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Ta (A Child) v Johnston

Ta (A Child) v Johnston

Case [2022] WASC 72 3 March 2022

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ta (A Child) v Johnston

Details

AGLC: Ta (A Child) v Johnston [2022] WASC 72
Case: [2022] WASC 72
Decision Date

CaseChat Overview and Summary

This appeal concerns an assault of a public officer contrary to s 318(1)(d) of the Criminal Code (WA). The appellant, TA, was arrested by police in Northbridge. The appellant kicked a police officer in the course of her arrest. The appellant was convicted of the charge in the Children's Court. The appellant appealed against her conviction on two grounds. First, that the magistrate erred in finding that the police officer was acting in the performance of their office. Second, that the verdict was unreasonable and unsupported by the evidence because the respondent failed to disprove self-defence. The appeal was allowed on both grounds. In relation to the first ground, the court held that the police officer's conduct in moving the appellant from the car was unlawful. The police officer used more force than was reasonably necessary and therefore exceeded the scope of their lawful power. The appellant's kicking of the police officer was in response to that unlawful conduct. The other police officer was tainted by that conduct. He was therefore not acting in the performance of their office when they were kicked. In relation to the second ground, the court held that the magistrate failed to consider self-defence from the appellant's perspective. It was a reasonable inference that the appellant subjectively believed that the kick was necessary to defend herself from the unlawful conduct of the police officer. The court found that there was a miscarriage of justice. The appeal was allowed and a verdict of acquittal entered.

Orders