Pender v Griffiths
[2020] WASC 192
•3 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PENDER -v- GRIFFITHS [2020] WASC 192
CORAM: ACTING JUSTICE STRK
HEARD: 7 MARCH 2019
DELIVERED : 3 JUNE 2020
FILE NO/S: SJA 1099 of 2018
BETWEEN: TODD QUINTON PENDER
Appellant
AND
ADAM GRIFFITHS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE G LAWRENCE
File Number : AR 1549 OF 2017
Catchwords:
Criminal law - Appeal against conviction - Application of the Criminal Investigation Act 2006 (WA) s 16(1) - Use of force when exercising powers - Error of law in failing to consider whether the appellant was exercising any power under the Criminal Investigation Act 2006 (WA), other than the power of arrest - Whether there has been a miscarriage of justice - No substantial miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Criminal Investigation Act 2006 (WA)
Result:
Leave to appeal granted on grounds 1 and 4, refused on grounds 2 and 3
Appeal dismissed on all grounds
Category: B
Representation:
Counsel:
| Appellant | : | L B Black |
| Respondent | : | E C I Fearis |
Solicitors:
| Appellant | : | Tindall Gask Bentley Lawyers |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
DeDomenico v Mallon [2010] WASC 285
Elwin v Robinson [2014] WASCA 46
Fradale v Zonic [2016] WASC 114
Harling v Hall (1997) 94 A Crim R 437
Poulson v Langthorn [2013] WASC 278
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
WS v Gardin [2015] WASC 97; 48 WAR 494
ACTING JUSTICE STRK:
Introduction
The appellant appeared in Perth Magistrates Court. The charge (AR 1549 of 2017) related to an incident which occurred on 28 June 2016 while the appellant, a police officer, was on duty. It was alleged that the appellant, in the context of the arrest of three young persons, had unlawfully assaulted the complainant in circumstances of aggravation, namely that a child was present.
The appellant entered a plea of not guilty. Following a trial, the appellant was convicted of the offence of aggravated common assault contrary to the Criminal Code1913 (WA) s 313. The learned Magistrate delivered his decision with written reasons on 4 July 2018.[1] The appellant was fined in the amount of $2,000 and ordered to pay costs in the amount of $7,073. A spent conviction order was granted.
[1] AR 1549/2017 (4 July 2018).
This is an appeal pressed by the appellant against conviction. For the reasons that follow, I find that the learned Magistrate erred in law in failing to consider whether the appellant was exercising any power under the Criminal Investigation Act 2006 (WA) at the time of the use of force, other than the power of arrest. However, I consider that no substantial miscarriage of justice has occurred, and it is appropriate that the appeal be dismissed.
The appeal
The Criminal Appeals Act 2004 (WA) s 7(1) allows an aggrieved party to appeal to a single judge of this court in respect of a decision made by a court of summary jurisdiction. The appeal was commenced within the prescribed time and the appellant does not require an extension of time to appeal.[2]
[2] Criminal Appeals Act s 10(3), (4).
This is an appeal under the Criminal Appeals Act pt 2, and the appellant requires leave to appeal on each ground of appeal.[3] The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.[4] This means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[5] If leave to appeal is refused, the appeal is taken to be dismissed.[6]
[3] Criminal Appeals Act s 9(1).
[4] Criminal Appeals Act s 9(2).
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA).
[6] Criminal Appeals Act s 9(3).
It is appropriate that the application for leave to appeal be heard together with the appeal.[7]
[7] Samuels v The State of Western Australia [56] (Steytler P, Wheeler and Roberts-Smith JJA); as contemplated by order 2 of the provisional orders made by McGrath J on 27 August 2018.
The Criminal Appeals Act s 8(1) permits an appeal against a conviction or sentence in the Magistrates Court to be made, among other things, on grounds which assert that the Magistrates Court erred in law or fact, or of both law and fact.
This court's power on an appeal includes the power under the Criminal Appeals Act s 14(1)(b) to allow the appeal. However, even if a ground of appeal might be decided in favour of an appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[8]
[8] Criminal Appeals Act s 14(2).
The appeal notice lodged on behalf of the appellant contained four grounds of appeal. At the hearing of the appeal, I granted the appellant's application to amend the grounds of appeal, which application was not opposed.[9] The appellant's amended grounds of appeal are reproduced at sch A to these reasons. By grounds 1, 2 and 3, the appellant contends that the Magistrate made various errors of law and fact. By ground 4, the appellant contends that the Magistrate made various errors of fact.
[9] ts 3 ‑ 4 (7 March 2019).
The nature of an appeal is that it is by way of rehearing on the evidence before the Magistrates Court.[10] As the appellant argues, among other things, that the learned Magistrate made errors of fact, on appeal this court must review the evidence and decision-making process of the Magistrates Court. However, in doing so, it must bear in mind that this is an appellate court, not the court of trial, and this court has not had the advantages that the Magistrate had of seeing the witnesses and hearing the evidence presented. This court will not have, as his Honour did, the advantage of getting a feel for the case and the people involved.[11] This court must review the evidence led at trial in its entirety, bearing in mind the natural limitations which are imposed by the fact that this court must review the case remote from the trial.[12]
[10] Criminal Appeals Act s 39(1); Criminal Procedure Rules 2005 r 64.
[11] As observed in DeDomenico v Mallon [2010] WASC 285 [9] (Murray J).
[12] DeDomenico v Mallon [10].
Where the reasons of a magistrate indicate that the magistrate has made an error of fact, but that the error was inconsequential or immaterial to the decision to convict, then the court can conclude that no substantial miscarriage of justice has occurred by reason of the error.[13]
[13] WS v Gardin [2015] WASC 97; 48 WAR 494, 535 [239], as cited in the respondent's outline of submissions filed 22 February 2019 par 10.
The trial
The prosecution's case
The prosecution contended that on the afternoon of 28 June 2016, the appellant was on patrol with Sergeant Branka Micevic. They were tasked with attending a suspected armed robbery in Kelmscott, which involved three juvenile males. On Ward Crescent in Kelmscott, the appellant and Sergeant Micevic located three juvenile males who matched the description they had been provided.
Two of the juveniles (in these reasons referred to as BR and ER) were brothers aged 14 and 13 respectively as at 28 June 2016. The third juvenile (referred to in this judgment as OP), was a friend of the two brothers and was aged 13 as at 28 June 2016.
The appellant arrested the boys and spoke to BR while standing next to the police vehicle. While speaking to BR, two additional officers arrived in a second police vehicle, being Senior Constable Catherine Hill and Constable Michael Sweeting.
During the course of the accused's conversation with BR, BR was swearing and the accused reacted by striking BR twice with two open‑handed hits to BR's cheek or to the side of BR's head; and then pushed or grabbed BR to the neck or the upper chest region, somewhere around the collarbone or pectorals. It was alleged that the appellant applied three separate applications of force and the appellant was charged with one count of assault.[14]
[14] Criminal Procedure Act 2004 (WA) sch 1 div 2 s 8(1).
The prosecution further contended that after the appellant applied force to BR as described above, two detectives arrived in a third vehicle, being Detective Senior Constable Chad Stone and Detective Senior Constable Amy Montgomery. The appellant told Detective Stone that the appellant had hit BR on the head, and did so as BR was swearing at him. A similar statement was later made by the appellant to Detective Stone at Armadale Police Station.[15]
[15] An overview of the prosecution's case as presented to the Magistrate is at ts 6 ‑ 7 (21 June 2018).
The prosecution contended that the appellant unlawfully assaulted BR in circumstances of aggravation contrary to the Criminal Code s 313(1)(a). The prosecution outlined that for the court to find the appellant guilty of that charge, the learned Magistrate was required to be satisfied beyond reasonable doubt as to the following elements. First, the identity of the accused. Secondly, that the accused assaulted BR. Thirdly, that the assault was unlawful. Fourthly, that the assault was committed in circumstances of aggravation. During the course of the trial, it was conceded by the appellant that the lawfulness of the assault was the only element in question.[16]
[16] ts 284 (22 June 2018).
As to the third element, the prosecution referred the learned Magistrate to the Criminal Code s 233, which provides that an assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.[17] In the course of closing submissions, the prosecution observed that there would appear to be four possibilities by which the assault of BR could have been authorised, justified or excused. First, that the accused was lawfully exercising a power under the Criminal Investigation Act s 16; secondly, that the accused was acting in self‑defence; thirdly, that the accused was provoked or preventing repetition of an insult; and fourthly, that the accused was preventing the escape of BR from arrest.[18]
The evidence
[17] ts 287 (22 June 2018).
[18] ts 287 (22 June 2018).
The trial was conducted over two days. The prosecution called eight witnesses in the following order: Constable Sweeting; Senior Constable Hill; the three juveniles (BR, ER and OP); Sergeant Micevic; Detective Montgomery and Detective Stone. The appellant gave oral evidence on his own behalf and was the appellant's only witness.
I have carefully reviewed the evidence led at trial in its entirety. While I set out below a summary of the evidence led at trial, the transcript read with the benefit of the exhibits is the best record of the evidence led and I have weighed in the balance the whole of the evidence in the determination of this appeal.
Constable Sweeting
Constable Sweeting gave evidence and was cross-examined.[19] He gave evidence to the effect that on 28 June 2016, he was on duty with Senior Constable Hill. At approximately 4.00 pm, he and Senior Constable Hill attended Kelmscott Train Station, having received a call concerning a threat having been made with a knife. Upon arrival, he and Senior Constable Hill spoke with Detectives Stone and Montgomery and were told that persons of interest had left the train station and were headed towards Ward Crescent.
[19] ts 16 ‑ 23 (21 June 2018).
Upon arrival at Ward Crescent, Constable Sweeting saw the appellant, Sergeant Micevic and three juveniles. The three juveniles were being searched by the appellant and Sergeant Micevic. Constable Sweeting described the search being conducted as a basic pat search. Constable Sweeting recalled having seen two bags, but could not recall if the bags were being searched.
Constable Sweeting gave evidence to the effect that BR was at the rear of a vehicle, leaning against the boot and the appellant was standing in front of BR. BR was swearing. Constable Sweeting gave evidence to the effect that on more than one occasion, the appellant told BR to stop swearing because they were in the middle of the street, however, BR did not follow the instruction and continued to swear. Constable Sweeting recalled that:[20]
… then sort of out of nowhere Sergeant Pender leant forward with his right hand first which he [used] to strike the left-hand cheek of [BR]. Simultaneously, …his left hand has come forward and he has used that to smack the right-hand cheek of [BR]. … And then, instantly, his right hand has come up and he has grabbed [BR] by the throat and sort of just held him up against the car where he's leaning up against the car.
[20] ts 21 (21 June 2018).
In cross-examination, Constable Sweeting maintained that he observed two slaps, not one.[21]
[21] ts 45 (21 June 2018).
It was Constable Sweeting's recollection that the appellant held BR for no longer than five seconds. He also recalled that one of the other juveniles became vocal and called for the appellant to stop, whereupon the appellant released his grip from BR, turned his attention to the other boy and said something like 'you want some too?'.[22] The appellant then said something like 'You don't swear in public. You respect coppers. You respect the police officers'.[23]
[22] ts 22 (21 June 2018).
[23] ts 22 (21 June 2018).
Constable Sweeting gave evidence to the effect that he and Senior Constable Hill were then tasked with searching for the knife in the nearby park, but were not successful in locating the knife and returned to the group. As to the order of events, in cross-examination Constable Sweeting maintained that he was asked to search for the knife after he had observed the appellant slap the accused, not before.[24]
[24] ts 38 (21 June 2018).
Constable Sweeting recalled that he was instructed by the appellant to seize a knife that had been found by the appellant. It was Constable Sweeting's belief that by about that time, Detective Stone and Detective Montgomery had arrived at Ward Crescent. After placing the knife in a bag and into the appellant's vehicle, Constable Sweeting and Senior Constable Hill were tasked with taking two of the juveniles to Armadale Police Station. The third was taken to the police station in another vehicle. Constable Sweeting's evidence was that he had no further dealings with the appellant on 28 June 2016.
Constable Sweeting gave evidence to the effect that about one week later, he received a call from the appellant during which he was asked by the appellant if he was required to give a statement 'for the incident', and he advised the appellant that he had.[25]
[25] ts 23 (21 June 2018).
Constable Sweeting said the appellant 'has then gone on to talk about, sort of, where I was standing and what I saw, but the - it was a very brief conversation. It was ended.'[26]
[26] ts 23 (21 June 2018).
Asked whether Constable Sweeting remembered exactly what the appellant had said, Constable Sweeting's evidence was 'All I can briefly remember is him saying that I was standing behind him.'[27] Constable Sweeting said he ended the call with the appellant, Constable Sweeting having said words to the effect of 'this isn't appropriate'.[28]
Senior Constable Hill
[27] ts 23 (21 June 2018).
[28] ts 24 (21 June 2018).
Senior Constable Hill gave evidence and was cross examined.[29] She gave evidence to the effect that on 28 June 2016, she was on duty with Constable Sweeting and was called to attend an incident concerning a robbery at Kelmscott Train Station. Upon arrival at the train station, a male detective informed them that there were three juveniles. He gave a description of the juveniles and an indication of the general direction they had travelled.
[29] ts 50 ‑ 73 (21 June 2018).
Upon arriving at Ward Crescent, Senior Constable Hill observed two police officers and three juveniles. The juveniles fit the description that she had been provided. The two police officers were speaking to the juveniles and were looking through their belongings.
Senior Constable Hill gave evidence to the effect that after a few minutes, from observing their body language, she had formed the view that the juveniles were not going to run. Senior Constable Hill recalled that:
They didn't have any overt signs of getting ready to run or looking down the street like they were going to disappear. They were just kind of hanging around, just a bit annoyed.[30]
[30] ts 57 (21 June 2018).
Senior Constable Hill recalled that while standing near the vehicle, she could see BR and the appellant from the chest up. The appellant was speaking to BR and BR was slouching or leaning back onto the car. In cross-examination, Senior Constable Hill confirmed her recollection that BR was leaning back onto the side of the car, although she was not certain of the part of the car on which BR was leaning.[31] Senior Constable Hill also confirmed that she could not see BR's hands from where she was standing.[32] A sketch prepared by Senior Constable Hill during the course of the trial of the scene at Ward Crescent and the position of those present was tendered into evidence as Exhibit 1.[33]
[31] ts 65, 70 (21 June 2018).
[32] ts 70 (21 June 2018).
[33] ts 73 (21 June 2018).
Senior Constable Hill gave evidence to the effect that she heard the appellant say in a raised voice 'don't swear' and then saw the appellant slap BR in the face with an open hand causing BR's face to move away from the appellant's hand. She recalled that it was immediately followed by a slap on the opposite cheek which made BR's head go the other way. Senior Constable Hill could not recall whether the appellant used the same hand or different hands in slapping BR's cheeks.[34] Senior Constable Hill recalled that she heard the slap.
[34] ts 67 (21 June 2018).
Senior Constable Hill gave evidence to the effect that the appellant then reached out and grabbed BR in the area about an inch below the collarbone with an open hand and pushed him back against the car. Senior Constable Hill stated that from her position, she could not see the appellant's hand on BR's chest.
Senior Constable Hill observed OP and ER react to the appellant's actions. She recalled that after OP and ER had calmed down, the appellant asked that she and Constable Sweeting go and look for the knife used in the robbery. She and Constable Sweeting did so but did not locate the knife.
Senior Constable Hill gave evidence to the effect that upon their return to the vehicle, Constable Sweeting assisted the appellant with packing the juveniles' personal property. They then waited for two detectives to arrive. In cross-examination, Senior Constable Hill confirmed that the knife was found by the appellant while the appellant was on the phone and while they waited for the detectives to arrive.
Senior Constable Hill recalled that the detectives arrived and they asked Senior Constable Hill and Constable Sweeting to take OP and ER to Armadale Police Station. She recalled that the appellant took BR in his vehicle. In cross-examination, Senior Constable Hill confirmed that she was not certain of her recollection in this regard, that is, as to which juvenile travelled in each vehicle.
Senior Constable Hill recalled that she had no further dealings with the appellant after she left Ward Crescent. She also gave evidence that she did not speak to Constable Sweeting before she made a statement in relation to the events the subject of her evidence.
BR
BR gave evidence and was cross-examined.[35] He gave evidence to the effect that on 28 June 2016, he did not remember exactly what he was doing,[36]
… but I remember I [caught] a train to Kelmscott and I went to Coles. I was with my brother and [OP], and then we went to Hungry Jack's and we seen a few mates, and that, and then we went down the road and I asked – or [ER] or [OP] asked this dude if he had $2 for the bus, and he started swearing at us and, like, trying to hit us with a skateboard, and that. So, like, [EP] and [OP] chased him and then went to the train station.
[35] ts 73 ‑ 112 (21 June 2018).
[36] ts 74 (21 June 2018).
The effect of BR's evidence was that he did not recall trying to break into a house on that day, but did recall coming across the boy with a skateboard.
As to the knife, BR gave evidence to the effect that he did not recall that any of the three boys had a knife. However, in cross‑examination he acknowledged that he had later signed a police statement in which he had told police that ER had pulled a knife from his back pocket.[37] In cross-examination, BR gave evidence to the effect that he recalled a knife being found by police in the bush, but he maintained that he did not know where the knife came from.[38] BR gave evidence to the effect that he first remembered seeing the knife when it was found in the bush.[39]
[37] ts 87 ‑ 88 (21 June 2018).
[38] ts 88 (21 June 2018).
[39] ts 92 (21 June 2018).
BR recounted that he, ER and OP were asked by two detectives at Kelmscott Train Station 'if they had seen anyone running around with knives and that.'[40] They said they had not.
[40] ts 75 (21 June 2018).
Following the exchange with the detectives, he, ER and OP left the train station and travelled on foot across the park to Ward Crescent.
As to why the boys walked from Kelmscott Train Station towards Ward Crescent, BR gave evidence to the effect that the boys were walking to a mate's house on the other end of Kelmscott, which was also his girlfriend's house.[41]
[41] ts 94 (21 June 2018).
BR recalled that they were stopped by two police officers on Ward Crescent in a marked police car, accepted to be the appellant and Sergeant Micevic. BR gave evidence that he understood that having been stopped by the officers, he was not free to leave. BR's evidence was the appellant said words to the effect that they were under arrest for suspicion of aggravated armed robbery. BR was pat searched and his details were taken. BR did not recall that he or ER had a bag with them, but he recalled that he had a bumbag.
In relation to what transpired as between BR and the appellant, the effect of BR's evidence was that he was standing either at the front or the back of a police vehicle. The appellant was facing the car within arm's reach of BR, and BR was facing the appellant with his back to the car. BR was standing very close to the car. BR did not recall where his hands were placed. He recalled that ER and OP were standing to his left and his right, but did not recall where the other police officers were standing.[42]
[42] ts 78 (21 June 2018).
BR recalled having become annoyed at the appellant because the appellant repeatedly asked BR his age despite BR having answered the appellant. BR gave evidence to the effect that the appellant asked BR his age three or four times and that BR then responded by saying 'I'm fucking 14'. BR confirmed that he was annoyed and being so, swore in a louder, more aggressive way. BR gave evidence to the effect that he had not sworn repeatedly. He later gave evidence that he may have sworn a couple of times.[43]
[43] ts 79 (21 June 2018).
The effect of BR's evidence was that after BR said 'I'm fucking 14', the appellant slapped him. As to the order of events, BR could not recall whether the appellant first slapped him or placed his open hand on him. BR maintained that the appellant had placed the appellant's hand on his throat which caused BR to lean back. BR also recalled having been slapped by the appellant on both sides of his face. BR thought that the appellant used both hands in slapping his face, but was not certain.[44]
[44] ts 79 (21 June 2018).
As to whether the appellant said anything, BR gave evidence to the effect that after he was slapped and grabbed by the throat, the appellant said something like 'Have some respect for the police', but BR was not sure in his recollection.[45] He described the appellant's demeanour at that time as being 'pretty angry'.[46]
[45] ts 79 (21 June 2018).
[46] ts 79 (21 June 2018).
BR gave evidence to the effect that a further two police officers attended Ward Crescent in a marked police car, but BR was not certain as to when it arrived. He also recalled that the detectives from the train station also attended Ward Crescent.
BR gave evidence that he was later taken to a police station. While BR was not certain in his recollection, he recalled that he said to one of the other officers that he did not want to go in the same car as the appellant to the police station.
ER
ER gave evidence and was cross-examined.[47] ER gave evidence to the effect that on 28 June 2016 he was with BR and OP and caught a train to Kelmscott from Armadale. ER had a black backpack with him and the boys did not have money on them.
[47] ts 112 ‑ 135 (21 June 2018).
ER gave evidence to the effect that they had asked another boy on a skateboard for a dollar. The boy on the skateboard had responded with abuse and had swung his skateboard at ER. The boy with the skateboard ran but it was ER's evidence that neither he, BR nor OP chased him. ER's evidence was that none of the boys had a knife.
ER gave evidence to the effect that after a while, he, BR and OP returned to Kelmscott Train Station and spoke to two detectives. They were asked if they had seen some boys running around with a knife. They said no. They were not searched and left the station on foot. They crossed a park and walked to Ward Crescent, on their way to a friend's home. In cross-examination, ER was asked if they went to see anyone's girlfriend that day and ER responded 'Not that I can remember'.[48] ER offered the same answer to counsel's enquiry as to whether BR had a girlfriend at the time and whether ER had a girlfriend at the time.
[48] ts 122 (21 June 2018).
ER recalled that on Ward Crescent, they were stopped by police in uniform, being the appellant and a female officer. They were pat searched. All three boys stood at the back of the car, effectively in a line with their backs to the car.
ER gave evidence to the effect that BR was not constantly swearing. However, ER recalled that BR said 'I'm fucking 14' in response to the appellant's repeated question. ER's evidence was that after BR said 'I'm fucking 14':
…that's when Pender gripped him by the throat and hit him across the head. And then [OP] went - said something like, 'You can't fucking do that', and then he gripped [OP] by the throat and pushed [OP].[49]
[49] ts 116 (21 June 2018).
ER gave evidence to the effect that after striking BR, the appellant said 'show me some fucking respect, you little cunt' or 'you little shit' or something like that, and the appellant was 'aggressive, yelling, screaming'.[50]
[50] ts 118 (21 June 2018).
ER gave evidence to the effect that he was put into a car with the appellant and BR and OP were placed in another car. ER also gave evidence that while in the car, ER tried to wind the window down and the appellant said words to the effect 'stop trying to wind the window down or I will break your finger'.[51]
OP
[51] ts 120 (21 June 2018).
OP gave evidence and was cross-examined.[52] OP gave evidence to the effect that on 28 June 2016, he was with BR and ER. They were trying to break into houses. OP also recounted that on that day, they had 'chased a kid with a knife'.[53] OP's evidence was that ER had the knife and that he and ER chased a boy.
[52] ts 136 ‑ 156 (21 June 2018).
[53] ts 137 (21 June 2018).
OP gave evidence to the effect that when they returned to Kelmscott Train Station, the three boys were stopped by detectives, asked if they had seen any kids chasing people with knives, and they answered no. The effect of OP's evidence was that the boys were worried that the police were looking for them and they took off. OP's evidence was that he was not going off to visit someone's girlfriend or something like that.[54]
[54] ts 150 (21 June 2018).
OP recalled that after leaving the train station on foot, they were stopped by police. OP recalled being searched. He took what was in his pockets and put it on the police car. A sketch prepared by OP during the course of the trial of the scene at Ward Crescent, the location of the car and where the boys and the police were standing, was tendered into evidence as Exhibit 2.
OP recalled that the appellant had told BR not to swear. BR had said 'what the eff did we do wrong?'[55] OP also recalled BR was handcuffed. BR had his hands behind his back. OP was not handcuffed.
[55] ts 141 (21 June 2018).
OP described the appellant as being 'rude to us' and once BR swore, he described the appellant's demeanour as being 'pretty angry'.[56] OP gave evidence to the effect that the appellant slapped BR across the face with an open hand. There was one slap only. The appellant said 'don't swear'.[57]
[56] ts 142 (21 June 2018),
[57] ts 142 (21 June 2018).
OP's evidence was that OP was not struck or grabbed by the appellant. OP did not recall having been grabbed by the arm by any officer.
OP recalled that the knife was found close to where ER was standing. He also recalled that there were four police officers present.
OP recalled being taken to the police station in a car with BR. ER went with the appellant.
Sergeant Micevic
Sergeant Micevic gave evidence and was cross-examined.[58] She gave evidence to the effect that on 28 June 2016, she was on duty with the appellant. At about 4.00 pm they received a call via police radio. Sergeant Micevic recalled it concerned a robbery at or around Kelmscott Train Station; that involved juveniles; and there was an allegation that a knife was used. She recalled being in uniform and, although not certain, in an unmarked vehicle.
[58] ts 161- 187 (22 June 2018).
Sergeant Micevic recalled that she and the appellant attended Kelmscott Train Station. The appellant recognised two detectives and spoke to them, Sergeant Micevic did not. She and the appellant then drove and saw three juvenile males walking away from Kelmscott Train Station. They drove towards the juveniles and the appellant parked the vehicle. Sergeant Micevic recalled that the appellant spoke to the juveniles, and explained what she and the appellant were investigating. The juveniles immediately denied involvement.
While Sergeant Micevic could not recall the words used by the appellant, she recalled that he told the juveniles that she and the appellant were investigating and that the juveniles could not leave.
Sergeant Micevic recalled that she was standing next to the appellant as he undertook a quick search of the juveniles' backpack and a bumbag, and the juveniles were asked to empty their pockets. She did not recall the appellant doing a pat search. While Sergeant Micevic gave evidence to the effect that they all were standing at the front of the vehicle, she accepted that she could not be certain in this regard. At this time, the knife had not been found. A sketch prepared by Sergeant Micevic during the course of the trial of the scene at Ward Crescent was tendered into evidence as Exhibit 3.
About this time two additional uniformed police officers arrived. Sergeant Micevic recalled that they were asked by the appellant to take a walk and search for the knife.
Sergeant Micevic gave evidence to the effect that the juveniles were 'mouthy' and were swearing. ER was the most vocal. She observed that the juveniles were not looking at her or the appellant but were looking down the road, over her and the appellant's shoulders. They appeared 'fidgety' and were challenging in their responses to questions. The appellant was standing in front of BR and the police officers were positioned around the juveniles. Sergeant Micevic recalled that all of the boys appeared to her as if they might try and run.
Sergeant Micevic recalled that the appellant repeated a few times words to the effect of 'Watch your language, no need to swear, watch your language, watch your language'.[59] Sergeant Micevic described the appellant has being very calm and in control.
[59] ts 170 922 June 2018).
Sergeant Micevic gave evidence to the effect that having taken the juveniles' details, the appellant started a proper search of the bags. The appellant then spoke to BR and faced BR as he searched the bumbag. Sergeant Micevic moved to the side, about one metre from the appellant and BR. She turned her attention to watching ER and OP. While she recalled that she could see the appellant and BR, she gave evidence to the effect that they were not in her direct vision. She could see the appellant's back and BR.
Sergeant Micevic gave evidence to the effect that the children were very fidgety, especially BR who continued to put his hands in and out of his pockets. She recalled that BR was reminded by the appellant to keep his hands out of his pockets and to watch his language. Sergeant Micevic also recalled that when BR's hands were out of his pockets, BR's fists were clenched, next to his body.
Sergeant Micevic gave evidence to the effect that she then saw the appellant hold BR against the car. He did so with an open-hand to the collarbone area. While she did not see the appellant move to place his hand on BR, she did see the appellant with his hand on BR. While she could not recall his exact words, she recalled that the appellant said words to the effect of:[60]
Watch your language. I told you to watch your language when you speak to others or to police …
[60] ts 171 (22 June 2018).
Sergeant Micevic recalled that the appellant then let go of BR. She recalled that the appellant's voice was 'firm but in control.'[61] Sergeant Micevic gave evidence to the effect that the other juveniles then reacted, were mouthy and swore. Sergeant Micevic recalled that BR appeared to her to be very tense and angry. She recalled that BR was red in the face and his fists were clenched next to his body. Sergeant Micevic gave evidence that she had observed BR clenching his fists by his sides both before and after the appellant placed his hand on BR.
[61] ts 172 (22 June 2018).
Sergeant Micevic gave evidence to the effect that two detectives then arrived and the appellant turned away to approach and speak to them. She overheard the appellant tell the detectives that the appellant had pushed BR. She also recalled that when the juveniles were told that they would be coming back to Armadale Police Station, BR indicated that he did not want to travel with the appellant.
Sergeant Micevic gave evidence to the effect that at no time were the juveniles handcuffed, they were not seated on the ground, and no‑one grabbed or ever touched OP.
Sergeant Micevic gave evidence to the effect that the appellant found the knife in a little bush area about a half metre to one metre from where ER and OP were standing. The knife was found after the appellant held BR against the car and the detectives had arrived.
Detective Senior Constable Montgomery
Detective Montgomery gave evidence and was cross-examined.[62] She recalled that she was on duty on 28 June 2016 and at about 4.00 pm attended Kelmscott Train Station with Detective Stone, where it was reported that a young boy had been threatened and chased by three juveniles with a knife.
[62] ts 187 - 198 (22 June 2018).
Detective Montgomery had a conversation with the complainant and his mother. She recalled having been told that three boys were involved. The complainant provided a description of each of the boys and Detective Montgomery was told that one of them had been in possession of a knife.
Detective Montgomery recalled that she and Detective Stone called for other vehicles to attend. Two police vehicles attended with two officers in each vehicle. Detective Montgomery recalled that she and Detective Stone spoke to the appellant. Sergeant Micevic was with him. Detective Montgomery provided them with information in relation to the incident and a physical description of the three suspects. Detective Montgomery confirmed that the appellant was informed that there was a knife. The officers left to try to locate the suspects.
Detective Montgomery gave evidence to the effect that a short time later, she was advised that the three suspects were in custody in Ward Crescent. She and Detective Stone then went to Ward Crescent. There were four police officers present. Upon their arrival, Detective Montgomery was on the phone in relation to another matter and stayed in the vehicle for a short period. Detective Stone got out of the vehicle and approached the appellant.
Detective Montgomery recalled that when she got out of the car, she approached the appellant and Detective Stone. They discussed the logistics of taking the boys to the police station. She recalled that the juveniles were yelling, swearing and saying things like 'Why are you picking on us? We haven't done anything.'[63]
[63] ts 191 (22 June 2018).
About this time, the appellant pointed out a knife in the garden bed along the side of the street. The knife was seized by another police officer.
The three juveniles were taken to the police station by the police officers. Detective Montgomery recalled a conversation with the appellant at the police station. Detective Montgomery recalled that Detective Stone was present and the conversation was directed at him. She recalled that she heard the appellant say words to the effect that 'It might come in interview, I did hit [BR] to the head and pushed him.'[64] In cross-examination, Detective Montgomery accepted that she did not recall the exact words used by the appellant.[65] She also accepted that the appellant may have used the word 'clip' in place of 'hit', in other words, the appellant may have said 'I did clip him once to the head. '[66] Detective Montgomery also accepted that the appellant may possibly have used the word 'held' rather than 'push', in other words 'I held him to the chest'.
[64] ts 192 (22 June 2018).
[65] ts 197 - 198 (22 June 2018).
[66] ts 197 (22 June 2018).
Detective Montgomery also recalled that the appellant demonstrated his actions. In this regard, Detective Montgomery recalled that the appellant 'Basically … swung an open hand in a clipping sort of motion, and an open-hand push. Whether it was one or two … hands, I can't recall.'[67] She also recalled that there was a pushing motion and when demonstrated by the appellant, neither motion was forceful.
[67] ts 192 (22 June 2018).
Detective Montgomery recalled that the appellant 'basically said that reason for it was because they were going off swearing, being obnoxious.'[68]
[68] ts 192 (22 June 2018).
Detective Montgomery gave evidence to the effect that where there was further investigation of a matter, she would expect an officer to mention having had contact with a person. Detective Montgomery's evidence was that she did not have further contact with the appellant after that discussion.
Detective Senior Constable Stone
Detective Stone gave evidence and was cross-examined.[69] He recalled that on 28 June 2016, he was on duty with Detective Montgomery and at about 4.00 pm they attended an incident at Kelmscott Train Station.
[69] ts 198 - 214 (22 June 2018).
Detective Stone gave evidence to the effect that upon his arrival at the train station, two police vehicles arrived, each with two police officers. In cross-examination, Detective Stone agreed that it was possible that the appellant and Sergeant Micevic arrived first and were followed by two other officers in a second police vehicle.
Detective Stone recalled having spoken with the appellant at the train station. He recalled that the complainant's account was relayed to the appellant, namely that the complainant had been chased by three males armed with a knife.
Detective Stone's evidence was that the three males could be seen from the platform; they had been identified by the complainant; and Detective Stone pointed the males out to the appellant. Detective Stone gave evidence that he advised the appellant if he located '… the three males, to arrest them on suspicion for attempted aggravated armed robbery and to give them their Criminal Investigation Act arrested suspect rights and the caution.'[70]
[70] ts 200 (22 June 2018).
Detective Stone recalled that the appellant left the train station to search for the males. He recalled that the appellant later contacted him and informed him that the appellant had located the males. Detective Stone told the appellant to stay with the suspects while he spoke with the complainant.
Detective Stone gave evidence to the effect that after speaking with the complainant, he and Detective Montgomery drove to Ward Crescent. On their arrival at Ward Crescent, Detective Stone recalled having seen one police vehicle, 4 police officers and 3 juvenile suspects. Detective Stone recalled that the boys were standing. They did not appear aggressive and they were not handcuffed. Detective Stone recalled that it was mainly ER who was speaking and swearing.[71]
[71] ts 208 (22 June 2018).
Detective Stone recalled that the appellant approached him and told him the names of the juvenile suspects. Detective Stone recalled that he was told by the appellant that the appellant had arrested the males on suspicion for the offence; had given each their arrested suspect rights and the caution; and the appellant or his officers had conducted a pat search of the males and their bags.
Detective Stone gave evidence that appellant had also told him that the appellant had hit one of the suspects over the head for mouthing off at him (being the gist of what Detective Stone recalled was said by the appellant, not the appellant's exact words). In cross-examination, Detective Stone accepted that the appellant may have used the word 'clip' and not 'hit'. He agreed that whilst at Ward Crescent, the appellant did not demonstrate to Detective Stone the force that he had used. Detective Stone recalled that the appellant identified the suspect as 'the tall one', being BR.
Detective Stone recalled that the juveniles appeared hostile, but not aggressive. ER was 'mouthing off' and swearing.
Detective Stone recalled that the appellant pointed out the knife to him within a couple of minutes of his conversation with the appellant. It was found about one metre behind where ER was standing on a nearby wood-chipped verge. The knife matched the description of the knife that Detective Stone had previously been given by the complainant.
Detective Stone recalled that the males were then driven back to the police station. The brothers were taken in different vehicles.
Detective Stone gave evidence to the effect that he returned to the police station and while at the police station, the appellant asked to speak to him. In the course of his evidence, Detective Stone gave the following account of that exchange:[72]
[72] ts 205 (22 June 2018).
He told me about the property related stuff and then he said, 'Whether or not this comes up, I did in fact hit one of the boys on the top of the head.' And at that point that's when he has indicated with his left hand and sort of in a swiping motion towards my head to show me what he had done. And then he also placed his right hand onto my chest and said, 'I also shoved the boy', and he has slightly shoved me back, not hard, but enough to put a slight off-balance.
Cardel-Oliver, Mr: If we can go back over some of that. The swinging motion, which hand was it again?---His left hand.
Cardel-Oliver, Mr: And was his hand open or closed?---It was an open palm.
Cardel-Oliver, Mr: And how forceful was the action?---It was just a – like a – a flick, a flicking motion.
Cardel-Oliver, Mr: Do you remember where on the head?---He was indicating to the – the right, top right-hand side of my head.
Cardel-Oliver, Mr: And the push, how hard was that?---Just like a – a small shove. Not hard, but enough to, you know, push my back – my – my head back, or my – my body backwards.
Cardel-Oliver, Mr: Did he say which boy he had done that to?---He did say [BR]. I don't remember how he said it though.
Cardel-Oliver, Mr: And did he give any reason for having done that?---He just said because he was being disrespectful and mouthing off at – at him.
Cardel-Oliver, Mr: Did he give any other reason for doing that?---Not that I can recall.
…
In cross-examination, Detective Stone accepted that the motion that the appellant demonstrated to him was consistent with what he would understand to be an open handed, light clip to the head.[73] The appellant had demonstrated that he had struck BR only once, on the right hand side of the head with the appellant's left hand.[74] He also demonstrated a shoving motion to the chest, a quick push.[75]
[73] ts 209, 213 (22 June 2018).
[74] ts 213 (22 June 2018).
[75] ts 214 (22 June 2018).
Detective Stone gave evidence to the effect that he was the investigating officer and he would expect to be told any relevant information about what happened during the course of an arrest, and if a police officer had applied any force at all during the course of an arrest.[76]
[76] ts 211 (22 June 2018).
Detective Stone did not speak to the appellant again that afternoon, and could not recall speaking to him again after that day.
The appellant
The appellant gave oral evidence on his own behalf.[77] A sketch prepared by the appellant during the course of the trial of the scene at Ward Crescent was tendered into evidence as Exhibit 4.
[77] ts 216 - 277 (22 June 2018).
The appellant gave evidence to the effect that on 28 June 2016 he was tasked to attend the Kelmscott Train Station in relation to an alleged armed robbery, and to assist detectives that were headed there. He attended the train station with Sergeant Micevic, in uniform and in an unmarked vehicle. Upon arrival at the train station the appellant spoke with Detective Stone and Detective Montgomery, and also overheard a conversation between the detectives and the complainant.
The appellant gave evidence that at that time, he understood that a demand of money had been made of the complainant by juveniles and the complainant was threatened with a knife, which the complainant described as having a 15 cm blade. He understood the complainant had run from that scene and was chased with the knife.[78]
[78] ts 220, 222 (22 June 2018).
The appellant gave evidence that he saw the three juveniles walking away from the Kelmscott Train Station through a park towards a residential area. The appellant and Sergeant Micevic then drove to, and located the three juveniles on Ward Crescent.
The appellant recalled that the juveniles had appeared to be 'on edge'. The appellant explained that he had observed that the juveniles:[79]
… were shifting their eyes around. They were looking up and down the street. I wasn't sure what they were looking for at the time. They – you know, they had their hands in the pockets. I've asked them to take their hands out of pockets. They were shifting their weight around.
…
They had an appearance that they wanted to – to leave the scene – they would run.
[79] ts 231 (22 June 2018).
The appellant gave evidence that he had not seen a weapon at that time.
The appellant gave evidence to the effect that after asking some general questions, the appellant informed the juveniles that they were investigating a robbery and the juveniles were placed under arrest. The juveniles were made aware that they were not allowed to leave. Having secured their consent, a pat search of the juveniles was conducted. The appellant used the back of his hand to tap their pockets. The juveniles were asked to empty their pockets. No knife was found. The juveniles were not handcuffed and remained standing.
The appellant recalled that not too long after he and Sergeant Micevic engaged with the juveniles, Constable Sweeting and Constable Hill arrived at Ward Crescent.
The appellant recalled that he instructed Constable Sweeting and Constable Hill to conduct a search of the verge for the knife, all the way through to the park. They left and returned, not having found the knife, before the appellant applied force to BR.
The appellant gave evidence that there was a backpack and a bumbag, both placed on the boot of the vehicle and they were searched by the appellant there. The appellant recalled that BR was standing close to the vehicle and with his back to the vehicle, within an arms‑length of the appellant.
The appellant gave evidence that while the search was being undertaken, BR was swearing and being very assertive. BR was denying that he had done anything wrong and his words conveyed that he did not want to be there. The appellant gave evidence that BR did not appear to be intimidated or too phased that he was in the presence of police, and that BR demonstrated different levels of aggression.
The effect of the appellant's evidence was that BR had started to go red in the face, to push his chest out like he was trying to assert some sort of authority over the appellant. He had pushed his head back, and the appellant observed that BR was breathing deeper and was clenching his fists, which were by BR's sides, and then stretch his fingers out.[80]
[80] ts 240 - 241, 242 - 243 (22 June 2018).
The appellant recalled that he tried to use words to control BR, along the following lines:[81]
'You don't need to swear, stop swearing', you know, 'We're in a street, stop swearing, treat people with respect, respect police officers' and they were continual – well, this went on for a number of minutes.
[81] ts 238 (22 June 2018).
The appellant gave evidence that he was not angry nor offended by BR. Rather, the appellant wanted BR '…to control his temper and his demeanour and act appropriately.'[82] Further, the appellant did not want the situation to escalate further than it needed to, where potentially the appellant would lose control.[83] The appellant gave evidence that he was concerned that one of the juveniles may still be in possession of the knife, might attack him or Sergeant Micevic, or flee the scene.[84] At this time, the appellant's attention was focussed on his search of the bags and where BR was.[85]
[82] ts 239 (22 June 2018).
[83] ts 239 (22 June 2018).
[84] ts 239 (22 June 2018).
[85] ts 264 (22 June 2018).
The appellant gave the following evidence.[86]
I was searching his bag and again, it was just the, 'Fuck youse, fuck off, fucking better to do' and I was concerned that he was getting to the point that he was going to attack me with the knife, attack me or flee.
…
-Again, it was just the, 'Fuck you, fuck off'. At some stage – and again, I'm used to it – there's a 'fuck you, you fat cunt' and I've formed the opinion that I believed I was about to be attacked and I've given [BR] a clip over the ear.
…
So with my left hand – it was an open palm – I clipped him over the ear.
[86] ts 244 - 245 (22 June 2018).
The appellant's evidence was that he gave BR a light clip over the ear only once, to establish control over BR. BR responded by saying 'Fuck off, you fat cunt.'[87] The appellant recalled that BR did not shout it but said it quite aggressively. The appellant also recalled as follows.[88]
[87] ts 248 (22 June 2018).
[88] ts 249 - 250 (22 June 2018).
-Well, I was concerned that an attack was still imminent. I didn't think at that stage that he was going to flee. I was more concerned that potentially he has still got this knife and that he was going to use it.
…
I placed my left hand – because he's on my left side. I'm still facing the vehicle. I've placed my left hand on his upper chest, and I would describe it that I could feel his two collarbones.
… I've used those as pressure points.
… I've placed it firmly enough on his chest.
… He clearly wasn't happy with that and he has actually lent backwards, but I have maintained pressure on him.
… He was leaning on the boot of the vehicle – my vehicle.
Black, Ms: And how long did you keep your hand there for? ---A matter of four seconds. … It was long enough for me to – to reiterate to him again that he doesn't speak to people like that.
Black, Ms: So is that what you said to him?---I said, 'Don't swear. You – you need to respect police officers and don't talk like that'.
… I was still concerned about any potential attack and I wanted to assert control – establish control back over [BR] and let him know that he needed to calm down.
Black, Ms: And did he calm down?---He did.
The appellant later in his evidence described the force applied to BR's chest as the appellant placing his hand on BR's chest and maintaining firm pressure.[89] The appellant maintained that he did not push BR, but that BR voluntarily leant backwards and the appellant maintained pressure.[90]
[89] ts 268 (22 June 2018).
[90] ts 268 (22 June 2018).
In cross-examination, the appellant described his motivation for applying force on BR as follows:[91]
I needed to establish control; he was trying to assert himself over us. I needed to make sure he wasn't going to attack us. I also needed to make sure he wasn't about to flee the scene with a knife.
[91] ts 274 (22 June 2018).
The appellant gave evidence of what was described as the 'use of force' options available to him. They ranged from professional police presence to words; empty hand tactics including strikes, punches, elbows and knees; pepper spray; baton; taser; and at the highest level, deadly force through use of a firearm.[92]
[92] ts 246 - 247 (22 June 2018).
The appellant gave evidence to the effect that the use of handcuffs on BR, as an alternative to the force he applied, would have been a more forceful option and excessive in the circumstances.[93] In this regard, the appellant gave evidence that the safest method for the officer concerned when using handcuffs on a suspect is to have the suspect adopt a praying position on the ground. The appellant agreed that if he had placed BR in handcuffs, then he would have considered that he needed to take him to the ground which was a very rough, bitumen road.[94]
[93] ts 251 (22 June 2018).
[94] ts 250 - 251 (22 June 2018).
The appellant gave evidence to the effect that after the incident with BR described above, the appellant went back to searching the bag as the knife had not been found.
The appellant gave evidence to the effect that the other two juveniles had almost immediately reacted to his exchange with BR. They were not pleased and were swearing and became more vocal.[95]
[95] ts 250 (22 June 2018).
The appellant's evidence was that the appellant did not apply any force to OP; he did not see anyone grab OP; and he did not see anything that OP did as the appellant was not watching OP.[96]
[96] ts 251 (22 June 2018).
The appellant then gave evidence to the effect that he had taken a call in relation to another robbery and had stepped away from the group onto the verge. He was in the process of ending the call and had walked back towards the group when he located the knife on the woodchips between Constable Sweeting and Constable Hill. The appellant pointed out the knife to Detective Stone.
The appellant gave evidence that he spoke to Detective Stone while at Ward Crescent, and in the course of that discussion, the appellant reported to Detective Stone his use of force on BR, consistent with his reporting obligation. The appellant recalled that that he would have said to Detective Stone 'I've given him a light clip', and that he had held BR.[97] He did not demonstrate his actions to Detective Stone while at Ward Crescent.
[97] ts 253 (22 June 2018).
The appellant also gave evidence that later at the police station, the appellant reiterated to Detective Stone what had happened and demonstrated to Detective Stone what the he had done. The appellant recalled that he said to Detective Stone that he had given BR a light clip over the ear. The appellant recalled that he was not asked for any further details at that stage.
In cross-examination, it was put to the appellant that he had about a week later telephoned Constable Sweeting and said something to the effect of, 'You were standing behind me, you didn't see anything'. The appellant's evidence was that he did not.
The effect of the appellant's evidence was that the appellant had seen Sergeant Micevic on Friday night and she had mentioned to the appellant that she had had a phone call from the officer in charge. The appellant's evidence was that he had made a call to Constable Sweeting. The appellant was asked to describe the nature of that phone call. The appellant gave the following evidence.[98]
As I've just mentioned, Branka and I spoke. I spoke after that; I had been asked for a statement about the robbery. I asked Michael what he had seen.
Fearis, Mr: And do you remember exactly what you said to Michael?---I asked him what had he seen.
The Magistrate's decision
[98] ts 272 (22 June 2018).
The Magistrate delivered written reasons for decision shortly after the trial, and it can reasonably be inferred that the evidence and the submissions of counsel were fresh in the Magistrate's mind at the time the reasons were given.
His Honour duly noted that the prosecution bore the onus of proof in the matter and that the standard of proof was proof beyond reasonable doubt of each element of the offence.[99] Further, his Honour correctly observed that the issue of the lawfulness or otherwise of the force used by the appellant was the critical issue in the case.[100] His Honour observed that the prosecution bore the same burden of proof in regard to defences that may be raised on the evidence. The prosecution was required to rebut or counter those defences beyond reasonable doubt. Failure to prove an element, rebut a defence or counter a legislative justification to the standard of proof beyond reasonable doubt would be fatal to the prosecution case.[101]
[99] AR 1549/2017 (4 July 2018) [7].
[100] AR 1549/2017 (4 July 2018) [64].
[101] AR 1549/2017 (4 July 2018) [8] ‑ [9].
It is clear from the written reasons that the learned Magistrate was cognisant that the prosecution urged the court to reject the version of events put forward on behalf of the appellant, and of the applicable authorities. At [60] ‑ [63] of the reasons, his Honour noted that there are a number of authorities that deal with cases such as the one that was before him (where the court was required to assess what force was reasonably necessary), and cited [62] of the reasons of Mazza J in Elwin v Robinson,[102] together with the decisions of Poulson v Langthorn,[103] and Harling v Hall.[104]
[102] Elwin v Robinson [2014] WASCA 46 [62] (Mazza J).
[103] Poulson v Langthorn [2013] WASC 278.
[104] Harling v Hall (1997) 94 A Crim R 437, 443 (Anderson J).
The legislative framework together with the evidence given by each witness was summarised in his Honour's reasons for decision. The nature of the evidence and conflicting versions of events required the learned Magistrate to make findings on credibility and the reliability of the evidence presented.
The legislative framework
In terms of the legislation that would or may apply in the matter, his Honour found that an appropriate starting point was the Criminal Investigation Act s 16(1) and (2), observing that these provisions in effect provide lawful parameters for a person exercising a power provided under that Act.[105] His Honour also referred to s 16(3), which provides that any use of force under sub-section (1) against a person is subject to the Criminal Code Chapter XXVI. Section 16 of the Criminal Investigation Act is reproduced at sch B to these reasons.
[105] AR 1549/2017 (4 July 2018) [2].
His Honour observed that the Criminal Code Chapter XXVI was also where defences of provocation (s 246 and s 257) and self-defence (s 248), use of force for the making of an arrest (s 231), and use of force to prevent escape (s 235) reside.[106]
[106] AR 1549/2017 (4 July 2018) [4].
In his analysis, the learned Magistrate addressed whether the prosecution had proven beyond reasonable doubt:[107]
(i) That it was not reasonably necessary to use that force in the circumstances to overcome any resistance reasonably suspected by the accused (section 16(1)); or
(ii)If one accepts for the moment that the arrests had not concluded at the time of the altercation, were the two slaps reasonably necessary to overcome any force from [BR] (231, 1); or
(iii)Did, on a subjective basis, the accused not believe that it was necessary to defend himself or another from a harmful act including a harmful act that is not imminent or if he did hold that subjective belief was it not in the circumstances a reasonable (objective) response (section 248); or
(iv)Was it not reasonably necessary to slap [BR's] face twice to prevent an escape by him (section 235)?
[107] AR 1549/2017 (4 July 2018) [75].
The learned Magistrate also determined that he was obliged to consider the defence of provocation given the behaviour of BR, ER and OP towards the appellant.[108]
[108] AR 1549/2017 (4 July 2018) [76].
His Honour observed that in considering the reasonable necessity for force and the degree of force that may be applied, His Honour summarised the position as follows:
… In other words in effect the force must be reasonably necessitated and must not be more force than was justified. It follows the prosecution must negative a proposition of reasonable necessity and that the force was justified.[109]
Factual findings as to context
[109] AR 1549/2017 (4 July 2018 [96].
At [11] ‑ [14] of the written reasons, the Magistrate dealt with a number of factual findings which he determined he was able to conclude with certainty. This includes a finding as to which officers were present at Ward Crescent at the time of the altercation as between the appellant and BR. In this regard, his Honour found that shortly after the appellant and Sergeant Micevic's arrival at Ward Crescent, they were joined by Constable Sweeting and Constable Hill in another police car who had been tasked with providing back up. Detective Stone and Detective Montgomery would also attend Ward Crescent, but shortly after the altercation between the appellant and BR had occurred.[110]
The arrest
[110] AR 1549/2017 (4 July 2018) [14].
At [64] of the written reasons, the learned Magistrate summarised the evidence concerning whether BR, ER and OP had been arrested by the time of the altercation as between the appellant and BR. His Honour also acknowledged the submission made on behalf of the appellant that an arrest in some circumstances might be reasonably described as ongoing.
While accepting this as a possibility, his Honour concluded that the evidence was sufficient to satisfy him beyond reasonable doubt that at the relevant time, that is the time of the altercation, the boys including BR had already been arrested.[111] Having so found, his Honour concluded that the Criminal Investigation Act was therefore not applicable in the matter,[112] although his Honour stated in his reasons that his Honour had '…left the issue open for completeness.'[113]
Factual findings as to physical force
[111] AR 1549/2017 (4 July 2018) [65].
[112] AR 1549/2017 (4 July 2018) [65].
[113] AR 1549/2017 (4 July 2018) [93].
The learned Magistrate considered the issue of the nature of the physical force that was applied by the appellant to BR.
First, the learned Magistrate considered whether the appellant administered a slap or slaps, alternatively a clip to BR, and concluded that he was satisfied beyond reasonable doubt that the appellant slapped BR to the face twice.[114] His Honour's conclusion was grounded on his Honour ultimately having preferred the evidence of Constable Sweeting and Constable Hill, corroborated by the evidence of the three boys.
[114] AR 1549/2017 (4 July 2018) [73].
The reasons reveal that the learned Magistrate considered the credit of the boys and whether their evidence was at all reliable. His Honour summarised in his written reasons the evidence of BR at [32] ‑ [37]; ER at [38] ‑ [42]; and OP at [43] ‑ [44].
The Magistrate found that BR was obviously untruthful in his answers to some questions. However, he noted that BR's description of what occurred before and at the moments of the physical altercation were corroborated by the evidence given by Constable Sweeting and Constable Hill, and vice versa.[115]
[115] AR 1549/2017 (4 July 2018) [36].
As to the evidence of ER, his Honour concluded that he found it necessary to approach it with considerable circumspection.[116] However, he found that he should not reject ER's version of events completely.[117] The Magistrate found that ER was in a position to see what occurred during the altercation but his evidence was exaggerated and this seriously affected the credibility and reliability of his evidence.
[116] AR 1549/2017 (4 July 2018) [41].
[117] AR 1549/2017 (4 July 2018) [42].
As to the evidence of OP, his Honour observed that his evidence did not have as many moments of obfuscation or obvious lying. His Honour observed that, in summary, OP corroborated other evidence that BR was swearing; that the appellant slapped BR's face (OP said once); and that the appellant told BR not to swear. The reasons of his Honour reveal that the evidence of OP was weighed in the balance to that limited extent.[118]
[118] AR 1549/2017 (4 July 2018) [43] ‑ [44].
His Honour found Constable Sweeting and Constable Hill to be credible witnesses, who corroborated one another and were corroborated by the evidence of the three boys.[119]
[119] AR 1549/2017 (4 July 2018) [73].
Further, the learned Magistrate found that there was an element of damage control by the appellant and in that process the credibility of the appellant had been adversely affected in regard to at least issues about the application of force.[120]
[120] AR 1549/2017 (4 July 2018) [73].
Secondly, his Honour found that the slaps were followed by the appellant placing his right hand to the chest area of BR. His Honour was not certain that it was accurate to describe the area where the appellant placed his hand as BR's throat. However, his Honour found that it was the surrounding circumstances of the slaps that would be determinative of the matter.[121]
The Magistrate's findings as to surrounding circumstances and disposition
[121] AR 1549/2017 (4 July 2018) [74].
The learned Magistrate set out in his written reasons what his Honour had found beyond reasonable doubt to have been the surrounding circumstances of the offence.[122] His Honour then went on to consider further relevant observations among the witnesses of the surrounding circumstances, and addressed the reliability and credibility of those observations at [79] ‑ [96].
[122] AR 1549/ 2017 (4 July 2018) [76(1) - (11)].
The learned Magistrate ultimately rejected the appellant's evidence in regard to his fear of being stabbed with the missing knife, and that the appellant needed to apply force to stop BR from escaping.[123]
[123] AR 1549/2017 (4 July 2018) [99].
His Honour found that the behaviour of BR at the scene in Ward Crescent was confined to being 'mouthy'; the word the appellant used when volunteering to Detective Stone that he had clipped one of the boys over the ear.[124] That is, His Honour found that the youths had confined themselves to swearing at the police.[125]
[124] AR 1549/2017 (4 July 2018) [100].
[125] AR 1549/2017 (4 July 2018) [101].
His Honour found that it was not unreasonable that the appellant wanted BR to stop swearing. His Honour also observed that the appellant had noted this in his evidence, and others had heard the appellant say words to that effect. His Honour concluded that despite what appeared to have been a cacophony of swearing from the youths, there was no attempt by any of them to run away from the scene in Ward Crescent, or to physically obstruct police exercising their duties at the scene. His Honour weighed in the balance that the youths were told they could not leave and they stayed; they submitted to a pat search and to having their two bags searched; they were not intimidated by the police; and the youths were at all times outnumbered.[126]
[126] AR 1549/2017 (4 July 2018) [101].
His Honour did not accept that the observations of BR provided by the appellant and Sergeant Micevic were any sufficient cause to anticipate that BR was an escape risk.[127] His Honour found that both Sergeant Micevic and the appellant, and any of the police present at the scene that afternoon, would have in their own mind risk assessment process is to deal with the possibility of escape risk. His Honour also found that they took precautions, and noted that Sergeant Micevic talked of a blocking tactic, and had said 'we were preparing for it'.[128]
[127] AR 1549/2017 (4 July 2018) [102].
[128] AR 1549/2017 (4 July 2018) [104].
While the Magistrate found that was a sensible precaution, his Honour also found that a nervous youth of 14 years of age looking around him in circumstances where there are four police watching who were prepared, if the need arose, to tackle him, was not a reasonably necessary basis to apply direct force to a person.[129]
[129] AR 1549/2017 (4 July 2018) [104].
His Honour found that two slaps to the face of that youth was not reasonably necessary in the circumstances. It was not reasonably necessary for the appellant to reach out and slap BR because he might decide to flee, especially when that would have been inconsistent with the fact that despite his other behaviour, BR had remained at the scene accepting that he could not leave. His Honour observed that other options such as directing BR to sit on the ground and, if that direction was not obeyed, using a degree of forced to do so were available.[130]
[130] AR 1549/2017 (4 July 2018) [104].
His Honour concluded that the appellant did not subjectively believe that the absence of the knife caused him to fear that BR would stab or attempt to stab him.[131] His Honour observed that even if he had found the appellant held that subjective belief, which he did not, the act of slapping the youth was not a reasonable response.[132] He found that there would be no utility in such an action.
[131] AR 1549/2017 (4 July 2018) [107].
[132] AR 1549/2017 (4 July 2018) [107].
His Honour found in the circumstances and beyond reasonable doubt that the appellant did not believe that he was defending himself from a harmful act. Rather, the appellant chose to apply force to control BR's temper and demeanour. He did so because he did not want it to escalate, and because BR was being mouthy. The appellant did not want to lose control of the situation.[133]
[133] AR 1549/2017 (4 July 2018) [108].
His Honour observed that there was further support for his finding which might be drawn from the timing of the appellant's direction to Constable Sweeting and Constable Hill to walk in the direction of the park to look for the knife. His Honour noted as follows.[134]
There is further support for my finding. I find that before the altercation [the appellant] had pat searched the youths looking for a knife without success. He had searched the bags and similarly found nothing. I have found beyond reasonable doubt that after the altercation he directed Officers Sweeting and Hill to go in the direction of the park to look for the knife implying therefore I find that at the time of the altercation the appellant had already satisfied himself that the knife was not on the youths or in their bags.
[134] AR 1549/2017 (4 July 2018) [109].
His Honour found that after the slaps, BR had calmed down. No further force was applied and the appellant continued the search for the knife finding it in a garden bed close by. BR was not required to be searched again. He went quietly to the police car, but stated to Sergeant Micevic that he did not want to be placed in the police car with the appellant. His request was granted.
His Honour found that the appellant achieved the appellant's purpose; that was, to calm BR down. However, the learned Magistrate found the means of doing so were unlawful and this unlawfulness permeated each of the defences that were available. His Honour found that there was no reasonable necessity to use actual force against BR, and there that if there had been, the force used was not justified. His Honour found that slaps appeared to have achieved their end, that is, to maintain control of the situation, but not lawfully in the circumstances as existed at the time.
The learned Magistrate concluded that the prosecution had rebutted each of the defences raised by the evidence, including any defence based on s 16(1) of the Criminal Investigation Act.
Although the defence of provocation was not relied upon by the appellant,[135] for completeness I note that the Magistrate found that he was obliged to consider the defence, given the behaviour of the three youths towards the appellant. The Magistrate found that the numerous references to the appellant's calmness rebutted the defence beyond a reasonable doubt.[136]
[135] ts 298 (22 June 2018); AR 1549/2017 (4 July 2018) [76].
[136] AR 1549/2017 (4 July 2018) [98]; ts 298 (22 June 2018).
The grounds of appeal - disposition
I now turn to consider the grounds of the appeal.
I note that when considering the learned Magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As noted by Martin CJ in Strahan v Brennan,[137] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[138]
… it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[137] Strahan v Brennan [2014] WASC 190 [89] - [90].
[138] Strahan v Brennan [90].
I have approached the learned Magistrate's reasons with this in mind.
Further, I note that the failure to refer to relevant matters by a magistrate does not necessarily give rise to an inference that the matter was not considered. In the absence of credible evidence to the contrary, it is to be assumed that the decision-maker has complied with all relevant duties and taken all matters into account.[139]
[139] Rundle v Innerd [2015] WASC 340 [117] (citations omitted); Respondent's submissions filed 22 February 2019 par 13.
In Fradale v Zonic,[140] in the context of an appeal where the grounds of appeal concerned alleged errors of fact by a magistrate, the Court's task was described as follows:
The question in this appeal is whether it was opened to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question, this court must not disregard or discount the consideration that the magistrate was the court entrusted with the primary responsibility of determining guilt or innocence, and had the benefit of having seen and heard the witnesses.
The question for this court is whether the magistrate must, as distinct from might, have entertained a doubt about the appellant's guilt.
A finding of fact based on the credibility of a witness is not to be set aside merely because an appellate court thinks the probabilities of the case are against, even strongly against, that finding of fact. Such findings will not be interfered with by an appellate court unless it appears that the judicial officer failed to use or has palpably misused the advantage of seeing and hearing the witnesses or has acted upon evidence which was inconsistent with the facts incontrovertibly established or which was glaringly improbable.
[140] Fradale v Zonic [2016] WASC 114 [20] - [22] (Beech J) (citations omitted); Respondent's submissions filed 22 February 2019 par 14.
A conclusion of an error of fact in a case which involves credibility issues and where the fact-finding process depends, whether expressly or inferentially, upon the demeanour of witnesses and broad matters of credibility will be rare.[141]
[141] DeDomenico v Mallon [2010] WASC 285 [11] (Murray J); Respondent's submissions filed 22 February 2019 par 15.
For the reasons which follow I find that the appellant's application for leave to appeal must succeed on appeal grounds 1 and 4, and but must be refused on grounds 2 and 3. As the appeal ultimately must fail on grounds 1 and 4, it is appropriate that the appeal be dismissed.
Ground 1
The appellant's position - overview
Ground 1 attacks the Magistrate's finding as to the application of the Criminal Investigation Act s 16(1).
I accept the appellant's submission that s 16(1) was in the scheme of defences available to the appellant at trial, the most favourable defence that was available to him.[142] The appellant complains that the learned Magistrate failed to understand and properly apply the section.
[142] ts 5, 7 (7 March 2019).
The appellant submits that the Magistrate erred in his conclusion that the prosecution had rebutted each of the defences raised by the evidence, including any defence based on s 16(1) of the Criminal Investigation Act.[143] By ground 1, the appellant contends that the Magistrate erred in law and fact in finding that the Criminal Investigation Act s 16(1) did not apply because the 'boys ... had already been arrested' (at [65] of his Honour's reasons). In this regard, the appellant contends that:
(a) the Magistrate erred in law when he failed to consider whether the appellant was exercising any power in the Criminal Investigation Act other than the power of arrest at the material time, including the power at s 135 (certain people in custody may be searched), s 139 (detention of arrested suspects), and s 68 (searching people for things relevant to offences) of the Criminal Investigation Act; and
(b) the Magistrate erred in law and in fact when his Honour found, without explanation and contrary evidence, that the arrest executed by the appellant pursuant to the power under s 128 of the Criminal Investigation Act had been completed at the material time, when his Honour should have found that the arrest was an ongoing process at that time.
[143] Appellant's submissions filed 8 February 2019 par 7.7, referring to AR 1549/2017 (4 July 2018) [97].
The appellant observed that there are many powers contained within the Criminal Investigation Act that are available to police. Further, when apprehending suspects in the context of an armed robbery, police officers may exercise different powers concurrently.[144] The appellant complains that the reasons of the learned Magistrate reveal that his Honour only considered s 16(1) in the context of the appellant's exercise of the power of arrest.[145] That is, the appellant contends that although the learned Magistrate expressly 'left the issue open for completeness',[146] his Honour did so having regard only to the arrest power and to no other power under the Criminal Investigation Act.
[144] ts 6 (7 March 2019).
[145] ts 7 (7 March 2019).
[146] AR 1549/2017 (4 July 2018) [93].
In summary, it is the appellant's contention that in order to determine what force is reasonable in the exercise of a power, the power must first be identified. Further, s 16(1) requires that separate consideration be given to each exercise of power in the Criminal Investigation Act, and a determination made as to whether any force is reasonably necessary in the circumstances to exercise that particular power.[147] The appellant sought to illustrate the proposition in observing that '…the force that is required by a police officer to exercise the power of arrest might be very different to the force that a police officer needs to exercise when trying to get hold of a loaded shotgun. '[148]
[147] ts 6 – 7, 9 (7 March 2019).
[148] ts 9 (7 March 2019).
Further, the appellant contends that the error of law was of such a nature that it cannot be overcome by the proviso in s 14(2) of the Criminal Appeals Act.[149]
[149] ts 3, 11 (7 March 2019).
In this regard, the appellant submits that if the Court was to find that the learned Magistrate only considered s 16(1) in the context of the appellant's exercise of the power of arrest (as is the appellant's position), it would not be possible for the Court determine that there was no miscarriage of justice by seeking to discern what the Magistrate would have done had he asked himself the right question, based on the broader findings made by the Magistrate.[150] The appellant submits that such a course is not appropriate nor possible, particularly as some of the findings of the learned Magistrate cannot be readily reconciled. The appellant in particular points to his Honour's findings at [105] and [109] of the written reasons.
The respondent's position - overview
[150] ts 20 (7 March 2019).
The respondent concedes that the Magistrate erred in failing to consider whether the appellant was exercising any power under the Criminal Investigation Act at the time of the assault other than the power of arrest in s 128,[151] and I accept that the concession is properly made.
[151] Respondent's submissions filed 22 February 2019 par 17.
The respondent further concedes that the appellant was exercising the power of detention under s 139 of the Criminal Investigation Act at the time of the assault.[152] The respondent submits that being so, it is unnecessary for the court to determine whether the appellant was exercising any other power under the Criminal Investigation Act, and in particular whether the arrest was continuing or was complete at the time of the assault.
[152] Respondent's submissions filed 22 February 2019 par 18.
The respondent says that the appeal should be dismissed on ground 1 despite the error of law, as the error was an inconsequential one. The respondent says that the error was an inconsequential one because after falling into error in finding that s 16(1) was not applicable in this matter, the Magistrate went on to consider, in the alternative, whether the prosecution had negated the s 16(1) defence on the facts, and found that it had.
The respondent further says that the appellant has not identified any error in those factual findings and accordingly, no substantial miscarriage of justice has occurred.
Ground 1 – merits
The Criminal Investigation Act is an Act to provide powers for the investigation and prevention of offences and for related matters. Section 16(1) and s 16(2) provide lawful parameters for a person exercising a power in the Criminal Investigation Act.
I accept the appellant's submission that there are many powers contained within the Criminal Investigation Act that are available to police, and police officers when apprehending suspects in the context of an armed robbery may exercise different powers concurrently.[153] I also accept that the Magistrate erred in law when he failed to consider whether the appellant was exercising any power in the Criminal Investigation Act other than the power of arrest at the material time.
[153] ts 6 (7 March 2019).
The appellant says that the error is so fundamental that it cannot be corrected on appeal.[154] The appellant says that the Court is not in a position to consider s 16(1) in the context of each of the other powers that the appellant was exercising at the relevant time.[155]
[154] ts 11, 17 (7 March 2019).
[155] ts 11 (7 March 2019) .
While I accept that the learned Magistrate erred in law, for the following reasons I am satisfied that no substantial miscarriage of justice has occurred in all of the circumstances of this case, and it is appropriate that the error be overcome by the proviso in the Criminal Appeals Act s 14(2).
The Magistrate's reasons reveal that despite the error, his Honour 'left the issue open for completeness'. That is, his Honour did consider, in the alternative, whether the prosecution had negated the s 16(1) defence on the facts, and found that it had.
The appellant says that additional powers (that is, powers in addition to the power of arrest) were put before the Magistrate at trial by counsel in the course of submissions.[156] However, the learned Magistrate does not in his reasons identify the operative and exercised power or powers in the Act when his Honour considered, in the alternative, whether the prosecution had negated the s 16(1) defence. For the reasons that follow, I find that in the circumstances of this case, the failure to expressly identify the power or powers is not determinative of the matter.
[156] See ts 303, 323 - 324 (22 June 2018); ts 14 (21 June 2018), as noted by counsel for the appellant at the hearing of the appeal: ts 16 (7 March 2019).
I accept the respondent's submission that the only forms of resistance referred to in the evidence and the submissions made to the Magistrate were that BR might attempt to flee, or might attempt to do harm to the appellant or to another police officer (with a knife or otherwise).[157]
[157] Respondent's submissions filed 22 February 2018 par 23, referring to AR 1549/2017 (4 July 2018) [75(i)], [77], [96].
I accept the respondent's submission that either flight or an attack would constitute a form of resistance to the exercise of any of the Criminal Investigation Act powers referred to by the appellant, being arrest, detention or search. [158] I also accept that in determining whether s 16(1) might have any application on the facts, the Magistrate was required to determine:
(a)whether the appellant had a reasonable suspicion that BR would offer resistance to the exercise of his power; and
(b) if so, whether the force used by the appellant was reasonably necessary to overcome the resistance.
[158] Respondent's submissions filed 22 February 2019 par 21, 22, citing ts 239, 290 (22 June 2018) and AR 1549/2017 (4 July 2018) [99].
Having heard and weighed the evidence, the Magistrate found that 'there was no reasonable necessity to use actual force against [BR] and … if there had been, the force used was not justified.'[159]
[159] Respondent's submissions filed 22 February 2019 par 37, citing AR 1549/2017 (4 July 2018) [111].
The learned Magistrate's reasons disclose that the learned Magistrate considered whether the appellant had a reasonable suspicion that BR would offer resistance to the exercise of his power by attempting to flee. His Honour considered and ultimately rejected the appellant's evidence in regards to him needing to apply force to stop BR from escaping.[160] Having weighed the evidence in the balance, his Honour's reasons reveal at [102] that his Honour did not accept that the observations of BR provided by the appellant and Sergeant Micevic were any sufficient cause to anticipate that BR was an escape risk.
[160] AR 1549/2017 (4 July 2018) [99].
Further, the learned Magistrate's reasons disclose that the learned Magistrate considered whether the force used by the appellant was reasonably necessary to overcome any resistance, and found that 'two slaps to the face of that youth was not reasonably necessary in the circumstances.'[161]
[161] AR 1549/2017 (4 July 2018) [104].
The learned Magistrate's reasons also disclose that the learned Magistrate considered whether the appellant had a reasonable suspicion that BR would offer resistance to the exercise of his power by attempting to do harm to the appellant or to another police officer (with a knife or otherwise). His Honour considered and ultimately rejected the appellant's evidence in regards to his fear of being stabbed with the missing knife.[162] Further, his Honour concluded that even if he had found that the appellant 'subjectively believed that the absence of the knife caused him to fear that [BR] would stab or attempt to stab him, which [he] did not, the act of slapping the youth was … not a reasonable response.'[163]
[162] AR 1549/2017 (4 July 2018) [99].
[163] AR 1549/2017 (4 July 2018) [107].
The only other possible form of resistance discernible on the evidence was verbal. That is, that BR was being 'mouthy' and swearing. While the Magistrate accepted that 'not unreasonably Sergeant Pender wanted [BR] to stop swearing', the Magistrate's reasons make plain that his Honour considered that the use of force because BR was being mouthy was not lawful in the circumstances as existed at that time.
His Honour's reasons reveal that his Honour engaged squarely with the facts and in particular, the forms of resistance relied upon by the appellant at trial. His Honours reasons reveal that the Magistrate found against the appellant on both limbs of the defence.
I am able to come to this conclusion without seeking to discern what the Magistrate would have done had he asked himself the right question, based on the broader findings made by the Magistrate. Having come to this conclusion, it is not necessary for me to determine whether the arrest was continuing or was complete at the time of the assault.
Having regard to the evidence before the Magistrate, and his findings of credit, I find that his Honour's findings were open to be made. I also accept that the appellant has not identified any error in those factual findings and accordingly no substantial miscarriage of justice has occurred.
I am satisfied that in light of the Magistrate's findings, while the Magistrate erred in law, no substantial miscarriage of justice has occurred and it is appropriate that the error be overcome by the proviso in s 14(2) of the Criminal Appeals Act.
Ground 2
Ground 2 is related to and follows ground 1. By ground 2, the appellant contends that the learned Magistrate then erred in law and in fact when he proceeded on the alternative basis that if he was wrong about the application of s 16(1) of Criminal Investigation Act, he would still convict the Appellant on the basis that the force used was unlawful. He erred in making this finding as he failed to give proper regard to relevant findings made by him in that context. Four particulars are then provided. They are reproduced at sch A to these reasons.
As to ground 2, the appellant contends that the learned Magistrate erred in law and in fact when determining the application of s 16(1) of the Criminal Investigation Act, when he ought to have found that s 16(1) applied and provided a defence for the appellant that should have been considered by his Honour.[164] Counsel for the appellant further explained ground 2 as follows.[165]
In other words, we say [the Magistrate's] finding was inconsistent with his other findings. So his finding that the appellant was not entitled to use that force - in other words, the force used was unlawful - was inconsistent with the findings he made as … particularised at (a) to (d).
[164] Appellant's submissions filed 8 February 2019 par 8.6.
[165] ts 22 (7 March 2019).
I accept the respondent's submission that the particulars to ground 2 refer to evidence given by the appellant and findings that might be regarded as favourable to the appellant. I also accept the respondent's submission that the fact that the Magistrate made such findings, but in all of the facts and circumstances ultimately held that the prosecution had negated the s 16(1) defence on the facts, does not reveal an error.[166]
[166] Respondent's submissions filed 22 February 2019 par 26.
As explained above in relation to ground 1, I have found that his Honour did consider, in the alternative, whether the prosecution had negated the s 16(1) defence on the facts, and his Honour found that it had.
Properly understood, ground 2 seeks to attack the findings of fact made by the Magistrate and to revisit and promote the case which was put by the appellant to the Magistrate at trial, which was rejected.
As was the case in Fradale v Zonic, the learned Magistrate in this action had the advantage of seeing and hearing the witnesses, and was the court with primary responsibility for determining whether the appellant was guilty or innocent.
The appellant does not contend that the Magistrate failed to use or has palpably misused the advantage of seeing and hearing the witnesses, or has acted upon evidence which was inconsistent with the facts incontrovertibly established or which was glaringly improbable. Further, such problems are not discernible from a careful review the transcript and reasons.
As expressed above, having regard to the evidence before the Magistrate, and his findings of credit, I find that his Honour's findings were open to be made. This is a case which involved credibility issues. The fact finding exercise undertaken by the Magistrate expressly or inferentially, depended upon the demeanour of witnesses and broad matters of credibility. In these circumstances and in light of my findings above, I refuse leave to appeal on this ground. I find that it has no reasonable prospect of succeeding.
Ground 3
The appellant contends that further to ground 2, the learned Magistrate erred in law and fact when he found that the appellant, in slapping the victim, used excessive force, when any proper assessment of the evidence in the context of the findings particularised at ground 2 established that the force used by the appellant was proportional and was not excessive in the circumstances, or at all.
At the hearing of the appeal, counsel for the appellant accepted that there were difficulties with ground 3 as a stand-alone ground.[167] Counsel characterised the ground as essentially saying that in light of his Honour's findings, his Honour should have found that the appellant was entitled to do what he did. While the ground was not formally abandoned, counsel did not seek to be heard in further support of the ground and the appellant was content to rely upon the written submissions filed.
[167] ts 24 (7 March 2019).
The appellant addressed in the written submissions in some detail the appellant's account of the nature of the physical force applied to BR; the appellant's intentions when applying that force; BR's response to the force applied, his escalating behaviour and the appellant's intentions when placing his hand on BR's chest; the levels of force that a police officer might apply; BR's failure to respond to physical presence and words; and the appellant's use of the 'lowest option' of the empty hand tactics.[168] The appellant also raises other evidence that might have been construed as favourable to the appellant, and otherwise joined issue with different submissions pressed by the prosecution at trial.[169]
[168] Appellant's submissions filed 8 February 2019 par 9.2 – 9.8.
[169] Appellant's submissions filed 8 February 2019 par 9.10 – 9.12, 1.5 – 1.9.
Again, the appellant's submissions reveal an attempt by the appellant to revisit and promote the case put by the appellant to the Magistrate at trial, but was rejected. The thrust of the appellant's submission is that the learned Magistrate erred by not having accepted the appellant's evidence, as a proper assessment of the evidence established that the force used by the appellant was proportional and was not excessive in the circumstances, or at all.
Again, I note that the Magistrate's reasons do not reveal that the learned Magistrate acted upon evidence which was inconsistent with the facts incontrovertibly established or which was glaringly improbable. Having given careful consideration to all of the evidence led, and the learned Magistrate's findings made as to credit, I am satisfied that his Honour's findings were open to be made. I refuse leave to appeal on ground 3. I find that it has no reasonable prospect of succeeding.
Ground 4
By ground 4 the appellant contends that the learned Magistrate erred in making a series of findings of fact that contained significant factual errors, and then by drawing conclusions about those matters in ways that did not arise from a proper understanding of the evidence and were inconsistent with other findings also made by the learned Magistrate. Six particulars were provided, which are reproduced in sch A to these reasons.
I have had the benefit of considering the extensive written submissions filed on behalf of the parties to the appeal in relation to ground 4. The appellant expands upon the particulars in considerable detail in the appellant's submissions filed on 8 February 2019.
The respondent's submissions reveal that the respondent does not accept the accuracy of all of the evidence summarised in the appellant's written submissions. The respondent further complains that it is not possible to discern the error of fact asserted by the appellant in some passages of the appellant's submissions. The respondent otherwise joins issue in relation to ground 4 in the respondent's written submissions filed on 22 February 2019.
At the hearing of the appeal, counsel for the appellant explained that having read the respondent's submissions, the appellant does not contend that the factual errors made by the learned Magistrate were individually or collectively significant errors that would have led to a different result.[170]
[170] ts 24 (7 March 2019).
I have given careful consideration in turn to the expanded form of each of the particulars, as expressed in the appellant's written submissions. In attending to the same, I have considered whether the appellant's characterisation of the evidence was accurate. I have also considered for each alleged error of fact, whether the factual finding was open to the Magistrate and if not, whether the error was inconsequential or immaterial to the decision to convict.
Having undertaken this task, I am satisfied that the appellant's concession was properly made. To the extent that the learned Magistrate made factual errors, they were not particularly consequential. I find that they were not individually or collectively significant errors that would have led to a different result.
While it is appropriate that the appellant's application for leave to appeal in relation to ground 4 be granted, the ground of appeal must fail.
Conclusion and orders
The court may dismiss or allow the appeal, and may set aside the sentence imposed and substitute a sentence that should have been imposed.[171] For the reasons set out above, I find that the appeal must be dismissed.
[171] Criminal Appeals Act s 14.
After the conclusion of the hearing of the appeal, counsel for the respondent requested to be heard in relation to the appropriate form of orders to be made. Subject to hearing from counsel, for the reasons set out above, I propose to order that:
1.leave to appeal be granted on grounds 1 and 4;
2.leave to appeal be refused on grounds 2 and 3; and
3.the appeal be dismissed.
Schedule A – Appellant's amended grounds of appeal
1.The learned Magistrate erred in law and fact in finding that s 16(1) of the Criminal Investigation Act 2006 (WA) ('Act') did not apply because the 'boys ... had already been arrested' (at [65]), in that:
(a)The learned Magistrate erred in law when he failed to consider whether the Appellant was exercising any 'power in the Act' other than the arrest power at the material time (including those at ss 135, 139 and 68 of the Act), and
(b)The learned Magistrate erred in law and fact when he found, without explanation and contrary to the evidence, that the arrest executed by the Appellant pursuant to his powers under s 128 of the Act had been completed at the material time when he should have found that the arrest was an ongoing process at that time.
2.The learned Magistrate then erred in law and in fact when he proceeded on the alternative basis that if he was wrong about the application of s 16(1) of [the Act], he would still convict the Appellant on the basis that the force used was unlawful. He erred in making this finding as he failed to give proper regard to relevant findings make by him in that context in that:
PARTICULARS
(a)The learned Magistrate found at [105] that it was reasonable for the appellant to suspect that there was a knife in possession of the youths;
(b)The learned Magistrate found at [108] that the purpose of the actions of the Appellant was to control the temper and demeanour of the victim and to prevent such bad behaviour escalating.
(c)The learned Magistrate found at [110] that 'after the slaps [BR] had calmed down, no further force was applied and [the Appellant] continued the search for the knife finding it in a garden bed close by'.
(d)The learned Magistrate in his sentencing remarks, relevantly and importantly found that the Appellant did have 'an intention to control the victim from interfering … with the ongoing investigation'.
3.Further to Ground 2, the learned Magistrate erred in law and fact when he found that the Appellant, in slapping the victim, used excessive force, when any proper assessment of the evidence in the context of the findings particularised at Ground 2 established that the force used by the Appellant was proportional and was not excessive in the circumstances, or at all.
4.The learned Magistrate erred in making a series of findings of fact that contained significant factual errors and then drawing conclusions about those matters in ways that did not arise from a proper understanding of the evidence and was inconsistent with other findings also made by the learned Magistrate.
PARTICULARS
(a)The learned Magistrate failed to recognise the contrasting accounts given by each prosecution witness as to where the victim and others were located at critical times relevant to the alleged assault.
(b)The learned Magistrate failed to properly recognise and pay sufficient regard to the variety of accounts given by each of the prosecution witnesses as to the critical factual circumstances taking place immediately prior to, during and after the alleged assault.
(c)The learned Magistrate found that there was a general 'vein of consistency' running through the evidence of those witnesses that he found to be credible in circumstances where in particular by reasons of the matters of (a) and (b), they patently were not.
(d)The learned Magistrate improperly largely rejected the evidence of Sergeant Micevic where her evidence differed from other police witnesses. The basis for doing so appears to have been founded upon a misunderstanding of what the evidence of those other witnesses in fact was and a misunderstanding of the evidence of Sergeant Micevic.
(e) The learned Magistrate ought not to have relied upon the evidence of the three juvenile witnesses to the extent that he did, having regard to the findings he probably made, both in his judgment and his sentencing remarks, regarding their dishonesty on oath.
(f)The learned Magistrate improperly rejected critical aspects of the [Appellant's] account by reason of a telephone call he made to a police witness, in circumstances where the actual evidence about that call did not provide a proper factual basis for such a conclusion as to the Appellant's credibility.
Schedule B – Criminal Investigation Act 2006 (WA) s 16
16.Force, use of when exercising powers
(1)When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use in the circumstances —
(a)to exercise the power; and
(b) to overcome any resistance to exercising the power that is offered, or that the person exercising the power reasonably suspects will be offered, by any person.
(2) If under subsection (1) a person uses force, the force may be such as causes damage to the property of another person.
(3) Any use of force under subsection (1) against a person is subject to The Criminal Code Chapter XXVI.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Acting Justice Strk
3 JUNE 2020
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