The State of Western Australia v Tobin - [2023] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   BROOME
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TOBIN [2023] WADC 59
CORAM:   LEMONIS DCJ
HEARD:   15-17 MAY 2023
DELIVERED          :   6 JUNE 2023
FILE NO/S:   IND BRO 19 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

PAUL XAVIER TOBIN

Catchwords:

Criminal law - Trial by judge alone - One count of attempting to pervert the course of justice

Legislation:

Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015

Result:

Accused found not guilty

Representation:

Counsel:

The State of Western Australia	:	Mr P Usher & Ms C Crouch
Accused	:	Mr J Hannebery KC & Ms J Poole

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Robertson O'Gorman Solicitors

Case(s) referred to in decision(s):

Barca v The Queen (1975) 133 CLR 82
George v The State of Western Australia [2020] WASCA 139
Librizzi v The State of Western Australia [2006] WASCA 237
Meissner v The Queen (1995) 184 CLR 132
R v Baden-Clay [2016] HCA 35
R v Rogerson (1992) 174 CLR 268
Rodgers v The State of Western Australia [2023] WASCA 52
The State of Western Australia v Boag [2021] WASC 49

LEMONIS DCJ:

The accused, Mr Tobin is charged with one count on an indictment dated 15 May 2023 as follows:
On 28 November 2019 at Broome Paul Xavier Tobin attempted to pervert the course of justice by discouraging Harry Johnson from giving evidence in the trial of Justine Bamba on a charge of aggravated unlawful wounding, so as to affect the prosecution of Justine Bamba on that charge.
The charge alleges an offence under s 143 of the Criminal Code (WA). This offence is commonly known as attempting to pervert the course of justice.
On 4 August 2022, Levy DCJ made an order pursuant to s 118 of the Criminal Procedure Act 2004 (WA) that the trial of Mr Tobin be by judge alone without a jury. The trial was held before me sitting alone.
Pursuant to s 119(1) of the Criminal Procedure Act, I must apply as far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
Pursuant to s 120(1) of the Criminal Procedure Act, I may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury. In addition, pursuant to s 120(2) my judgment must include the principles of law that I applied and the findings of fact on which I relied.

Applicable principles of law and approach to assessment of evidence

The following principles apply in this case.
Mr Tobin is presumed to be innocent of the charged offence.
The burden of proving the charged offence is on the State. It never shifts to Mr Tobin; it remains on the State at all times. Mr Tobin does not have to prove anything. Mr Tobin did not have to give any evidence and he did not have to adduce any evidence.
The State must prove each and every element of the charged offence. The standard of proof is beyond reasonable doubt. It is the highest standard known to the law. If I have a reasonable doubt, then I must find Mr Tobin not guilty.
Also, as I will come to explain, it is necessary for the State to prove that Mr Tobin had a particular intention in engaging in the conduct that it is alleged he engaged in.
Mr Tobin's intention is a state of mind. The State seeks to prove his state of mind by inference. An inference is a logical deduction or conclusion from facts that have been found to be established.
In using inferential reasoning in a criminal trial, what I have said about the State having the onus of proof, the standard of proof being beyond reasonable doubt and that Mr Tobin is innocent and does not have to prove anything still applies.
What this means is that I must be satisfied that the only reasonable inference that can be drawn consistent with the proven facts is that Mr Tobin had the required intention. For an inference or conclusion to be reasonable, it must rest upon something more than mere speculation or conjecture.
In applying inferential reasoning I do not consider the facts in isolation. I must consider the facts as a whole to determine whether the inference contended for by the State is the only reasonable inference available. Accordingly, the facts are not to be considered on a piecemeal basis, they must be evaluated in their entirety. In deciding whether I accept the evidence of a particular fact I do not consider the evidence directly relating to that fact in isolation, but I consider it in the light of the whole of the evidence.
In summary, to be satisfied beyond reasonable doubt that Mr Tobin had the requisite intention, I must be satisfied that the inference he had such intention is a reasonable one to draw from my consideration of all the established facts viewed as a whole. I must also be satisfied it is the only reasonable inference that can be drawn from a consideration of all the established facts viewed as a whole. And, in assessing this, I must keep in mind that Mr Tobin does not have to establish anything. So, Mr Tobin does not have to establish there is another reasonable inference that can be drawn.[1] It is for the State to prove that there is no such other reasonable inference.
[1] Barca v The Queen (1975) 133 CLR 82, 105; R v Baden-Clay [2016] HCA 35 [62].
My verdict must be based solely on the evidence adduced at the trial. The evidence consists of the oral evidence of the witnesses who gave evidence at the trial and the exhibits tendered during the trial, which included formal admissions made by Mr Tobin pursuant to s 32 of the Evidence Act 1906 (WA).
Counsels' questions are not evidence. Counsels' submissions, comments or observations are not evidence.
I must not be concerned about the consequences of my verdict. I must reach my verdict without prejudice or sympathy. I must not speculate or guess about matters that are not in evidence, or look for theories that are not supported by the evidence.
I may accept or reject the whole or part of the evidence of a witness.
In assessing the evidence of each witness, I must assess whether that evidence is honest, accurate and reliable. I take account that an honest witness doing their very best to assist the court can be mistaken and inaccurate. On the contrary, a dishonest witness setting out to mislead the court can be convincing. I must also consider the weight, or put another way the importance, to be given to the evidence.
Mr Tobin did not give or call evidence in the trial. I must not draw any adverse inference against him from making that election. Mr Tobin is not obliged to give or call evidence and does not have to prove anything. As I have said, Mr Tobin is presumed innocent of the charge and the burden of proof remains on the State at all times.
That Mr Tobin did not give or call evidence proves nothing one way or the other. It does not fill in any gaps or deficiencies in the State case, it does not strengthen or add to the State case. It is not evidence against Mr Tobin or any admission by him.[2] The question remains the same - whether, on all the evidence that is before me, has the State proved the charge beyond reasonable doubt.
[2] George v The State of Western Australia [2020] WASCA 139 [198].
Further, evidence has been adduced that Mr Tobin does not have a relevant criminal record, his criminal record being limited to driving offences. This evidence is relevant to whether Mr Tobin would commit an offence such as the one with which he has been charged. It shows that it is less likely that he would commit such an offence. However, I must remember that people do commit crimes for the first time and that evidence that someone does not have a relevant prior criminal record cannot overcome evidence of guilt which I find to be convincing.
I turn now to address what constitutes the offence of attempting to pervert the course of justice.

Attempting to pervert the course of justice

Relevantly to this matter, the course of justice includes court proceedings to determine a criminal charge brought against a person.[3] The course of justice begins the moment a person is charged with a criminal offence and ends once the matter has been finally determined in some way.
[3] R v Rogerson (1992) 174 CLR 268, 280.
The principles applicable to the operation of s 143 of the Criminal Code were distilled by Buss JA (as his Honour then was) in Librizzi v The State of Western Australia[4] as follows:
1.A person is guilty of attempting to pervert the course of justice when he or she engages in conduct which has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice.[5]
2.It is irrelevant whether or not the conduct in question succeeds in perverting the course of justice. It is the tendency of that conduct which is decisive.[6]
3.The notion of 'perverting' the course of justice involves nothing more than adversely interfering with its proper administration.[7]
4.The essence of the offence is the doing of some act which has a tendency and is intended to pervert the administration of public justice.[8]
5.The motive with which an accused engages in the impugned conduct is not an element of the offence and is irrelevant except to the extent that in the particular case it may illuminate the accused's intention.[9]
[4] Librizzi v The State of Western Australia [2006] WASCA 237 (Librizzi).
[5] Librizzi [139].
[6] Librizzi [139].
[7] Librizzi [139].
[8] Librizzi [142].
[9] Librizzi [142].
Further to these matters, as Roberts‑Smith JA noted in Librizzi, it is not necessary to prove that the accused's intention was in terms of an intent to pervert the course of justice. It is sufficient if the accused intended to engage in conduct which had that tendency for the purpose of giving effect to it.[10]
[10] Librizzi [80(2)].
The case under consideration in Librizzi involved an attempt to persuade a witness to not give evidence. Buss JA held that in such circumstances a person will attempt to pervert the course of justice if the person:[11]
(a)by improper conduct, attempts to persuade a witness to withdraw or modify their proposed evidence; and
(b)intends to pervert the course of justice.
[11] Librizzi [146].
As his Honour noted, such conduct will have a tendency to pervert the course of justice in that there is a risk that the witness will be induced involuntarily to withdraw or modify their proposed evidence.[12] His Honour also noted that if a witness in fact withdrew or modified their evidence as a result of such conduct, there is a risk that there will be a miscarriage of justice, as the court will administer justice on the basis of evidence which has been involuntarily withdrawn or altered.[13]
[12] Librizzi [146].
[13] Librizzi [146].
His Honour was of the view that the relevant elements which the State had to prove in Librizzi were:[14]
The first element of the charge in the indictment required the jury to consider whether they were satisfied beyond reasonable doubt that the appellant had engaged in threatening behaviour, as alleged by the respondent, which had a tendency to induce Mrs L Whittle to withdraw or alter her statement. The second element of the charge required the jury to consider whether they were satisfied beyond reasonable doubt that the appellant intended, by any threatening behaviour as alleged, to procure the withdrawal or alteration of the statement.
[14] Librizzi [148].
In Meissner v The Queen,[15] the High Court considered an offence of attempting to pervert the course of justice by improperly endeavouring to influence a person to plead guilty to a particular charge. As Buss JA noted in Librizzi,[16] there is a close analogy between cases where an attempt is made to induce a plea of guilty by improper means and cases where an attempt is made by improper means to induce witnesses to withdraw or alter their evidence.
[15] Meissner v The Queen (1995) 184 CLR 132 (Meissner) .
[16] Librizzi [143].
In the joint judgment of Brennan, Toohey and McHugh JJ in Meissner, their Honours wrote:[17]
… improper conduct of any kind that has the tendency to interfere with an accused person's right to make a free and voluntary decision to plead not guilty to a charge must be regarded as having a tendency to pervert the course of justice. If that conduct is accompanied by an intention to pervert the course of justice, the person engaging in the conduct will be guilty of attempting to pervert the course of justice.
It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused's free choice to plead guilty or not guilty. Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.
[17] Meissner (143).
In this passage, their Honours acknowledged that it will often be difficult to determine whether conduct that falls short of intimidation, but which has the tendency to induce an accused to plead guilty, is improper conduct that interferes with the accused's free choice to plead guilty or not guilty.[18]
[18] See also Librizzi [141].
Further, in relation to the requisite intention to pervert the course of justice, their Honours wrote:[19]
However, even when the conduct in question has tended to interfere with the administration of justice by tending to deprive the accused of the free choice to plead not guilty to a charge, the offence of attempting to pervert the course of justice is not established unless the conduct was also accompanied by an intention to pervert the course of justice. This does not mean that a person cannot be guilty of attempting to pervert the course of justice unless he or she has the concepts of 'perverting' and 'the course of justice' in mind while engaging in the conduct. It is sufficient proof of intention that the person intended to engage in conduct for a purpose that in law constitutes the actus reus of an attempt to pervert the course of justice. Thus, a person commits that offence if he or she pays money to an accused to plead guilty to a charge for the purpose and with the intention of protecting the reputation of others who might be damaged by the publicity arising from a trial of the charge even though the payer has never heard of the phrase 'perverting the course of justice'.
In the present case, we are concerned with the entry by Ms Perger of a plea to the charge of making a false declaration. The course of justice that was put at risk by the alleged conduct of the appellant was not the entry of a plea of guilty by someone who was not guilty but the entry of a plea of guilty otherwise than by exercise of a free choice in the interests of the person entering the plea. If the conduct of the appellant had the tendency to produce that result, the actus reus was established. The mens rea was simply an intention to induce the entry of the plea of guilty when Ms Perger would not or might not have entered that plea if she had exercised a free choice in her own interests.
(emphasis added)
[19] Meissner (144).
The analysis in Meissner and Librizzireveals that the essential feature of the offending conduct is that it has the tendency to produce the result that a person, for example a witness, will be induced to act otherwise than by the exercise of a free choice in their own interests. So, to use the words of Buss JA in Librizzi [the conduct] 'will have a tendency to pervert the course of justice in that there is a risk that the witness will be induced involuntarily to withdraw or modify his or her proposed evidence'. It follows that improper conduct per se does not have the requisite tendency. The improper conduct needs to have the tendency to interfere with the witness's free choice to act in their own interests. The analysis in Meissner and Librizzi also reveals that the requisite intent is an intent to induce a person to act in a particular way when they would or might not have acted in that way if they had exercised a free choice in their own interests.

The State's case and matters in issue

The key features of the State's case against Mr Tobin are as follows.
Ms Justine Bamba had been charged with the offence of aggravated unlawful wounding of Mr Harry Johnson, who was and remained her partner. The trial of that charge was listed for hearing on 28 November 2019. Mr Tobin, the managing lawyer of the West Kimberley Office of the Aboriginal Legal Service (WA) based in Broome, acted for Ms Bamba and was to appear for Ms Bamba at the trial of that charge. Mr Johnson was to be called as a witness for the prosecution. Given Mr Johnson was the person alleged to have been wounded, he was an important prosecution witness.
On the day in question, prior to the trial commencing, Mr Johnson was present at the Broome Courthouse and was sitting outside next to Senior Constable Jackson, who was the officer that had investigated the unlawful wounding charge against Ms Bamba. The prosecuting police officer for the charge against Ms Bamba was Sergeant Milne.
Sergeant Milne and Mr Tobin had an initial discussion regarding the charge in which they reached an understanding that, in Mr Tobin's presence, Sergeant Milne would ask Mr Johnson if he wanted the matter to proceed. They both then approached Mr Johnson. Contrary to the understanding reached, Mr Tobin interrupted Sergeant Milne and spoke to Mr Johnson about his willingness to proceed. The principal features of Mr Tobin's conduct are that on two occasions Mr Tobin said to Mr Johnson words to the effect 'You don't want this to go ahead, do you Harry' while simultaneously shaking his head to indicate a negative answer, and that Mr Tobin spoke in a clear and direct tone and that while the words used were phrased as questions they were put strongly and directly.[20] Further, at both times, Mr Johnson was sitting and Mr Tobin leant in towards him and was approximately 70 cm from Mr Johnson when he spoke. The State principally relies on the evidence of Sergeant Milne and says I can be satisfied beyond reasonable doubt that Mr Tobin interacted with Mr Johnson in the manner articulated by Sergeant Milne in his evidence.
[20] ts 395.
The State says that Mr Tobin's conduct constitutes the offence of attempting to pervert the course of justice by reason of the following matters:
1.The criminal proceedings brought against Ms Bamba were a course of justice that was continuing at the time of Mr Tobin's alleged conduct. Mr Tobin accepts this.
2.Mr Tobin by his conduct improperly discouraged Mr Johnson from giving evidence in the trial of those criminal proceedings and thus there was a tendency for the course of justice to be perverted.
3.The discouragement was improper because Mr Tobin's conduct was intimidatory and/or exerted pressure on Mr Johnson.
4.Mr Tobin intended to improperly discourage Mr Johnson from giving evidence and thus Mr Johnson had an intention to pervert the course of justice.
In terms of the alleged discouragement, the State has broken this down into separate concepts. They are that Mr Tobin by his conduct improperly discouraged Mr Johnson from giving evidence, or from giving fulsome, that is full and frank evidence, or from continuing his co-operation in the trial process. However, the State accepts that these are subsets of discouraging Mr Johnson from giving evidence and do not reflect an alternate case against Mr Tobin. The third such subset - not continuing his co-operation in the trial process - is effectively an encapsulation of the first two. The State's case is that Mr Tobin's conduct viewed in its entirety was discouraging of Mr Johnson from giving evidence, not that Mr Johnson was as a matter of fact discouraged from giving evidence. It is not necessary for the State to prove as a matter of fact that Mr Johnson was discouraged from giving evidence.

In terms of Mr Tobin's intention, the State says his intention was to have Mr Johnson not give evidence, or not give fulsome, that is full and frank, evidence and/or not continue his co-operation in the trial process.
The starting point in considering whether the State has proved the charge is for me to determine what conduct Mr Tobin engaged in concerning Mr Johnson. This conduct includes Mr Tobin's words and actions. I must be satisfied of the conduct that Mr Tobin engaged in beyond reasonable doubt, as it is that conduct which constitutes the physical acts the subject of the charge.[21]
[21] ts 396.
Having regard to that conduct, in my view, for Mr Tobin's guilt of the charge to be established, I must be satisfied beyond reasonable doubt of all of the following matters:
1.Mr Tobin, by his conduct, discouraged Mr Johnson from giving evidence in the manner that the State has articulated that discouragement.
2.Mr Tobin's conduct included him intimidating and/or exerting pressure on Mr Johnson.
3.Mr Tobin's conduct had a tendency to induce Mr Johnson to either not give evidence, or not to give full and frank evidence.
4.Mr Tobin intended by his conduct to induce Mr Johnson not to give evidence, or not to give full and frank evidence.
The inducement that I speak of in the third and fourth matters conveys that Mr Johnson may be induced to act in that way other than by his own free choice in his own interests.
In the circumstances of this case, the first and second matters are very much intertwined. Given the State's case is that the impropriety of Mr Tobin's conduct is constituted by intimidation and/or the exertion of pressure, the consideration of whether his conduct constituted discouragement must require an assessment of whether there was any intimidation or pressure exerted, as they point to discouragement.
In respect of the fourth matter, that is the matter of Mr Tobin's intention, it is necessary that I be satisfied that Mr Tobin's intention in engaging in the conduct which he did was to induce Mr Johnson not to give evidence, or not to give full and frank evidence. This requires me to be satisfied that Mr Tobin's intent was to discourage Mr Johnson from giving evidence and to intimidate or exert pressure on him so as to achieve that outcome.
Mr Tobin by his admissions made pursuant to s 32 of the Evidence Act admitted that at all material times he was the managing lawyer at the West Kimberley Office of the Aboriginal Legal Service (WA) based in Broome. I take the phrase at all material times to mean that he was the managing lawyer at all times from the incident involving Mr Johnson and Ms Bamba through to the trial of the charge brought against her. Mr Tobin also admitted the following. He was at the Broome Magistrates Court on 28 November 2019 to represent Ms Bamba, who had been charged with aggravated unlawful wounding. Mr Tobin appeared for her in the trial which took place that day. Mr Johnson was the complainant and gave evidence in the trial. At the conclusion of the trial, the presiding magistrate adjourned the matter to 2 December 2019 to deliver her decision and on 2 December 2019 the presiding magistrate found Ms Bamba guilty of the offence of aggravated unlawful wounding.
I turn now to the evidence and my findings as to what happened.

Summary of the evidence

The State called five witnesses in its case - Mr Johnson, Sergeant Milne, First Class Constable Atherton (Constable Atherton), Detective Sergeant McKenner and Senior Constable Jackson. I summarise their evidence below. This is a summary and is not intended to reflect all of their evidence. In compiling this summary, I have used the transcript as an aide, however it is not a substitute for the evidence given.

Mr Johnson

Mr Johnson gave evidence by video link. He said that he remembered going to court for Ms Bamba, but he cannot remember speaking to Mr Tobin that day.[22] Mr Johnson said he remembered speaking to a detective at home that day. He did not remember anything that was said outside the courthouse. He was not cross‑examined.
[22] ts 242.
Mr Johnson in his evidence was quite hesitant when he spoke. This did not strike me as arising from the use of the video link facility. His evidence, and the evidence of others given in relation to him, does not enable me to make any assessment as to whether that was a characteristic he had as at 28 November 2019. Also, there was no evidence led as to his background, or as to his level of education or any particular vulnerability or susceptibility that he may have had as at 28 November 2019.

Sergeant Milne

In Sergeant Milne's examination‑in‑chief, he said that he has been a sergeant for 16 years, and in 2019 was stationed in Broome as the prosecuting sergeant. As at 28 November 2019 (the day of the trial), Sergeant Milne had been a prosecuting sergeant in Broome for approximately six months and had dealings with Mr Tobin as the managing solicitor at the Aboriginal Legal Service pretty much every working day.
Sergeant Milne said that Mr Johnson was Ms Bamba's partner.[23] He said that prior to the trial he became aware of a statement signed by Mr Johnson which ultimately became Exhibit 4. The statement was signed by Mr Johnson dated 9 July 2019 and amongst other things it stated:
I have received Legal advice and based on the advice I do not seek to disclose all reasons, I will not give evidence in court. I am seeking urgent consideration for this matter to be discontinued.
[23] ts 245.
On 27 November 2019, Sergeant Milne asked the investigating officer, Senior Constable Jackson to touch base with Mr Johnson to check that he was okay to get to court and still happy to proceed.[24] As a result of what was conveyed to Sergeant Milne by Senior Constable Jackson, Sergeant Milne was of the belief and understanding that Mr Johnson was coming to court for the trial.[25] In relation to the day of the trial, Senior Constable Jackson was tasked to collect Mr Johnson from his home.[26] Senior Constable Jackson brought Mr Johnson to the police station, Sergeant Milne met with him there and Mr Johnson said he was prepared to proceed and give evidence.[27] After the meeting, Sergeant Milne, Mr Johnson and Senior Constable Jackson walked from the police station to the court complex across the road. Sergeant Milne had other duties inside the court so he left Senior Constable Jackson outside with Mr Johnson.
[24] ts 245- 246.
[25] ts 246.
[26] ts 246.
[27] ts 246.
After Sergeant Milne had finished in the courthouse, he went outside and approached Mr Tobin, who he understood was acting for Ms Bamba to ask if Mr Tobin was ready to proceed.[28] When Sergeant Milne approached Mr Tobin, he recalled that Mr Tobin was on his own. They had a discussion to the effect that Sergeant Milne asked Mr Tobin if the matter was ready to proceed from your side and Mr Tobin said it is from our side.[29]
[28] ts 247.
[29] ts 248.
Mr Tobin then said 'why are you pushing this, it's clear that Harry doesn't want it to proceed'.[30] Sergeant Milne responded and said he'd gone through Mr Johnson's evidence with him and Mr Johnson told him that's how it occurred and he was happy to give evidence and have the matter proceed to trial.
[30] ts 248.
At this point in time, Mr Johnson and Senior Constable Jackson were about 15 m away seated together on a bench. Sergeant Milne also told Mr Tobin that Mr Johnson was keen for him and his partner to have the matter conclude and they can get some counselling possibly through the court and get on with their lives.[31]
[31] ts 249.
Mr Tobin responded and said, 'well we've got the statement and he is represented by a lawyer'.[32] Mr Tobin and Sergeant Milne then had discussions regarding the statement signed by Mr Johnson. Sergeant Milne described the conversation as quite amicable, saying it was no different to other ways he and Mr Tobin had discussed things before and that Mr Tobin was quite forthright.[33]
[32] ts 249.
[33] ts 249.
Mr Tobin said 'do you want to go and check with Harry, ask him in front of me'.[34] Sergeant Milne also put this in a slightly different manner which was Mr Tobin said words to the effect that 'well, how about we just - we go over and ask him. You can ask him in my presence?'[35] There is no substantial difference in these different formulations of what Mr Tobin said. Sergeant Milne agreed to Mr Tobin's suggestion and said 'Let's go over'.[36]
[34] ts 250.
[35] ts 251.
[36] ts 252.
Sergeant Milne was then taken through a 'mud map' he had prepared on 14 May 2023 which depicted where people were situated, in particular Sergeant Milne, Mr Tobin, Mr Johnson and Senior Constable Jackson. This became Exhibit 2. In his evidence, Sergeant Milne corrected on the map where he and Mr Tobin were standing in reference to Mr Johnson. He made that correction in handwriting on the mud map that was tendered into evidence. The mud map reflects that Sergeant Milne and Mr Tobin were each approximately the same distance away from Mr Johnson when Mr Tobin spoke to him.
Sergeant Milne said that when they got to Mr Johnson he leant in towards him and said 'Harry' and then Mr Tobin leant in and said words to the effect 'You don't want this to go ahead do you Harry'[37] and at the same time Mr Tobin was shaking his head in a negative sort of fashion side to side, left to right. He described how he and Mr Tobin were both about a metre away from Mr Johnson and then when Mr Tobin said these words he sort of leant his upper body down and decreased the distance from say a metre to 70 cm. Mr Tobin put it as a strong question. Mr Tobin did not raise his voice but spoke loudly enough to interject over what Sergeant Milne had initially said.[38]
[37] ts 254.
[38] ts 255.
Mr Johnson did not say anything in response and had a confused look on his face. Sergeant Milne said to Mr Tobin, 'Paul that's not fair. You wanted me to ask him', and Mr Tobin said words to the effect in response 'I know Harry. I will ask him' and this was said in a forceful way.[39] He said Mr Tobin then leaned in again to Mr Johnson and said 'Harry you just don't want this to go ahead do you … You don't want to take this to trial' and shaking his head again in a negative fashion left to right as he was saying it.[40] He said Mr Tobin spoke in his normal, deep, direct tone - not yelling in any way and not really raised.[41] He described Mr Tobin as talking in a similar way as Sergeant Milne was when answering questions in the witness box, which I assess was not in a raised voice. Sergeant Milne estimated again that Mr Tobin was approximately 70 cm away from Mr Johnson saying 'he's not in his face or anything. He is just leant down towards him as he has said those words'.[42] Mr Johnson looked up with a puzzled face and said 'What? You want me to stop?' or words to that effect to Mr Tobin.[43]
[39] ts 255.
[40] ts 256.
[41] ts 256.
[42] ts 256.
[43] ts 256.
Sergeant Milne then said to Mr Tobin 'This isn't fair' and Mr Tobin responded with words to the effect 'He simply doesn't want to give evidence'. Sergeant Milne said to Mr Tobin 'This isn't fair just go away'.
Sergeant Milne said that while Mr Tobin was still there, Sergeant Milne said to Mr Johnson 'Harry remember we went through the statement this morning and you told me everything in there was what happened or told me what was in the statement was the truth' and Mr Johnson said 'Yes, that's what happened'.[44] Mr Johnson also said to Sergeant Milne something to the effect, 'but I had been drinking'.[45] While the sequencing is not entirely clear, it appears that at this point Mr Tobin said to Sergeant Milne words to the effect 'He simply doesn't want this to proceed' and Sergeant Milne said to him 'We're about to start Paul, just go away, this isn't fair'.[46] Also, as part of this conversation, Mr Tobin said that Sergeant Milne was twisting things and making up lies.[47]
[44] ts 257.
[45] ts 258.
[46] ts 258.
[47] ts 258.
Sergeant Milne said that Mr Tobin also made a comment regarding Senior Constable Jackson that 'I'm not the one buying him cigarettes or supplying him with cigarettes'.[48]
[48] ts 258.
Sergeant Milne said during these conversations Senior Constable Jackson was at the end of the bench where Mr Johnson was sitting and Senior Constable Jackson was in a standing position.[49]
[49] ts 258.
Sergeant Milne said that eventually Mr Tobin had gone away.
In his cross-examination, Sergeant Milne broadly maintained his account of what he said occurred. He did however describe his initial conversation with Mr Tobin differently, saying that Mr Tobin said 'Why are you pushing this, why, it's clear he doesn't want to give evidence', [50] whereas in his evidence‑in‑chief he said that Mr Tobin had said 'Why are you pushing this, it's clear that Harry doesn't want it to proceed'.[51]
[50] ts 265.
[51] ts 248.
In terms of the time that the event lasted, Sergeant Milne said it was a maximum of around three or four minutes from the time Mr Tobin first got to where Mr Johnson was to when Mr Tobin walked away.[52]
[52] ts 260.
It was put to Sergeant Milne that he was trying to convince Mr Tobin that the prosecution case was strong and Ms Bamba should plead guilty. Sergeant Milne did not accept that proposition and also said that 'no one is ever able to convince Mr Tobin'.[53]
[53] ts 265.
In terms of the discussion between Sergeant Milne and Mr Tobin, Sergeant Milne agreed with the proposition that he said to Mr Tobin 'I've spoken to Mr Johnson, I proofed him and he's a willing witness' and that Mr Tobin responded to the effect of 'I've got a statement expressing his desire not to give evidence and I don't believe he's a willing witness today'.[54] Sergeant Milne said that Mr Tobin referred to the statement, but he did not produce it either in front of him or in front of Mr Johnson.[55]
[54] ts 271.
[55] ts 277.
Sergeant Milne explained that in going over to speak to Mr Johnson, it was for Mr Tobin to hear from Mr Johnson in his own words, because he wasn't believing it from Sergeant Milne.[56] He also said that in going over to speak to Mr Johnson, he was wanting Mr Tobin to hear from Mr Johnson himself what Mr Johnson's feelings were.[57] And, he said it may have shown to Mr Tobin that Sergeant Milne was not twisting Mr Johnson's arm or misrepresenting Mr Johnson's position.[58]
[56] ts 272.
[57] ts 274.
[58] ts 274.
It was put to Sergeant Milne that his belief that Mr Johnson was willing to proceed was different to Mr Tobin's belief. Sergeant Milne responded that Mr Tobin was relying on a piece of paper written five months prior and presenting that as his case that day and that Sergeant Milne had said to Mr Tobin that he had spoken to Mr Johnson personally and it was different to the statement and Mr Tobin certainly disagreed with that.[59]
[59] ts 274.
It was put to Sergeant Milne that as part of Mr Tobin's conversation with Mr Johnson, Mr Tobin pointed at a letter and said to Mr Johnson 'This says you don't want to give evidence'. Sergeant Milne answered no and said he did not recall Mr Tobin showing Mr Johnson that.[60]
[60] ts 277.
Sergeant Milne described the questions asked by Mr Tobin of Mr Johnson as being rhetorical. I did not allow re-examination on what he meant by this, as it is for me to determine what Mr Tobin's conduct conveyed.
During Sergeant Milne's re-examination, he was asked about an email which Mr Tobin sent to West Kimberley Prosecuting on 26 November 2019, which became Exhibit 3. Amongst other matters, the email stated:
The Prosecution have disclosed a statement provided by lawyers for the complainant that the complainant does not wish this matter to continue.
The complainant Johnson has a history of violence against the complainant.
We ask the Prosecution in light of these considerations to discontinue this charge against the accused on public interest grounds.
The second reference in the second sentence to the 'complainant' must be an error and is intended to refer to the accused. The email went on to request certain disclosure be provided if the matter is to proceed. The disclosure was directed to any prior criminal or violent history of Mr Johnson.
During Sergeant Milne's re-examination, he said that a decision was made to proceed with the prosecution and that he was dealing with the request for further disclosure made by the email.
Later on the first day of the trial after Sergeant Milne had concluded his evidence, I ordered that he be recalled for further cross‑examination. One of the matters the subject of the further cross‑examination was Sergeant Milne's evidence regarding Mr Tobin's shaking of his head. In that further cross-examination Sergeant Milne said that Mr Tobin said to Mr Johnson 'You don't want this to go ahead'. Sergeant Milne also said 'I'm categorically saying it was accompanied by a head shake on both instances it was said'.[61]
[61] ts 322.
My assessment overall of Sergeant Milne when he gave his evidence was that he was considered. He did correct himself when he thought he had made a mistake, for example in relation to his designation of where he and Mr Tobin were situated on the mud map. In Sergeant Milne's cross‑examination, at times he would not directly answer the questions that were asked of him and he sought to give an explanation before answering the question. Having reflected on this, I do not think that it counts against the credibility of his evidence but rather it reflects that at times during his cross-examination he 'defaulted' to prosecuting sergeant mode, rather than being a witness. I regard him as being an honest witness.
Further, in my view it is clear Sergeant Milne regarded Mr Tobin as someone who was difficult to deal with. In this respect, I have had regard to Sergeant Milne's evidence that 'No one is ever able to convince Mr Tobin' and also that Sergeant Milne thought by speaking to Mr Johnson it may have shown Mr Tobin that he was not twisting Mr Johnson's arm or misrepresenting his position. I also consider that Sergeant Milne and Mr Tobin did not have a good working relationship. This arises from those same matters that I have just raised taken together with the evidence that Mr Tobin asked Sergeant Milne to check with Mr Johnson in Mr Tobin's presence, which reflects a lack of trust, that Mr Tobin then interrupted Sergeant Milne and spoke to Mr Johnson directly and Mr Tobin's accusation to Sergeant Milne regarding him twisting things and lying.

First Class Constable Atherton

In his examination‑in‑chief, Constable Atherton said that in July 2019 he was stationed in Broome and on 3 July 2019 attended to an incident relating to Ms Bamba, resulting in her being charged with aggravated unlawful wounding in respect of Mr Johnson. He said Senior Constable Jackson was the investigating officer.
Constable Atherton attended at the Broome Courthouse on 28 November 2019 to give evidence in the trial of Ms Bamba. He said he was on the veranda outside the court with the other police officers involved, which included Senior Constable Jackson.
They were all waiting to give evidence in Ms Bamba's trial. He said at the time he knew of Mr Tobin and Mr Tobin was on the veranda. He did not have any conversation with Mr Tobin.
He said he saw Mr Tobin have a conversation with Sergeant Milne, he was within earshot of it but he could not tell word for word what was said. He said that Mr Johnson was also there and he was sitting on one of the benches on the veranda. He said he did not see Sergeant Milne have a conversation with Mr Johnson but did see Mr Tobin have a conversation with Mr Johnson. He said he was standing on the veranda[62] and Mr Tobin and Mr Johnson were behind and to his right. So that is, to his right behind him.[63] He said he saw Mr Tobin approach Mr Johnson and there was no one with Mr Johnson before he did so. He said he heard Mr Tobin say 'You don't want this do you or words to that effect'[64] and he said Mr Tobin said this in a tone as though he was asking him a question and it was loud enough for Constable Atherton to hear it.[65] He said Mr Johnson did not respond to Mr Tobin and what he recalled happening was Sergeant Milne then got involved. He was then asked what he saw happen after that and he said 'Not an awful lot really'.[66]
[62] ts 300.
[63] ts 300.
[64] ts 301.
[65] ts 301 - ts 302.
[66] ts 302.

In cross-examination, he said he did not hear word for word everything that Mr Tobin said to Mr Johnson.[67]
[67] ts 303 - ts 304.
He was asked whether Mr Tobin pointed to a letter in his hand and said words to the effect 'this says you don't want to give evidence' to Mr Johnson. He answered, 'I didn't overhear it as specifically as that … and now you say with the letter, I do recall that as well'.[68] It was then put to him, so you recall Mr Tobin pointing to a letter and saying 'This says you don't want to give evidence' and Constable Atherton accepted this proposition. Constable Atherton also said he recalled that just prior to this, Mr Tobin said 'Do you want this to go ahead'[69] He said he recalled Mr Tobin saying words to the effect 'Harry, did you want this trial to go ahead', he cannot remember how many times he said it, that it was more than once. He also said that he did not recall Mr Tobin shaking his head.
[68] ts 305.
[69] ts 305.
In re-examination, Constable Atherton said that he did recall that Mr Tobin had something in his hand, clarifying that it was a piece of paper, a document of some nature, he did not know it was a letter,[70] and he saw this document in Mr Tobin's hand and Mr Tobin drew reference to it. He was asked whether he heard Mr Tobin say anything to Mr Johnson when Mr Tobin was gesturing with a document and he said 'I can't be certain of words said'.[71] He was asked a number of further questions about a document being in Mr Tobin's hand when speaking to Mr Johnson and he maintained that he saw a document in Mr Tobin's hand. He also said that when he heard Mr Tobin speak to Mr Johnson he looked, he didn't fully turn and engage, just kind of looked over his shoulder. In re-examination, his evidence was that Mr Tobin said to Mr Johnson 'You don't want this do you.'[72]
[70] ts 308.
[71] ts 309.
[72] ts 313.
As to the distance Constable Atherton was away from where Mr Johnson was when Mr Tobin spoke to him, in examination‑in‑chief he said it was roughly within 10 m[73] and in cross-examination he said he was within 10 m.[74]
[73] ts 299.
[74] ts 304.
Overall my assessment of Constable Atherton's evidence was that he did not have a significant recall of what had happened. Further, his positioning was such that he was not well placed to observe what had happened or to overhear clearly what was said. I assess him as being an honest witness doing his best to recall in these circumstances.

Detective Sergeant McKenner

Detective Sergeant McKenner's evidence was limited to Mr Tobin's prior criminal record. His evidence, which I accept, is that the only prior criminal history that Mr Tobin has relates to a 0.08 driving violation and some other driving violations.

Senior Constable Jackson

In examination‑in‑chief, Senior Constable Jackson said that in July 2019 he was attached to the Broome Police Station. He investigated the incident involving Mr Johnson where Ms Bamba was the accused. In relation to the statement that is Exhibit 4, he said he became aware of this about a week after the incident, being 10 July 2019.[75]
[75] ts 325.
He said that on 16 October 2019 he served a witness summons on Mr Johnson and as a result of speaking to him when doing so, he believed that Mr Johnson was willing to attend court on the specified date on the summons.[76] The day before the trial, so that is 27 November 2019, he again went to Mr Johnson's house and Mr Johnson was no longer willing to attend court, Senior Constable Jackson saying that Mr Johnson wasn't wanting to attend court.[77] He said he went back to Mr Johnson's house about 8.40 am on 28 November 2019 and spoke to him again.[78] He said the purpose of going there was to offer him a lift to the courthouse. He said when he got there Mr Johnson wasn't ready. Senior Constable Jackson said he came back soon after and then took Mr Johnson to the Broome Courthouse. He said he had a further conversation with Mr Johnson and he was now willing to attend court.[79] I pause here to note that in these conversations Mr Johnson is not saying that he wants the matter to proceed to trial.
[76] ts 327.
[77] ts 327.
[78] ts 327.
[79] ts 328.
Senior Constable Jackson said that Sergeant Milne and he then met with Mr Johnson and Sergeant Milne discussed Mr Johnson's statement with him. He said he then offered Mr Johnson a coffee and a cigarette and to take him across to the courthouse and walk with him. He said he took Mr Johnson over to the courthouse and Sergeant Milne came across with them. He said when they got to the courthouse they went into the courtroom before leaving so Mr Johnson could go outside to have a cigarette. He said he did not have a cigarette on him so he went to the police station to get one and brought it back to Mr Johnson.[80] He said when he got back he gave the cigarette to Mr Johnson and he sat with him while he had the cigarette. He says he thinks Mr Johnson sat on top of the bench where food and drinks normally would go, so that is the table part, and Senior Constable Jackson sat on the bench next to him.[81]
[80] ts 328.
[81] ts 329.
He said while they were sitting there, Sergeant Milne and Mr Tobin came across to where he and Mr Johnson were sitting. He said when Sergeant Milne was maybe less than 10 m away he said 'Harry' and then Mr Tobin said 'Harry'. They then walked up to where he and Mr Johnson were and Mr Tobin said 'Harry you don't want this to go ahead do you'[82] or something to that effect, Mr Tobin using an overpowering tone. He said Mr Johnson was still sitting on the benchtop area and Mr Tobin was less than 5 m away at the time he said those words. He said Mr Tobin was shaking his head as he was asking that question,[83] indicating Mr Tobin was shaking his head in the negative.[84] He said Mr Johnson looked quite puzzled and Mr Tobin said again 'Look he doesn't want to go ahead with this' or words to that effect to Sergeant Milne and then Mr Tobin said to Mr Johnson 'You don't want to go ahead with this do you'.[85] In respect of whether Mr Tobin did anything when he spoke to Mr Johnson the second time, Senior Constable Jackson said he specifically remembered the negative head shaking on the initial words spoken but nothing after that.
[82] ts 330.
[83] ts 330.
[84] ts 330.
[85] ts 331.
He initially said that on the second time, the distance between Mr Tobin and Mr Johnson was a couple of metres.[86] He said that Mr Johnson responded at some point in time saying to Mr Tobin 'What you don't want me to give evidence'.[87] He said that the second time Mr Tobin spoke the words to Mr Johnson his tone of voice was quite demanding but it was not overly loud.[88] He said that in relation to the first time that Mr Tobin said the words he was over the top of Mr Johnson, who was sitting down. Mr Tobin was standing and was invading, close to Mr Johnson's personal space, and he overshadowed Mr Johnson. He said that the first time Mr Tobin spoke to Mr Johnson he was a few metres away and was saying the words during his approach towards Mr Johnson and Mr Tobin ended up less than a couple of metres away from Mr Johnson.[89] Senior Constable Jackson said that the second time Mr Tobin spoke to Mr Johnson, he was around a metre away and Mr Tobin overlooked Mr Johnson.[90] He said during these interactions he was sitting next to Mr Johnson[91] on his right‑hand side. He said he and Mr Johnson were facing towards the court[92] and that Mr Tobin was facing towards Mr Johnson.[93]
[86] ts 331, ts 332.
[87] ts 332.
[88] ts 332.
[89] ts 333.
[90] ts 334.
[91] ts 334.
[92] ts 334; while the transcript says indistinct, the audio is that Constable Jackson said towards the court.
[93] ts 334.
He said Sergeant Milne was standing next to Mr Tobin when Mr Tobin spoke. He said he did not hear Mr Tobin say any other words to Mr Johnson. He said after the second time Mr Tobin spoke to Mr Johnson, Sergeant Milne intervened and tried to direct Mr Tobin away from Mr Johnson. He did not recall hearing Sergeant Milne say anything to Mr Tobin. He said Mr Tobin said something to Sergeant Milne implying that Senior Constable Jackson was supplying Mr Johnson with cigarettes.[94] He said at this time Mr Tobin's demeanour was argumentative.[95]
[94] ts 335.
[95] ts 335.
In cross-examination, Senior Constable Jackson was asked about what he could observe happening and said that his direction was drawn when both Sergeant Milne and Mr Tobin shouted 'Harry' and 'That's what drew my attention to them'.[96]
[96] ts 336.
It was put to Senior Constable Jackson that Mr Tobin said to Mr Johnson 'Do you want this to go ahead' and pointed to a letter in his hand saying 'This says you don't want to give evidence'.[97] Senior Constable Jackson did not recall that. He said he did recall Sergeant Milne saying to Mr Tobin 'Paul, Paul, that's not fair, Paul, you can't do that' but he can't recall when that was.[98] He said that on one of the times that Mr Tobin spoke to Mr Johnson the words could have been 'Harry did you want this trial to go ahead'.[99]
[97] ts 338.
[98] ts 338.
[99] ts 338.
It was put to him that Mr Tobin did not shake his head when he was speaking to Mr Johnson and Senior Constable Jackson responded that he specifically remembered the shaking of the head aspect of things.[100]
[100] ts 339.
My assessment of Senior Constable Jackson was that he gave evidence very carefully and was a little nervous while doing so. I assess him as being an honest witness.

Findings on the evidence

Introductory observation

As an introductory observation, the event that occurred was dynamic and lasted for a short period of time. Sergeant Milne estimated the maximum period of time over which the interactions between Mr Tobin and Mr Johnson took place was three or four minutes. There were three key participants - Sergeant Milne, Mr Tobin and Mr Johnson. Sergeant Milne and Senior Constable Jackson directly observed what happened. Constable Atherton was a bystander and observed a limited part of what occurred. Senior Constable Jackson and Mr Johnson were not expecting Mr Tobin and Sergeant Milne to approach them. Senior Constable Jackson was endeavouring to observe and absorb what was happening, as was Sergeant Milne. In part, Sergeant Milne and Mr Tobin were reacting to each other, in circumstances where I am satisfied they did not have a good working relationship. Sergeant Milne and Constable Jackson did not expect Mr Tobin to act as he did and in my view were taken by surprise by his conduct. In relation to Mr Johnson, not only did he have no forewarning of what was to come, his desire to be there that day was something that had vacillated in the lead up to attending court. His initial reaction to what Mr Tobin said and did was one of confusion.
Given the dynamic nature of the situation, it is no surprise that Sergeant Milne, Senior Constable Jackson and Constable Atherton differed in their descriptions of what occurred. However, while it is no surprise, I still must be satisfied beyond reasonable doubt of the conduct that Mr Tobin engaged in towards Mr Johnson for it to form part of the State case against him.

Findings

I need to make findings as to what each of Mr Tobin, Sergeant Milne and Mr Johnson said and did during the course of their interactions on 28 November 2019.
I consider there are three key differences between the evidence of Sergeant Milne, Senior Constable Jackson and Constable Atherton that I need to address. They are:
1.Sergeant Milne says that Mr Tobin shook his head both times that he spoke to Mr Johnson. Senior Constable Jackson says this only occurred once, being the first time. Constable Atherton did not recall seeing Mr Tobin shaking his head.
2.Sergeant Milne describes the first time when Mr Tobin spoke to Mr Johnson was when both Sergeant Milne and Mr Tobin were about a metre away from Mr Johnson and Mr Tobin then leant in so that he was approximately 70 cm away from Mr Johnson. Sergeant Milne also says that when he (Sergeant Milne) first said 'Harry', he was about 1 m from Mr Johnson and leaned in to him. Senior Constable Jackson's evidence is that on the first occasion Mr Tobin spoke the words, Sergeant Milne and Mr Tobin were walking towards Mr Johnson and Mr Tobin started speaking when he was about 5 m away and he ended up being less than 2 m from Mr Johnson. On the second time, Senior Constable Jackson's evidence as to the distance between Mr Tobin and Mr Johnson varied from 2 m away to about 1 m. He also said that Mr Tobin was invading Mr Johnson's personal space and overlooking him.
3.Neither Sergeant Milne nor Senior Constable Jackson gave evidence that Mr Tobin pointed or gestured to any document whilst speaking to Mr Johnson. Constable Atherton in cross‑examination and re‑examination said that he did.
I deal with these matters in that order.

Shaking of the head

In relation to the respective positioning of Sergeant Milne and Senior Constable Jackson, Sergeant Milne was next to Mr Tobin and Senior Constable Jackson was seated on the bench with his attention drawn to Mr Tobin. In that respect, I accept Senior Constable Jackson's evidence that he was seated, as I consider he is more likely to accurately recall his own positioning. Constable Atherton was about 10 m away and had a limited view. Given his position, I do not regard his evidence as being of any significance in resolving this issue.
The State urges me to accept beyond reasonable doubt Sergeant Milne's evidence as to Mr Tobin shaking his head on both occasions that he spoke to Mr Johnson. The State submits that given Sergeant Milne was in close proximity to Mr Tobin, he was in a far better position to make that observation compared to Senior Constable Jackson.
While Sergeant Milne was next to Mr Tobin, Senior Constable Jackson was seated next to Mr Johnson and said that his attention was directed to Mr Tobin upon both Sergeant Milne and Mr Tobin shouting 'Harry'. Senior Constable Jackson did not say he was distracted in his observations of what was happening. As I have said, I regard Senior Constable Jackson as a careful witness. Further, the evidence does not descend to the detail of where Sergeant Milne and Senior Constable Jackson were looking when Mr Tobin spoke the relevant words.
Also, this is not a process of me deciding whether I prefer the evidence of Sergeant Milne over Senior Constable Jackson. I must be satisfied beyond reasonable doubt of the words and acts engaged in by Mr Tobin towards Mr Johnson. On the evidence before me and bearing in mind the dynamic nature of the situation, it is reasonably possible that either Sergeant Milne or Senior Constable Jackson were mistaken as to whether Mr Tobin shook his head on the second occasion. The prospect of a mistake being made is itself reflected in Sergeant Milne's first draft of the mud map prepared the day before he gave evidence, on which he says he mistakenly placed where he and Mr Tobin were in reference to Mr Johnson. On the evidence, I cannot discern whether Sergeant Milne or Senior Constable Jackson had a better view of what happened at the time of the second question, or were more likely to accurately recall what happened on the second occasion. Accordingly, for these reasons, I am not satisfied beyond reasonable doubt that Mr Tobin shook his head on the second occasion that he spoke to Mr Johnson.
I am however satisfied beyond reasonable doubt that on the first occasion Mr Tobin spoke to Mr Johnson, he shook his head from side to side while speaking. In making this finding, I have had regard to the evidence of Sergeant Milne and Senior Constable Jackson, the consistency of their evidence and my assessment of their evidence overall.

The relevant distances

I need not accept all of Sergeant Milne's and Senior Constable Jackson's evidence in respect of the distance that Mr Tobin was from Mr Johnson when he spoke to him. It is open to me, having regard to what they have said, to come to my own view as to those respective distances. In my view it is most unlikely that both Sergeant Milne and Mr Tobin did not say anything until they got within 2 m of Mr Johnson as Sergeant Milne's evidence reflects. In my view it is most likely that introductory words were said by them as they approached Mr Johnson. I also do not think there is any material difference between what Sergeant Milne says about Mr Tobin leaning into Mr Johnson and Senior Constable Jackson saying that Mr Tobin was in his personal space and overlooking him. In terms of the distances, the distances that each gave was an approximation. For Mr Tobin to be leaning in or to be overlooking Mr Johnson then, in my view he must have been within 1 m - 2 m of him. Also, given Senior Constable Jackson's evidence that Mr Tobin started speaking when he was less than 5 m away and spoke as he approached, then on that evidence, Mr Tobin must have still been speaking by the time he got within 2 m, given the short distance to cover from when he started speaking and the number of words that he spoke.
I am satisfied beyond reasonable doubt that:
1.On the first occasion that Mr Tobin started to speak to Mr Johnson he was more than 1 m - 2 m away but ended up being 1 m - 2 m away while he was still speaking.
2.On the second occasion he was within 1 m - 2 m of Mr Johnson.
3.On both occasions, he leant in towards Mr Johnson to speak to him.
In respect of Mr Tobin leaning in to Mr Johnson, Senior Constable Jackson's evidence has to be looked at in the context of him also describing the relevant distance between Mr Johnson and Mr Tobin as being 1 m or about 2 m. I consider that to Senior Constable Jackson's eye, this distance reflected being in Mr Johnson's personal space, however such a distance is also consistent with Sergeant Milne's description that Mr Tobin was not in Mr Johnson's face or anything. Therefore, I do not think there is any material difference between Sergeant Milne's evidence that Mr Tobin was not in Mr Johnson's face or anything and Senior Constable Jackson's evidence that Mr Tobin was in Mr Johnson's personal space and overlooking him.

The evidence as to Mr Tobin pointing to a document

On one possible view of it, Constable Atherton's evidence regarding Mr Tobin pointing to a document while speaking to Mr Johnson may support the State case, as it reflects Mr Tobin speaking to Mr Johnson about not giving evidence. The State did not rely on the evidence in that way and submitted that Constable Atherton's evidence that Mr Tobin pointed to a document while speaking to Mr Johnson was not reliable. The State says Constable Atherton's evidence should only be accepted to the extent he said Mr Tobin had a document in his hand.[101]
[101] ts 404 - ts 406, ts 408 - ts 414.
Constable Atherton's evidence is to the effect that he observed what was happening by looking over his shoulder. I have found that he did not have a significant recall of what happened and his positioning was such that he was not well placed to observe what happened, or to hear clearly what was said.
Sergeant Milne and Senior Constable Jackson do not refer to Mr Tobin pointing to a document while speaking to Mr Johnson and they clearly were in a better position than Constable Atherton to observe what was happening.
In my view, when regard is had to these factors, Constable Atherton in his evidence has likely confused the situation with the occasion described by Sergeant Milne in his evidence where Sergeant Milne said that Mr Tobin referred to a document in the initial discussion between them. I therefore do not accept Constable Atherton's evidence and accept the evidence of Sergeant Milne and Senior Constable Jackson that Mr Tobin did not refer to a document while speaking to Mr Johnson.
I turn now to address what was said by Mr Tobin, Sergeant Milne and Mr Johnson and also Mr Johnson's reaction to what was happening.

Assessment of what was said and relevant findings of fact

I have reflected on the matters that I have articulated at [176] ‑ [193]. In the circumstances taken as a whole, I am not satisfied that the only reasonable inference is that Mr Tobin intended by his conduct to discourage Mr Johnson from giving his evidence, whether at all, or in a full and frank manner. Rather, in my view, a reasonable inference, indeed the preferred view of what occurred, is that Mr Tobin's intention was to have Mr Johnson state in front of Sergeant Milne that he did not want the matter to proceed.
Therefore, I am not satisfied beyond reasonable doubt that Mr Tobin intended to discourage Mr Johnson from giving evidence. That being so, the State has not satisfied me beyond reasonable doubt that Mr Tobin intended to induce Mr Johnson not to give evidence, or not to give full and frank evidence.
Given that finding, I will not go on to consider whether Mr Tobin's intent was to induce Mr Johnson to act other than by his own free choice in his own interests. In my view, it is artificial for me to consider whether he had that intent, when I am not satisfied beyond reasonable doubt Mr Tobin's intent was to discourage Mr Johnson from giving evidence.

Verdict

For these reasons, I find Mr Tobin not guilty of the charge on the indictment and I will enter a judgment of acquittal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Judge Lemonis
6 JUNE 2023