Tallott v Matier
[2013] WASC 429
•2 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TALLOTT -v- MATIER [2013] WASC 429
CORAM: ALLANSON J
HEARD: 14 NOVEMBER 2013
DELIVERED : 2 DECEMBER 2013
FILE NO/S: SJA 1062 of 2013
BETWEEN: AARON PETER TALLOTT
Appellant
AND
CHRISTOPHER MATIER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE G R SMITH
File No :PE 16027 of 2012
Catchwords:
Criminal law - Application for leave to appeal against decision - Obstructing a public officer - Criminal Code s 172 (2) - Issuing move on notice - Whether officer acting lawfully in performance of function - Use of reasonable force under Criminal Investigation Act - Turns on own facts
Criminal law - Whether magistrate erred in finding that s 22 and s 255 of the Criminal Code were not available to the appellant - Meaning of 'peaceable possession' - Section 22 not available where offence not relating to property
Legislation:
Criminal Code (WA), s 22, s 70A, s 172, s 255
Criminal Investigation Act 2006 (WA), s 7, s 16, s 24, s 27
Local Government Act 1995 (WA)
Result:
Leave to appeal refused on grounds 1 and 2
Leave to appeal granted on grounds 3 and 4
Appeal allowed on grounds 3 and 4
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr L M Fox
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Etherton v The State of Western Australia [2005] WASCA 83
Hayward‑Jackson v Mason‑Walshaw [2012] WASC 107
Innes v Weate [1984] Tas R 14; (1984) 12 A Crim R 45
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251
Kennedy v Kuzma (Unreported, WASC, Library No 930729, 22 December 1993)
MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230
O'Callaghan v MacDonald [2000] WASCA 88
R v Born with a Tooth (1992) 4 Alta LR (3d) 289
R v K (1993) 118 ALR 596
R v Van Bao Nguyen (2002) 139 NTR 15
Taueki v The Queen [2012] 3 NZLR 601
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
ALLANSON J: Mr Tallott was charged on a prosecution notice alleging that on 11 March 2012 he obstructed a public officer in the performance of the officer's functions, contrary to s 172(2) of the Criminal Code (WA). The offence is indictable, but may be dealt with summarily.
The charge was heard in the Magistrates Court at Perth on 12 March and 15 May 2013. Mr Tallott was convicted, and applies for leave to appeal from that decision. Mr Tallott represented himself before the magistrate, and again on appeal.
The facts
On 10 March 2012, Mr Tallott was sleeping either in or near the sand dunes at a beach at Scarborough. He was lying on a sheet or blanket, and had another cover over him. Two officers of the City of Stirling attended and told him that he was not allowed to stay where he was. One of the witnesses, Mr Oldham, told Mr Tallott that he was in a conservation area vested in the City of Stirling. Mr Tallott showed no signs of leaving, and the council officers said that they would return with the police. Later they returned with two police officers, First Class Constable Robinson and Constable Matier.
Mr Tallott was asleep when they approached. Constable Robinson introduced herself and told Mr Tallott why they were there. She said to Mr Tallott that he was in a conservation area, and that she was telling him formally to leave.
Constable Robinson described what happened in these terms:
I advised him that he would be issued a move on order and that if he didn't leave the area, he would be in breach of that move on order. I then took his bag and his blanket and then went to retrieve the camera that was in his hands and that's when he said, 'That's my property. You're now intimidating and threatening me'. And I said to ‑ I said to the accused, 'You are now obstructing police. Do you understand?', and I didn't get any response. So I've then searched his bag and I noted a pair of scissors. I then asked him again to leave and he just lay motionless on the ground. I said to him, 'We're going to have to move you forcibly and in handcuffs if need be', and he still didn't respond and failed to comply. So from that point I started to apply some pressure points in his neck region in order to gain control of his arm at the same time asking for him to put his arms out because they were pinned underneath his body and there was no way to move on him, and he started to say things like, 'somebody help and call the police', and so Constable Matier and I spent several minutes struggling to ‑ to get control of him and I placed him in handcuffs … He was arrested for obstructing police and we've escorted him back to the van where he was searched there.
These events were recorded on video. The vision is generally clear. The sound quality of the video is sometimes poor, so that it is not always possible to hear clearly what was said. Some facts were still in dispute, in particular, whether the area where these events occurred was in a conservation area or in a part of the beach reserved for recreation. But there is very little room for dispute about what people did. The account given by Constable Robinson is consistent with the video, although it can be supplemented by the recording.
There are some additional matters which the video reveals. Mr Tallott was using his bag as a pillow as he lay on the sand. Constable Robinson pulled it from under his head to search it. While Constable Robinson was searching the bag, Constable Matier repeatedly asked him where they could take him, as he could not stay where he was. The police officers also pulled the blanket from under Mr Tallott. His first actual resistance (rather than just not obeying the verbal order to leave) was in refusing to give up his camera when Constable Robinson tried to take it from him. Nobody at trial attempted to explain what authority the police had to take it from him, or indeed to take his bag and search it. After that, Mr Tallott resisted attempts to pull him to his feet. It was then that Constable Robinson knelt on his back and put pressure on his 'pressure points'. Mr Tallott not only called for help, he also called out that she was hurting him, and that he was doing nothing wrong.
The two officers, with some difficulty, pulled Mr Tallott's arms around to behind his back and handcuffed him. He was lying face down and resisted having his arms pulled behind him by trying to keep them under him. He also clung to the objects that he was holding. The police pulled him to his feet and took him to the police van.
Constable Robinson agreed that she had not used words of arrest, but considered that handcuffing Mr Tallott and removing him by force was an arrest.
Constable Robinson said that, at the police van, they issued a move on notice to Mr Tallott, requiring him not to return to the area for 24 hours. In answer to a question in cross‑examination, she explained why no written move on order under s 27 of the Criminal Investigation Act 2006 (WA) was issued earlier:
There was a discussion, brief thought, of us going back to the van to get the move on order book and then move back down, but to be honest with you, its 1.30 in the morning. I'd like to deal with it quite quickly, which means not one or two or three trips to the van, but to get you to the van where we can write out our move on order.
In cross‑examination, Constable Robinson said that the obstruction for which Mr Tallott was arrested was 'endless requests for you to move on and you didn't, so you were preventing us from being able to carry out our lawful duty which was to remove you'. The word 'endless' is an overstatement.
Constable Matier was in court while Constable Robinson gave her evidence. He said that he agreed with her account. In cross‑examination, he said that he believed Mr Tallott was committing an offence because the City of Stirling officers had asked him to leave the area, because it was a conservation area. He said that the police attended because the council officers required police assistance: 'that's one of our roles, of the jobs. That's what I believe we were doing on that night'.
The offence of obstructing a public officer
The Criminal Code s 172(2) provides:
A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer's functions is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 18 months and a fine of $18 000.
The term 'obstruct' includes to prevent, to hinder and to resist: s 172(1).
To establish an offence under s 172(2) requires proof of three elements: the person who was obstructed should be a public officer (or a person lawfully assisting a public officer); that at the time of the commission of the offence the public officer was acting in the performance of his or her functions; and that the conduct complained of obstructed the public officer in the performance of his or her functions.
Although the prosecution notice did not identify the public officer, the trial proceeded on the understanding that it was Constable Robinson. A police officer is a public officer.
The acts amounting to obstruction were not specified. When asked by the magistrate, the prosecutor first suggested that the obstruction was by resisting arrest, although this was circular as the arrest was said to be for obstructing. In the course of the trial there was some uncertainty about whether, or when, Mr Tallott was actually arrested. Constable Robinson believed she had arrested him. The magistrate was not satisfied that she had.
When making his final address, the prosecutor submitted that because Mr Tallott was in a restricted area and camping without a permit, the police were entitled to use force under s 24(1) of the Criminal Investigation Act to make him leave. Under that section any citizen may use reasonable force to prevent the commission of an offence. The prosecutor submitted that Mr Tallott obstructed the police by resisting the force they used to make him leave.
There was no issue at trial that Mr Tallott's resistance to being moved on was a voluntary willed act.
The magistrate's findings
The magistrate characterised the prosecution case in this way. Mr Tallott was committing an offence, and reasonable force was permissible in the circumstances to prevent that offence continuing. When Mr Tallott resisted the efforts of the police to remove him, he was resisting a police officer who was performing a function of her office. The function was using reasonable force to remove him from the sand dunes.
The prosecution contended that Mr Tallott was committing the offence of camping on council property without a permit, contrary to a local law of the City of Stirling. The offence carries a fine, on infringement notice, of $125. There was some consideration at trial whether Mr Tallott may have been committing other offences. The respondent to the appeal contends that Mr Tallott was committing the offence of trespass contrary to s 70A of the Criminal Code by remaining in the dunes after being requested to leave by a person in authority. The prosecution at trial, however, did not rely on trespass. Constable Robinson, in her evidence, expressly relied upon the power to issue a move on order.
The magistrate considered whether Mr Tallott was committing an offence. He said that Mr Tallott had not been charged with or arrested for trespass and 'nobody has mentioned anything much about trespass'. He was not satisfied that the prosecution had proved that Mr Tallott was in a restricted area or a conservation area to which the public was not allowed to have access. The magistrate found, however, that Mr Tallott was camping without a permit. He concluded:
The police warned Mr Tallott that he had to pack up and leave and he clearly refused to do so. In those circumstances, I'm of the view that they are entitled to use reasonable force to remove him. He is clearly committing the offence of camping without a permit. He clearly intends to continue to commit that offence … the police have the power ‑ as does any other citizen ‑ to use reasonable force to prevent the commission and the continuation of that offence. In my view, that's what they did. They used reasonable force …
In those circumstances, having the power ‑ in my view ‑ to tell him to leave and to use force to ‑ reasonable force to make him leave so that he can't continue the offence that he was committing. In my view, the police were performing a function of their office at the time.
Section 16 of the Criminal Investigation Act provides:
(1)When exercising a power in this Act, a person may use any force against any person or thing that it is reasonably necessary to use 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.
The magistrate found that the force used by the police was reasonable. Presumably, having regard to all of his findings, the magistrate found that kneeling on Mr Tallott's back and applying pressure to points in his neck was reasonably necessary in the circumstances to prevent Mr Tallott continuing to camp without a permit, or to overcome his resistance to moving on after being told to do so, or both. As the magistrate found the police were exercising the powers of a citizen under s 24 of the Criminal Investigation Act, it would follow that it would have been lawful for anyone to act as Constable Robinson did. That would be a disturbing result.
The grounds of appeal
Mr Tallott represented himself, and his grounds of appeal are not conventionally drawn. The respondent took no point about a relatively liberal interpretation of some of them, and the appeal was adjourned for 22 days to enable counsel for the respondent to prepare further submissions resulting from that approach.
In his appeal notice, Mr Tallott relied upon three grounds. These were later amended to the following four (I have, in some cases paraphrased to improve clarity):
(1)The magistrate erred in law, claiming that s 22 or s 255 of the Criminal Code were not available to the appellant, where clearly the offence directly related to property.
(2)The magistrate stopped the appellant delivering his full case, utilising a full statutory defence under the Criminal Code, dismissing the Federal aspects to the matter under s 3AA of the Crimes Act 1914 (Cth), claiming that it was 'irrelevant' to the charge, when clearly, s 8 of the Interpretation Act 1984 (WA) applied with regards to the video, and events unfolding in 'real time' to expose and show who was truly acting as criminals codified by the state, federal, and international treaties, breathing life into true spirit of the law, awakening every part relevant to the conduct of the council terrorists, and those acting on their behalf.
(3)The magistrate's decision was not safe, bearing in facts of 'reasonable force' and applying it to 'circumstances' where there was no real threat to persons or property.
(4)There was a gross and unjust miscarriage of justice. The appellant had committed no criminal offence to warrant the jurisdiction of the criminal court, the underlying offence was an infringement under the Local Government Act 1995 (WA). The police acting as CIA agents had no authority to issue infringements of that nature. Whether CIA 'offences under a written law' is to be construed via the provisions of the Criminal Code as to exclude those 'offences' under s 4 of the Criminal Code, that a citizen has 'authority' to prevent 'the commission of an offence' under s 24(d)(CIA).
The references to CIA were to the provisions of the Criminal Investigation Act.
Within Mr Tallott's grounds, and his written submissions, is the question of whether the police were using reasonable force in removing him from the beach, and whether his conduct could be found to be resisting such a lawful use of force. To answer this question one has to look at the power that the police were exercising, or purporting to exercise, in the context of s 7 of the Criminal Investigation Act. It was this issue that led me to adjourn the hearing.
Mr Tallott was primarily interested in arguing issues relating to s 22 and s 255 of the Criminal Code, matters which he argues provide him with both sword and shield to resist attempts to prevent him sleeping, perhaps living, in the sand dunes. While he used the metaphor of a sword, indeed a broadsword, there was no suggestion that his resistance would not be peaceful.
For the reasons which follow, I believe that there was a miscarriage of justice in finding his conduct to be an offence against s 172 of the Criminal Code. In my opinion, the police had no power to attempt to forcibly remove Mr Tallott in the manner in which they did, and his passive resistance did not hinder them in the exercise of a lawful function. It is not necessary for me to determine whether the evidence was sufficient to raise an honest claim of right, or to exculpate Mr Tallott under s 255. Because it was central to the way in which he presented his appeal, I will briefly comment on those issues. I am not satisfied that the evidence raised an honest claim of right, or that he was in peaceful possession of the land where he wished to sleep.
The evidence of a claim of right
The prosecution evidence showed that Mr Tallott was sleeping in or near the sand dunes on a beach at Scarborough. The evidence about the status of that land was unclear: the prosecution called a land and property officer from the City of Stirling who said the land was 'on the border of a recreation and conservation of dunes area'; Mr Tallott said he was not in a fenced off area, and was probably just on the border of the dunes.
Mr Tallott said in evidence that he got to Scarborough at about 10.00 pm that night. After speaking to a friend and being told the council officers were around, he went to sleep on the beach. He either brought blankets with him or recovered them from where they had been secreted in the sand hills. He was expecting a challenge to his being there, and was carrying a camera for that reason.
In cross‑examination, Mr Tallott said that he had been 'in conflict' with the council for a year or so, regarding his being on the beach. He said that he is homeless, and was just 'sleeping in an area where I believed I was lawfully allowed to be'. When the magistrate asked Mr Tallott if he knew the council did not permit people to sleep in the sand hills, Mr Tallott said that he believed the by‑laws were invalid and that he did not recognise either the by‑laws or the Local Government Act 'in totality'. In cross‑examination he referred to the council having 'false control' or 'false authority'. He said that the council had no right to move him on.
Mr Tallott explained his claim that he was in possession of the sand hills in these terms: 'Possession is just being there, so possession means in that legal dictionary to sit on. So just basically possession is being there peaceably.' The 'right' he asserted was given its clearest expression, when Mr Tallott said he believed he was entitled to stay 'anywhere where there is a natural connection that I can establish my life'.
Based on this evidence, Mr Tallott submitted that he had an honest claim of right, and peaceable possession of a place with a claim of right, thus invoking both s 22 and s 255 of the Criminal Code. He also sought to rely on the claim of right provisions in Commonwealth law, but they do not apply to an offence under State law.
Before the magistrate was required to consider a defence under s 255, there had to be some evidence that Mr Tallott was in 'peaceable possession with a claim of right'. The first difficulty with Mr Tallott's position is that his evidence went no further than that he was on the beach. It was not evidence that he was in possession of it, or any part of it. There is more to possession than mere presence.
The magistrate found that Mr Tallott could not rely on s 255 because he was not in possession of the sand hills. On the evidence before him, I am satisfied that his Honour was correct.
The additional requirement that he be in 'peaceable possession' was not addressed before the magistrate.
There is limited authority on the meaning of peaceable possession. While the defence under s 254 (which relies on the same notion of peaceable possession) arises from time to time, the issue of peaceable possession is not usually in question.
On my researches, the phrase 'peaceable possession' has been considered in Western Australia only in relation to possession of personal property. In Kennedy v Kuzma (Unreported, WASC, Library No 930729, 22 December 1993) Scott J considered that the phrase meant 'entitled to possession without challenge (so long as that possession is not intended to or likely to cause a breach of the peace)'. This was applied in O'Callaghan v MacDonald [2000] WASCA 88 (Miller J), and R v Van Bao Nguyen (2002) 139 NTR 15 (Angel J). The phrase was considered again in Etherton v The State of Western Australia [2005] WASCA 83, where the Court of Appeal was concerned with whether there could be peaceable possession of property that was unlawful to possess (in that case, cannabis).
Peaceable possession of land has been considered in other jurisdictions. In Taueki v The Queen [2012] 3 NZLR 601 [41] ‑ [46], the Court of Appeal of New Zealand considered a statutory defence by which a person 'in peaceable possession' of any land or building is justified in using reasonable force to prevent a person from trespassing on the land or to remove that person, 'if he does not strike or do bodily harm to that person'. The court referred to authority in the law of real property, and quoted from a decision of the Alberta Court of Appeal (in R v Born with a Tooth (1992) 4 Alta LR (3d) 289, 76 CCC (3d) 169). The court said that peaceable possession need not be lawful possession, but appeared to accept that the defence should be available only to those whose possession has not been seriously questioned by somebody before the incident in question.
Whatever else peaceable possession of a place may be, it does not include the situation where, knowing his right to stay there was challenged, Mr Tallott simply went onto a public place and sat or lay there. In my opinion, the evidence at trial did not raise the defence under s 255.
There is no similar dearth of authority on the defence of honest claim of right. Most recently it was considered by the Court of Appeal in Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251 [53] - [62]. A claim of right is a claim to an entitlement with respect to property, and is necessarily a claim to a private right arising under civil law: MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230 [41]. What is claimed or believed must, if it were the fact, negative an element of the alleged offence or constitute a defence to it: Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 581; Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [77].
The magistrate did not accept that Mr Tallott could rely on s 22 because the offence that Mr Tallott was charged with was not an offence relating to property. In my opinion, his Honour was correct also in this conclusion. The claims made by Mr Tallott would not negative an element of the offence of obstruction or provide a defence to it. If Constable Robinson was not acting in the course of her duty because she had no power to remove Mr Tallott, the offence is not proved. If she was entitled to remove him, his beliefs that the by‑laws are invalid, and that he can stay anywhere he feels a natural connection, do not raise a claim of right.
The functions of a police officer
To determine whether a public officer is acting in the performance of his or her functions, it is necessary to consider the nature of the public office held, the particular power or function that the officer was attempting to exercise, and the occasion for the exercise of the power or function: Hayward‑Jackson v Mason‑Walshaw [2012] WASC 107 [22] ‑ [24]. In R v K (1993) 118 ALR 596, 601, Gallop, Spender and Burchett JJ said:
a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.
A constable may not officiously clothe himself or herself with the powers of the State: Innes v Weate [1984] Tas R 14; (1984) 12 A Crim R 45, 71.
The functions of a police officer can be conferred by statute or by the common law. They can also be modified by statute. Under the Criminal Investigation Act s 7:
(1)Subject to this section, a police officer has the powers, duties and responsibilities that a constable has under the common law.
(2)If this Act confers a power, duty or responsibility on a police officer that the officer also has by reason of subsection (1), the power must be exercised and the duty or responsibility must be performed in accordance with this Act.
(3)If there is an inconsistency between a provision of this Act and a power, duty or responsibility that a police officer has by reason of subsection (1), the provision of this Act prevails.
In the present case, the magistrate relied in very general terms on s 7(1) as picking up a police constable's duty to prevent breaches of the peace, to prevent the commission of crimes and offences, to prevent actions that might result in a breach of the peace, and to protect life and property. He relied also on s 8 and s 24. In effect, the magistrate found that a police officer, in common with any other citizen, may use force that is reasonably necessary in the circumstances to prevent the commission of an offence, or any act that the citizen reasonably suspects will be done in the course of committing an offence.
A police officer also has the power to order a person who is in a public place to leave it, or a part of it specified by the officer: Criminal Investigation Act s 27. That power may be exercised in a range of circumstances, including where the police officer reasonably suspects that the person intends to commit an offence, or has committed or is committing an offence. Section 27(3) and (6) prescribe limits on the use of the power. By s 7(2), it is a power that must be exercised in accordance with the Act. An order must be in writing on a prescribed form.
That, on her evidence, is the power Constable Robinson purported to exercise, and what she told Mr Tallott he was obstructing. She did not, at any time before Mr Tallott was arrested and escorted to the police van, attempt to exercise that power in accordance with s 27 by issuing a written notice. The use of force to require Mr Tallott to move on was not an exercise of the power under s 27 in accordance with the Act.
The respondent argued that the force used could be justified because Constable Robinson had told Mr Tallott to leave and he became a trespasser under s 70A of the Criminal Code. Reasonable force could then be used to remove him. The magistrate relied on the use of force by Constable Robinson to remove Mr Tallott so as to prevent him from committing the offence of camping without a permit. But on her evidence, Constable Robinson was not doing either of those things, and that is not the function she was obstructed in performing.
On the evidence before the magistrate, I am satisfied that he erred in finding that Mr Tallott obstructed Constable Robinson in the performance of a function she was lawfully exercising. The conviction should be set aside.
Conclusion
For the reasons I have given, I would refuse leave on ground 1 (the claim of right). Ground 2 is irrelevant, and I would refuse leave. Within grounds 3 and 4 are the claims that Mr Tallott was not, on the facts, resisting reasonable force used by the police under s 24(d) of the Criminal Investigation Act to prevent the commission of an offence by removing him from the sand hills. I would grant leave on those grounds, and uphold the appeal on that basis. The conviction should be set aside and a judgment of acquittal entered.
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