SAB v Director of Public Prosecutions for Western Australia
[2023] WASC 47
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: SAB -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 47
CORAM: VANDONGEN J
HEARD: 15 FEBRUARY 2023
DELIVERED : 15 FEBRUARY 2023
PUBLISHED : 17 FEBRUARY 2023
FILE NO/S: SJA 1062 of 2022
BETWEEN: SAB
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S DEWSBURY
File Number : AM 220/2019
Catchwords:
Alternative offences - Availability of an offence of common assault as an alternative offence when accused person charged with assaulting a public office is acquitted
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | F Sellers |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Law Division |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
De Alwis v The State of Western Australia [2014] WASC 161
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
VANDONGEN J:
(This judgment was delivered orally on 15 February 2023 and has been edited for publication, with references and headings added).
Introduction
The appellant was charged with one count of assaulting a public officer who was performing a function of his office, contrary to s 318(1)(d) of the Criminal Code (WA) (the Code). He entered a plea of not guilty to that charge and was tried before a magistrate in the Children's Court on 17 and 30 June 2022.
On 20 July 2022 the appellant was found not guilty of that charge. However, the learned magistrate found the appellant guilty of an offence of common assault, contrary to s 313 of the Code. The appellant was placed on a juvenile good behaviour bond in an amount of $100 for a period of 4 months.
On 9 August 2022, the appellant filed an appeal notice in this court. The sole ground of appeal that is relied upon by the appellant is that the learned magistrate erred in law by entering a conviction of an offence of common assault in circumstances in which that offence was not a statutory alternative to the offence that was actually charged.
For the following reasons I would grant leave to appeal, allow the appeal, and set aside the judgment of conviction.
General Legal Framework of Appeal
Pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (the Act), a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. Relevantly, for the purposes of this matter, a 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge.[1]
[1] Criminal Appeals Act, s 6(c).
An appeal brought pursuant to the right conferred by s 7(1) of the Act may be made, relevantly, on the ground that the court of summary jurisdiction made an error of law.
Leave is required for each ground of appeal,[2] and if leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.[3] Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[4]
The Trial
[2] Criminal Appeals Act, s 9(1).
[3] Criminal Appeals Act, s 9(3).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Given the nature of the ground of appeal, it is unnecessary for me to refer in any detail to the evidence that was adduced at the appellant's trial. This is because the ground of appeal is concerned only with the question of whether the magistrate had the power to convict the appellant of an offence of common assault, having acquitted him of the offence that he was actually charged with, that is, assaulting a public officer.
It is enough to note that the prosecution case was that the appellant assaulted a police officer on 11 November 2021. The prosecution alleged that police from Mirrabooka Police Detectives Office attended the appellant's home address and entered the premises, seeking to arrest a suspect. During the search of the appellant's home, one of the officers took hold of the appellant by the shoulder and a physical interaction took place between them, which culminated in the appellant throwing a large mirror at the officer. The mirror struck the officer on the arms and body.
The prosecution argued that the officer was, at all times, performing a function of his office and so, when the appellant applied force to the officer's body during the course of their physical interaction, he committed an offence of assaulting a public officer.
The defence case was, in essence, that there were a number of issues concerned with the lawfulness of the officer's conduct prior to and during the course of the search. The defence argued that the officer's conduct gave rise to a question about whether the prosecution could prove, beyond reasonable doubt, that at the time the appellant was alleged to have committed the offence, the officer was performing a function of his office.
Ground of Appeal
As I have already noted, the appellant relied upon one ground of appeal, which reads as follows:
Her Honour erred at law by entering a conviction of common assault which is not a statutory alternative to assault public officer.
The Appellant's Submissions
The appellant did not make any submissions at the hearing of the appeal. However, the appellant's position can be stated shortly. The appellant's position is that having entered a judgment of acquittal in relation to the offence that the appellant was actually charged with, it was not open to the magistrate to enter a judgment of conviction for an offence of common assault.
As the terms of the ground of appeal reveal, the appellant contends that s 10A of the Code exhaustively prescribes those circumstances in which an accused person charged with an offence may instead be convicted of another offence. The appellant's case on appeal is essentially that none of those prescribed circumstances existed in this case, with the result that the magistrate erred in law when she entered a judgment of conviction for an offence of common assault.
The Respondent's Submissions
Prior to the hearing of the appeal the respondent advised the appellant and the court that the respondent intended to concede the appeal. At the hearing of the appeal, counsel who represented the respondent formally confirmed that the appeal was conceded.
Consideration
This appeal turns on a question of whether s 10A of the Code was engaged in the circumstances of this case.
Section 10A of the Code provides as follows:
10A.Conviction of alternative offence, when possible
(1)A person charged with an offence cannot be convicted by the court dealing with the charge of any other offence instead of that offence unless -
(a)the accused is charged with the other offence as an alternative to that offence; or
(b)this Chapter provides otherwise.
(2)This Chapter does not authorise the conviction of a person of an offence if the prosecution for the offence was not commenced within the time (if any) limited by law for commencing a prosecution for the offence.
As Martin CJ observed in De Alwis v The State of Western Australia [2014] WASC 161 [21], the scheme of s 10A is to:
… provide two alternative means by which a person may be convicted of an alternative offence. One is the circumstance in which a person is specifically charged with another offence, as an alternative. The other is if there is provision otherwise within the relevant chapter of the Code, which is ch IIA.
It is also important to observe that the introductory words used in s 10A make it clear that the two means by which a person may be convicted of an alternative offence that were referred to by Martin CJ in De Alwis are the only means by which that can occur.
As I have already noted, the appellant was charged with assaulting a public officer. It is plain from the contents of what I have been informed is the document that constitutes the prosecution notice, and it is common ground as I understand it, that the appellant was never charged in that document or in any other prosecution notice with an offence of common assault as an alternative to the offence of assaulting a public officer. It necessarily follows that the first circumstance in which s 10A of the Code applies, which is provided for in s 10A(1)(a), did not exist.
It is also the case that the second circumstance in which s 10A of the Code applies did not exist. This is because none of the other provisions in Chapter IIA 'provides otherwise'.[5]
[5] Criminal Code, s 10A(1)(b).
Section 10B, which appears in Chapter IIA of the Code, relevantly provides that it applies if:
…a provision of the Code, or of another written law, that creates an offence (offence A) provides one or more alternative offences for offence A.
As I have already noted, s 318(1)(d) is the provision of the Code that creates the offence of assaulting a public officer. However, and somewhat curiously, that provision does not, and did not at the time the magistrate found the appellant guilty of the offence of common assault, provide for any alternative offences. It is also not suggested that there exists 'another written law' that provides for an alternative offence for an offence of assaulting a public officer.
The other provisions found in Chapter IIA of the Code are concerned with the consequences of a conviction being entered for an alternative offence (s 10C), the potential for a person charged with an offence to be convicted of attempting, inciting or becoming an accessory after the fact to the offence (s 10D), as well as the possibility of a person who is charged with attempting to commit an offence (s 10E), or with conspiring to commit an offence (s 10F), or with procuring the commission of an offence (s 10G), or with attempting to procure the commission of an offence (s 10H), being convicted of certain alternative offences.
In my view the respondent's concession should be accepted. It was not open to the magistrate to convict the appellant of an alternative offence of common assault. Having found the appellant not guilty of the offence charged, the only course open to the magistrate was to enter a judgment of acquittal.
It follows that leave to appeal should be granted, the appeal should be allowed, the judgment of conviction should be set aside, and orders should be made to that effect.
The judgment of acquittal that was entered in relation to the offence of assaulting a public officer has not been challenged by the respondent and, accordingly, it remains unaffected by the outcome of this appeal.
Orders
For the above reasons, the following orders should be made in this appeal:
(1)Leave to appeal is granted on the ground of appeal.
(2)The appeal is allowed.
(3)The appellant's conviction for the offence of common assault is set aside.
In accordance with an agreement reached between the parties, there will be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Judge
17 FEBRUARY 2023
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