Pettigrove v WA Police - [2023] WASC 468

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PETTIGROVE -v- WA POLICE [2023] WASC 468
CORAM:   HOWARD J
HEARD:   31 OCTOBER 2023
DELIVERED          :   6 DECEMBER 2023
FILE NO/S:   SJA 1032 of 2023
BETWEEN:   JASON WAYNE PETTIGROVE
Appellant
AND
WA POLICE
Respondent

FILE NO/S: SJA 1033 of 2023
BETWEEN: JESSE FRANCIS COPEMAN
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1032 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HARRIES
File Number            :   AM 10980 of 2010
For File No:   SJA 1033 of 2023
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HARRIES
File Number            :   AM 6070 OF 2005

Catchwords:

Criminal law - Single judge appeal - Appeal against convictions under Criminal Law (Unlawful Consorting and Prohibited Insignias) Act 2021 (WA) - Whether it was a reasonable inference that the appellant’s tattoos would have been visible in a public place - Whether the convictions imposed by the Magistrate were inconsistent with acquittals - Whether convictions were supported by evidence - Leave to appeal on both grounds refused

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA)
Evidence Act 1906 (WA)

Result:

Leave to appeal refused

Representation:

SJA 1032 of 2023

Counsel:

Appellant	:	Z A V Gilders
Respondent	:	J D Berson

Solicitors:

Appellant	:	ZG Criminal Law
Respondent	:	State Solicitor's Office

SJA 1033 of 2023

Counsel:

Appellant	:	Z A V Gilders
Respondent	:	J D Berson

Solicitors:

Appellant	:	ZG Criminal Law
Respondent	:	State Solicitor's Office

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

Ginn v WA Police [2023] WASC 447
Larussa v State of Western Australia [2023] WASCA 62
NTH v State of Western Australia [2020] WASCA 22
Samuels v State of Western Australia (2005) 30 WAR 473
Sturniolo v State of Western Australia [2023] WASCA 147
Webb v Tang [2023] WASCA 119

HOWARD J:

The appellants' convictions and sentences

The appellants were charged with offences against s 25(2) the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (Prohibited Insignia Act); that they displayed insignia of an identified organisation in a public place.
Mr Pettigrove's first charge (PE 1369 of 2022) was in respect of a '1%' tattoo on his chest. The second charge (PE 22975 of 2022) was in respect of a 'REBELS' tattoo on his left forearm.
The first charge against Mr Copeman (PE 1367 of 2022) was in respect of a '1%' tattoo on the bottom of his throat or neck. The second charge (PE 22974 of 2022) was in respect of a 'REBELS' tattoo on his right forearm.
The charges related to a birthday party in the pool area of the Rendezvous Hotel Scarborough (Hotel) on 8 January 2022.
From that same party, Jamie Ginn was also charged. These reasons do not concern the charges against Mr Ginn or his appeal therefrom.[1]
[1] See Ginn v WA Police [2023] WASC 447.
On 28 March 2023, following a trial which took place across four days, Mr Pettigrove was convicted of the charge relating to the '1%' tattoo on his chest; and Mr Copeman was convicted of the charge relating to the '1%' tattoo on his throat or neck. Each, respectively, was acquitted of the other charge they faced.
The learned Magistrate imposed a fine of $1,000 on each appellant and ordered the parties to bear their own costs.
By SJA 1032 of 2023, Mr Pettigrove has appealed against that conviction.
By SJA 1033 of 2023, Mr Copeman has appealed against that conviction.

Relevant provisions for this Appeal

The appellants seek to appeal pursuant to s 7(1) and s 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
By s 9(1) of the Criminal Appeals Act, the appellants require leave on each of their appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[2]
[2] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The appellants' convictions are 'decisions' within s 6(c) of the Criminal Appeals Act.

The trial

The evidence at trial was given by:
1.Jeremy Dyer, the Duty Manager of the Hotel at the time of the incident;
2.      Officer Kurt Bryant;
3.      Officer Adam Wiringi;
4.      Officer Guy Grant; and
5.      Officer Oliver Aleman;
and included body-worn camera footage and stills from that footage.
The appellants were guests staying at the Hotel on 8 January 2022.[3]
[3] Exhibits 9, 10, 11, and 12.
It was not in dispute that:
1.WAPOL were tasked to attend the Hotel in the afternoon of 8 January 2022;[4]
2.WAPOL officers approached the Hotel Duty Manager and were escorted to the pool area;[5]
3.the two appellants were present at the Hotel when WAPOL attended the Hotel;[6]
4.the appellants were sitting in the pool area of the Hotel with a group of 10 to 12 other people, consuming alcohol;[7] and
5.there were an estimated 15 to 20 other guests in the pool area at the time of interaction.[8]
[4] Trial ts 31.
[5] Trial ts 56.
[6] Trial ts 68 - 69.
[7] Trial ts 32.
[8] Trial ts 32.
The Hotel Duty Manager's evidence was that at the time of the incident, the pool area of the Hotel was only accessible by paying guests with a key card and was for exclusive guest-use only.[9]
[9] Trial ts 56.
The interaction between WAPOL and the group was captured on body-worn camera footage of Officer Bryant, which was Exhibit 17.[10] Body-worn camera footage of other officers were also tendered as Exhibits 13, 16 and 17.
[10] Trial ts 74.
Officer Bryant's relevant evidence was, he:
1.approached the group in the pool area of the Hotel and spoke to them about the newly enacted Prohibited Insignia Act;[11]
2.advised the group that anyone displaying a prohibited insignia would 'receive a summons' and were 'required to stay until they were served with a dispersal notice' by the attending WAPOL officers[12] (however, each of the accused were issued with a court hearing notice, as opposed to a summons);[13]
4.did not personally speak with Mr Copeman, however he noticed his tattoos which consisted of '1%' tattoo on the base of his neck, and a 'Rebels' tattoo on his right forearm.[14] Mr Copeman was not wearing a shirt;[15] and
5.spoke to Mr Pettigrove and noticed a '1%' tattoo on his chest and a 'Rebels' tattoo on his left forearm.[16] Mr Pettigrove was also not wearing a shirt.[17]
[11] Trial ts 32 - 33.
[12] Trial ts 74, 176.
[13] Trial ts 244.
[14] Trial ts 32.
[15] Trial ts 33.
[16] Trial ts 33.
[17] Trial ts 33.
Officer Wiringi's relevant evidence was:
1.on approaching the pool area, he observed Mr Pettigrove wearing a hat, but no shirt, sitting with other people in the pool area of the Hotel;[18]
2.whilst Officer Bryant was addressing the group, he was issuing Mr Pettigrove with a dispersal notice;[19] and
3.at this point he observed Mr Pettigrove sporting a '1%' tattoo on his chest (around his sternum), and a 'Rebels' tattoo on the underpart of his left forearm.[20]
[18] Trial ts 69.
[19] Trial ts 73; 74.
[20] Trial ts 70.
Officer Grant's relevant evidence was:
1.as the supervisor, he remained at a distance to monitor the whole group while other officers approached the group;[21]
2.he recognised Mr Pettigrove and observed that he was not wearing a shirt. He observed that Mr Pettigrove had a number of tattoos on his head, neck, shoulders and chest that were clearly visible, but he was unable to make out the details of any of the tattoos;[22]
3.initially he was not able to view the tattoos due to his distance from the group,[23] however as he later approached the group, the tattoos became more visible;[24]
4.he interacted with Mr Pettigrove, at which point he clearly observed a '1%' tattoo on his chest area, below his neck, and a 'Rebels' tattoo on his left forearm;[25]
5.he observed Mr Copeman from a distance of between 5m ‑ 10 m, where he noticed Mr Copeman's tattoos however could not make out the details;[26] and
6.he had a general conversation with Mr Copeman during which he observed a 'Rebels' tattoo on his right forearm and a '1%' diamond shaped tattoo on the base of his neck.[27]
[21] Trial ts 138.
[22] Trial ts 139.
[23] Trial ts 151.
[24] Trial ts 139.
[25] Trial ts 139.
[26] Trial ts 154.
[27] Trial ts 140 - 141.
Officer Aleman's relevant evidence was:
1.he, along with other officers approached the pool area, at which point he observed Mr Pettigrove and Mr Copeman, both shirtless;[28]
2.on approaching the group, Mr Copeman was observed as moving around, and was not stationary;[29]
3.on approaching Mr Pettigrove, at a distance of approximately 5m, he observed tattoos comprising of a 'Rebels' tattoo on his right forearm and a '1% diamond' on his chest;[30]
4.a short while after the officers approached the group (no more than 5-minutes), he observed Mr Copeman's tattoos during a conversation with him. At this point he observed a 'Rebels' tattoo on Mr Copeman's right arm, a 'Rebel Power' tattoo underneath his chin, and a '1% diamond' on his neck;[31] and
5.by the time he had noticed the tattoos on both appellants, Officer Bryant had begun to summons the group.[32]
[28] Trial ts 164 - 165, 175.
[29] Trial ts 177.
[30] Trial ts 165.
[31] Trial ts 165.
[32] Trial ts 177; 179.
As to the visibility of the tattoos, evidence was led by WAPOL officers that:
1.at the time of first interaction, both of Mr Pettigrove's tattoos in question were visible to the officers;[33]
2.at the time of first interaction, both of Mr Copeman's tattoos in question were visible to the officers;[34] and
3.at the time of interaction between WAPOL and the appellants, each of the appellants were shirtless.[35]
[33] Both of Mr Pettigrove's tattoos in question were visible in the BWC footage of Officers Bryant (Exhibit 17), Grant and Wiringi (Exhibit 13: containing both BWC footage of Officers Grant and Wiringi). Officer Aleman's evidence that he could see Mr Pettigrove's tattoos prior Mr Pettigrove speaking with the Officers was found to not be credible: Trial ts 254.
[34] Both of Mr Copeman's tattoos in question were visible in the BWC footage of Officers Bryant (Exhibit 17) and Aleman (Exhibit 17). Officers Bryant (Trial ts 32), Grant (Trial ts 140), and Aleman (Trial ts 165) gave evidence they observed both tattoos.
[35] Trial 32; 33; 69; 139; 165.
Pursuant to s 32 of the Evidence Act 1906 (WA), each appellant admitted they were the individuals captured by the body-worn camera footage.[36]
[36] Trial ts 6.
The issues in dispute below were:
1.whether the pool area of the Hotel was a public place within the definition provided by s 21 of the Prohibited Insignia Act;[37] and
2.whether there was evidence that the tattoos were visible and so displayed prior to the appellants being summonsed (and thus whether the offence was committed prior to Officer Bryant summonsing the appellants).[38]
[37] Trial ts 209 - 211 (for Mr Pettigrove); 226 - 227 (for Mr Copeman); 242.
[38] Trial ts 200 - 204 (for Mr Pettigrove); 222 - 223 (for Mr Copeman); 242.

The learned Magistrate's reasons

In her reasons, her Honour:
1.stated the evidence was from Officers Bryant, Grant, Wiringi and Aleman, and the Hotel Duty Manager, Jeremy Dyer, and the exhibits tendered;[39]
2.recorded that each accused elected to not provide evidence, from which no adverse inference could be drawn;[40] and
3.held that evidence of the visibility of the appellants' tattoos after the decision to summons and issue the dispersal notices was relevant and admissible to the issue of prior display as it might rationally affect indirectly the probability of the existence of a fact in issue.[41]
[39] Trial ts 243.
[40] Trial ts 243.
[41] Trial ts 246.
On assessing the test to be applied, her Honour said:
Section 24 [of the Prohibited Insignia Act] imports an objective test in its terms. Namely, whether the insignia would be visible to the public if left uncovered in a particular manner. It is an objective assessment of visibility. The word visibility is not defined. The ordinary definition is 'Capable of being seen. Perceptible by the eye. Open to sight or view.'
The definition makes it clear that the meaning of display is more than simply left uncovered. The tattoo must be left uncovered in a manner which amounts to display, and the display must be in a public place, or in some other place from where the insignia would be visible to another person in the public place. Given that visible includes 'capable of being seen', and the meaning of display in the Act includes, 'would be visible' I accept the prosecution's submission that the Act does not require evidence that a particular person saw the tattoo, though such evidence if it existed, is of course evidence of display.
Further an ordinary meaning of the word 'would' is to refer to a situation that you can imagine happening. For example, that something would be visible.
The test that I've applied is whether a reasonable person taking into account all of the circumstances in which the tattoo is left uncovered would conclude that it was displayed in the sense that it would be visible to another person in a public place. Those circumstances include but are not limited to the size, colour, location, clarity, discernability of a particular tattoo, the degree to which it's left uncovered, the nature of the display at the particular location, and matters at that location which impact on visibility.
This includes an assessment on whether based on all of the available evidence the tattoo is sufficiently visible within the meaning of the Insignia Act bearing in mind that the Act does not criminalise the existence of such tattoos, but rather the display of them.[42]
[42] Trial ts 252.
On addressing the tattoos of Mr Pettigrove, her Honour held:
Mr Pettigrove has the symbol one per cent in the middle of his chest and a Rebels tattoo on his left forearm. These are visible on the body-worn camera footage of Officer Bryant. Officer Bryant, Wiringi, and Grant gave evidence that at the time police spoke to Mr Pettigrove they observed both tattoos. Officer Aleman indicated that when he approached Mr Pettigrove he was approximately five metres away and he could see the chest tattoo and the tattoo on Mr Pettigrove's forearm. This preceded Officer Bryant talking to the group.
However, in cross-examination Officer Aleman accepted he made those observations of the tattoos whilst Officer Bryant was advising the group about the summons and dispersal notice. I do not find Officer Aleman's evidence-in-chief that he observed Mr Pettigrove's tattoos as he approached the group and was five metres away to be credible because at that time Mr Pettigrove had his back to the officers.
Notwithstanding that, the evidence of the existence of Mr Pettigrove's tattoos contained in the body-worn camera footage and described by Officer Bryant was credible and was not challenged in cross‑examination. That evidence is relevant and admissible to the charges. It is evidence that is proximate in time to the alleged offence, and it assists in the assessment of the fact in issue. That is whether a tattoo was displayed within the meaning of the Insignia Act.
In each case the tattoo was uncovered upon the arrival of police when Mr Pettigrove was seated in the gazebo area. There was some shade in the area, and part of the gazebo where Mr Pettigrove sat was shaded. There were members of the public in the immediate vicinity as I said, namely within metres of the gazebo on nearby sun lounge chairs. Further, other members of Mr Pettigrove's group are members of the public within the meaning of the Insignia Act, as are staff members of the hotel who may have served the group refreshments. I note on the table in the middle of the accused group there are four cups and two cans.
The one per cent tattoo in the centre of Mr Pettigrove's chest is in the middle of what his counsel described as a piece of tattoo art. That is there are other tattoos all around the one per cent. No evidence was led as to the size of the tattoo, but it is not so small that it cannot be seen, and conversely, it is of a sufficiently large size in the middle of the chest such that it can be seen. … It is submitted that Mr Pettigrove is slightly bent forward, and the one per cent is between his pectoral muscles.
I have viewed the one per cent on the body-worn camera footage. It is visible in the sense that it is capable of being seen. It is part of a wider piece of tattoo work, but it remains visible.
…
Having considered the time of day, the slightly shaded area in the gazebo, the location of the tattoo and Mr Pettigrove's sitting position, and having weighted these factors carefully I form the view that a reasonable person would conclude that it was displayed in the sense that it would be visible to another person in a public place.
Turning to the Rebels tattoo on the left underside part of Mr Pettigrove's left forearm. The tattoo is large, in separate capital letters. It is entirely uncovered. Unlike the one per cent tattoo on Mr Pettigrove's chest, it is visible if Mr Pettigrove's arm is in a position where it is visible.
While there is no direct evidence that Mr Pettigrove's arm was or was not positioned such that the Rebel's tattoo was capable of being seen, there is indirect evidence that Mr Pettigrove moved his arms when he was speaking to the police after the decision to charge such that the tattoo was visible. There is indirect evidence that he was sitting at a table drinking and talking. There is no direct evidence that Mr Pettigrove was moving prior to the police arrival, or any direct CCTV footage from the pool area showing movement by Mr Pettigrove.
…
While there is an inference open that Mr Pettigrove moved his arm prior to police arrival exposing his Rebels tattoo such that it was capable of being seen it is not the only inference open. While there is an inference that the tattoo was capable of being seen as he walked to the gazebo there is no evidence as to whether the tattoo was uncovered at that time or not, and therefore it is not the only inference open, and so with respect to this charge I find that although the tattoo was uncovered I cannot be satisfied beyond reasonable doubt that it was displayed in such a way that it would be visible to a member of the public.[43]
[43] Trial ts 255 - 256.
On addressing the tattoos of Mr Copeman, her Honour said:
Mr Copeman has the symbol one per cent on the bottom of his neck, throat area, and a Rebels tattoo to the right underside of his left forearm. These are visible on the body worn camera footage of Officer Bryant and Aleman. Officer Bryant, Grant, and Aleman gave evidence that at the time they spoke to Mr Copeman they observed both tattoos.
The one per cent tattoo is to the bottom of Mr Copeman's neck and throat. It is centred and a stand-alone tattoo not connected to any others. It is dark, clear, and visible. There was no evidence led as to the size of the tattoo, but it fills the visible part of the front throat neck area of Mr Copeman.
Having considered the time of day, the position of Mr Copeman to the rear of the gazebo, the location of the tattoo and Mr Copeman's sitting position, the movements and presence of members of the public, and having weighed these factors carefully I've formed the view that a reasonable person would conclude that it was displayed in the sense that it would be visible to another person in a public place. …
The evidence is that Mr Copeman has a Rebels tattoo to the right to underside of his right forearm. The Tattoo is large, bold, separate capital letters comprising the word Rebels. It is not a stand-alone tattoo. There is another tattoo either older or newer quite proximate and appears to be under the Rebels tattoo. The Rebels tattoo being of visibility darker ink.
While there is no direct evidence that Mr Copeman's arm was or was not positioned such that a Rebels tattoo was capable of being seen there is indirect evidence that Mr Copeman moved his arms when speaking to police such that the tattoo was visible. There is indirect evidence that he was sitting at a table drinking and talking, and there is no direct evidence that Mr Copeman was moving prior to the arrival of police or any direct CCTV footage from the pool area showing the movement by Mr Copeman.
While there is an inference open that Mr Copeman moved his arm prior to police arrival exposing his Rebels tattoo such that it was capable of being seen it is not the only inference open. While there is an inference that the tattoo was capable of being seen as he walked to the gazebo there is no evidence as to whether the tattoo was uncovered at that time or not, and therefore it is not the only inference open, and so with respect to this charge I find that although the tattoo was uncovered I cannot be satisfied beyond reasonable doubt it was displayed such that it would be visible to a member of the public.[44]
[44] Trial ts 257 - 258.

Grounds of Appeal

The appeal grounds in each appeal are the same and, although there are some differences between the matters factually, they raise similar issues.
The appellants' two grounds of appeal are:
1.The convictions are unreasonable by reason of being inconsistent with the acquittals:
a.The learned magistrate erred (in the case of each appellant) in convicting on the charge of unlawfully displaying a '1%' tattoo whilst at the same time acquitting on the charge of unlawfully displaying a 'Rebels' tattoo:
i.The body of evidence relied upon in relation to each was, in all relevant and material ways, the same.
ii.Her Honour undertook the same course of reasoning in relation to all counts, yet arrived at different verdicts when there was no rational basis for doing so.
b.In particular, there was no rational basis for convicting the appellant (in each case) on the count relating to the unlawful display of a '1%' tattoo when the self-same evidence and course of reasoning was found by Her Honour to warrant acquittal on the count relating to the alleged unlawful display of a 'REBELS' tattoo.
c.Additionally, Her Honour erred in making inconsistent findings with regard to admissible evidence as between the two sets of charges.
d.Accordingly, and in the case of each appellant, the conviction was unsupported by the evidence and unreasonable having regard to the acquittal.
2.There was a miscarriage of justice because the judgement of conviction was unsound or not supported by the evidence:
a.The evidence was incapable, as a matter of law, of permitting an inference of guilt to be drawn against the Appellant; or
b.Even if an inference of guilt was capable of being drawn against the Appellant it was not the only rational inference that was open on the evidence, there being other reasonable inferences consistent with innocence.

Appeal Ground 1

For each appellant this ground essentially asserts one error (albeit slightly differently expressed within the ground itself): namely that as each conviction on the first charge was inconsistent with the acquittal on the second, the conviction was unsupported by the evidence, and was unreasonable.
With respect, I find that the reasons for the convictions are not inconsistent. Rather, I consider they are explained in the reasons of the learned Magistrate.
As to Mr Pettigrove’s acquittal on the second charge, I have set out the reasoning of the learned Magistrate at [28] above and do not repeat it here.
As to Mr Copeman’s acquittal on the second charge, I have set out the reasoning of the learned Magistrate at [29] above and do not repeat it here.
I consider the findings made that the tattoos on Mr Copeman’s and Mr Pettrigrove’s forearms may not have been visible, whilst their neck and chest tattoos (respectively) would have been, were both explicable and consistent from the reasons.
With respect, I do not understand what the error is in the fact finding undertaken by the learned Magistrate on the convictions.
I do not think the learned Magistrate did arrive at inconsistent verdicts. As said, I consider the different verdicts were properly, and without error, explicable (and open).
While an ‘inconsistent’ verdict arrived at by a magistrate may assist in detecting an error in a conviction, it does not form an appeal ground in and of itself.
Further, and although I do not need to express any binding views on this, I am not immediately persuaded that the principles as to ‘inconsistent verdicts’ of juries apply to the findings of a magistrate given with reasons. Obviously, a jury provides no reasons.
I note that in TWG v Boucher [2020] WASC 98 [33]-[34]; [40]-[49], although it was not necessary to reach a final view because of the facts there, it appears that Smith J accepted (at least for the purposes of argument) NTH v State of Western Australia [2020] WASCA 22 (and the line of cases endorsed within) were applicable to appeals from a magistrate.

Appeal Ground 2

For each appellant this Ground essentially asserts one error.
As developed at the hearing, the essential contentions for this ground are:
1.the evidence (prior to the appellants being told they would be summonsed) did not establish that the officers could see the respective tattoos given the way the appellants were sitting;
2.the way each appellant was sitting obscured (to some degree) the relevant tattoo;
3.there was no (direct) evidence of whether the appellants' (respective) tattoo was visible to another person prior to police attending;
4.an available inference was that relevantly the appellants had been in the same position (i.e. obscuring the tattoo) before the police arrived; and
5.her Honour's conclusion was not rational (from the evidence), or at least was not the only available conclusion.
Section 24 of the Prohibited Insignia Act 2021 provides:
(1)A person is taken to display insignia of an identified organisation in a public place if the person -
(a)wears, carries or otherwise possesses or controls a prohibited thing in a manner that insignia of an identified organisation would be visible to another person in the public place; or
(b)has a tattoo or other body marking that -
(i)comprises or includes insignia of an identified organisation; and
(ii)is left uncovered in a manner that insignia of an identified organisation would be visible to another person in the public place.
(2)Subsection (1) applies whether the thing or person marked with insignia of an identified organisation is physically -
(a)in the public place; or
(b)in some other place from where the insignia would be visible to another person in the public place.
Relevantly, from s 24(1)(b), 'display' includes what might be described as the passive act of leaving uncovered a tattoo which would be visible to another person in a public place.
In relation to Mr Pettigrove, her Honour's relevant findings were essentially that:
1.Exhibit 17 (at about the time that Officer Bryant told the appellants they were to be summonsed) showed Mr Pettigrove's '1%' tattoo on his chest; and
2.considering where and how Mr Pettigrove was sitting, the tattoo would have been visible to another person before that time.
In my view, that conclusion was both open to, and rational for, the learned Magistrate to make. Indeed, it was in my view, the only rational inference available, having regard to the other people who were (undisputedly) in the pool area at the relevant time.[45]
[45] Trial ts 32 (Officer Bryant); Trial ts 32: 10-12 people in the group, plus an additional 15 - 20 other people in the pool area.
With respect to Mr Pettigrove, no other inference was identified as being available by counsel.
In relation to Mr Copeman, her Honour's relevant findings were:
1.that the relevant tattoo filled the visible part of his front throat neck area;
2.the tattoo was dark, clear and visible; and
3.taking into account how and where he was sitting, the tattoo would have been visible to another person prior to, or at, the time that Officer Bryant told the appellants they were to be summonsed.
The submissions for Mr Copeman at the hearing ignored the group immediately around him. Further, the submissions contended that the learned Magistrate could only proceed on the basis that Mr Copeman had been (while shirtless at all times before being told he was summonsed) in that position and did not sit up in a way which 'displayed' the front of his neck-throat area.
The submissions for Mr Copeman were, effectively, that the way Mr Copeman was holding his head, slouched down, meant the '1%' tattoo on his neck was not visible and thus the inference drawn was not available to the learned Magistrate.
The submission was supported by some of the evidence from the officers who confirmed Mr Copeman was sitting slouched down on their arrival.[46]
[46] Trial ts 54 (Officer Bryant).
I do not accept these submissions.
Even if one accepts that there was a doubt as to whether Mr Copeman's tattoo was visible to the police as they approached, that leaves her Honour's conclusion as to the visibility of the tattoo to the immediate group around Mr Copeman. That conclusion was well open to her Honour.
An available, rational (and irresistible) inference was that Mr Copeman at a time at, or immediately before, being told he was to be summonsed sat in a less-slouched way which 'displayed' that tattoo. The submissions to the contrary are quite artificial in my view.
The Court of Appeal in Sturniolo v State of Western Australia [2023] WASCA 147 [70] (Quinlan CJ, Beech & Hall JJA) said that:[47]
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. The principles established by the leading High Court decisions have been outlined by this court many times.
[47] See also Larussa v State of Western Australia [2023] WASCA 62 [50] and Webb v Tang [2023] WASCA 119 [120].
The Court then set out the principles in summary. I do not repeat them.
In this matter, the learned Magistrate enjoyed no particular advantage in the assessment of the evidence. So, the most relevant principles identified by the Court of Appeal in Sturniolo are, in my view:
1.whether in all the circumstances it would be dangerous to permit the verdict to stand; and
2.whether on the whole of the evidence I consider it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.
Further, the Court of Appeal in Sturniolo at [71] summarised the principles to apply where the prosecution case relies on inference. Again, I have not restated those principles here.
I do not consider it would be dangerous to permit the conviction to stand. I consider that, on the whole of the evidence, it was open to the learned Magistrate to be satisfied beyond a reasonable doubt that the appellants were guilty.
On consideration of the evidence before the learned Magistrate, being the location of the appellants' '1%' tattoos and the appellants otherwise leaving the tattoos uncovered, indeed I do not understand what other conclusion was rationally open.
The conclusions the learned Magistrate drew were irresistible and were the only rational inferences available.
It follows that I do not detect any error of the kind contended for in Ground 2.

Disposition

I would not grant the appellants leave to appeal on either of their grounds.
I will hear parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
6 DECEMBER 2023