Staskos v Johnson
[2014] WASC 137
•16 APRIL 2014
STASKOS -v- JOHNSON [2014] WASC 137
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 137 | |
| Case No: | SJA:1115/2013 | 26 MARCH 2014 | |
| Coram: | LE MIERE J | 16/04/14 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on each ground Appeal allowed Conviction set aside Verdict of acquittal substituted for finding of guilty | ||
| B | |||
| PDF Version |
| Parties: | DANIELL BROOK STASKOS DAVID COLIN JOHNSON |
Catchwords: | Appeal Conviction of serious assault Police officer not performing a function of office or employment at time of assault Arrest unlawful Appellant denied procedural fairness |
Legislation: | Criminal Code (WA), s 10A, s 10B, s 318 Criminal Investigation Act 2006 (WA), pt 12 |
Case References: | Christie v Leachinsky [1947] AC 573 Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin) Johnstone v State of New South Wales [2010] NSWCA 70 Mackenzie v The Queen [2004] WASCA 146 McKay v Commissioner of Main Roads [2013] WASCA 135 Michaels v The Queen (1995) 184 CLR 117 Norton v The Queen [2001] WASCA 207 State of New South Wales v Delly (2007) 70 NSWLR 125 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DAVID COLIN JOHNSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : FR 1198 of 2013
Catchwords:
Appeal - Conviction of serious assault - Police officer not performing a function of office or employment at time of assault - Arrest unlawful - Appellant denied procedural fairness
Legislation:
Criminal Code (WA), s 10A, s 10B, s 318
Criminal Investigation Act 2006 (WA), pt 12
Result:
Leave to appeal granted on each ground
Appeal allowed
Conviction set aside
Verdict of acquittal substituted for finding of guilty
Category: B
Representation:
Counsel:
Appellant : Mr A G Elliott
Respondent : Ms A C Longden
Solicitors:
Appellant : Shadgett Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Christie v Leachinsky [1947] AC 573
Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin)
Johnstone v State of New South Wales [2010] NSWCA 70
Mackenzie v The Queen [2004] WASCA 146
McKay v Commissioner of Main Roads [2013] WASCA 135
Michaels v The Queen (1995) 184 CLR 117
Norton v The Queen [2001] WASCA 207
State of New South Wales v Delly (2007) 70 NSWLR 125
1 LE MIERE J: In the early hours of a Sunday morning the appellant and her ex-boyfriend, Kevin Gourlay, were behaving in a disorderly fashion. A number of police officers, including Senior Constable Robinson, spoke to the appellant and Mr Gourlay. During a struggle that followed the appellant bit Senior Constable Robinson and struck her to the face. The appellant was arrested and charged with three offences:
(a) behaving in a disorderly manner in a public place by using offensive language (disorderly conduct);
(b) obstructing a public officer in the performance of her functions (obstruction); and
(c) assaulting a public officer who is a police officer performing a function of her office and suffered bodily harm (serious assault).
2 The appellant pleaded guilty to the offence of disorderly conduct. After a trial in the Magistrates Court the appellant was acquitted of the offence of obstruction and convicted of the offence of serious assault. The appellant now seeks leave to appeal against her conviction for the offence of serious assault.
The facts
3 The magistrate found that the following events occurred. Senior Constable Robinson, Constable Sutton and Constable Johnson were on duty in the vicinity of the Fremantle Police Station. Senior Constable Robinson and the other officers heard the appellant and Mr Gourlay engaged in a loud and abusive argument nearby. When the police officers arrived at the location, Senior Constable Robinson, Constable Sutton and Constable Johnson spoke with the appellant and Mr Gourlay. The appellant and Mr Gourlay verbally abused the officers. Mr Gourlay was acting in a disorderly manner by yelling and swearing at the appellant. More police officers arrived at the scene. Whilst the police were discussing the situation, the appellant and Mr Gourlay walked off down the street. No attempt was made by the police to prevent them from leaving nor were they told to stop. As the appellant and Mr Gourlay walked away they continued their loud and abusive argument and Mr Gourlay struck a road sign causing a loud bang. The group of police officers ran towards the appellant and Mr Gourlay. Mr Gourlay turned and put his hands up as if he was giving up. Constables Sutton and Manfroni tackled Mr Gourlay forcibly to the ground. Constable Pracy ran towards Mr Gourlay to assist Constables Manfroni and Sutton. The appellant was standing between Constable Pracy and Mr Gourlay. The appellant extended her arms and shouted 'leave him alone'. Constable Pracy reached out to grab the appellant. The appellant pushed Constable Pracy to the chest. Constable Pracy grabbed one of the appellant's arms and Constable Johnson grabbed the other arm. Constable Pracy decided to arrest the appellant for obstruction. Senior Constable Robinson then took hold of the appellant's shoulders. The appellant was forced to the ground. When she was on the ground the appellant continued to resist the officers. The appellant bit Senior Constable Robinson on the inner thigh and struck her to the face. After the appellant had bitten and struck Senior Constable Robinson, Senior Constable Robinson informed her that she was under arrest for disorderly conduct.
Appellant acquitted of obstruction
4 The magistrate's findings in relation to the charge of obstruction were as follows. By forcibly tackling Mr Gourlay to the ground when Mr Gourlay had offered no resistance and made clear his intention to surrender, Constable Sutton was not acting in the execution of his duty and was acting unlawfully by assaulting Mr Gourlay. Constable Manfroni joined in and his actions were 'tainted by the same brush'. Constable Pracy was heading towards Mr Gourlay intending to assist Constable Sutton and Constable Manfroni. Constable Pracy was 'tainted with the same brush as Sutton'. Constable Pracy was not acting in the execution of her duty in aiding Constable Sutton. As a consequence the appellant did not obstruct Constable Pracy.
5 The magistrate therefore found the appellant not guilty on the charge of obstructing a police officer in the performance of her functions.
Appellant convicted of serious assault
6 The magistrate's findings in relation to the serious assault charge were as follows. Senior Constable Robinson intended to arrest the appellant for disorderly conduct and when she took hold of the appellant it was for that reason and not for a reason related to Constable Pracy. Therefore Senior Constable Robinson's actions were not tainted by the acts of Constable Sutton, Constable Manfroni and Constable Pracy. Senior Constable Robinson was acting in the performance of her functions. It was not significant that Constable Pracy grabbed the appellant momentarily before Senior Constable Robinson. The appellant assaulted Senior Constable Robinson and caused her bodily harm. Therefore, the appellant was guilty of the offence of assaulting Senior Constable Robinson who was performing a function of her office and suffered bodily harm.
The appeal
7 The appellant now applies to this court for leave to appeal against her conviction for serious assault. The appeal notice contains one ground of appeal:
The magistrate erred in law in finding that, at the time when the Appellant assaulted Kelly Simone Robinson, Kelly Simone Robinson was then performing a function of her office or employment.
- At the hearing of the appeal the appellant sought to amend her appeal notice by adding a further ground of appeal:
There was a miscarriage of justice insofar as the Appellant was denied procedural fairness in that the learned Magistrate determined that the Appellant's arrest was lawful on a different basis than that relied upon by the prosecution, and without notice to the defence that he might do so.
The respondent did not oppose leave to amend the grounds of appeal. The proposed amendment does not cause any prejudice to the respondent. Accordingly, at the hearing of the appeal I gave leave to amend the appeal notice by adding the further ground of appeal.
Appeal ground 1
8 The magistrate found that in grabbing Mr Gourlay and forcing him to the ground Constable Sutton was not acting in the execution of his duty. Constable Sutton was acting unlawfully, amounting to an assault upon Mr Gourlay. Constable Manfroni joined in and his actions were 'tainted by the same brush'. I take the magistrate to mean that Constable Manfroni also was acting unlawfully and not in the execution of his duty.
9 The magistrate found that when the appellant extended her arm to stop Constable Pracy, Constable Pracy was going to assist Constable Sutton in arresting Mr Gourlay. Constable Pracy was not acting in the execution of her duty because Constable Sutton's actions were unlawful. Therefore, the appellant did not obstruct Constable Pracy in the execution of her functions. The arrest of the appellant by Constable Pracy was 'tainted', that is, unlawful. Notwithstanding that finding, the magistrate found that Senior Constable Robinson had effected a separate, independent and lawful arrest.
10 The arrest by Constable Pracy was unlawful and the appellant was entitled to resist it. The appellant was also entitled to resist any police officers who assisted Constable Pracy in the arrest: see Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin). The appellant could not be in a position whereby she was entitled to resist Constable Pracy but not another officer who arrived to assist her in the arrest. The appellant could not be expected to distinguish between them; she could not distinguish between the actual arresting officer and those officers who merely assisted in that arrest. Insofar as Senior Constable Robinson went to the assistance of Constable Pracy, she was acting unlawfully and not in the execution of her duty.
11 It is submitted on behalf of the respondent that the legality of the arrest by Constable Pracy was not an essential element of the charge of serious assault against the appellant because Senior Constable Robinson was not solely assisting in the furtherance of the appellant's arrest when she was assaulted but rather was effecting a separate arrest for disorderly conduct.
12 The appellant had behaved in a disorderly manner. Senior Constable Robinson had the power to arrest the appellant for that offence. The question is whether Senior Constable Robinson effected a lawful arrest for the offence of disorderly conduct or merely joined in the unlawful arrest by Constable Pracy.
13 Part 12 of the Criminal Investigation Act 2006 (WA) specifies when a person may be arrested but does not specify how an arrest is to be effected. The common law determines how a lawful arrest must be effected. Assuming the circumstances gave rise to Senior Constable Robinson having the power to arrest the appellant for disorderly conduct, the issue is whether Senior Constable Robinson lawfully arrested the appellant. If Senior Constable Robinson did not do so then the appellant was not guilty of the offence of serious assault. That is because Senior Constable Robinson was not acting in the performance of her functions and because the arrest was unlawful and the appellant was entitled to resist Senior Constable Robinson provided she did not use excessive force in doing so.
14 In Christie v Leachinsky [1947] AC 573 Viscount Simon summarised the principles that govern a lawful arrest in the following propositions:
(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.
(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.
(4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.
(5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away (587 - 588).
- His Lordship observed that there may be exceptions to the general rule in addition to those expressly stated and the propositions are not intended to constitute a formal or complete code but to indicate the general principles of the law. Lord Du Parcq said:
The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative (598).
Lord Simonds said:
… it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful (591).
and
In all such matters a wide measure of discretion must be left to those whose duty it is to preserve the peace and bring criminal to justice. These and similar considerations lead me to the view that it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition.
…
This is I think, the fundamental principle, viz, that a man is entitled to know what, in the apt words of Lawrence LJ, are 'the facts which are said to constitute a crime on his part'. If so, it is manifestly wrong that a constable arresting him for one crime should profess to arrest him for another. Of what avail is the prescribed caution if it is directed to an imaginary crime? And how can the accused take steps to explain away a charge of which he has no inkling? (593)
it was for this reason that the House of Lords regarded it as mandatory that police officers inform a person being arrested of the reason for their apprehension, for it was only if that information was conveyed that the person could determine whether they had a duty to submit [127].
- McColl JA further stated:
While it may be accepted, as Lord Du Parcq also said (at 599), that the law 'does not encourage the subject to resist the authority of one whom he knows to be an officer of the law'; nevertheless as a general rule a person subject to an unlawful arrest is entitled to use reasonable force to free him or herself [128].
17 In my opinion, Senior Constable Robinson's conduct is so bound up with the arrest and restraint by Constable Pracy that it is not possible to say that she was acting in the course of her duty for the distinct reason that she was effecting a separate arrest for disorderly conduct, unless the circumstances made it clear to the appellant that Senior Constable Robinson was effecting an arrest for disorderly conduct rather than assisting Constable Pracy. The circumstances are to be viewed objectively.
18 As I have said, it is a condition of a lawful arrest that the person arrested is entitled to know the grounds for the arrest and to be informed of the reasons for the arrest. There are exceptions to the requirement that the arrested person be informed of the reasons for arrest. One exception is where the arrested person must have known the general nature of the offence for which the person is being arrested. Knowledge that the arrested person has committed some offence is not sufficient. It is the circumstances of the arrest that govern the issue, not the subjective knowledge of the arrested person that she has engaged in conduct that would justify arrest: State of New South Wales v Delly (2007) 70 NSWLR 125 [17] - [18] (Ipp JA). The circumstances of the arrest do not make it obvious that Senior Constable Robinson was arresting the appellant for disorderly conduct. The appellant was seized by Senior Constable Robinson immediately after she had been arrested by Constable Pracy and the appellant was resisting that arrest. The arrest by Constable Pracy followed immediately after the appellant had intervened between Constable Pracy and Mr Gourlay and had pushed Constable Pracy in the chest. It was by no means clear from the circumstances of the arrest that Senior Constable Robinson was arresting the appellant for disorderly conduct. Indeed, the suggestion that the need to state the grounds of the arrest was not engaged because they were obvious from circumstances well known to the appellant is falsified by the case presented by the prosecution. In his closing submissions the prosecutor stated that the reason that the appellant was seized and arrested was that she obstructed Constable Pracy by pushing her. The prosecution did not submit that the appellant had been arrested for disorderly conduct.
19 A further exception referred to by Viscount Simon in Christie v Leachinsky is that the person arrested cannot complain that she has not been informed of the reasons for her arrest if she herself produces the situation which makes it practically impossible to inform her, for example by immediate counter-attack or by running away. In my view that exception does not apply in this case. First, the evidence does not establish that Senior Constable Robinson could not have spoken words to the effect 'you are under arrest for disorderly conduct' before she seized the appellant. The appellant was struggling with Constables Pracy and Johnson but she was not running away and there was nothing to prevent Senior Constable Robinson informing the appellant that she was under arrest for disorderly conduct other than the circumstance of going to the aid of Constable Pracy before doing so. If Senior Constable Robinson seized the appellant to assist Constables Pracy and Johnson then she was joining in that unlawful arrest and not effecting a separate lawful arrest. Secondly, the appellant was entitled to resist Constables Pracy and Johnson because they had unlawfully arrested her and the appellant's resistance to Constables Pracy and Johnson could not justify Senior Constable Robinson not informing the appellant that she was being arrested for disorderly conduct if Senior Constable Robinson intended to effect an arrest for that reason.
20 No proper exception to the requirement that the arrested person be informed of the reasons for arrest is established by the evidence. A precondition to a valid arrest by Senior Constable Robinson was therefore absent and the arrest was not lawful.
21 In the circumstances of this case it would have been necessary for Senior Constable Robinson to inform the appellant that she was arresting the appellant for disorderly conduct. In the absence of that being communicated, a person in the position of the appellant could not know that Senior Constable Robinson was effecting an independent, lawful arrest rather than coming to the assistance of Constable Pracy in effecting an unlawful arrest.
22 The lawfulness of an arrest may fluctuate between lawful and unlawful: see Michaels v The Queen (1995) 184 CLR 117; Mackenzie v The Queen [2004] WASCA 146 [53] - [60] (Wheeler J); Norton v The Queen [2001] WASCA 207. After the appellant had been taken to the ground Senior Constable Robinson informed her that she was under arrest for disorderly conduct. At that stage the arrest may have been lawful. However, that occurred after the appellant had assaulted Senior Constable Robinson. At the time the appellant assaulted Senior Constable Robinson, Senior Constable Robinson had not effected a lawful arrest. Senior Constable Robinson was not acting in the performance of her functions at the time she was assaulted by the appellant. Ground 1 of the appeal is made out.
Appeal ground 2
23 In my opinion ground 2 is also made out. The prosecution case was never put on the basis that there were separate arrests by Constable Pracy and Senior Constable Robinson.
24 The prosecution case was opened briefly. After referring to Mr Gourlay and the appellant behaving in a disorderly manner and being spoken to by police the prosecutor said that they both turned around and walked away from the police and proceeded up the street. The prosecutor then outlined the critical events as follows:
Mr Gourlay continued behaviour that he had been engaging in earlier, that of punching walls and other objects in the vicinity, in particular a sign, and when he did that, the police ran up and attempted to arrest him. While they were taking control of him, the accused lady ran up and began interfering in that process and was also being told that she was under arrest and a short but fairly violent struggle ensued.
In the course of that struggle, the accused lady bit a police officer, Kelly Simone Robinson, on the inner thigh, hard, but not sufficiently hard to break the skin … the accused also struck Constable Robinson with her elbow to the facial area.
25 After that opening, the defence asked for the prosecution to provide further particulars. The magistrate required the prosecution to identify the police officer who was being obstructed. The prosecution stated that the obstruction was the push to Constable Pracy. The defence sought further particulars of the assault charge including 'precisely what the function of the officer that was being performed was'. In response the prosecutor stated:
This is not two separate incidents. This is one incident in which two different applications of force were made within a matter of seconds or a minute or so of the most. It is again we would say taking it to ridiculous lengths to specify and demand particularisation of this. It is an ongoing struggle with a number of police officers and this accused on the ground. That's the incident that the charge arises out of.
26 In closing the prosecutor said:
The evidence of the obstruction, which is the pushing of Constable Pracy came from Constable Pracy herself. Senior Constable Robinson and Constable Johnson – they all saw it, which is hardly surprising if they were, as I think Robinson and Johnson say … with Pracy slightly in front of them. They were just behind her, and saw her get pushed. They are all adamant that that's what happened, and that's the reason that the accused was seized and arrested.
- After referring to evidence that the appellant had obstructed Constable Pracy by stepping in front of her to prevent Constable Pracy getting to Mr Gourlay, the prosecutor said:
She clearly did push Pracy. She was immediately grabbed to prevent any further obstruction of that sort, and she immediately began a struggle.
28 Procedural fairness does not normally require a magistrate to disclose his proposed findings and give the parties an opportunity to make further submissions on them. However, procedural fairness may require a judge to hear the parties further if certain matters emerge in the judge's consideration of the case after trial which the judge regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial: McKay v Commissioner of Main Roads [2013] WASCA 135 [156] (Murphy JA). Questions of procedural fairness ultimately involve matters of degree and judgment. They are not susceptible to hard and fast rules and the forensic context in which such questions fall to be determined is relevant: McKay [158] (Murphy JA).
29 The case as found by the magistrate was, as I have said, different from that presented by the prosecution. If the appellant had notice that it might be found that Senior Constable Robinson effected an arrest independently of Constable Pracy rather than joining in the arrest by Constable Pracy, then the defence may have been conducted differently. In particular, the cross-examination of Senior Constable Robinson may have been directed to that issue. Furthermore, in closing counsel for the appellant may have sought to persuade the magistrate that Senior Constable Robinson's actions in seizing hold of the appellant were so bound up with the actions of Constable Pracy in seizing hold of the appellant that it could not be found that Senior Constable Robinson effected a separate lawful arrest and hence that Senior Constable Robinson was acting in the execution of her functions even if it was found that Constable Pracy was not.
Disposition of appeal
30 The respondent accepts that if it is found that Senior Constable Robinson was not acting within the course of her duty at the relevant time, the appellant cannot be guilty of the offence of serious assault pursuant to s 318 of the Criminal Code and a verdict of acquittal should be entered. The appellant's further submissions in relation to relief appear to concede that if the appellant is acquitted of the offence of serious assault, she may be found guilty of a lesser or alternate offence on the basis that she used excessive force in defending herself. However, s 10A and s 10B of the Criminal Code provide that a person cannot be convicted of an offence other than that charged unless the other offence is charged as an alternative, or unless a statutory alternative applies. Section 318 of the Criminal Code provides no alternative offence, and the appellant was never charged with an offence in the alternative. Accordingly, as the appeal succeeds on the basis that Senior Constable Robinson was not acting in the performance of her functions as a police officer the matter should not be ordered to be dealt with again by the Magistrates Court.
31 Leave to appeal should be granted on each ground. The appeal should be allowed, the conviction should be set aside and a verdict of acquittal should be substituted for the finding of guilty.
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