Tallott v Matier - [2013] WASC 429

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…

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 Tallott v Matier

Details

AGLC: Tallott v Matier [2013] WASC 429
Case: [2013] WASC 429
Decision Date: 2 DECEMBER 2013

CaseChat Overview and Summary

The case of Tallott v Matier involved an application for leave to appeal against a decision made in a criminal matter. The appellant, Tallott, was charged with obstructing a public officer in the execution of their duty. The incident occurred when the appellant allegedly resisted an officer who was attempting to issue a move-on notice in accordance with section 172(2) of the Criminal Code. The dispute centred around whether the officer was acting lawfully in the performance of their function and whether the use of reasonable force by the officer under the Criminal Investigation Act was justified. The court had to determine whether the magistrate erred in finding that sections 22 and 255 of the Criminal Code were not available to the appellant, particularly in relation to the meaning of 'peaceable possession'. Specifically, the court needed to decide if section 22 was applicable where the offence did not pertain to property.

In addressing these issues, the court examined the facts of the case to determine whether the officer was acting lawfully when they attempted to issue the move-on notice. The court considered whether the officer's actions were within the scope of their duties and whether the use of force was reasonable under the circumstances. Furthermore, the court explored the applicability of sections 22 and 255 of the Criminal Code, focusing on the interpretation of 'peaceable possession' and its relevance to the offence of obstructing a public officer. The court also evaluated whether the magistrate's decision to exclude these sections from consideration was correct, given the nature of the offence and the statutory provisions involved.

The court found that the officer was acting lawfully in the performance of their function when they attempted to issue the move-on notice. The use of reasonable force by the officer was deemed justified under the circumstances presented. In relation to the applicability of sections 22 and 255 of the Criminal Code, the court concluded that section 22 was not available to the appellant because the offence did not pertain to property. The court also upheld the magistrate's decision to exclude sections 22 and 255 from consideration, as they were not relevant to the offence of obstructing a public officer. Consequently, the application for leave to appeal was dismissed.

The final orders of the court were that the application for leave to appeal was dismissed, and the original decision of the magistrate was upheld. The court's findings confirmed that the officer acted lawfully, the use of reasonable force was justified, and the magistrate's interpretation of the relevant statutory provisions was correct.

Orders