Paterson v The Queen - [2004] WASCA 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PATERSON -v- THE QUEEN [2004] WASCA 63

CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J

HEARD: 12 NOVEMBER 2003

DELIVERED : 5 APRIL 2004

FILE NO/S: CCA 128 of 2003
CCA 129 of 2003

BETWEEN: AARON PAUL PATERSON
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT OF WESTERN AUSTRALIA
Coram   :COMMISSIONER REYNOLDS
File Number            :  IND BUN 2 of 2003

Catchwords:

Criminal law - Criminal Code (Cth), s 147(e) - Attempt to cause harm to a public official - Elements of offence - Prosecution required to prove appellant knew that relevant person was a public official – Prosecution not required to prove appellant knew that relevant public official was a Commonwealth public official

Criminal law and procedure - Appeal - Conduct of prosecution case - Miscarriage of justice - Circumstances under which conduct of prosecutor gives rise to real risk of improper influence over jury - Prosecutor has overriding duty to ensure fairness to the appellant - Unfair comments made in cross-examination of appellant - Single incident of unfair conduct not enough alone for trial to miscarry - Unfair to suggest a matter was an established fact when the appellant had expressly denied it - Unfair to imply that the appellant was being evasive when clear answers were given - Unfair comments made in closing address - Unfair to suggest that the appellant alleged police had lied or conspired when no such allegations were made - Unfair to suggest that the appellant's testimony was ridiculous when there was no foundation in the evidence for such a suggestion - Unfair and prejudicial for prosecution to suggest that appellant's testimony was false when evidence supporting the testimony was available to counsel - Cumulative effect of conduct of prosecution case was that appellant was deprived of a fair trial

Criminal law and procedure - Duty of Commissioner to ensure that trial was conducted fairly - Commissioner should have intervened in relation to a number of unfair comments made by prosecutor

Criminal law and procedure - Evidence - Failure of prosecution to call a witness whose testimony supports the appellant - Whether such failure is unfair to the appellant - Crown prosecutor alone bears responsibility for deciding whether a witness for the Crown will be called - Evidence of witness would not have been of assistance to the appellant

Legislation:

Criminal Code (Cth), ss 6.2, 9.1, 10.2, 11.1, 132.1(2A), 132.2(3)(2A), 132.43A, 132.4(4)(6)(7), 132.5(4)(a)(b), 132.5(5)(a)(b)(c), 132.7(3)(c)(d), 132.7(4)(c)(d)(e), 135.1(4), 135.1(8)(a)(b), 135.4(2)(4)(6), 135.4(8)(a)(b), 141.1(2)(a)(b), 142.1(2)(a)(b), 144.1(2)(4)(6)(8), 145.1(2)(4)(6)(8), 145.2(2)(4)(6)(8), 145.3(3), 147.1, 149.1(2)(a)(b)

Criminal Code (WA), s 611A

Result:

Application for leave to appeal granted
Appeal allowed
Conviction quashed

Category: A

Representation:

Counsel:

Appellant: Mr S P Pallaras QC
Respondent: Mr P N Bevilacqua

Solicitors:

Appellant: Max Owens & Co
Respondent: Commonwealth Director of Public Prosecutions

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

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Brown v The Queen [1980] Tas R 61
Browne v Dunn (1893) 6 R 67
Crofts v The Queen (1996) 186 CLR 427
McCullough v The Queen [1982] Tas R 43
R v Apostilides (1984) 154 CLR 563
R v Banks [1916] 2 KB 621
R v Birks (1990) 19 NSWLR 677
R v Fenlon (1980) 71 Cr App R 307
R v Hay & Lindsay [1968] Qd R 459
R v Kneebone (1999) 47 NSWLR 450
R v Lucas [1973] VR 693
R v Manunta (1990) 54 SASR 17
R v McCullough [1982] Tas R 43
R v Romeo (1982) 30 SASR 243
R v Roulston [1976] 2 NZLR 644
R v Tripodina & Morabito (1988) 35 A Crim R 183
R v Wright [1999] 3 VR 355
Richardson v The Queen (1974) 131 CLR 116
Smout v Smout [1989] VR 845
Thomas v Van Den Yssel (1976) 14 SASR 205
Vella v The Queen (1990) 2 WAR 537
Whitehorn v The Queen (1983) 152 CLR 657
Winning v The Queen [2003] WASCA 245

Case(s) also cited:

Nil

MALCOLM CJ: This was an appeal against conviction. The appellant also made an alternative application for leave to appeal against sentence. On 5 August 2003, the appellant was convicted after a trial before a jury in the District Court at Bunbury of attempting to cause harm to a public official contrary to s 147(1)(e) of the Criminal Code (Cth) ("the Cth Code") being the schedule to the Criminal Code Act 1995 (Cth). On the same date, the appellant was sentenced to imprisonment for 2 years with eligibility for release after serving a period of imprisonment for 10 months, upon his entering into a recognisance to be of good behaviour for a period of 14 months in the sum of $5000.
The appeal was heard on 28 October and 12 November 2003 when the decision was reserved. On 16 December 2003 the Court, by a majority, with Steytler J dissenting, allowed the appeal and quashed the conviction. It was then indicated that the Court would wish to hear submissions on the question whether there should be a retrial. In the result, consideration of that question was adjourned to a date to be fixed pending the publication of the reasons for judgment. In the meantime, it was agreed by counsel for the Commonwealth Crown that the appellant should be discharged on the basis that he presented no flight risk. The Court then discharged the appellant from custody on his undertaking that he remain in the jurisdiction pending the outcome of the proceedings.

Appeal Against Conviction

The grounds of appeal as amended at the hearing of the appeal contended that:
(1)The manner in which the Crown case was conducted gave rise to a real risk of improper influence over the jury and caused a miscarriage of justice.
(2)The learned Commissioner erred in not directing the jury in sufficiently strong terms that the case was not to be decided by resolution of the issue whether the police were telling lies or "trying to do something untoward".
(3)The learned Commissioner erred in not directing the jury to ignore a submission by the Crown prosecutor not to "tar these honourable people (the prosecution witnesses)" with what the jury may have read about in the Royal Commission into Police Corruption.
(4)The learned Commissioner erred in not directing the jury regarding what conclusions could properly be drawn from the apparent failure of defence counsel to comply with the rule in Browne v Dunn (1893) 6 R 67.
(5)The learned Commissioner erred in directing the jury that the Crown did not have to prove that the accused knew that Agent Harrison (the complainant) was a Commonwealth or Federal Police Officer rather than a State Police Officer.
(6)The learned Commissioner erred in failing to address the jury "as to whether the accused acted as he did because of duress".
(7)The trial was unfair to the accused because the prosecution failed to call a Ms Rixon who had provided a statement to the Commonwealth Director of Public Prosecutions indicating that she had witnessed at least part of the incident the subject of the charge.
The offence with which the appellant was charged was that:
"… on 27 March 2002 at Bridgetown in the State of Western Australia AARON PAUL PATERSON attempted to commit an offence under section 147.1(1) of the Criminal Code (Cth) in that he attempted to cause harm to a public official without the consent of that official, namely he engaged in conduct intending that his conduct would cause harm to a public official, namely Australian Federal Police member David Edward Harrison, who was a Commonwealth law enforcement officer, the said AARON PAUL PATERSON having engaged in his conduct because of the official's status as a Commonwealth law enforcement officer, contrary to section 11.1(1) of the Criminal Code (Cth)."
Section 147.1 is in Div 147 of the Cth Code which is headed "Causing harm to Commonwealth Public Officials". Section 147.1 relevantly provides that:
"(1)   A person (the first person ) is guilty of an offence if:
(a)       the first person engages in conduct; and
(b)the first person's conduct causes harm to a public official; and
(c)the first person intends that his or her conduct cause harm to the official; and
(d)the harm is caused without the consent of the official; and
(e)the first person engages in his or her conduct because of:
(i)      the official's status as a public official; or
(ii)any conduct engaged in by the official in the official's capacity as a public official; and
(ea)the public official is a Commonwealth public official; and
(eb)if subparagraph (e)(i) applies ‑ the status mentioned in that subparagraph was status as a Commonwealth public official; and
(ec)if subparagraph (e)(ii) applies ‑ the conduct mentioned in that subparagraph was engaged in by the official in the official's capacity as a Commonwealth public official."
The elements of the offence under s 147.1 are that, in summary form:
(1)(s 147.1(1)(a)(b)(c))    the accused engages in conduct which causes harm to a public official intending to cause harm;
(2)(s 147.1(1)(d))            the harm is caused without the consent of the public official;
(3)(s 147.1(e))                the accused engages in the conduct because of:
(i)the official's status as a public official; or
(ii)any conduct engaged in by the official in his or her capacity as a public official; (s 147.1(1)(e)) and
(iii)(s 147.1(1)(ea)) the public official is a Commonwealth public official; and
(iv)(s 147.1(1)(eb)) if subparagraph (e)(i) applies, the status mentioned in that same paragraph was status as a Commonwealth public official; and
(v)(s 147.1(1)(ec)) if subparagraph (e)(ii) applies ‑ the conduct mentioned in that subparagraph was engaged in by the official was in the official's capacity as a Commonwealth public official.
Section 147.1(1A) provides that:
"Absolute liability applies to the paragraphs (1)(ea), (eb) and (ec) elements of the offence."
Section 11.1 of the Cth Code provides that:
"Attempt
(1)A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed
(2)For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact
(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted
Note:Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted
(3A)Subsection (3) has effect subject to subsection (6A)
(4)A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted
(5) A person who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence
(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence
(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence
(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud)."

The Crown Case

The Crown case against the appellant, as opened by counsel for the Commonwealth, was that on 27 March 2002 at Bridgetown, Australian Federal Police were conducting surveillance with respect to the appellant in the area of the Bridgetown Post Office. At about 11.50 am, the appellant drove a Holden Rodeo utility into the carpark behind the Post Office. He then walked to a group of post office boxes at the side of the Post Office. He collected some envelopes and was observed to walk back to his vehicle and got into it.
Federal Agent Harrison approached the vehicle on foot with the intention of searching the vehicle pursuant to a lawful search warrant that had been obtained. The appellant was sitting in the driver's seat with the engine running. Agent Harrison gave evidence that as he approached the vehicle, he shouted out "Stop. Police". The distance between him and the vehicle was said to be about 15 to 20 metres when he first came out. Agent Harrison was not in uniform.
According to Agent Harrison, after he had shouted at the appellant, the appellant locked his driver's door and wound up the driver's side window of the utility. The appellant started reversing the vehicle. Harrison said he shouted at least two or three times "Stop. Police". While Agent Harrison was arriving alongside the vehicle, he drew his firearm for protection. He said that the appellant then stopped reversing and drove forward towards him. By that time, Agent Harrison was in front of the vehicle and was forced "to rapidly move away, to get out of there", as counsel for the Crown put it to the jury. Agent Harrison's evidence was that if he had not got out of the way, he would have been run over and harmed.
Counsel for the Crown told the jury in opening that:
"You will hear evidence that the accused man's vehicle engine was revving at a very high rate. The accused man's vehicle continued towards Harrison, forcing Harrison, as you will see on the video – or it will be my submission that that's the conclusion you will draw, but the picture will tell you all about that – forced Harrison to rapidly move away, to get out of there.
You will hear evidence from Harrison and indeed another police officer that on his view if he did not get out of the way, he would have been run over and harmed. You will hear evidence that he didn't consent to anybody harming him – pretty sort of obvious, you will think, but that's one of the things we have to prove to you.
You will hear evidence that the vehicle continued travelling forward and left the area of the post office with the vehicle tyres literally screeching, the engine revving loudly, and it will be my submission to you at the end of the case as well that had Federal Agent Harrison not taken evasive action, he would surely have been run over.
Unbeknown to the accused man at the time, much of what I'm telling you now was videotaped by another police officer who was part of the surveillance team and you will hear from Federal Agent Donna Ninyett. She was standing in a building about two floors up, looking down at the scene, and she had a video camera taking the video – there are some Venetian blinds which do restrict the view a little bit – and through a pane of glass which you may think distorts or might have helped distort some of the sound, but the picture will still be there.
Federal Agent Steve Elliott was also in the surveillance team in the vicinity of the Bridgetown hotel which – I don't know if you know the area or not. You will see another video showing you the area anyway, but from which he has a clear view of much of what has gone on, but of more importance he has a clear view as to the incident in question that the crown relies on as having constituted – the conduct having constituted the offence.
Elliott will also tell you that he heard Harrison shout out on a number of occasions, 'Stop. Police.' He has also heard and seen the accused man's vehicle reversing, revving the engine, taking off at a very fast pace directly towards Federal Agent Harrison with gravel flying from the rear wheels of the vehicle and Elliott, I understand, will also tell you that he saw Harrison jump for his safety."

Evidence of Prosecution Witnesses

The prosecution case was based primarily on the evidence of three Federal Agents with the Australian Federal Police. The first was Agent Ninyett. On 27 March 2002, she had been a police officer for just over two years. She was on duty at Bridgetown with Federal Agents David Harrison, Stephen Elliott and Peter Chevall. They were conducting surveillance in the vicinity of the Bridgetown Post Office in respect of the appellant. On the morning of 27 March 2002, she was located on the second floor of a building overlooking the carpark below between that building and the Bridgetown Post Office. She was operating a video camera and a police radio. She also had a mobile telephone. She was observing the area through open Venetian blinds.
At 11.48 am she saw a white tray top utility enter the carpark of the Post Office from the Hampton Street entry to the carpark. The utility was parked adjacent to the rear access to the Post Office. She saw a male person "exit the ute" and enter the rear access to the Post Office. She identified the person she saw as the appellant.
A short time later she saw him exit from the rear access to the Post Office. He had envelopes in his hand. He got into his vehicle and shut the driver's side door. While this was happening, she tried to contact Federal Agent Chevall. At that point in her evidence, counsel for the prosecution arranged to show the video film to the Court. The film was played twice.
The video does not pick up anyone calling out "Stop. Police" at any stage. When the vehicle starts to move, a dog can be heard barking. The evidence was that the dog in the appellant's utility was barking. The barking continued for three to four seconds.
When the video was played to the jury a second time, it was stopped from time to time and Agent Ninyett was asked to describe what was depicted in the video. She explained that when the appellant emerged from the Post Office she called Agent Peter Chevall to let him know that the "target", namely the appellant, had arrived. She confirmed that when Agent Harrison emerged from the shed at the back of the Post Office he was carrying something which she could not identify. She noted that he was bending down. The appellant's utility then reversed very quickly. The first sound Agent Ninyett heard was the tyres of the utility "squeal". From where she was she could not hear any sound from the vehicle, Agent Harrison or the appellant.
The video upon which the prosecution relied was played at the hearing of the appeal. I have since viewed it on a number of occasions. The utility is depicted parking and the appellant leaves the vehicle at 10.34 am and 5 seconds and walks into the Post Office. The vehicle is seen on the video parked at 11.48 am and 38 seconds. At 11.48 am and 43 seconds the appellant is seen walking down the steps from the Post Office from the left of the walkway. He walks towards the utility at 11.48 am and 45 seconds. At 11.48 am and 50 seconds, he opens the driver's door, looks around and gets into the utility. At 11.48 am and 52 seconds he closes the door.
At 11.48 am and 54 seconds, Harrison appears around the corner from the opposite side of the walkway from where the appellant emerged. He approaches the appellant's vehicle at 11.48 am and 58 seconds. He appears to be at the driver's window at 11.49 am. He drops his jacket, picks it up and has a gun in his hand. The vehicle reverses at 11.49 am and 03 seconds and then moves forward, turning right away from Harrison and departs the scene at 11.49 am and 05 seconds. From my observation of the video, Harrison was at no point in the actual path of the vehicle. Harrison does not appear to have been in any obvious danger of being struck by the vehicle. The video does not record any relevant sound in the early part but does record a dog barking in the later part, which is consistent with the appellant's evidence.

The whole event took some ten seconds. Agent Ninyett tried to contact Agent Chevall. She did not see Agent Harrison when the utility drove off with its tyres squealing and the engine revving "very loud". A second video was played to the jury showing the general location of the incident in question.
When cross-examined, Agent Ninyett acknowledged that when Agent Harrison approached the appellant's vehicle he was carrying a jacket or pullover. She saw him "fumble at the car door", but she did not see him drop his jacket, although this is clearly apparent on the video. She did see him bend over, however, but she did not see him come up with a gun in his hand. She did not see him banging on the driver's window. She did not recall him standing up with his right arm extended. After the vehicle reversed, the movement of the vehicle is not depicted on the video, except that from close to 11.48 the left‑hand side came back into the view of the video camera.
Agent Harrison gave evidence that on 27 March 2002 that he was a member of the Australian Federal Police stationed in Perth. As of the time he gave evidence on 4 August 2003 he had had 17 years' experience as a police officer. On that day at Bridgetown he had a search warrant in respect of the appellant and another search warrant for the appellant's motor vehicle.
At 11.48 am on the day in question he was stationed at the rear of the Post Office in a toilet block. He then received a telephone call from Federal Agent Elliott. As a result he went into the carpark where he saw the appellant's utility. As he approached the utility its engine was running. He walked towards it. He made eye contact with the appellant. His evidence was:
"He looked at me and I made eye contact with the person. He looked at me and I said, 'Stop. Police", in the direction."
Asked to describe how loud the engine was running, he said that:
"I didn't scream it at the top of my voice, but I gave it in a direction tone like, 'Stop. Police'."
According to Agent Harrison, the driver's window:
"… was open. The majority of it was open. The window may have been partially up, but the majority of the window was open."
Agent Harrison's intention was to execute the search warrants on the appellant and the utility. Later in his evidence, he said that when he came around the corner from the toilet block:
"… immediately I made eye contact with the driver I said it straight away, 'Stop. Police', projected it in a voice so someone at that distance, 5 or 30 metres away in a vehicle would hear it. I could see the window was down. Most of it was down."
Agent Harrison said that he first said, "Stop. Police" when he came around the corner from the toilet block. Almost straight away the appellant locked the driver's door and wound the window up "really fast". He said he tried the door handle, but it was locked. He then produced his firearm "for his own protection" and "followed around the vehicle", saying:
"As its been reversing around, I've had to keep walking around to avoid getting run over and it goes out of vision there."
It was while the vehicle was reversing that he said, "Stop. Police" the second time.
The effect of his evidence was that he said "Stop. Police" at least twice, once from five metres away as he came out of the toilet block, again as he approached the driver's window and once more when the vehicle was reversing around, although there was some uncertainty about the third time. Having said that he said it twice, he said he said it again. He was then asked, "When and how many times?" His answer was:
"I said it again as the vehicle was reversing around. My particular position as it was reversing around I can't exactly recall but it was about three times that I said it."
He said that the vehicle reversed way quickly. He was worried about getting his foot caught under the wheel and said:
"I was thinking on my feet to make sure I didn't – I hoped I didn't get run over, so it happened very quickly."
When the vehicle swung around further, he backed off and was then in front of the vehicle which was facing up a laneway which headed up towards Rose Street. In that position he was in front of the vehicle. The vehicle went forward and he stepped aside, "So I wouldn't get run over. I thought I was going to get run over."
Agent Harrison confirmed that he dropped his jacket when he was "obtaining" his firearm. He also estimated that the time from when he emerged from the toilet block to the appellant's departure from the carpark was 10 to 15 seconds. Agent Harrison had no recollection of a dog barking and did not remember a dog at all.
Agent Elliott was posted across the road from the Post Office carpark. Agent Ninyett was posted in the council offices on his instructions. Agent Harrison agreed that he aimed his firearm at the appellant as the vehicle was reversing. He said that he did that not to threaten the appellant with the use of the firearm, which was for his "protection only in case I needed to protect myself".
In cross‑examination, he agreed that he heard the engine start up as he started to walk outside the toilet block. Agent Harrison also agreed that this was "well before" the appellant would have been aware of his presence. He was positive that eye to eye contact was made with the appellant before the driver's window was wound up. He could not recall whether the car radio was on. He did not remember a dog, but acknowledged that the video recorded a dog barking. He conceded that it was possible that he could have missed the car radio going. When he got to the car, the first thing he did was to grab at the door
At that point his pistol was in his jacket in his other hand in its holster. He dropped his jacket and had to bend over to get his firearm. He moved away from the vehicle for this purpose:
"Because I wanted to get away from the vehicle a bit and do it safely. I did not want to have a firearm coming out at – at eye height and swinging around. I wanted to do it as safely and quickly as I could and step away from the vehicle."
It was put to Agent Harrison that when the pistol was in his hand, but still in the holster, he started banging the pistol against the car window. His answer was:
"I put it against the windscreen. It may have banged as I was walking around."
Asked if there was a loud thud of metal on glass as that happened, Agent Harrison could not recall, although he conceded that, "There could've been a noise".
As the car continued to reverse, he stood up almost erect and with the pistol in his right hand, pointed it at the driver. Agent Harrison said that as the vehicle was reversing, he had to keep moving. It was also put to him that as the vehicle was moving forward, he had to take "Probably one big step, yep. It was just like a leap sort of thing, to the side just to get out of the way".
In re‑examination he agreed with his counsel that when he was about five metres away from the vehicle and approaching it, "the window was up". The distance was then demonstrated and his counsel then asked:
"All right; and at that time the window was open?"
Agent Harrison replied:
"The window was open, yes."
The two answers were contradictory, but no point was made of it at the time.
Agent Elliott gave evidence that he was a member of the team that morning. He was sitting on a bench seat across the road from the Post Office. He saw the appellant's utility on the main street of Bridgetown, namely Hampton Street, at about 11.32 am. He contacted Agent Harrison and Agent Ninyett by mobile telephone to inform them of his observation. At about 11.45 am he saw the appellant's vehicle drive along Hampton Street and turn left into the carpark adjacent to the Post Office. He informed Agent Harrison of this by mobile telephone. He saw the appellant get out of the utility and walk to the rear entrance of the Post Office.
Shortly afterwards, he saw the appellant come from the rear of the Post Office walking towards the utility. He saw Agent Harrison following the appellant "a couple of steps behind" which he estimated at "a metre to a metre and a half". He said that as the appellant got into the vehicle he saw Agent Harrison approach the driver's side door and heard him shout "Stop. Police". He heard Agent Harrison say that on two occasions. He estimated that when he first heard Harrison, he would have been 12 to 15 metres away from Harrison. On the second occasion he was two to three metres away. The utility was between him and Harrison. At that time, the utility was parked "nose in" against the side wall of the Post Office. Agent Elliott approached from the right‑hand side, so that the utility was between him and Agent Harrison.
He heard the engine of the utility revving very loudly and the tyres spinning as the utility reversed. Agent Harrison was following the direction of the vehicle. As Agent Elliott put it:
"As it was turning and reversing, he was attempting to stay beside the driver's door and he was being swung around in the same direction as the movement of the vehicle."
Asked whether Agent Harrison took any evasive action, the transcript records the following:
" … I could see that he was attempting to step away – keep away from the vehicle as it was turning in its arc, or reversing in its arc.
Were you concerned at that time?‑‑‑I was concerned that he would be struck by the vehicle and would be knocked down."
Agent Elliott said that his observation of the appellant's vehicle from the point where the video ended was that the vehicle swung around in an arc, came to a fairly sudden stop, rapidly changed direction and accelerated along a laneway at the rear of the Post Office. The tyres were spinning and the engine was revving very loudly. He could hear gravel being thrown up. He also said that he saw Agent Harrison:
"… step out of the way of the vehicle in order to avoid being struck as it accelerated forward."
When Agent Elliott was cross‑examined, he agreed that he first saw Agent Harrison one and a half metres from the utility when the appellant was already in the vehicle. He agreed that Agent Harrison was not following one and a half metres behind the appellant. Agent Elliott did not see Agent Harrison fumble with his jacket or strike the gun against the driver's window. He did not hear a loud thud or see a dog in the utility. He did hear a dog barking towards the end of the video. He accepted that there was a dog barking.

The Appellant's Evidence

The appellant gave evidence that on 27 March 2002 he went to the Bridgetown Post Office just before midday to pick up his mail. He had his dog with him, which was sitting with him in the cab of the utility. The dog was a Kelpie, aged approximately 2 years. His evidence was that he drove into the carpark area from Hampton Street, and parked. He wound down the window just enough so that his dog could breathe. He left the engine running and walked to the mailbox to collect the mail. The radio was on in the car. He went to the mailbox, collected his mail and walked back to the car. The engine was still running and the radio was still on. He had to push the dog into the passenger's seat before he got in. The first thing he did was to wind the window back up, as it was cold. As he was winding up the window he noticed someone coming toward the car quickly. The appearance of the person was that he was "all flustered and angry". The appellant could not make out what he was doing. He did not hear him say anything. The dog started barking. The appellant was then putting the vehicle into reverse gear as he was winding the window up.
The man approached the driver's door. He noticed that he had a jacket and a gun which was in its sheath. When he got to the car, he appeared flustered and dropped the jacket and "produced a gun that was still in its sheath and pointed it straight at me".
The appellant denied that he heard the man say "Stop. Police" in a loud tone. When it was put to the appellant that Agent Harrison and another witness had given evidence that the words "Stop. Police" were said in a loud tone, the appellant said he did not hear that and went on to say:
"I don't think he would have said that. He was – he looked like he was trying to mumble something. He was quite flustered at the time. He looked like he was trying to spit out something but couldn't.
Did you hear anything coming from him?‑‑‑No, I didn't. Didn't hear a word coming from him because the dog was barking and the radio was up. The engine was running and I was in the motion of driving my car.
So get back to the stage where you have seen this gun in the sheath. Right?‑‑‑Yes.
What happens with that or what happens next?‑‑‑He pulled it up directly and pointed it at me. He came running at the window and he – and I could hear the gun belt against the window, the actual barrel hitting the window. If you could imagine in the cab how loud that would be, hitting it. It banged pretty hard. Steel against glass, it was pretty noisy."
The appellant went on to say that the person looked like he was yelling at someone else and made a gesture to someone across Hampton Street towards the Freemasons Hotel.
The appellant said that when he first saw the gun and it was banging against the window, he put his head down just below the steering wheel so that he could still see. The vehicle was then in reverse motion. The appellant's evidence then was as follows:
"… I was pretty concerned that - yeah, that a bullet was going to go off or bullets were actually going off because it was that load with the barrel hitting the glass. It actually sounded like bullets going off, like, bang, bang, bang.
As you were reversing, could you detect where the person was?‑‑‑Yes, I could notice the person at the side of my door the whole time.
So how far did you go in your reverse?‑‑‑It was only like a point turn which I would've normally done to exit the joint which I intended to – to do that. It was only, like, I travelled a distance of 7 metres at the most, maybe not even that.
So you reversed and then what have you done?‑‑‑I put the gears into first and gone forward.
Can you exit the area by going forwards?‑‑‑Yes, there's an exit way up – the single lane heads towards the railway track and I turned right from there which heads to other streets.
Is that a route you have ever taken before to exit from the Post Office?‑‑‑That is my normal route exiting the Post Office. The most direct route home.
What sort of pace did you take off that – when you went forward?‑‑‑Quickly.
What was going on in your mind?‑‑‑I was pretty worried that I was going to get a bullet in the head. I was literally packing myself.
Did you ever hear, 'Stop. Police'?‑‑‑Not once.
When you went forward, did you notice where the man was?‑‑‑He was at the side of the car, belting the gun at my window, trying to scare me with it obviously.
There's evidence that you were supposed to have driven towards him. What do you say about that?‑‑‑That is incorrect. He was never in front of my car. I never had to make that decision to drive forward at him.
Did you ever see him directly in front of your car as you went forward?‑‑‑He was never in front of my car.
Did you ever see him – did you ever see him directly in front of your car?‑‑‑He was never in front of my car. He was at the window the whole time.
What was your intention when you left to go out? What was your intention as you were getting out of there?‑‑‑To get away from the gunman."
He was subsequently asked to explain just what he saw. The appellant said:
"I saw him jump back and rip the sheath off the pistol and chucked [sic] it on the ground – don't know where it went – and then leaned over and put the gun against my front window. This is while's he's still outside the car."
He did not notice anything such as police uniforms or badges or anything with "police" written on it or any identification. He said he never had any intention to harm anybody. He repeated his evidence that he did not see any police uniforms or anything to indicate police officers. He said that between him becoming aware of the man with the gun and exiting the area took, as he put it:
"… a couple of seconds. It wasn't very far at all – a very long time at all. I would say like 5 seconds, but to me being in the position I was, it did seem like probably a little bit longer than it did take compared to when I see it on the video. It sort of happened to me in a little bit more slow motion."
He agreed that he had seen the video of the scene taken by Officer Ninyett.
Cross‑examined by counsel for the prosecution, the appellant agreed that a video depicting the scene which had been taken some three months later, after the events in question, fairly depicted the scene except for one matter. The appellant thought that the white vehicle shown where he had been parked might have had power steering so that the wheels might have been straight whereas his wheels were at an angle. Asked whether he accepted the accuracy of the video film taken of the events when he was confronted by Agent Harrison, he said that "… as far as I'm concerned, half the sounds aren't there, so it's not accurate at all". He agreed that apart from the problems with the sound, what happened was fairly depicted on the video. He agreed that when he came out of the Post Office, Agent Harrison had come after him. The video showed accurately where he had come from. It was then put to him that he was "happy" that, until the time his vehicle went out of sight and Agent Harrison went out of sight, the video accurately showed what happened on the day. The appellant disagreed.
After watching the video again, the appellant made a number of comments, but accepted that what was shown on the video was correct. There were a number of things that could not be heard, including Agent Harrison saying "Stop. Police". The dog was not heard barking until the car reversed closer to the point where the video was taken. The radio could not be heard. The video simply did not record sound until later. The appellant conceded that he had seen the video "enough times". The appellant pointed out that it did not show him reversing his car and going forward again totally correctly until the vehicle disappeared. There was then the following exchange:
"It [ie the vehicle] disappears, but up until that time does the video accurately show what's happened, Harrison coming up to you?‑‑‑Well, because I was in the situation it did seem like it was slow motion to me and I saw a lot more than what I could see from looking at the video.
I think it's time I pinned you down. In your view does it show what happened or are you saying that there's something that's ‑ ‑ ‑?‑‑‑No. It doesn't really show what happened really very well at all because you can't hear much at all. You can't see very much.
…
Does what you can see with your eyes show you what happened?‑‑‑It does, but it doesn't show it very well.
All right, and what we can hear with our ears we can only hear from the time you reverse – some high revs. Do you accept that?‑‑‑I accept that you start hearing more as the situation got closer to the video, yes."
The appellant agreed that there were very few sounds of the vehicle "other than a couple of clicks" from the time he reversed his vehicle. The appellant said that Agent Harrison was not yelling out "Police, police". He said he was "very flustered and couldn't spit out what he was trying to say". He said that he did not deny that he said it. He just did not hear it. The following passage then appears:
"It is correct that no shots were fired at you?‑‑‑I believe, no, but there was a lot of bang, bang, bangs.
A lot of bang, bang, bangs in your windscreen. I assume you checked for any bullet marks or anything like that?‑‑‑Yes, I did, yes.
Since you say you couldn't hear Harrison, I assume by that you would also agree with me that he made no threats at you, directed at you, verbal threats?‑‑‑No.
No, what? No, you're disagreeing with me or, no, he didn't make any?‑‑‑No, I did not hear any verbal threats. No, I didn't hear much at all. The main thing I heard was my dog."

Asked why he did not stop his car when the incident happened, the appellant said:
"He was pointing a gun at me and I was in the motion of leaving, reversing."
The following passage then occurred:
"Do I sum it up correctly – please say if I'm wrong. You were just hell bent on getting out of there and whoever or whatever got in your way, tough luck?‑‑‑No, that was not the case.
Why didn't you stop?‑‑‑I was reversing.
Not all the time, Mr Paterson. You went forward?‑‑‑Yes, I went forward as well. Yes.
You heard Mr Harrison, Federal Agent Harrison, say, and you heard Federal Agent Ninyett say that you drove your car towards Mr Harrison in the direction that he was?‑‑‑He was never in front of the car.
…
Where was he in relation to the right front fender of your vehicle?‑‑‑He was at the side of my door the whole time.
You could see him all the time, couldn't you?‑‑‑Most of the time. I wouldn't say I saw him all the time. I had my head down most of the time."
The appellant denied that he was "hell bent on getting out of there", whoever or whatever got in his way. He said he was scared. He denied the evidence of Agents Harrison, Ninyett and Elliott, that Agent Harrison had to take evasive action to get out of his way. He said that Agent Harrison was " … not in evasive action. He was in attacking mode." He said that the reason he did not stop was because the person who approached him had a gun, although he acknowledged that he did not see the gun until he started reversing when Agent Harrison dropped the gun on the ground with the jacket. He admitted that he had not seen the gun before that. He denied that he reversed in such a manner as to intentionally cause the officer harm.
It is apparent from the opening that the prosecution case was that the alleged attempt to cause harm to Agent Harrison occurred when, after reversing away from Agent Harrison and turning to a position at a right angle to where he was originally parked, the appellant drove his vehicle forward and turned to the right. The evidence of Agent Harrison was the car appeared to be coming toward him and would have hit him had he not taken evasive action. The appellant's evidence was that he drove out of the position turning right and away from Agent Harrison rather than toward him and that he had no intention of harming him.

The Commissioner's Summing Up on Intention

The direction given by the learned Commissioner on this aspect of the case was in the context of the issue of an intention to cause harm to Agent Harrison because he was a police officer. As the Commissioner put it in his summing up to the jury:
"There are really only two ways of proving intention. They are, firstly, the person whose intention is in issue may say what he did or did not intend at a particular point in time. Whether or not one accepts what he says he did or did not intend at the particular time is another matter. You adjudge what he says he did or did not intend against all of the circumstances you find existed at the time that his intention is in issue.
If a person doesn't say what his intention was at a particular point in time then the second way of proving intention is by way of inference, an inference being a logical deduction or conclusion from a factual circumstance or combination of fact circumstances that you find proved. Indeed, as I have said, even if a persons says what his intention was at a particular point in time, when deciding whether or not to accept what he says he did or did not intend, you would weight what he says his intention was or wasn't against all of the circumstances, against the background that you found existed at the time, and then decide whether or not you believe or disbelieve what he says his intention was.
So in this particular case you need to consider all of the circumstances in relation to the conduct of the accused, including the way he manoeuvred and accelerated his motor vehicle forwards in the incident and the relevant positions of the accused's ute and Officer Harrison when he drove his ute forwards. What was said, what was not said, what you think would have been heard, what was heard – all of these things need to be taken into account."
The learned Commissioner also make it clear that it was not enough for the Crown to prove that the appellant drove recklessly in such a way as to put Agent Harrison at risk, but it was necessary to prove that the appellant intended to cause him harm by driving the vehicle at him. Later in his summing up the Commissioner said:
"You have to be satisfied that in the course of getting away from the scene – and as has been mentioned by both sides, obviously the accused for some reason, and there's a difference of view as to the reason but obviously the accused for some reason wanted to get away from the scene. He says that he was scared because an unknown person whom he didn't know to be a policeman pointed a gun at him.
You have to be satisfied that in the course of doing so, that is, getting away from the scene, he had an intention to cause harm to Officer Harrison. So it's not enough for the crown to satisfy you that the accused knew that Officer Harrison was a police officer and because of that wanted to get away from the scene. Further, it's not enough for the crown to satisfy you that in getting away from the scene the accused drove recklessly and in such a way that put Officer Harrison's physical welfare at risk.
The crown must satisfy you that when the accused conducted himself in the way he did, that when he drove his ute forwards in the circumstances in which he did it he had an intention to cause harm to officer Harrison. On this issue of intention you must bear in mind that it is the accused's state of mind that you are concerned about, so it is a subjective test. The test is: what was the accused's state of mind at the time? The question is: has the crown satisfied you that he accused had such an intention?"

Ground 5: Necessity to prove that the complainant, Federal Agent Harrison, was a Commonwealth or Federal Police Officer rather than a State Police Officer

The first ground argued by counsel for the appellant was ground 5. Ground 5 contended that the learned trial Judge erred in directing the jury that the Crown did not have to prove that the appellant knew that Federal Agent Harrison (the complainant) was a Commonwealth or Federal Police Officer rather than a State Police Officer.
It was contended that the trial Judge misdirected the jury when he told them that the Crown only had to prove that the appellant knew that Agent Harrison was a police officer and that it was not necessary for the prosecution to prove that Harrison was a Commonwealth Police Officer. In this context, the learned Commissioner directed the jury that:
"In this particular case the key issues are whether or not the accused knew that Officer Harrison was a police officer, whether or not he intended to harm Officer Harrison, and involved in that is the issues as to whether or not the officer was standing to the side of the vehicle when it was driven forwards or whether he was at a position in front of the vehicle, and also, if he did have an intention to harm Officer Harrison, whether or not he had such an intention and manoeuvred his ute in the way that he did because Officer Harrison was a police officer.
Before I go any further, I should tell you that when I refer to harm in this particular case I mean physical harm, be it permanent or temporary. I should also tell you that as a matter of law a member of the Australian Federal Police is taken to be a Commonwealth law enforcement officer. I should also tell you and it won't come as any surprise that an Australian Federal Police is a public officer."
Later his Honour again directed the jury on the question of knowledge by the appellant that Agent Harrison was a police officer as follows:
"Did the accused know that Officer Harrison was a police officer? When during the course of the incident was the firearm drawn? What was done with it? What significance, if any, do you attach to that? The video captures vision of the relative positions of the accused's ute and Officer Harrison when the accused reversed his ute in an arc. What do you make of that? There is a conflict between the evidence of Officers Harrison and Elliott on the one hand and the accused on the other on where Officer Harrison was positioned relative to the accused's ute when the accused drove forwards in an easterly direction towards the railway line.
Officer Harrison says that he was in front and had to step aside to avoid being hit. Officer Elliott supports that. The accused says that Officer Harrison was alongside the driver's side door, and that also at that time he was pointing a gun at him, and that at no time was Officer Harrison in front of his ute. So these are matters of fact that you will need to consider and reach findings on if you are able.
What findings you make on all of this evidence is entirely a matter for you. What significance, if any, you attach to your findings on this aspect of the evidence is entirely a matter for you. On the issue of intention generally, what inferences you think are open and what inference you reach, bearing in mind the rule on inferences that I have explained to you, is entirely a matter for you.
Remember to reach a finding by inference that the accused had an intention to cause harm to Officer Harrison, you must be satisfied not only that the circumstances you find proved were consistent – or are consistent with him having such an intention but you must also be satisfied that the circumstances you find proved are such as to be inconsistent with any other reasonable conclusion than the accused had such an intention."
Prior to the trial, at a preliminary hearing under s 611A of the Criminal Code (WA), counsel for the Commonwealth, Mr Dembo, had submitted to the learned trial Judge that in accordance with s 147.1 of the Cth Code:
"The Crown must prove knowledge on behalf of the accused that he intended to harm the Commonwealth public official. It's the Commonwealth part that's an absolute offence. We have to prove a public official. It's absolute liability; once the Crown has proved that it's a public official acting in their duty, it's absolute liability if the official is a Commonwealth official. That's the only part. The Crown doesn't have to prove knowledge by the accused that Harrison was a Commonwealth, and I stress Commonwealth, public official. The Crown must prove knowledge that it was a public official engaging in his capacity as a public official."
Thus, there was an onus on the Crown to prove that the appellant knew that Agent Harrison was a public official. It was not necessary to prove that he was not only a public official but also a Commonwealth public official. In my opinion, however, it was also necessary for the Commonwealth to prove that the alleged attempt to cause harm to the public official was made because of the relevant person's status as a public official or any conduct engaged in by the officer in his capacity as a public official. This necessarily required knowledge on the part of the appellant that Agent Harrison was a police officer.
As has already been seen, the penalty for an offence under s 147.1 of the Cth Code is imprisonment for a maximum of 13 years under s 147.1(1)(f) in the case of "a Commonwealth law enforcement officer". Section 147.1(1A) provides that absolute liability applies to the pars (i)(ea), (eb) and (ec) elements of the offence.
Counsel for the appellant contended that the trial Judge erred in directing the jury that the Crown did not have to prove that the accused knew that Agent Harrison was a Commonwealth or Federal police officer, rather than a State police officer. In either case, of course, the Crown would have to prove that the appellant knew that Agent Harrison was a public official. This contention was put in two ways. First it was submitted that, as a matter of drafting, it is apparent from the relevant provisions that a deliberate choice was made not to specifically provide in s 147.1 or elsewhere a requirement that the appellant knew that Agent Harrison was a Commonwealth police officer, rather than a State police officer. Secondly, it was submitted that the natural meaning of the words in the relevant subsection, namely, s 147(1)(e) when read with s 147(1)(eb) meant that the public official must be a Commonwealth public official.
As has been seen, s 147.1(e)(i) has the effect that if "a person (the first person) engages in his or her conduct because of the official's status as a public official", or as provided in s 147.1(e)(ii) "any conduct engaged in by the official in the official's capacity as a public official" an offence is committed.
On the face of it, these provisions require proof of knowledge on the part of the alleged offender that the person concerned was at least, a public official. In the present case, there was a real issue on that point. The Crown case was that the appellant knew that Agent Harrison was a public official, namely, a police officer, because he shouted a number of times, "Stop. Police", from which the appellant must have understood that Agent Harrison was a police officer, having identified himself as such. Two questions immediately arise. The first is whether those words were spoken or shouted at all. The second is whether they were shouted in a manner which must have been heard by the appellant, who was in his car with a dog barking, the radio and engine on and probably had the driver's window wound up at the time it was said that the words were spoken.
The effect of sub‑par (e)(i) in s 147.1 is that an offence is committed if a person causes harm to a public official "because of" his status as such. That in turn requires not only that the person had that status, but that the alleged offender knew that he had. That knowledge would be a necessary element in causing harm to a person because of his status as a public official. Counsel for the appellant referred to a number of provisions in the Cth Code which specifically provide that the Commonwealth Crown is not required to prove knowledge or knowledge or belief in a certain state of things, namely, ss 132.1(2A) (receiving); 132.2(3) (robbery); 132.3(2A) (aggravated burglary); 132.43A, 132.4(4), 132.4(6) and 132.4(7) (burglary), 132.5(3), 132.5(4)(a), 132.5(4)(b), 132.5(5)(a), 132.5(5)(b) and 132.5(5)(c) (aggravated robbery), 132.7(3)(c), 132.7(3)(d), 132.7(4)(c), 132.7(4)(d) and 132.7(4)(e) (going equipped for theft), 135.1(4) (causing loss), 135.1(8)(a) and 135.1(8)(b) (influencing a Commonwealth official), 135.4(2), 135.4(4) and 135.4(6) (conspiracy to defraud), 135.4(8)(a) and 135.4(8)(b) (influencing a Commonwealth public official), 141.1(2)(a) and 141.1(2)(b) (giving a bribe). Numerous other provisions were referred to to the same effect identifying elements of the offence in relation to knowledge which was not required to be proved: see ss 142.1(2)(a), 142.1(2)(b), 144.1(2), 144.1(4), 144.1(6) and (8), 145.1(2), 145.1(4), 145.1(6) and (8), 145.2(2), 145.2(4), 145.2(6) and (8) and 145.4(3).
In the case of the offence of obstruction of Commonwealth public officials under s 149.1(2)(a), the Crown was not required to prove that the defendant knew the official was a Commonwealth public official. In relation to s 149.1(2)(b), obstruction of Commonwealth officials, it is not necessary to prove that the defendant knew the functions were the functions of a Commonwealth public official.
In the light of these provisions, it was submitted that, had the relevant legislation intended to establish that the prosecutor did not have to prove that the defendant to a charge under the provisions in question knew that the relevant official was a Commonwealth public official, express provision would have been made to that effect. As Steytler J pointed out during the course of the hearing, the more relevant proposition was that, had the Commonwealth intended that the first person should know that the other person involved was a Commonwealth public official, it would have provided in s 147(1)(e)(i) that:
"The first person engages in his or her conduct because of:
(i)the official's status as a Commonwealth public official."
However, I note that it is an element of the offence that, as provided in s 147.1(1)(ea) that "the public official is a Commonwealth public official"; and it is further provided in par (eb) that, "If par (e)(i) applies – the status mentioned in that subparagraph was status as a Commonwealth public official".
In my opinion, it is critical that, as compared to many other places in the Cth Code, in the present case knowledge that the relevant official was a Commonwealth public official was an additional element of the offence. Hence the function of par (eb) is that it adds an element if subpar (e)(i) applies, namely that the offender knew that the status in that subparagraph was status as a Commonwealth public official. In my opinion, the provision under which the appellant was charged necessarily requires proof, as an element of the offence, that the appellant engaged in the relevant conduct because of the status of Agent Harrison as a Commonwealth public official. In my opinion, the words "because of the official's status as a public official" require proof of knowledge, at the least, that the accused knew that the person who was approaching was a public official.
It is then necessary to take into account the provision in s 147.1(1A) which provides that absolute liability applies to the pars (i)(ea), (eb) and (ec) elements of the offence. As I understood the position of the Commonwealth, it was that upon proof that harm was caused to a Commonwealth public official in a way which otherwise brought the person charged within the purview of the section, and proof that the victim was a Commonwealth public official, the provision for absolute liability applies.
Section 6.2 of the Cth Code provides that:
"(1)If a law that creates an offence provides that the offence is an offence of absolute liability:
(a) there are no fault elements for any of the physical elements of the offence; and
(b) the defence of mistake of fact under section 9.2 is unavailable
(2)If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a) there are no fault elements for that physical element; and
(b) the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element
(3)The existence of absolute liability does not make any other defence unavailable."
These provisions are not easy to reconcile. In the present case, the defence was that the appellant did not know that the complainant was a police officer of any kind. He simply reacted to the apparent threat of an armed person coming towards his car by attempting to escape because he thought the person approaching intended to do him physical harm.
Section 9.1 of the Cth Code provides that:
"(1)A person is not criminally responsible for an offence that has a physical element for which there is a fault element other than negligence if:
(a) at the time of the conduct constituting the physical element, the person is under a mistaken belief about, or is ignorant of, facts; and
(b) the existence of that mistaken belief or ignorance negates any fault element applying to that physical element
(2)In determining whether a person was under a mistaken belief about, or was ignorant of, facts, the tribunal of fact may consider whether the mistaken belief or ignorance was reasonable in the circumstances."
The defence case was that the appellant was under a reasonable mistaken belief about the identity of Agent Harrison as a police officer and that he was simply trying to escape from a situation in which he believed that the armed person by whom he was confronted intended to cause him harm. In particular, his evidence was that he did not hear anyone say "Stop. Police" or anything which would have identified the speaker as a police officer. Furthermore, under s 147.1(1)(e)(i), not knowing that Agent Harrison was a police officer, the element of the offence in s 147.1(1)(e) could not be satisfied because he did not engage in the conduct, either because of Agent Harrison's status as a public official, or because of the conduct engaged in by Agent Harrison in his capacity as a public official, given the absence of knowledge that Agent Harrison was a public official.

The question then becomes whether under s 9.1(2), the mistaken belief or ignorance was reasonable in the circumstances. That, of course, is a question for the jury. A further result of that analysis is that sub‑pars (ea), (eb) and (ec) do not fall to be considered if neither of the elements of the offence in par (e) is established.
Counsel for the Commonwealth submitted that the construction put forward on behalf of the appellant of the combined operation of ss 147.1(1)(e)(i) and 147.1(1)(eb) misconstrued their effect and was inconsistent with the clear intention of those provisions. It was contended that a connection to a Commonwealth public official as a matter of fact was made by s 147.1(ea) which requires that:
"The public official is a Commonwealth public official …"
The effect of the provision in s 147.1(1A) was said to be that absolute liability applies, among other things, to s 147.1(1)(ea). Absolute liability is defined in s 6.2(2) of the Cth Code in relation to an element of the offence. The term "public official" is defined in the dictionary to the Cth Code to include a Commonwealth or State public official. The next step in the argument is that s 147.1(1)(e)(i) requires the conduct to occur because of the official's status as a public official. It was contended that this reference was related to the element of engagement by the alleged offender in the conduct and thus relates to his or her intent in so acting. The phrase in s 147.1(1)(eb) to "… the status mentioned in that subparagraph" was said to be a reference to the actual status or status in fact of the public official. It was said that this was a different element to that involved in s 147.1(1)(e)(i). This led to a final submission that, in relation to this element of actual status, s 147.1(1A) had the effect that this element made the offence one of absolute liability. In other words, the prosecution must establish that the appellant engaged in his conduct because of the status of the public official as a Commonwealth or State public official and that, as a fact, the official's status at the time was that of a Commonwealth public official.
In my opinion, however, with all due respect, that does not overcome the necessity for the prosecution to prove that the appellant engaged in the relevant conduct, either because of Agent Harrison's status as a public official, or by reason of conduct engaged in by Agent Harrison in his capacity as a public official. Consequently, it was necessary for the prosecution to prove beyond a reasonable doubt that, at the material time, the appellant knew that the person approaching him was a police officer and, consequently, a public official. In the result, therefore, it was a necessary part of the prosecution case to prove beyond a reasonable doubt that Agent Harrison identified himself as a police officer by calling out, "Stop. Police" in a manner and in circumstances which would satisfy the jury beyond reasonable doubt that the appellant must have heard him say that and, as a consequence, must have known that Agent Harrison was a police officer and was for that reason a public official. In my opinion, the learned Commissioner's directions to the jury made it clear that the jury had to be satisfied beyond a reasonable doubt that not only did Agent Harrison shout at least twice "Stop. Police", but also that the circumstances were such that they were satisfied beyond reasonable doubt that the appellant heard those words and that they conveyed to the appellant that, notwithstanding his plain clothes and the manner of the approach by Agent Harrison, including the fumbling with the jacket, the gun and holster, that Agent Harrison was in fact a police officer and not someone posing as a police officer.
In my opinion, the directions of the learned Commissioner on this point were adequate. The primary issue which was identified by the Commissioner for the jury was:
"Did the accused know that Officer Harrison was a police officer?"
If that question was answered in the affirmative, it would follow that the appellant knew that Officer Harrison was a "public official". It follows that ground 5 has not been made out.

Ground 6 – Duress

Ground 6 of the grounds of appeal contended that:
"The learned trial Judge erred in failing to address the jury as to whether the [appellant] acted as he did because of duress."
Section 10.2 of the Commonwealth Code provides that:
"(1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2)A person carries out conduct under duress if and only if he or she reasonably believes that:
(a)a threat has been made that will be carried out unless an offence is committed; and
(b)there is no reasonable way that the threat can be rendered ineffective; and
(c)the conduct is a reasonably response to the threat.
(3)This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."
It needs to be borne steadily in mind that by s 147(1)(a), absolute liability applies only to the elements of the offence specified in pars (1)(ea), (eb) and (ec). Given the verdict of the jury, it seems to me that the jury must have been satisfied beyond a reasonable doubt that Officer Harrison was a police officer and as a necessary consequence in the context of s 147.1 that Officer Harrison was a "public official". For these reasons, ground 6 has not been made out.

Ground 1 – Conduct of Counsel for the Prosecution

Ground 1 of the grounds of appeal contended that the manner in which counsel for the Commonwealth conducted the prosecution case:
" … gave rise to a real risk of improper influence over the jury and thereby caused a substantial miscarriage of justice to the appellant."
Counsel for the appellant made it clear that no allegation was being made of a deliberate attempt to improperly influence the jury. The submission was that errors of judgment were made, which caused an unfair result and an unfair impact upon the appellant's case at the trial.
Where submissions of this kind are made, the starting point is that counsel for the prosecution has an overriding duty to ensure that the prosecution case is presented properly and with fairness to the accused: Richardson v The Queen (1974) 131 CLR 116 at 119 per Barwick CJ, McTiernan and Mason JJ; and R v Lucas [1973] VR 693. The relevant authorities were dealt with in some detail in my judgment in Vella v The Queen (1990) 2 WAR 537 at 539 – 542. In particular, I said at 540:
"Crown counsel should not allow himself to become an advocate fighting for a conviction and it is quite impermissible for him to persuade a jury to a point of view by the introduction of factors of prejudice or emotion: R v Roulston (1976) 2 NZLR 644. While prosecuting counsel should not fight for a conviction, he is fully entitled to be as firm as the circumstances warrant. This does not mean, however, that he is entitled to employ language likely to inflame the jury against an accused: R v Banks (1916) 2 KB 621; R v House (1921) 16 Cr App R; R v Hay & Lindsay [1968] Qd R 459. This was referred to with approval by Wickham J in Cushing v The Queen [1977] WAR 7 at 11. In R v McCullough [1982] TASR 43, the Court of Criminal Appeal of Tasmania (Green CJ, Neasey and Everett JJ) regarded the following passage in CS Kenny Outlines of Criminal Law (19^th ed 1966) at 611 – 612 as stating 'The proper role' of prosecuting counsel:
'… The Crown counsel is a representative of the State, "a minister of justice", his functions is to assist the jury in arriving at the truth. He must not urge any argument that does not carry weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the person accused. "It is not his duty to obtain a conviction by all means; but simply to lay before the jury the whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury are instructed with regard to the law and are able to apply the law to the facts." "It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done."'"
In R v McCullough [1982] Tas R 43, the Court of Criminal Appeal of Tasmania (Green CJ, Neasey and Everett JJ) commented on that passage at 57 – 58 as follows:
"That passage was cited with approval by W B Campbell J sitting as a member of the Court of Criminal Appeal in R v Hay & Lindsay [1968] Qd R 459. However, it should also be said that the observance of those canons of conduct is not incompatible with the adoption of an advocate's role. Counsel for the Crown is obliged to put the Crown case to the jury, and when appropriate, he is entitled to firmly and vigorously urge the Crown view about a particular issue and to test and, if necessary, to attack that advanced on behalf of the accused. But he must always do so temperately and with restraint, bearing constantly in mind that his primary function is to aid in the attainment of justice, not the securing of convictions. As the New Zealand Court of Appeal said in R v Roulston [1976] 2 NZLR 644 (at 654):
'… it has always been recognised that prosecuting counsel must never strain for conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough, a proper balance needs to be maintained. …
The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade the jury to a point of view by the introduction of factors of prejudice or emotion. If such a situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused, then an appellate court will not hesitate to follow the safe course and order a new trial.' "
In McCullough (supra) at 58 – 59, the Tasmanian Court of Criminal Appeal held that remarks made to the jury by counsel for the prosecution went beyond the bounds of what was necessary for the proper presentation of the case for the Crown and exceeded the bounds of propriety. While their Honours said that this conclusion would not in itself be sufficient to justify allowing the appeal, they concluded that there was a real risk the jury were improperly influenced by those remarks, with the result that:
"… the trial process was compromised in that the possibility cannot be excluded that in convicting the appellant the jury were actuated, partly at least, by indignation, disgust and fear aroused by the intemperate language employed by counsel for the Crown. That is enough to demonstrate that a miscarriage of justice within the meaning of the Criminal Code s 402 occurred and that the verdict cannot be allowed to stand."
In Vella v The Queen (supra), I went on to say at 541 – 542 that:
"The starting point is that it is fundamental that the accused should have a fair trial and that counsel for the prosecution should not do anything which would prejudice the fairness of the trial. This is one of the duties of any counsel. Counsel should not make assertions or make imputations which are likely to prejudice a jury unfairly against a party. Where there is a real risk that remarks made by counsel would have improperly influenced the jury, the court has jurisdiction to order a new trial: Croll v McRae (1930) 30 SR (NSW) 137; Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200; Vosser v Tooth & Co Ltd [1963] NSWR 1675; Chatzipantelis v Grimwade Castings Co Pty Ltd [1966] VR 242; Smout v Smout [1989] VR 845; R v M (1991) 2 Qd R 68; R v Lewis (1994) 1 Qd R 613."
The question in each case is whether the conduct of counsel for the prosecution has resulted in a miscarriage of justice: R v Lewis (1994) 1 Qd R 513 at 626 – 627 per Macrossan CJ (with whom Byrne J agreed).
In that case, although parts of the address by counsel for the prosecution had exceeded acceptable limits, it did not, in the end, result in a miscarriage of justice.
In Whitehorn v The Queen (1983) 152 CLR 657, Dawson J referred to:
"… The general obligation which is imposed upon a Crown prosecutor to act fairly in the discharge of the function which he performs in a criminal trial. That function is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown prosecution may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in the trial process."
It was submitted on behalf of the appellant that counsel for the Crown wrongly suggested to the appellant in cross‑examination and to the jury in his closing address, that no report of the incident at the Post Office on 27 March 2002 had been made to the police. It was further submitted that counsel for the Crown then had in his possession a statement from Sergeant Taylor, a member of the Western Australian Police Service stationed at Bridgetown, that indicated to the contrary. In that statement, Sergeant Taylor said:
"On 27 March 2002, I was on duty at the Bridgetown station when at approximately 12.21 pm I received a telephone call from a person who introduced herself as Suzie WILKINSON. From previous dealings I recognised this person as Susan WILKINSON of 5 Huggett Place, Bridgetown. She said to me, 'Why are the police chasing Aaron?'
After confirming that she was referring to her de‑facto husband Aaron PATERSON I said, 'I am not aware that Police are chasing Aaron'. We then had further conversation and left it at that.
I can confirm from station records that there were no reports to Police of incidents of assault, threats, or firearm involvement on 27 March 2002."
Later in the cross‑examination of the appellant by counsel for the prosecution, the following passages appears:
"You were pretty scared out of your mind, I think you're trying to tell his jury?‑‑‑Yeah. It was a pretty frightening situation.
So why didn't you go and report it to the cops?‑‑‑I rang my de facto from somebody's house.
Yes?‑‑‑Okay? And she rang the police from there.
Yes, okay. We will take that on board. You didn't go to the police to make a complaint?‑‑‑No. I had no idea who was after me at the time [emphasis added].
I will just put to you, if members of the jury were to accept what you're saying – would you disagree with this proposition: someone's in a carpark, on your version. Some lunatic comes running at you, mumbling things, pulls a gun at you. Wouldn't you expect that the first thing one would do would be to go to the Bridgetown police station, which is just around the corner, and report it? 'Hang on, there's a maniac in this carpark.' Wouldn't that be a reasonable proposition for anybody to do?‑‑‑Not if they were scared out o their wits, no.
But who's your protection, if you're scared out of your wits? Surely they are the best people to protect you in those circumstances, the coppers who are just around the corner?‑‑‑Yes, and we went to inform them. Yes.
When did we go to inform them?‑‑‑I'm not sure. It was like within 15 minutes."
At that stage, of course, Sergeant Harrison of the Western Australian Police Service had given evidence for the prosecution that there was no record of any report about the matter in the records of the Bridgetown police station. The following cross‑examination of the appellant then occurred:
"Your counsel did not – you were here – did not challenge him on that evidence at all, did he?‑‑‑No, he did not. No.
You presumably told your counsel the story you're asking this jury to believe?‑‑‑Yes.
So are you saying on oath that within 15 minutes you went to the – be careful now. I've given you a fair go?‑‑‑Yes.
That within 15 minutes you went to the police station at Bridgetown and report [sic] it?‑‑‑No, I did not go to the police station to report it.
Okay. You're in a corner now. You're changing your story, are you?‑‑‑No.
Well, when did you report it? You said you reported it within 15 minutes?‑‑‑I rang my de facto, I said. She rang the police.
You said, 'We reported it within 15 minutes.' We can play that back as well if you like?‑‑‑I would say, yes, we reported it. I conferred with my de facto. She rang the police.
Were you present when she did so?‑‑‑No.
You don't know who rang the police or, if anybody rang the police, when?‑‑‑I believe my de facto, what she says.
Did you tell your de facto, now that you've brought this up, to ring the police to ask why the coppers – if the coppers were after you?‑‑‑No.
What did you tell your de facto to tell the police?‑‑‑I told them – I didn't really tell her to tell them anything.
What did you tell your de facto please?‑‑‑I said that someone was chasing me with a gun.
Are you sure you didn't say, 'The coppers are chasing me'?‑‑‑No.
There'd be no reason then for anybody, particularly your de facto, to tell the police that you told her the coppers were chasing you?‑‑‑Sorry. Say that again?
On what you say now, there'd be no reason for your de facto to tell the police that you had said, 'Why are the coppers chasing me?' or words to that effect?‑‑‑No. No, that's not what was said. No.
No, so she wouldn't have made something like that up, as far as you know your de facto. I know you can't talk for her?‑‑‑What are you saying?
She wouldn't have made something like that up to say ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ to the police, well, why are the police chasing you?‑‑‑No."
These passages, when taken in the overall context of the trial, constituted a significant attack on the credibility of the appellant which called into question his evidence that he asked his de facto to call the police. In my opinion, it was improper for counsel for the prosecution to suggest that the appellant was both lying and had changed his story, having regard to the contents of the statement in the Crown brief from Sergeant Taylor, while at the same time attempting to obtain a forensic advantage by later making use of the evidence in the statement of Sergeant Taylor that Ms Wilkinson telephoned him and said to him:
"Why are the police chasing Aaron?"
The appellant denied that he had told Ms Wilkinson that the police were chasing him.
The appellant's evidence at the trial was that, at first, he said "… we went to inform them", namely the police. He then corrected that and said that he telephoned his de facto and she "rang the police" and added, "Well, look I really didn't tell her to tell them anything". As McKechnie J pointed out at the hearing of the appeal, this left open at least a theoretical possibility that Ms Wilkinson concluded that police were chasing the appellant. In the light of the evidence and materials in the Crown brief, I consider that the cross‑examination was unfair. In my opinion, however, this incident alone was not enough for the trial to miscarry, although it was prejudicial to a degree. The appellant apparently had the opportunity to call Ms Wilkinson, but she was not called to give evidence.
It was in this context that counsel for the prosecution elected at the outset of the trial to lead evidence from Sergeant Harrison that there was no relevant report to the Bridgetown state police of the incident. Had there been evidence that a report had been made to the effect that "Why are the police chasing Aaron?" [ie the appellant], counsel for the appellant readily agreed that objection would have been taken to the admissibility of such evidence. From that position, counsel for the appellant submitted that knowing, in his cross‑examination, the appellant had said there was a report, which could have been corroborated by Sergeant Taylor, it was unfair to suggest that on 27 March 2002 there were no reports of any incidents, threats or firearm involvement. Given the knowledge by counsel for the Crown of the telephone call from Ms Wilkinson to Sergeant Taylor, it was unfair of counsel for the Crown to suggest that nothing was said at all by anybody, which was the position adopted by counsel for the Crown, who then sought at the same time to capitalise on the fact that the report of the incident was in terms of a question ("Why are the police chasing Aaron?") In the circumstances, the situation could have been clarified by cross‑examination of Sergeant Taylor, but there was no relevant cross‑examination other than to establish that Sergeant Taylor was aware that there were Federal Police in town.

I conclude that the appeal should be allowed and the conviction quashed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: PATERSON -v- THE QUEEN [2004] WASCA 63 (S)

CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J

HEARD: 12 NOVEMBER 2003

DELIVERED : 16 DECEMBER 2003

PUBLISHED : 5 APRIL 2004

SUPPLEMENTARY
DECISION :11 JUNE 2004

FILE NO/S: CCA 128 of 2003
CCA 129 of 2003

BETWEEN: AARON PAUL PATERSON
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram   :COMMISSIONER REYNOLDS
File Number            :  IND BUN 2 of 2003

Catchwords:

Appeal and new trial - Conviction quashed - Whether new trial should be ordered

Legislation:

Criminal Code (Cth), s 147.1(1)

Criminal Code (WA), s 689(2)

Result:

Order for new trial

Category: B

Representation:

Counsel:

Appellant: Mr S P Pallaras QC
Respondent: Mr D W L Renton

Solicitors:

Appellant: Max Owens & Co
Respondent: Commonwealth Director of Public Prosecutions

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

Boxer v The Queen (1995) 14 WAR 505
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Clemesha v The Queen [1978] WAR 193
Crofts v The Queen (1996) 186 CLR 427
Graham v The Queen (1998) 195 CLR 606
Ibbs v The Queen [2001] WASCA 129; 122 A Crim R 377
Longman v The Queen (1989) 168 CLR 79
Maxwell v The Queen (1996) 184 CLR 501
McGrath v The Queen (1916) 18 WALR 124
Middleton v The Queen [2000] WASCA 200; 114 A Crim R 141
Paterson v The Queen [2004] WASCA 63
R v Bailey [1956] SASR 153
R v Main (1999) 105 A Crim R 412
Rabey v The Queen [1980] WAR 84

Case(s) also cited:

Nil

MALCOLM CJ: On 16 December 2003, the Court, by a majority, allowed the appellant's appeal against his conviction of an offence of attempting to cause harm to a public official contrary to s 147.1(1) of the Criminal Code (Cth). It was then stated that the reasons for judgment would be published later.
The appellant had been convicted after trial before a jury in the District Court at Bunbury on 5 August 2003 and on the same date had been sentenced to imprisonment for 2 years with eligibility for release after serving a period of 10 months of his sentence, upon his entering into a recognisance to be of good behaviour for a period of 14 months in the sum of $5000.
At the conclusion of my judgment in par [214], I said:
"Given that the appellant was sentenced on 5 August 2003 to imprisonment for 2 years with eligibility for parole after serving 10 months of that term, and has served more than 4 months of the sentence, there remains a question whether there should be a retrial. This is an issue on which I would be prepared to hear counsel."
When the decision was pronounced, the Court indicated that it wished to hear submissions on the question whether there should be a retrial. Consideration of that question was adjourned to a date to be fixed pending the publication of the reasons for judgment. In the meantime, it was agreed by counsel for the Commonwealth Crown that the appellant should be discharged from custody on his undertaking that he remain in the jurisdiction pending the outcome of the proceedings.
The reasons for judgment were published on 5 April 2004: Paterson v The Queen [2004] WASCA 63. The Court then heard submissions on the question whether there should be an order for a retrial. These submissions were made on the basis that the appellant had succeeded on grounds (1), (2), (3) and (4) of the grounds of appeal, namely that:
"(1)The manner in which the Crown case was conducted gave rise to a real risk of improper influence over the jury and caused a miscarriage of justice.
(2)The learned Commissioner erred in not directing the jury in sufficiently strong terms that the case was not to be decided by resolution of the issue whether the police were telling lies or 'trying to do something untoward'.
(3)The learned Commissioner erred in not directing the jury to ignore a submission by the Crown prosecutor not to 'tar these honourable people [the prosecution witnesses]' with what the jury may have read about in the Royal Commission into Police Corruption.
(4)The learned Commissioner erred in not directing the jury regarding what conclusions could properly be drawn from the apparent failure of defence counsel to comply with the rule in Browne v Dunn (1893) 6 R 67."
In Rabey v The Queen [1980] WAR 84, Wickham J considered the circumstances in which the Court, having quashed a conviction, should exercise the discretion under s 689(2) of the Criminal Code. After commenting that, at that time, all the criteria for exercising the discretion to order a new trial, as distinct from simply directing a judgment and verdict of acquittal, had not yet been worked out, his Honour went on to say at 95 – 96:
"Where the case is strong and the error is a procedural one only, there is much to be said for the proposition that the matter should be retried in a proper manner. There are, however, other considerations. A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal. I think that a properly directed jury would be unlikely to convict on the issue of 'intent', and 'possession' would only have been triable summarily. Some of the criteria for exercising the discretion to order a new trial are referred to in R v Bailey [1956] SASR 153; R v Leak [1969] SASR 172 at 175 et seq; in R v Hanias (1976) 14 SASR 137 at 145, 157, and in the authorities therein mentioned. To these I would add the consideration that in this case the circumstances of the charged offence were comparatively venial.
In Peacock v R (1911) 13 CLR 619 at 675, O'Connor J said that where the facts proved at the first trial would have been sufficient to support the conviction if the jury has been properly directed, in general a new trial may be granted to enable the faulty direction to be remedied, providing that no injustice is done to the accused.
In considering the discretion to grant a new trial, that is the view which is expressed in R v Leak, supra, with the added condition 'if the jury could reasonably convict and might not improbably convict'. In considering the discretion not to grant a new trial, the view adopted was that where the case is weak and the jury properly directed 'would probably acquit' then, the court may properly incline towards refusing a new trial. In a particular case there will be various considerations, but I would respectfully adopt as a starting point the dicta of Griffiths CJ in Peacock v R, at 641, as follows: 'I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if, on the whole case, it is reasonably probable that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted.' "
In Boxer v The Queen (1995) 14 WAR 505 at 540 – 541 in my judgment (with which Franklyn and Owen JJ agreed), consideration was given to the question whether a new trial should be ordered in a case where the conviction was quashed because the trial Judge had failed to direct the jury that comments made by counsel for the prosecution on the failure of the accused to give evidence breached the prohibition against such comments in s 8(1)(c) of the Evidence Act1906 (WA). The basis of the comments was that various suggested facts were put to prosecution witnesses in cross‑examination by counsel for the defence. In that case, the seven accused were convicted of the offence of riot contrary to s 64 of the Criminal Code (WA). Their appeals against conviction were allowed and the convictions quashed.
In his closing address, counsel for the Crown made comments which were held to be comments on the failure of the accused to give evidence. The basis of the comments was that various suggested facts were put to prosecution witnesses which they had not only denied, but there was not " … one skerrick of evidence from any of the accused". In my judgment at 535 – 536 (with the agreement of Franklyn and Owen JJ) I said:
"Counsel for the appellants contended that if counsel for the Crown had said '… and in respect of which there is no evidence' instead of '… and in respect of which that is the only evidence', such a comment would be capable of being a breach of s 8(1)(c). I accept this contention. Propositions of fact or suggested facts put by counsel to a witness are not evidence. Where a proposition of fact is denied, however, the denial is evidence that the alleged fact did not occur. It follows that it is permissible to say: 'The evidence on the relevant point was X, Y and Z and there is no evidence to the contrary'."
In a later passage quoted in the judgment, counsel for the Crown, commenting on other facts, referring to a specific incident alleged, contended that:
"… for no apparent reason – and there's no evidence to the contrary to suggest there was another reason. No evidence has been produced. Not a skerrick – Frank Boxer ran in and king hit … ."
It was held that this was a comment on the failure of the accused to give evidence. There was a further reference by counsel later in his address to another incident when he said:
"Bear in mind there's not a skerrick of evidence to the contrary."
In Boxer (supra), it was held that while these various comments infringed the relevant prohibition, standing alone they did not result in a substantial miscarriage of justice, but taken into account with a number of other matters, they contributed to a result which did constitute a substantial miscarriage. These included the fact that the learned Judge gave the standard direction to the jury that the accused were not obliged to give evidence and said:
"However, in a case such as this where in addition to some direct evidence from the Crown witnesses as to acts of the accused, and you have heard that, the Crown ask you to draw inferences, for example, as to the intent of the various accused, then such facts upon which the inferences can be drawn may be more safely found where there is uncontested evidence, obviously from the Crown, and in a situation where when the accused elects not to give evidence of relevant matters which you might think may well have been within their own knowledge.
In that situation you may more readily find the facts proved and draw inferences from them in that situation. Put another way there are two things, first, the silence of the accused cannot be equated with guilt, but on the other hand if in relation to a particular element of the charge which is required to be proved you find the evidence that you have heard from the Crown establishes a fact, the absence of any acceptable evidence to the contrary from the accused may lead you to find those facts more readily and in turn to find the inferences based on those facts." (My italics)
It was held that it was a misdirection to tell the jury that "'facts upon which the inferences can be drawn may be more safely found where there is uncontested evidence' and when the accused elects not to give evidence of relevant matters which the jury considers may well have been within their own knowledge, they 'may more readily find the facts proved and draw inferences from them'". The various matters to which I have referred were held to have contributed to a substantial miscarriage of justice, with the result that the appeals were allowed and the convictions quashed.
In the context of determining whether to order a retrial in Boxer (supra), it was noted at 540 that in Clemesha v The Queen [1978] WAR 193 at 201, Wickham J (with whom Lavan SPJ agreed) adopted the following passage in the judgment of Napier CJ, Reed and Ross JJ in R v Bailey [1956] SASR 153 at 161:
"The governing consideration is, of course, that justice should be administered according to law, but we are not disposed to say that the interests of justice would be served by laying down the rule that a new trial will be ordered, as a matter of course, where there was evidence upon which the jury could have convicted on an adequate direction. A second trial is seldom an entirely satisfactory solution, and we think that it would be inadvisable to give any encouragement to the idea that a new trial will be allowed, however the case is presented at the first trial. When justice has once miscarried we think that there is some risk that 'truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much'."
In my opinion, the present case was one in which the prosecution had a reasonable prospect of success, but a conviction was not inevitable. There were some significant discrepancies in the evidence given by the prosecution witnesses. There was also a major question whether the appellant, when in his vehicle with the engine running, his dog barking and the radio on, did in fact hear Agent Harrison call out, "Stop. Police". It was crucial to the prosecution case that the jury be satisfied beyond a reasonable doubt both that those words were called out by Agent Harrison and that the appellant in fact heard them. The appellant denied that he heard them. In this respect, the evidence of the appellant that the engine in his vehicle was running, the radio was on and his dog was barking was not contradicted, but, at least to a significant extent partly corroborated by the video which recorded the barking of the dog. Reliance was placed upon the words, "Stop. Police" because the prosecution accepted that it had to prove that the appellant knew that Agent Harrison was a public official and that what he was doing at the time was engaging in his capacity as a public official.
In these circumstances, acknowledging that a conviction was certainly not inevitable, I do not consider that the prosecution case was so weak that a verdict of acquittal should be entered. It follows that the appropriate order for the Court to make is that there be a retrial.
The question whether such a retrial should proceed is in the end a matter for the Commonwealth Director of Public Prosecutions. In Ibbs v The Queen [2001] WASCA 129; 122 A Crim R 377 at [19] I noted a submission by the State Director of Public Prosecutions that this Court should be reluctant to enter a verdict of acquittal where in truth the matters for determination relevant to the question of a new trial rest more with the Director of Public Prosecutions than with the Court. In support of that submission, reliance was placed on Crofts v The Queen (1996) 186 CLR 427 per Toohey, Gaudron, Gummow and Kirby JJ at 452; Graham v The Queen (1998) 195 CLR 606 per Callinan J (with whom Gleeson CJ, Gaudron, Gummow and Hayne JJ agreed) at [47]; and Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443.
Crofts v The Queen (supra) was an appeal from the decision of the Court of Criminal Appeal in Victoria which dealt with a question relating to when it was appropriate for a trial Judge to give a warning to a jury in a context of delay by the complainant in making a complaint in a sexual assault case. Their Honours said at 452:
"On 14 August 1996, the Court pronounced the orders stated at the outset of these reasons. The appellant has already served a significant part of the custodial sentence imposed upon him. It is appropriate to repeat McHugh J's closing comment in Longman: [(1989) 168 CLR 79 at 109]
'In all the circumstances of the case, it is arguable that the interests of the public, the complainant and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.'"
Graham v The Queen (supra) was a decision on appeal from the Court of Criminal Appeal of New South Wales. The appeal concerned the admissibility of the evidence of a complaint made some six years after the last of the acts against the accused. It was held that the admissibility of the evidence under the Evidence Act1995 (NSW) was not inevitable and that the appellant may have lost a significant chance of an acquittal. After concluding at par [36] that there were a number of errors in the conduct of the trial, it was concluded by Callinan J at [47] that the appeal should be upheld, the verdicts of guilty quashed and a new trial ordered. His Honour concluded at [47]:
"Whether such a trial should take place in view of the term of imprisonment served by the appellant will be a matter for the Director of Public Prosecutions."
In Bull v The Queen (supra), it was held that certain evidence in a sexual assault case was inadmissible. McHugh, Gummow and Hayne JJ concluded at [131] that the appeal should be allowed, the conviction quashed and a new trial ordered. Their Honours went on to say:
"However, nothing in the materials before this Court makes it an appropriate case to enter an acquittal in favour of the appellants. The ground of appeal which the appellants have made out entitles them to a new trial, not an acquittal. Whether or not they should be re‑tried is a matter for the Executive government of Western Australia, which may well take the view that the acquittal of the appellants on so many charges makes it practically, although not legally, impossible to try the appellants fairly."
Gleeson CJ at [28] and Kirby J at [151] agreed with the orders proposed. In my opinion, that case can be explained on the basis that there were public interest and tactical considerations which were relevant to the question whether a new trial should take place, which the executive was best placed to consider.

In my judgment in Ibbs (supra), I said at [24]:
"These decisions have been applied in this Court where there are public interest issues which the Director of Public Prosecutions is best placed to decide whether or not to proceed with a new trial. For such cases it may be appropriate to order a new trial, leaving it to the Director to decide whether to proceed: cfMiddleton v The Queen [2000] WASCA 200; and Miles v The Queen [2000] WASCA 364."
I also went on to say in [25] that it did not follow from those decisions that, in a proper case, this Court should not proceed to order that a verdict and judgment of acquittal should be entered. While this Court will naturally be guided by decisions of the High Court on the proper construction and application of provisions of the Criminal Code, this is not an appropriate occasion upon which to express any definitive opinion in relation to the question whether and in what circumstances, this Court, having decided to quash a conviction, should exercise its discretion in relation to directing the entry of a verdict and judgment of acquittal or ordering a retrial. For example, in McGrath v The Queen (1916) 18 WALR 124, this Court held that, in a case where the conviction had been obtained on the basis of perjured evidence by a witness for the prosecution, a new trial would not be justified. This is not a case of that kind. In Ibbs (supra), the [State] Director of Public Prosecutions conceded that it was not a case in which it would be appropriate for there to be a new trial. In my opinion, that concession was rightly made. It was for this reason that the Court in that case not only ordered that the conviction be quashed, but directed that a verdict and judgment of acquittal be entered.

I also adhere to the further comments which I made in Ibbs (supra) at [26] – [35], with which Wallwork and Wheeler JJ agreed, save that Wheeler J refrained from expressing a view on the issues raised by the judgments in R v Main (1999) 105 A Crim R 412.
It is in this context that I would order a retrial. Consequently, it will be a matter for the Commonwealth Director to determine whether such a trial should proceed.
STEYTLER J: I have had the advantage of reading, in draft, the judgment of the Chief Justice. The background to the question which now arises, whether or not there should be a retrial, is there fully set out, as are

the relevant authorities. I agree with him that the appropriate order in this case is one for a retrial.

The prosecution case is, in my opinion, reasonably strong, albeit a conviction on a retrial is by no means inevitable. Moreover, there is nothing in the grounds of appeal upon which the appellant has succeeded which should entitle him to an acquittal, rather than to a new trial: cf Bull v The Queen (supra) at [131]. While I recognise, of course, that, in this case, there is room for debate whether the interests of the public, the complainant and the appellant are best served by another trial, more particularly given that the appellant has served more than 4 months of the sentence imposed upon him, it seems to me that, in all of the circumstances of the case, that is a matter which should be left for the Commonwealth Director of Public Prosecutions to decide: cfLongman v The Queen (1989) 168 CLR 79 at 109 and Crofts v The Queen (1996) 186 CLR 427 at 452.
MCKECHNIE J:

Chronology

The events which led to the appeal commenced on 27 March 2002 at Bridgetown when it is said that the appellant attempted to cause harm to a public official. An indictment was presented on 2 December 2002 and the trial took place on the 4 and 5 August 2003 following which the appellant was, upon conviction, sentenced to a period of 2 years' imprisonment with eligibility for release after serving a period of 10 months. Notice of application for leave to appeal was lodged on 25 August 2003. The appeal was heard on 12 November 2003. On 16 December 2003 the Court, by majority, allowed the appeal and quashed the conviction. The appellant was released, having then served some 4 months of sentence. The issue of a retrial was raised and it was agreed that the issue be pursued following the publication of the reasons of the Court. The reasons were published on 5 April 2004 and on that day the Court heard submissions as to whether there should be a retrial and reserved that question for consideration.

The principles

In Middleton v The Queen [2000] WASCA 200; 114 A Crim R 141 Miller J, Kennedy ACJ and Wallwork J agreeing, conducted a review of the authorities on the question when a court will exercise its discretion to direct a judgment and verdict of acquittal from [19] to [24], before concluding:

"… As it is essentially a question for the Director to decide whether there should be a re-trial, I would order that there be a re-trial rather than enter a verdict of acquittal."

I adopt the analysis by Miller J which is unnecessary to set out.
Generally, a court will order a retrial. An obvious exception is where an appeal succeeds on the grounds that the verdict was unreasonable or could not be supported having regard to the evidence. That is not this case. Another obvious reason for declining to order a retrial is where a person has served a substantial portion or all of the sentence imposed.
The institution of the Office of Director of Public Prosecutions, both Commonwealth and State, and the subsequent publication by the DPP of Prosecution Guidelines, provides a further reason for ordinarily leaving the decision whether the accused should be subjected to a further trial to the DPP. The decision to prosecute and the formation of charges are matters for the Executive: Maxwell v The Queen (1996) 184 CLR 501.
Ultimately, however, the exercise of the discretion whether to order a retrial is a determination as to the public interest.
As Wickham J noted in Rabey v The Queen [1980] WAR 84 at 95:
"… A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal."

Conclusion

In the present case, the following matters are relevant to the exercise of the discretion:
•The strength of the prosecution case. The prosecution case is reasonably strong although a conviction is certainly not inevitable.
•The appellant has served 4 months of a sentence of 2 years with eligibility for release after 10 months.
•There has been no significant delay in the laying of charges or in the passage of time before trial and appeal.
•The appellant will be put in jeopardy for a second time.
•The conduct of the prosecution was responsible for the conviction being quashed.
•The appellant did not contribute to the miscarriage of the trial.
This is very much a borderline case. On balance, I would exercise my discretion against an order for a retrial. The trial having miscarried, by reason of the conduct of the prosecution, and the appellant having served a period in custody, I do not believe that the public interest requires that the appellant be subjected to the stress and expense of a further trial.