Ta (A Child) v Johnston
[2022] WASC 72
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TA (A CHILD) -v- JOHNSTON [2022] WASC 72
CORAM: CURTHOYS J
HEARD: 3 MAY 2021
DELIVERED : 3 MARCH 2022
FILE NO/S: SJA 1095 of 2020
BETWEEN: TA (A CHILD)
Appellant
AND
BEAVEN JOHNSTON
Respondent
ON APPEAL FROM:
Jurisdiction : CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE P HOGAN
File Number : CC PE 4992 of 2019
Catchwords:
Criminal law - Appeal against conviction - Assault of public officer - Whether magistrate erred in fact and law in finding police officer was performing a function of office - Whether arrest unlawful - Whether police officer tainted by unlawful arrest - Whether verdict unreasonable or unsupported by evidence - Whether magistrate had reasonable doubt about self‑defence
Legislation:
Criminal Code (WA), s 248, s 318(1)(d)
Criminal Investigation Act 2006 (WA), s 24(1)(d)
Result:
Leave to appeal granted
Appeal allowed
Verdict of acquittal entered
Category: B
Representation:
Counsel:
| Appellant | : | W C Yoo |
| Respondent | : | A L Forrester SC & H K Watson |
Solicitors:
| Appellant | : | Aboriginal Legal Service (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bentley v Brudzinski (1982) 75 Cr App R 217
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin)
Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203
Elwin v Robinson [2014] WASCA 46
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Johnson v Staskos [2015] WASCA 32; (2015) 48 WAR 349
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Re K (1993) 46 FCR 336
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27
CURTHOYS J:
Introduction
On 3 November 2019, the appellant, TA, was stopped by police whilst walking on a night out in Northbridge and placed under arrest. In the course of the appellant's arrest, she kicked a police officer. The appellant was convicted after trial in the Children's Court of assault of a public officer contrary to s 318(1)(d) of the Criminal Code (WA), disorderly behaviour in a public place contrary to s 74A(2)(a) of the Criminal Code, and failure to comply with a request by a police officer for personal details contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA).
The appellant appeals against her conviction in respect of the assault of a public officer. The appellant relies upon two grounds of appeal. First, that the learned magistrate erred in fact and law in finding that Police Constable David Hall was acting in the performance of his functions. Second, that the verdict of guilty was unreasonable and unsupported by the evidence because there was reasonable doubt that the respondent disproved self‑defence under s 248 of the Criminal Code.
The appellant sought leave to amend the particulars of the first ground of appeal. I granted the appellant leave to amend at the hearing of the appeal.
For the following reasons, I have determined that leave to appeal is granted and the appeal is allowed.
Children's Court proceedings
On 2 December 2020, the appellant was charged that on 3 November 2019, she unlawfully assaulted Constable David Hall, a public officer who was performing a function of his office, contrary to s 318(1)(d) of the Criminal Code.[1]
[1] Prosecution notice lodged 2 December 2020, charge number CC PE 4992/2019.
The prosecution case was that at about 12.50 am on Sunday 3 November 2019, a group of police officers was conducting foot patrols on James Street in Northbridge. One of the officers stopped the appellant on a suspicion that she had been street drinking. A can was found under the appellant's arm. The appellant attempted to walk away but was stopped by one of the officers. The appellant then began leaning against a parked car. Officers requested the appellant's personal details but she did not provide them. One of the officers moved the appellant away from the car and placed her under arrest. In the course of the arrest, the appellant kicked Constable Hall. The appellant was then brought to the ground by a number of officers. She was yelling and screaming.
On 15 September 2019, the appellant appeared in the Perth Children's Court and pleaded not guilty to the charge of unlawful assault of a public officer. The trial was held on 29 and 30 October 2020.
On 2 November 2020, the learned magistrate convicted the appellant of the charge. The appellant was placed on a six‑month good behaviour bond with a fine of $200 in the event of breach.
Evidence at trial
The prosecution called six witnesses at trial being Constable Hall, First Class Constable Beavan Johnston, Sergeant David Cooper, Constable Brody Hunter, Constable Jaqueline Lee and Constable Thibault Devigne. The defence did not call any witnesses.
The prosecution tendered a disc with body worn camera footage from each of the six police officers and CCTV footage from the City of Perth. Counsel for the appellant played portions of the footage during the hearing of the appeal.
I have had the benefit of viewing the footage on the disc in full. By reason of the body worn camera footage and the CCTV footage I was able to clearly see and hear the video and audio record of the events surrounding the appellant’s interaction with police. By reason of the disc footage the witnesses’ testimony at trial was of significantly lesser value than it would otherwise have been in the absence of the disc footage. It is not a case where the evidence of the witnesses provided the magistrate with an advantage in having heard and seen the witnesses.
I will summarise each witnesses' testimony at trial. All witnesses, with the exception of Sergeant Cooper, were taken to their body worn camera footage during the course of their evidence.
Constable David Hall
Constable Hall gave evidence that at about 12.55 am on 3 November 2019 he was on James Street in Northbridge with First Class Constable Johnston, Sergeant Cooper, Senior Constable Christopher James, Constable Hunter, Constable Devigne and Constable Lee.[2] Constable Hunter approached the appellant who he said was drinking alcohol. Constable Hall did not see the appellant drinking alcohol at the time. Constable Hall accompanied Constable Hunter shortly after he approached the appellant. Constable Hunter asked the appellant to hand over the open can of alcohol under her arm but the appellant denied having it.[3]
[2] Trial ts 14 (29/10/2020).
[3] Trial ts 16 (29/10/2020).
Constable Hall stated that the appellant began walking in an easterly direction down James Street. First Class Constable Johnston walked in front of the appellant to stop her walking further. When he stopped her, Constable Lee removed the can from under the appellant's arm.[4] At this point, Constable Hall asked the appellant to provide some identification. The appellant said that she did not have identification on her. Constable Hall also asked the appellant for her name but the appellant refused to provide it.[5] Constable Hall stated in evidence that the purpose of asking for this information was to issue the appellant a move on order. He recalled that First Class Constable Johnston then asked the appellant for her name and address but that the appellant again refused to provide the information.[6]
[4] Trial ts 16 (29/10/2020).
[5] Trial ts 16 - 17 (29/10/2020).
[6] Trial ts 17 (29/10/2020).
Constable Hall stated that the appellant was leaning against a parked car whilst he and Constable Johnston were speaking with her. First Class Constable Johnston asked the appellant to get off the car. This request is the extent to which Constable Hall could recall the conversation between First Class Constable Johnston and the appellant.[7] First Class Constable Johnston then guided the appellant off the car without a great deal of force. He again asked the appellant for her details. The appellant refused to provide them.[8]
[7] Trial ts 17 (29/10/2020).
[8] Trial ts 18 (29/10/2020).
At this point, Constable Hall said to the appellant that she had been given enough opportunities.[9] First Class Constable Johnston approached the appellant while Constable Hunter and Constable Devigne held each of her arms from behind. First Class Constable Johnston handcuffed the appellant with her hands behind her back.[10] Constable Hall was standing about one to two metres to the left side of the appellant.[11] As the appellant was handcuffed by First Class Constable Johnston, she kicked Constable Hall in the groin area.[12] Constable Hall felt pain in his penis and testicles.[13] The appellant was swearing and yelling aggressively. Constable Devigne, Constable Hunter and First Class Constable Johnston then brought the appellant to the ground. The appellant continued to swear and yell.[14]
[9] Trial ts 19 - 20 (29/10/2020).
[10] Trial ts 20 (29/10/2020).
[11] Trial ts 20 - 21 (29/10/2020).
[12] Trial ts 21 (29/10/2020).
[13] Trial ts 21 (29/10/2020).
[14] Trial ts 21 - 22 (29/10/2020).
In cross-examination, Constable Hall agreed that there were about six police officers standing around the appellant when officers first encountered her.[15] He stated that the appellant did not appear to be overly intoxicated.[16] He agreed that there was a conversation between the appellant and First Class Constable Johnston.[17]
[15] Trial ts 39 (29/10/2020).
[16] Trial ts 45 (29/10/2020).
[17] Trial ts 48 (29/10/2020).
It was put to Constable Hall that First Class Constable Johnston pushed the appellant away from the car. Constable Hall disagreed with that proposition and said that First Class Constable Johnston guided the appellant away from the car. He stated that he did not know how many times that First Class Constable Johnston touched the appellant. The appellant was not under arrest at this point.[18]
[18] Trial ts 49 (29/10/2020).
Constable Hall confirmed that when First Class Constable Johnston moved the appellant away from the car, Constable Hall stood nearby with five or six other officers. Constable Hall was questioned as to whether he should have stopped the conduct of First Class Constable Johnston. Constable Hall stated that it would not have been appropriate to do so because First Class Constable Johnston was trying to get the appellant away from a vehicle that the officers did not believe was hers.[19] Constable Hall confirmed that there was no arrest or detainment of the appellant for any offence related to the vehicle.[20]
[19] Trial ts 51 (29/10/2020).
[20] Trial ts 51 - 52 (29/10/2020).
With respect to the arrest, Constable Hall agreed that he only told the appellant that she had been given enough opportunities once First Class Constable Johnston moved to handcuff the appellant.[21]
First Class Constable Beavan Johnston
[21] Trial ts 55 (29/10/2020).
First Class Constable Johnston gave evidence that at about 12.53 am on 3 November 2019 he was on James Street with Sergeant Cooper, Senior Constable James, Constable Hunter, Constable Lee, Constable Hall and Constable Devigne.[22] First Class Constable Johnston was standing back with Sergeant Cooper when Constable Hunter, Constable Lee, Constable Hall and Constable Devigne first approached the appellant.[23]
[22] Trial ts 59 - 60 (29/10/2020).
[23] Trial ts 60 (29/10/2020).
First Class Constable Johnston stated that when the appellant began to walk away from the officers towards William Street, he blocked her path and prevented her from leaving the area. He did so because the appellant did not provide her details as required. At this point, he activated his body worn camera. The appellant was leaning against the car. First Class Constable Johnston stated that he then asked the appellant for her details because he suspected her of committing an offence under the Liquor Control Act 1988 (WA).[24] He stated that the appellant then began swearing and said something to the effect of 'I don't give a fuck about you'. He advised the appellant to watch her language. The appellant responded by saying words to the effect of 'I don't give a fuck'. First Class Constable Johnston said 'Well, you should do, because I would lock you up'.[25] He again requested the appellant's details.[26]
[24] Trial ts 61 (29/10/2020).
[25] Trial ts 61 (29/10/2020).
[26] Trial ts 61 - 62 (29/10/2020).
First Class Constable Johnston stated that he then asked the appellant to jump off the car she was leaning against because he was concerned that the appellant might damage the vehicle. When the appellant did not move, First Class Constable Johnston placed his arm behind her and physically moved her off the car.[27] He stated that he did not use a great amount of force. As the appellant resisted First Class Constable Johnston, he progressively applied more force. First Class Constable Johnston bumped the appellant when he took hold of her hands and moved her about two metres away from the car. At this point, the appellant was yelling and swearing saying 'Get your hands off me' and 'Stop touching me'.[28]
[27] Trial ts 62 (29/10/2020).
[28] Trial ts 63 (29/10/2020).
First Class Constable Johnston stated that when the appellant again refused to provide her details, he placed her under arrest. He stated that the appellant became aggressive and belligerent in the course of the arrest. Constable Hunter was holding the appellant's right side.[29] First Class Constable Johnston did not see the appellant kick. He stated that it was either Constable Hunter or Constable Devigne that brought the appellant to the ground.[30]
[29] Trial ts 63 (29/10/2020).
[30] Trial ts 64 (29/10/2020).
In cross-examination, First Class Constable Johnston agreed that when the appellant was against the car there were five or six police officers around the periphery blocking the appellant.[31] The appellant's arms were crossed against her body, her hand was up towards her face and she was fidgeting with her ear.[32] First Class Constable Johnston nominated the appellant as saying 'if I [see] you on the streets I would make [you] cunts piss so you make cunts of yourselves'. First Class Constable Johnston agrees that he responded 'Well, I'm on the street now. Have a go'.[33] At the time of the appellant's arrest, First Class Constable Johnston confirmed that there were seven police officers surrounding her. The officers had firearms, tasers, oleoresin capsicum (OC) spray and possibly batons.[34]
[31] Trial ts 75 (29/10/2020).
[32] Trial ts 100 (29/10/2020).
[33] Trial ts 77 (29/10/2020).
[34] Trial ts 99 (29/10/2020).
First Class Constable Johnston was asked whether the appellant was angry about the fact that he would not let her leave. He admitted that she may have been upset.[35] He asserted that his power to use force came from the citizen's power to prevent an offence under s 24 of the Criminal Investigation Act 2006 (WA).[36] He confirmed that he placed his hands on the appellant seven times but denied that the appellant was backing away from him.[37] He stated that the appellant was pushing her way back towards the car.[38] He agreed that his two‑hand push may have caused the appellant to connect with a bin.[39] He agreed that the appellant was remonstrating against his use of force.[40] However, First Class Constable Johnston denied that his force far exceeded anything reasonable in the circumstances.[41]
[35] Trial ts 93 (29/10/2020).
[36] Trial ts 90 - 91 (29/10/2020).
[37] Trial ts 90 (29/10/2020).
[38] Trial ts 89 (29/10/2020).
[39] Trial ts 90 (29/10/2020).
[40] Trial ts 91, 94 (29/10/2020).
[41] Trial ts 106 (29/10/2020).
First Class Constable Johnston confirmed that the reason for the appellant's arrest was the failure to provide her details.[42] He stated that the appellant's threats to assault police and his concern for the officers' safety necessitated placing the appellant in handcuffs.[43] He agreed that the appellant only struck out once the handcuffs were applied and that up until that point, the appellant had not been violent.[44] He nominated himself as placing a knee on the appellant's back as she lay on the ground.[45]
Sergeant David Cooper
[42] Trial ts 92 (29/10/2020).
[43] Trial ts 92, 99 (29/10/2020).
[44] Trial ts 100 (29/10/2020).
[45] Trial ts 105 (29/10/2020).
Sergeant Cooper gave evidence that at about 12.55 am on 3 November 2019 he was on James Street with First Class Constable Johnston, Constable Hunter, Constable Lee, Constable Hall and Constable Devigne.[46] He confirmed that when the appellant attempted to walk away from Constable Hunter, she was stopped by First Class Constable Johnston. He stated that the appellant leaned against the car and that First Class Constable Johnston requested the appellant's name about three times.[47] He confirmed that once the appellant was standing away from the car, First Class Constable Johnston requested the appellant's name a final time before placing her under arrest. Sergeant Cooper assisted with the arrest by restraining the appellant. As the appellant was restrained, Sergeant Cooper saw her kick Constable Hall in the groin area. At this point, the appellant was taken to the ground.[48] Sergeant Cooper checked that the appellant's handcuffs were not too tight.[49]
[46] Trial ts 110 (29/10/2020).
[47] Trial ts 113 (29/10/2020).
[48] Trial ts 115 (29/10/2020).
[49] Trial ts 116 (29/10/2020).
In cross-examination, Sergeant Cooper agreed that there were five or six police officers standing in front of the appellant in a semicircle while she was leaning against the car.[50] It was put to Sergeant Cooper that First Class Constable Johnston's verbal interactions with the appellant were aggressive and inflamed the situation. He disagreed with this proposition but acknowledged that it was not the best choice of words.[51] He accepted that the appellant demonstrated closed body language. It was put to Sergeant Cooper that the appellant's behaviour at that point was not aggressive. He disagreed and asserted that the appellant's statement to police that she would 'make them piss' was a little aggressive. However, he conceded that the appellant was not physically aggressive.[52]
[50] Trial ts 120 (29/10/2020).
[51] Trial ts 126 (29/10/2020).
[52] Trial ts 127 (29/10/2020).
Sergeant Cooper agreed that the appellant was remonstrating against First Class Constable Johnston's use of force in moving her away from the car.[53] He accepted that First Class Constable Johnston placed his hand on the appellant's back up to seven times despite her not being physically aggressive.[54] He confirmed that it was First Class Constable Johnston's decision to arrest the appellant but subsequently stated that he could not recall.[55] Sergeant Cooper stated that First Class Constable Johnston advised the appellant that she was under arrest and accepts that he may also have spoken those words.[56] He accepted that at that point there were six or seven police officers surrounding the appellant each armed with firearms, tasers, batons and OC spray.[57]
Constable Brody Hunter
[53] Trial ts 125 (29/10/2020).
[54] Trial ts 128 (29/10/2020).
[55] Trial ts 129 - 130 (29/10/2020).
[56] Trial ts 129 (29/10/2020).
[57] Trial ts 131 (29/10/2020).
Constable Hunter gave evidence that at about 12.55 am on 3 November 2019 he was on James Street with all six other officers.[58] He confirmed that he was the first to approach the appellant on a suspicion that she was drinking alcohol.[59] He stated that when the appellant attempted to walk away, she was stopped by Constable Hall and First Class Constable Johnston manoeuvring their bodies in front of her.[60] Constable Hunter was a few metres back when Constable Hall and First Class Constable Johnston spoke with the appellant. He confirmed that the appellant was asked for her details and asked to move away from the car. He stated that First Class Constable Johnston attempted to move the appellant by placing his hand in the middle of her back. The appellant appeared to be pushing back against his hand.[61]
[58] Trial ts 3 (30/10/2020).
[59] Trial ts 4 - 6 (30/10/2020).
[60] Trial ts 8 - 9 (30/10/2020).
[61] Trial ts 9 (30/10/2020).
Constable Hunter believes that it was Sergeant Cooper who told the appellant that she was under arrest. At that point, Constable Hunter grabbed the appellant's right arm while First Class Constable Johnston grabbed the appellant's left arm. The two officers were attempting to place the appellant in handcuffs when Constable Hunter saw her kick Constable Hall.[62]
[62] Trial ts 10 (30/10/2020).
In cross-examination, Constable Hunter agreed that when First Class Constable stopped the appellant, police officers in effect formed a semicircle in front of her.[63] He accepted that at the time of the appellant's arrest, there were a number of officers standing around her.[64] Consistent with the evidence of Constable Hall, Constable Hunter said that First Class Constable Johnston guided rather than pushed the appellant away from the car.[65] Constable Hunter agreed that all the officers were armed.[66] He nominated himself as one of the officers who assisted in restraining the appellant on the ground.[67]
Constable Jacqueline Lee
[63] Trial ts 51 (30/10/2020).
[64] Trial ts 61 (30/10/2020).
[65] Trial ts 53 (30/10/2020).
[66] Trial ts 56 (30/10/2020).
[67] Trial ts 61 (30/10/2020).
Constable Lee gave evidence that at about 12.52 am on 3 November 2019 she was on James Street with all six other officers.[68] Constable Hunter called Constable Lee to search the appellant for alcohol.[69] Constable Lee stated that she gave the appellant her search rights. As she did so, the appellant began walking down William Street. Constable Lee then noticed the can under the appellant's arm and so reached forward and pulled it out.[70] She handed the can to Constable Hunter. Constable Lee confirmed that First Class Constable Johnston stopped the appellant by standing in front of her.[71] She stated that First Class Constable Johnston guided the appellant with just enough force to get her off the car.[72] She nominated First Class Constable Johnston as the officer who placed the appellant in handcuffs.[73] As he did so, Constable Lee saw the appellant kick Constable Hunter.[74] She stated that the appellant was swearing prior to her arrest but only began screaming loudly after her arrest. The appellant repeatedly screamed 'Don't touch me' as she was restrained.[75]
[68] Trial ts 65 (30/10/2020).
[69] Trial ts 67 (30/10/2020).
[70] Trial ts 68 (30/10/2020).
[71] Trial ts 69 (30/10/2020).
[72] Trial ts 72 (30/10/2020).
[73] Trial ts 69 (30/10/2020).
[74] Trial ts 69 - 70 (30/10/2020).
[75] Trial ts 70 (30/10/2020).
In cross-examination, Constable Lee confirmed that Constable Hunter said words to the effect that he suspected that the appellant had alcohol on her.[76] Constable Lee denied that she remained silent and did not administer the search rights when she came over to search the appellant. She accepted that she had not finished administering the rights when she grabbed the can from the appellant.[77] Constable Lee agreed that she was one of the police officers forming a semicircle around the appellant while she was leaning against the car. She stated that her intention in doing so was to stop the appellant from leaving. Constable Lee did not assist in the arrest but was on the perimeter as the arrest occurred.[78]
Constable Thibault Devigne
[76] Trial ts 75 (30/10/2020).
[77] Trial ts 76 (30/10/2020).
[78] Trial ts 83 (30/10/2020).
Constable Devigne gave evidence that at about 12.55 am on 3 November 2019 he was on James Street with First Class Constable Johnston, Sergeant Cooper, Constable Hunter, Constable Lee and Constable Hall.[79] Constable Devigne saw Constable Lee grab the can from under the appellant's arm. He stated that First Class Constable Johnston stopped the appellant and asked for her details multiple times. Constable Hall asked for the appellant's details once or twice.[80] Constable Devigne stated that Sergeant Cooper placed the appellant under arrest. He thinks that it was First Class Constable Johnston and Constable Hunter who placed the handcuffs on the appellant. Constable Devigne was standing beside Constable Hall when Constable Hall was kicked by the appellant. Constable Devigne assisted Constable Johnston and Constable Hunter in bringing the appellant to the ground by placing both of his hands on the appellant's shoulder.[81]
[79] Trial ts 87 (30/10/2020).
[80] Trial ts 90 (30/10/2020).
[81] Trial ts 92 (30/10/2020).
In cross-examination, Constable Devigne stated that he could not recall whether Constable Lee said anything to the appellant.[82] He agreed that police officers followed the appellant down the street to stop her from leaving.[83] He was present when First Class Constable Johnston had a conversation with the appellant.[84] He stated that at that point there were six officers in the vicinity of the appellant, all of whom were armed.[85] He stated that First Class Constable Johnston gave the appellant a gentle push away from the car.[86] Constable Devigne could not recall whether there were seven pushes nor whether the appellant was pushed into a bin.[87] He saw First Class Constable Johnston place handcuffs on the appellant and heard Sergeant Cooper say that she was under arrest.[88] Constable Devigne assisted in bringing the appellant to the ground.[89]
[82] Trial ts 102 (30/10/2020).
[83] Trial ts 102 - 103 (30/10/2020).
[84] Trial ts 105 (30/10/2020).
[85] Trial ts 115 (30/10/2020).
[86] Trial ts 91 (30/10/2020).
[87] Trial ts 106 (30/10/2020).
[88] Trial ts 112 (30/10/2020).
[89] Trial ts 113 (30/10/2020).
The magistrate's decision
The magistrate delivered his decision on 2 November 2020. His Honour found that First Class Constable Johnston had a 'reasonable suspicion' that the appellant had been street drinking when he stopped the appellant.[90] He made the following findings about the subsequent interaction between the appellant and First Class Constable Johnston:[91]
He took up a position of detaining as well by … standing in the direction of travel. There then was a spoken altercation following that between Mr Johnston and the accused. The accused came, started to use bad language.
He told her to watch her language ... She said, 'I don't give a fuck.' He said, 'I will lock you up.' She said, 'I don't give a fuck.' He asked her again for her details. That request for details came from the Criminal Investigation (Identifying People) Act, section 16(6). As I said earlier on, it depended on the officer reasonably suspecting [section] 16, subsection (2), the offence in question being street drinking, and the reasonableness of the request for details is established.
Details were refused by way of not saying what they were and, in fact, arguing with Constable Johnston. He asked for details again, he said, and she refused again. The argument included the accused, according to [Sergeant] Cooper, saying, 'I will make you piss', which is, in the vernacular, a threat from the accused to assault Constable Johnston. Constable Johnston said something to the effect of, 'Go on then, have a go.' That, in my finding, was not a threat by Constable Johnston to engage in a physical fight with the accused.
The accused was making threats to police generally and to Constable Johnston, 'I will make you piss.' He said, 'Go on then on the street now, have a go', at just simply establishing presence of a characterisation. He wasn't threatening her. [Sergeant] Cooper heard that exchange and said, in cross-examination, it wasn't aggressive. The worst thing to say … Sergeant Cooper said. The worst thing to say, but it wasn't aggressive. It didn't inflame the situation, said Sergeant Cooper.
Whilst that exchange was going on between Constable Johnston and the accused Constable Johnston again asked for her name and address, which is a legitimate request based on his reasonable suspicion.
[90] Trial ts 7, 8 (2/11/2020).
[91] Trial ts 8 (2/11/2020).
His Honour found that in moving the appellant away from the car, First Class Constable Johnston touched the appellant seven times.[92] In electing to move the appellant:[93]
he certainly had in his own mind his power under section 24 of the Criminal Investigation Act to prevent the commission of an offence. There may have been a damage offence, he said. He was challenged on that factually and has pointed out the clothing. In other words, the only damage offence that could have been done, I suppose, was scratching the car, because she was just leaning against the car with her lower back and wasn't leaning on the aerial or anything, but he said he reasonably suspected she might have scratched the car, which is an offence.
…
Constable Johnston said he used enough force to move her. She was still not under arrest at that stage. He placed hands on her, he said in cross-examination. [Sergeant] Cooper saw that ... He said the accused was resisting by pushing back against the hand force of Mr Constable Johnston … Constable Hall described it as 'not a great deal of force'; 'guided her', in cross-examination said Constable Hunter; 'a gentle push', said Mr Devigne.
All of the witnesses, in oral evidence, described, gave their versions of the degree of force and, indeed, I can see it plain as day on the body‑worn cameras. That's why we've got body-worn cameras. That degree of force applied here was entirely reasonable in the circumstances because the accused was resisting the force by backing away … [T]hat was the time at the sequence of events that night that really fired the accused up. That's what got her upset, being touched, because you can hear her say, 'Don't touch me. Don't touch me. Don't touch me.' I understand that.
It doesn't affect, though, the degree of force, the reasonableness of the degree of force applied by Mr Johnston. It was a reasonable force, in my finding, to achieve his object, namely, moving her off the car.
[92] Trial ts 10 (2/11/2020).
[93] Trial ts 10 - 11 (2/11/2020).
In respect to the degree of force in placing the handcuffs on the appellant, the magistrate said:[94]
I find that the degree of force used by ‑ arising out of using handcuffs was not excessive …
It was a reasonable method of arrest bearing in mind the accused's language and threats earlier on about, 'I will make you piss', and there were people about, and the accused's agitated state and swearing. It was … a reasonable thing to do to handcuff her. The force used by actually handcuffing was reasonable. The accused was then taken to the ground as part of the arrest, but that was after she had kicked Constable Hall.
[94] Trial ts 11 (2/11/2020).
The magistrate further remarked on the role played by Constable Hall at the time of the appellant's arrest:[95]
Constable Hall was one of the group of seven officers, perhaps further away from the accused, according to the body-worn camera, than the other officers, and he spoke words to her. He said, 'You've had your opportunity' … Those were the words that he spoke to her. 'You've had your opportunity.' Saying that, Constable Hall said in his evidence here, he was not making the arrest. It is, of course, trite law that there is no requirement to tell someone at the time.
Constable Hall was … explaining to the accused what was happening around her, what was happening to her. The other officers who were doing the physical part of the arrest, namely, Johnston, did say in cross‑examination that he had said, 'Right, that's it. We've given you an opportunity.'
…
And from all of those facts I do not find that Constable Hall's actions were indissolubly linked ‑ actions by words and position were indissolubly linked to the actions of Constables Johnston, Cooper and Hunter. In short, Constable Hall did not arrest the accused. He was not involved in the arrest of the accused. From all of the evidence I do find that Constable Hall was at the time and place acting in the execution ‑ performing a function of his office by being a policeman on the streets of Northbridge.
…
For the sake of clarity I repeat that Constable Hall was performing a function of his office by patrolling the streets of Northbridge. If I be wrong on that, the arrest carried out by Constable Johnston, assisted by Cooper and Hunter, was not tainted by excessive force, and for those reasons then I find each charge proved.
[95] Trial ts 9, 12 (2/11/2020).
Grounds of appeal
On 30 November 2020, the appellant lodged a notice of appeal against conviction on the following two grounds:[96]
[96] Appeal notice dated 30 November 2020 as amended in accordance with para [4] of the appellant's outline of submissions dated 5 March 2021 (Appellant's Submissions).
1.The learned Magistrate erred in fact and law in finding that Police Constable Hall was acting in the performance of his functions for the purposes of assault of a public officer CC PE 4992/19 when he was assaulted by the appellant:
Particulars
a)The arrest of the appellant by First Class Constable Johnston was unlawful and the Appellant was entitled to resist it;
b)First Class Constable Johnston's arrest was unlawful because it was preceded by an unlawful common assault on the Appellant when he moved her away from a car without a lawful basis;
c)First Class Constable Johnston's moving the appellant away from the car was unlawful because there was no reasonable suspicion that an offence of damage needed to be prevented under the Criminal Investigation Act 2006 (WA) nor was it needed to prevent an offence which clearly did not need to be prevented;
d)If First Class Constable Johnston did not have a reasonable suspicion under the Criminal Investigation Act 2006 (WA) nor could he not exercise force under Criminal Investigation Act 2006 (WA) s 24(1)(d) because there was no offence that needed to be prevented therefore the appellant was unlawfully assaulted;
e)The unlawful arrest effected by First Class Constable Johnston as well as the unlawful assault tainted Police Constable Hall because he was involved in and connected to the unlawful arrest and assault because he saw and heard the unlawful arrest at a close distance (Exhibit A, disc of Body Worn Camera of Police Constable Hall at 1.38 ‑ 2.24); and
f)Police Constable Hall was tainted and not acting in the performance of his office.
2.The verdict of guilty on assault of a public officer CC PE 4992/19 was unreasonable and unsupported by the evidence:
Particulars
a)There were seven touches or seven moves on a young female (i.e. the appellant) who was effectively surrounded by seven police officers (ts 5 and 10 on 2 November 2020) that preceded the Appellant's kick;
b)The first unlawful 'harmful act' was First Class Constable Johnston's attempt to detain the appellant because there was no power to do so;
c)The second and subsequent unlawful 'harmful acts' were First Class Constable Johnston's touching of the appellant to get her away from the car and then the multiple moves away after;
d)The unlawful harmful act done by the appellant was then done in self-defence under Criminal Code1913 (WA) s 248; and
e)The magistrate must have entertained a doubt about the appellant's guilt.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required for each ground of appeal.[97]
[97] Criminal Appeals Act 2004 (WA) s 9(1).
Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of success.[98] A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum.[99]
[98] Criminal Appeals Act 2004 (WA) s 9(2).
[99] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Merits of the appeal
Ground 1
By ground 1 the appellant contends that the learned magistrate erred in fact and law in finding that Constable Hall was acting in the performance of his functions for the purposes of assault of a public officer when he was assaulted by the appellant.
In support of this ground the appellant asserts that First Class Constable Johnston unlawfully arrested and unlawfully assaulted the appellant and that Constable Hall was tainted by First Class Constable Johnston's conduct because he was intimately connected with the arrest and assault. It is for this reason that the appellant submits that Constable Hall was not acting in the performance of his functions as a public officer.
The respondent accepted the following in relation to ground 1:[100]
(1)the evidence led at trial was not capable of proving, beyond reasonable doubt, that the force used by First Class Constable Johnston in moving the appellant from the car was reasonably necessary to prevent her from damaging the car. Accordingly, the evidence was incapable of proving beyond reasonable doubt that the force used was lawful;
(2)the subsequent arrest of the appellant by First Class Constable Johnston and assistance by officers Cooper and Hunter was so inextricably linked to the conduct of First Class Constable Johnston and others immediately before the arrest that the evidence was not capable of proving, beyond reasonable doubt, that the arrest was lawful;
(3)Constable Hall generally observed the conduct described above in (1), moved forward towards the appellant as she was about to be arrested with the intention of assisting the arrest, and spoke words to the appellant with the intention of assisting the arrest; and
(4)Constable Hall's conduct was so bound up in the previous conduct of First Class Constable Johnston that it was tainted. The evidence was therefore incapable of proving beyond reasonable doubt that Constable Hall was acting in the performance of his office when he was assaulted, and an element of the offence was not proved.
[100] Respondent's outline of submissions dated 15 April 2021 [5] (Respondent's Submissions).
Ground 1 of the appeal was therefore conceded by the respondent. I am satisfied that the respondent's concession is properly made for the following reasons.
To establish the offence of assault of a public officer under s 318(1)(d) of the Criminal Code the officer must have been 'performing a function of his office or employment or on account of his being such an officer or his performance of such a function'. Section 5 of the Interpretation Act 1984 (WA) defines 'function' inclusively as 'powers, duties, responsibilities, authorities, and jurisdictions'. By s 7(1) of the Police Act 1892 (WA), police officers may be appointed 'for preservation of peace and order'. Section 10 of the Police Act further provides that officers shall subscribe to an engagement to keep peace, prevent offences and discharge to the best of their skill and knowledge all their duties faithfully according to law.
An unlawful act takes an officer outside the ambit of their general and specific duties.[101] An unlawful arrest or an unlawful assault by an officer prior to an arrest are examples of unlawful conduct.[102] An officer who does not personally carry out an unlawful arrest but nevertheless assists may be tainted by the unlawful conduct of another officer and is therefore not acting in the course of their duty. For the assistance to 'taint' the officer they must have some actual or intended involvement, whether by aiding or otherwise, in the unlawful conduct with the knowledge thereof. However, knowledge of the circumstances that render the conduct unlawful is not always required.[103]
[101] Re K (1993) 46 FCR 336, 340 - 341.
[102] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 [118]; Bentley v Brudzinski (1982) 75 Cr App R 217.
[103] Johnson v Staskos [2015] WASCA 32; (2015) 48 WAR 349 [29] (McClure P); see also Cumberbatch [20] (Lloyd Jones J).
In Cumberbatch v The Crown Prosecution Service,[104] the conduct of Constable Richardson in restraining the appellant was found to be so bound up in an earlier unlawful arrest by other officers that Constable Richardson's conduct was tainted and she was therefore not acting in the course of her duty when she was assaulted. It did not matter that Constable Richardson's conduct had not been solely to assist the other officers but also to address the appellant's risk of breaching the peace.[105]
[104] Cumberbatch v The Crown Prosecution Service [2009] EWHC 3353 (Admin).
[105] Cumberbatch [34] (Lloyd Jones J).
Where, however, a police officer is performing an entirely separate function to an officer who is acting unlawfully, the former officer would be performing a function of their office and not be tainted by the unlawful conduct. In Johnson v Staskos,[106] Senior Constable Robinson did not see and was not involved in the unlawful arrest. The Court of Appeal held that her decision to arrest the respondent for the separate offence of disorderly behaviour occurred prior to the unlawful and unseen conduct of the other officers.[107]
[106] Johnson v Staskos [2015] WASCA 32; (2015) 48 WAR 349.
[107] Johnson v Staskos [249].
The magistrate found that First Class Constable Johnston reasonably suspected that the appellant was committing the offence of street drinking when he stopped her and that police lawfully requested her details as a result.[108] This finding was valid. Under s 16(2) of the Criminal Investigation (Identifying People) Act:
If an officer reasonably suspects that a person whose personal details are unknown to the officer -
(a)has committed or is committing or is about to commit an offence;
…
the officer may request the person to give the officer any or all of the person's personal details.
[108] Trial ts 7 (2/11/2020).
Section 14 of the Criminal Investigation (Identifying People) Act provides for the power to use force in exercising the power to request details:
When exercising a power in this Act, a person may use any force that is reasonably necessary 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.
However, First Class Constable Johnston gave evidence that he used force against the appellant to prevent damage to the vehicle under s 24(1)(d) of the Criminal Investigation Act.[109] Further, First Class Constable Johnston first applied force in attempting to move the appellant away from the car rather than in relation to the request for details. The use of force can therefore not be said to have been used for the purpose of requesting details under s 14 of Criminal Investigation (Identifying People) Act.
[109] Trial ts 84 - 86 (29/10/2020).
Section 24(1)(d) of the Criminal Investigation Act provides that any citizen 'may use force that is reasonably necessary in the circumstances to prevent … the commission of an offence'. A police officer may lawfully exercise a citizen's power to use force.[110] However, it is arguable that in relying on a non-police power, First Class Constable Johnston was not performing a function of his office.
[110] Criminal Investigation Act 2006 (WA) s 8.
What force is 'reasonably necessary' to effect an arrest is a question of proportionality. In Elwin v Robinson,[111] Mazza JA discussed the meaning of the phrase 'reasonably necessary' as it appears in s 231 of the Criminal Code. That section relates to the use of force in executing a sentence, process or warrant or in making an arrest. The following considerations can be deduced from his Honour's reasoning:
(1)what is reasonably necessary involves an objective evaluation of all the surrounding circumstances;
(2)an arrest is not only a step in bringing an alleged offender to justice but also part of the police officer's general duty to preserve order (including to keep peace, prevent the commission of an offence and protect the safety of others);
(3)arrests occur in situations of sudden violence and mayhem in such circumstances that police cannot stand back and consider fine judgments about what force is necessary. Therefore, police officers have discretion to act quickly and decisively;
(4)however, police officers are accountable and cannot act with impunity when arresting people in public disturbances;
(5)acknowledging the difficulties that police officers face, a police officer's actions are measured against what is reasonably necessary in all the circumstances of the particular case.
[111] Elwin v Robinson [2014] WASCA 46 [61] - [63].
I recognise that these considerations are not directly applicable to the citizen's use of force under s 24(1)(d) of the Criminal Investigation Act. However, they are relevant to the extent that they provide a sense of what constitutes reasonably necessary force for the purposes of s 24(1)(d) of the Criminal Investigation Act.
The magistrate concluded that the force used under s 24(1)(d) of the Criminal Investigation Act was reasonably necessary.[112] The appellant submits that this finding is an error of law because there was no evidence that an offence needed to be prevented.[113] I accept the appellant's submission. The body worn camera footage and CCTV footage do not provide any indication that the appellant was about to damage the car; she was merely leaning against it. There is no evidence that the appellant was behaving in a disorderly or reckless manner such that she could damage to the car.
[112] Trial ts 10 - 11 (2/11/2020).
[113] Appellant's Submissions [53] - [56].
Further, and in any event, the force used by First Class Constable Johnston exceeded what was reasonably necessary in the circumstances. There was no reason for First Class Constable to push the appellant off the car on a suspicion that it was going to be unlawfully damaged. There was no sudden violence or mayhem presented by the appellant as she leant against the car. Although one might conclude that the appellant briefly resisted First Class Constable Johnston's use of force, there was a point at which the appellant stopped resisting and held her hands up in protest of being touched. At that point, First Class Constable Johnston continued to push the appellant, using two hands to push the appellant backwards towards the bin. The number and the force of pushes was clearly disproportionate.
First Class Constable Johnston therefore did not have a lawful power to continually apply force to the appellant in the manner that he did. By engaging in unlawful conduct, he was acting outside the function of his office. The assault on the appellant could not be proved to be lawful beyond reasonable doubt.
The arrest of the appellant was so inextricably linked to the conduct of First Class Constable Johnston and the other officers immediately before the arrest that the evidence was not capable of proving, beyond reasonable doubt, that the arrest was lawful.
The magistrate concluded that even if the arrest was unlawful, Constable Hall was not tainted by that conduct.[114] The magistrate found that Constable Hall was not standing close to the appellant and was not involved in the arrest. His words 'You've had your opportunity' were not said in making the arrest.[115] The magistrate determined that Constable Hall was 'performing a function of his office by being a policeman on the streets of Northbridge'.[116]
[114] Trial ts 9, 12 (2/11/2020).
[115] Trial ts 9 (2/11/2020).
[116] Trial ts 9 - 10 (2/11/2020).
The oral evidence of Constable Hall, the body worn camera footage and the CCTV footage do not support the magistrate's findings. Constable Hall was standing close to the appellant and First Class Constable Johnston in the moments preceding the appellant's arrest. He knew that First Class Constable Johnston had asked the appellant for her name and address and to get off the car. Constable Hall also asked the appellant for her name.[117] Although Constable Hall did not know how many times First Class Constable Johnston touched the appellant, he saw him repeatedly touch the appellant in moving her away from the car.[118] Constable Hall chose not to interfere.[119] His body worn camera footage suggests that he would have heard the appellant protesting the use of force.
[117] Trial ts 17 (29/10/2020).
[118] Trial ts 17 - 18, 49 - 51 (29/10/2020).
[119] Trial ts 51 (29/10/2020).
When First Class Constable Johnston moved to handcuff the appellant, Constable Hall stepped toward the appellant and said 'Right that's it. We've given you enough opportunities'.[120] He said these words with the intention of assisting First Class Constable Johnston to arrest the appellant for failing to give her details.[121] Constable Hall was close enough to have been kicked by the appellant during the course of the arrest. While he then backed away from the appellant, he saw and heard the arrest at a close distance.
[120] Trial ts 52 (29/10/2019).
[121] Trial ts 52 - 53, 54 - 55 (29/10/2020).
Constable Hall's involvement in the arrest is similar in character to Constable Richardson's conduct in Cumberbatch. Constable Hall's conduct was so bound up in the conduct of First Class Constable Johnston that he was tainted with the latter's conduct. Even if he was acting in good faith or unaware that First Class Constable Johnston's conduct was unlawful, Constable Hall was not acting in the performance of his office when he was kicked by the appellant.
I am satisfied that the magistrate erred in fact and law in finding that Constable Hall was not tainted by First Class Constable's conduct. Leave to appeal is granted and the ground is upheld.
Ground 2
By ground 2 the appellant contends that the verdict of guilty on the assault of a public officer charge was unreasonable and unsupported by the evidence.
The general principles governing an appeal on this ground were summarised in Wells v The State of Western Australia:[122]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (citations omitted)
[122] Wells v The State of Western Australia [2017] WASCA 27 [13].
The principles applicable to whether a jury verdict is unreasonable or unsupported by the evidence apply by analogy to a trial before a magistrate.[123]
[123] The State of Western Australia v Olive [2011] WASCA 25 [44].
In R v Baden-Clay,[124] the High Court said that where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appellate court 'must always be whether the [appellate] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'[125]
[124] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [66].
[125] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 - 495.
The appellant contends that the magistrate's verdict was unreasonable or unsupported by the evidence because self-defence under s 248 of the Criminal Code was not negated by the respondent and that the magistrate must have had a reasonable doubt of the appellant's guilt.[126]
[126] Appellant's Submissions [88] - [89].
Section 248(2) of the Criminal Code provides that a 'harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).' A harmful act is defined as any act which is an element of any offence contained in pt V of the Criminal Code, save for criminal defamation (ch XXXV).[127]
[127] Criminal Code (WA) s 248(1).
Section 248(4) of the Criminal Code provides:
A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
Self-defence is not available where a victim's alleged harmful act is lawful.[128] As established with respect to ground 1, the arrest of the appellant was not lawful.
[128] Criminal Code (WA) s 248(5).
Section 248(4) enumerates four elements. These elements can be summarised as follows.[129]
[129] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95].
First, by s 248(4)(a), the accused must, subjectively, believe their harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent.
Second, by s 248(4)(b), the accused's harmful act must be, objectively, a reasonable response by the accused in the circumstances as the accused, subjectively, believes them to be. The proportionality of the response will be a relevant and often critical consideration to which a trier of fact may have regard in considering whether a response is reasonable.[130] A trier of fact might also regard a response as unreasonable if it involved a greater degree of force than was needed in the circumstances as the accused believed them to be. It is not necessary to confine the circumstances to which a trier of fact may have regard in assessing the reasonableness of a response, so long as they are satisfied that the accused may have believed those circumstances to exist.[131]
[130] Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [77].
[131] Egitmen v The State of Western Australia [2016] WASCA 214; (2016) 263 A Crim R 203 [286].
Third, by s 248(4)(c), there must be, objectively, reasonable grounds for the accused's subjective belief, within s 248(4)(a), that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent. Sections 248(4)(a) and 248(4)(c) of the Criminal Code are not concerned with the proportionality of the response.[132]
[132]Egitmen [284].
Fourth, by s 248(4)(c), there must be, objectively, reasonable grounds for the accused's subjective belief, within s 248(4)(b), as to the circumstances. The assessment of reasonable grounds for this belief does not take into account personal characteristics of an accused such as immaturity, intoxication or mental infirmity.[133]
[133] Egitmen [329] - [330].
The magistrate made the following finding regarding self‑defence:[134]
For the sake of clarity, I repeat that Constable Hall was performing a function of his office by patrolling the streets of Northbridge. If I be wrong on that, the arrest carried out by Constable Johnston, assisted by Cooper and Hunter, was not tainted by excessive force, and for those reasons then I find each charge proved. (emphasis added)
[134] Trial ts 12 (2/11/2020).
The appellant submits that the magistrate must have had reasonable doubt that self-defence had not been disproved. In summary, the appellant asserts that the kick to Constable Hall was lawful as an act of self-defence because:
(1) it can be inferred from the body worn camera footage and oral evidence that the appellant believed that it was necessary to defend herself from further pushing;
(2)there were unlawful harmful acts, principally First Class Constable Johnston's repeated touching of the appellant in moving her away from the car;
(3)the appellant's kick was a reasonable response in the circumstances as she believed them to be when compared to the actions of police that took place prior to the kick, including:
(a)the multiple pushes by police;
(b)the appellant being forced into a bin; and
(c)the appellant being surrounded by six to seven officers;
(4)there are reasonable grounds for the appellant's belief that her kick was necessary to defend herself from the police, considering:
(a) First Class Constable Johnston committed an unlawful act in moving the appellant off the car;
(b)officers were armed with firearms, OC spray and tasers;
(c)the evidence that the appellant was surrounded by between five to seven officers; and
(d)the evidence that First Class Constable Johnston invited the appellant to 'have a go'; and
(5)there are reasonable grounds for the appellant's belief as to the circumstances, considering:
(a)the appellant was a young female confronted by police at a ratio of six or seven to one; and
(b) the appellant was pushed around to the extent that she was pushed into a bin. [135]
[135] Appellant's Submissions [91] - [94].
The respondent submits that upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that self-defence was negatived and that the appellant was therefore guilty.[136] The respondent contends that even if the conduct of First Class Constable Johnson was unlawful, the fact that Constable Hall was backing away from the appellant at the time he was kicked indicates that the appellant was not acting in self-defence. Accordingly, the appellant did not have a subjective belief that her kick was necessary to defend herself from Constable Hall nor was this belief based on objectively reasonable grounds.[137] The respondent asserts that the appellant's conduct in moving towards Constable Hall as he continued to back away before taking aim and kicking him was not a reasonable response to any subjective belief that the appellant held.[138]
[136] Respondent's Submissions [58].
[137] Respondent's Submissions [51] - [55].
[138] Respondent's Submissions [57].
An analysis of whether or not the prosecution disproved self‑defence at trial must be considered in the context of the surrounding events. The reasoning of the magistrate as adopted by the respondent in this appeal is flawed in that it only looks to the situation as it existed when the appellant's kick occurred. The appellant's state of mind needs to be assessed in the wider context of the surrounding events. To characterise the appellant's act as a calculated decision is to deny the evidence of the body worn camera footage which provides a clear picture of the events.
In determining whether self-defence was negatived the following factors are relevant:
(a)the appellant was 16;
(b)the evidence was incapable of proving beyond reasonable doubt that the force used was lawful or that the arrest was lawful;
(c)although the appellant would not have comprehended the legal niceties it is clear that she had a justified sense of grievance about the conduct of the officers;
(d)the appellant was surrounded by seven police officers. No reason was advanced as to why such a disproportionate number of officers was necessary to deal with a teenage girl not causing any trouble, who was at worst suspected of street drinking. The presence of so many officers must have been intimidating;
(e)the stance of First Class Constable Johnston, the officer closest to the appellant, was intimidating. He stood with his arms folded and his general demeanour and language was aggressive;
(f)it is a measure of First Class Constable Johnston's aggressiveness that he invited the appellant to 'have a go'. First Class Constable Johnston was reacting to the appellant's belligerent and offensive language. The fact that it may have been a response to the appellant's swearing does not lessen the impact of what he said. The magistrate found that First Class Constable's statement to 'have a go' was not an invitation to engage in a physical fight.[139] However, he made no finding as to how that statement might have been perceived by the appellant. Nevertheless, it is a reasonable inference that the effect of First Class Constable Johnston's invitation to 'have a go' was to escalate the appellant's apprehension;
(g)the appellant was leaning against a car when First Class Constable Johnson physically moved her away. That was a totally unnecessary action. People lean against cars parked in the street all the time. There was no prospect of the appellant damaging the car. It appears to have been a show of force by the officer calculated to show his authority. Again, the officer pushing the appellant can only have escalated the appellant's apprehension. Her repeated pleas, 'don't touch me' reflect this increasing apprehension;
(h)the appellant had seven touches from officers before the kick which included being forced into a bin by First Class Constable Johnston;
(i)the appellant kicked out as she was being handcuffed. There were three officers restraining her as she was handcuffed. Given the events preceding the arrest, particularly the fact that she was forced into a bin, it is a reasonable inference that she kicked out because she was concerned about what the police might do;
(j)it is unrealistic to think that the appellant was in a position to carefully analyse whether Constable Hall was backing away. Having viewed the body worn camera footage the extent to which he backed away was not very far. The fact that the appellant was able to kick him confirms that he was not far away; and
(k)it is a reasonable inference that Constable Hall was simply one of a group of officers who had surrounded the appellant as she was being handcuffed and that she simply kicked out. Even if Constable Hall was backing away the other officers were not. It is a reasonable inference that the perceived threat was not simply from the one officer but from the officers as a group. In a context where the appellant was being handcuffed, to suggest that she could exercise fine degrees of judgement as to whom she should kick and not kick to prevent her being handcuffed has a degree of unreality about it.
[139] Trial ts 8 (2/11/2020).
Having regard to the evidence as a whole as set out immediately above it was a probable inference that the appellant subjectively believed the kick was necessary to defend herself from the harmful acts of police, principally the repeated pushing of First Class Constable Johnston. The appellant's repeated requests to police to stop touching her are indicative of her subjective belief.
The appellant's kick was an objectively reasonable response by the appellant in the circumstances as the she subjectively believed them to be. The response was proportionate. The appellant had been pushed seven times forcing her up against a bin. These events took place while the appellant was surrounded by seven officers. There were at least six officers surrounding the appellant in the moments immediately before the kick.
There were objectively reasonable grounds for the appellant's subjective belief that her kick was necessary to defend herself from the actions of the police. In moving the appellant off the car, First Class Constable Johnston committed an unlawful act. Again, the appellant was surrounded by seven police officers, all of whom were armed. The appellant had also been involved in a heated exchange with First Class Constable Johnston in which he invited her to 'have a go'.
There were objectively reasonable grounds for the appellant's subjective belief as to the circumstances. The appellant was pushed multiple times while encircled by seven police officers.
Had the magistrate considered the whole of the circumstances and not simply the kick he must have concluded that it was a reasonable inference that the appellant was acting in self-defence.
The magistrate failed to consider self‑defence from the appellant's subjective perspective.
The prosecution case failed to negative self-defence and the appellant should have been acquitted of the charge.
I find that there was a miscarriage of justice.
Conclusion
Accordingly, leave to appeal is granted on grounds 1 and 2. The appeal is thereby allowed and the conviction is set aside.
I accept the appellant's submissions in support of the court exercising its discretion to make an order for a judgment of acquittal. A retrial would clearly be inappropriate. The respondent does not appear to seek a retrial.
I make the following orders:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) A verdict of acquittal is entered.
(4)Pursuant to section 5 of the Official Prosecution's (Accused's Costs) Act 1973 (WA), the appellant is entitled to her costs in the primary court in the sum of $8,131.20.
(5) No order as to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
3 MARCH 2022
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