limited width of the track (see exhibit 10) and the many photographs tendered in evidence, there was no apparent capacity to pass the stolen vehicle and, in any event, Mr Ningella had already rammed ED 101 on multiple occasions with the potential of endangering its occupants.
113 It is only in situations of great seriousness that a firearm should be deployed even for the purpose of firing warning shots. Whenever a firearm is used, the duty of the relevant officer to take due care is high. Generally speaking, and in the ordinary case of preventing the escape of a person sought to be arrested, it would be difficult to see how the firing of warning shots would be a reasonably necessary use of force.
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114 The present case was one of great seriousness. In light of the offences Mr Ningella had committed and the ongoing danger he posed, the continued pursuit of Mr Ningella was reasonably justified. There was no other measure available to the respondent to prevent Mr Ningella's escape other than the firing of the warning shots. Firing at the vehicle itself would not have been a reasonably necessary use of force. Mr Ningella's actions and the danger he posed, although very serious, were not such as to justify shooting at the vehicle with the risks referred to in the Use of Force Manual, particularly the risk that Mr Ningella would be badly injured or killed.
115 The learned magistrate's findings as to the circumstances in which the respondent discharged his firearm were based on his findings as to the credibility of the respondent and Constable Johnston. Those findings are not challenged and must be accepted.
116 The evidence of the respondent and Constable Johnston, on the night in question, the road surface while unsealed, was in good condition, was not slippery and ED 101 had good traction. Although it may be accepted that an unsealed road is not as smooth as a sealed road, this does not mean that the respondent's vehicle was bouncing or was being jolted in such a way that the discharge of the firearm by the respondent was uncontrolled as described by Senior Constable Meeks. Thus, as I have said earlier, an important factual base for his opinions was not established on the evidence.
117 The firing stance adopted by the respondent was not recommended by the relevant manual. However, the magistrate accepted the respondent's evidence that from the position in which he fired the warning shots, he was able to shoot in the intended direction. The intended direction, I note, was well above the stolen utility providing a substantial margin for error.
118 Contrary to the appellant's submission, there is, when considering the relevant provisions of the Use of Force Manual, a difference between shooting at a defined target and shooting into the sky with the intention of not hitting a target. The precision that is required to do the former is not necessary in order to do the latter. Accordingly, the necessity for the respondent to adopt a shooting stance of the recommended kind was not as great having regard to the circumstances he faced.
119 There is insufficient evidence to accurately gauge what risk, if any, the discharge of the firearm posed to those on the station. It cannot be
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- overlooked that the warning shots were fired in station country and not in a settled or built-up area. The risk to those on the station appears more theoretical than real.
120 There was some risk to Mr Ningella. Something unexpected may have occurred at the moment the shots were fired which may have caused a bullet to not travel in its intended direction. However, that risk would not be great enough having regard to the surrounding circumstances to justify a finding to the criminal standard that, the firing of the warning shots was not a reasonably necessary use of force to prevent Mr Ningella's escape from arrest.
121 I have considered the record and the arguments of the parties. The appellant has failed to persuade me that, on all the evidence, it was not open to the learned magistrate to acquit the respondent. Ground 5 must fail.
Conclusion
122 I would give leave to appeal in respect of grounds 1, 3 and 5 only. I would not give leave to appeal on grounds 2 and 4. The only ground of appeal I would uphold is ground 3. However, that ground does not give rise to a substantial miscarriage of justice. The other grounds must be dismissed. In the result, the appeal is dismissed.
Orders
1. Leave to appeal is granted in respect of grounds 1, 3 and 5.
2. Leave to appeal is refused on grounds 2 and 4.
3. The appeal is dismissed.
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