Trewin v Western
[2015] WASC 358
•1 OCTOBER 2015
TREWIN -v- WESTERN [2015] WASC 358
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 358 | |
| Case No: | SJA:1034/2015 | 18 AUGUST 2015 | |
| Coram: | TOTTLE J | 1/10/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | STEVEN ADRIAN TREWIN CAMERON ERIC WESTERN |
Catchwords: | Appeal Application for leave to appeal Conviction of unlawful assault causing bodily harm Criminal Code (WA) s 317 Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 9(2), s 9(3) Criminal Code (WA), s 1(1), s 231(1), s 248(4)(a) s 248(4)(b), s 317 |
Case References: | Cramer v The Queen (Unreported, WASCA, Library No 980620, 28 October 1998) Elwin v Robinson [2014] WASCA 46 Francis v Todd [2011] WASC 185 Goodwyn v The State of Western Australia [2013] WASCA 141 M v The Queen (1994) 181 CLR 487 Samuels v The State of Western Australia [2005] WASCA 193 Scatchard v The Queen (1987) 27 A Crim R 136 Shaw v Mansell [2012] WASC 451 Smejlis v Matthews [2004] WASCA 158 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CAMERON ERIC WESTERN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE A J MAUGHAN
File No : PE 39680 of 2013
Catchwords:
Appeal - Application for leave to appeal - Conviction of unlawful assault causing bodily harm - Criminal Code (WA) s 317 - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9(2), s 9(3)
Criminal Code (WA), s 1(1), s 231(1), s 248(4)(a) s 248(4)(b), s 317
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Ms K A Vernon
Respondent : Ms K C Cook
Solicitors:
Appellant : Darren Jones Barrister and Solicitor
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cramer v The Queen (Unreported, WASCA, Library No 980620, 28 October 1998)
Elwin v Robinson [2014] WASCA 46
Francis v Todd [2011] WASC 185
Goodwyn v The State of Western Australia [2013] WASCA 141
M v The Queen (1994) 181 CLR 487
Samuels v The State of Western Australia [2005] WASCA 193
Scatchard v The Queen (1987) 27 A Crim R 136
Shaw v Mansell [2012] WASC 451
Smejlis v Matthews [2004] WASCA 158
TOTTLE J:
Introduction
1 The appellant has served as a police officer for 26 years. On the morning of Sunday, 25 August 2013, he was on duty at the Northbridge police station. His duties included responding to members of the public who attended the police station in person.
2 At approximately 5.00 am Ms Cassandra Swann attended the police station. She was accompanied by a friend and one other person. She came to report that she had been assaulted earlier that morning. The appellant spoke to Ms Swann.
3 Ms Swann was intoxicated. On an intermittent basis, over a period of approximately 30 minutes, she was abusive towards the appellant. Ultimately she assaulted the appellant in circumstances which I describe more fully below.
4 The appellant responded to the assault on him by Ms Swann by applying a straight arm bar hold to her left arm and taking her to the ground with some force.
5 The appellant was charged with unlawfully assaulting Ms Swann thereby doing her bodily harm, contrary to s 317 of the Criminal Code (WA), (the Code).
6 A trial was held in the Magistrates Court of Western Australia on 11 and 12 March 2015 before his Honour, Magistrate Maughan. The magistrate reserved his decision.
7 On 24 March 2015 the magistrate delivered oral reasons for convicting the appellant of the offence of unlawful assault on Ms Swann thereby doing her bodily harm. A judgment of conviction was duly recorded. The magistrate's reasons were transcribed and the transcript was available to me.
8 The appellant applies for leave to appeal.
9 In overview the appellant contended that the magistrate erred in the following ways:
1. by failing to find that the assault occurred as the appellant was arresting Ms Swann, and that the force used by him was such force as was reasonably necessary to overcome the force used by Ms Swann to resist arrest;
2. by failing to find that the appellant was acting in self-defence and that the force used by him was a reasonable response in the circumstances as he believed them to be; and
3. by finding that the assault caused Ms Swann to suffer bodily harm.
The factual background
10 There was no significant dispute about the primary facts. The following account is drawn from those findings of fact made by the magistrate which are relevant to the grounds of appeal. In order to explain the grounds of appeal and my reasons in respect of them I have supplemented the account of the facts with some references to aspects of the evidence which were, (unless otherwise stated), unchallenged.
11 Ms Swann and her friend, Ms Georgia McCagh entered Northbridge at about 9.00 pm on 24 August 2013.
12 Ms Swann drank a substantial amount of alcohol and became very intoxicated.
13 Between 4.00 and 4.30 am on the morning of 25 August 2013, Ms Swann and Ms McCagh left the Paramount Nightclub.
14 Shortly after leaving the nightclub Ms Swann and Ms McCagh were involved in an altercation with some men who were not known to them.
15 In the course of the altercation Ms Swann was punched in the jaw. In evidence she said that the punch was not very hard, (ts 13, 11 March 2015). Ms McCagh's evidence was to the same effect, (ts 31, 11 March 2015). The men left the scene in a car but returned a short while later. Ms Swann was punched in the jaw for a second time. Ms McCagh was also punched.
16 A decision was made to report the assault to the police.
17 As they tried to find their way to the police station, Ms Swann and Ms McCagh fell into conversation with a man, Mr Julian Tuffin, someone previously unknown to them. Mr Tuffin agreed to escort Ms Swann and Ms McCagh to the Northbridge police station.
18 Although Ms Swann had been punched twice, Ms McCagh's evidence was that when she and Ms Swann arrived at the police station she did not notice whether Ms Swann had any injuries and she said that the left side of Ms Swann's cheek, 'was fine', (ts 35, 11 March 2015).
19 The appellant was on duty at the police station. He was behind a counter in the reception area of the police station. He dealt with Ms Swann when she, Ms McCagh and Mr Tuffin arrived at the station. The events which unfolded at the police station were recorded on closed-circuit television, (CCTV).
20 Ms Swann was animated in her discussions with the appellant and was abusive towards him when, as she perceived it, he was not helping her with her complaint.
21 Ms Swann's conduct was witnessed by two other police officers: Constable Thomas and Acting Inspector Sillwood. Acting Inspector Sillwood suggested that Ms Swann be arrested for disorderly conduct.
22 After the appellant had been dealing with Ms Swann for approximately 30 minutes he formed the view that she was not going to leave the police station and she was going to continue to be disorderly.
23 The appellant came out from behind the counter into the reception area. This was where Ms Swann, Ms McCagh and Mr Tuffin were located. The appellant was followed by Constable Thomas.
24 Constable Thomas stopped to speak to Ms McCagh who was seated on a chair. Constable Thomas said to Ms McCagh, 'Get her out of here before she is arrested'.
25 The appellant walked towards Ms Swann who had moved from the reception area to an area described as the lobby area. It is apparent from the CCTV footage that the lobby area was separated from the reception area by a set of sliding glass doors and from the street entrance area by another set of sliding glass doors.
26 The appellant gave evidence that when he followed Ms Swann from the reception area into the lobby area he intended to arrest her for disorderly conduct.
27 The appellant took Ms Swann's left arm using a hold described as an escort hold. Ms Swann then struck the appellant and immediately after she struck or attempted to strike him for a second time. At this point the appellant applied a straight arm bar hold to Ms Swann's left arm and took her to the ground with speed and force. The escort hold and the straight arm bar hold are techniques, amongst others, taught to police officers. Such techniques are referred to collectively as Empty Hand Tactics.
28 The appellant acted quickly. In his reasons the magistrate described what occurred by reference to the images and time recording on the CCTV footage in the following terms:
The CCTV footage then shows the following sequence of events: at 5.34 Mr Swann placing - sorry, Ms Swann being placed in an escort hold by Officer Trewin; at 5.35, Mr - Ms Swann assaults Officer Trewin, by striking him to the upper chest, possibly slipping up onto his chin; at 5.36.1, Trewin's arm moves from an escort hold to the beginning of what has been described as an arm bar; at 5.36.3 the complainant either strikes or attempts to strike Officer Trewin for the second time; at 5.36.5 the complainant is taken to the ground in the move described as an arm bar.
The motion of taking Ms Swann to the ground is sudden and forceful. Both her legs appear to lose contact with the ground. It is her head that strikes the ground first. The whole physical interaction between Ms Swann and Officer Trewin is over in literally two to three seconds.
29 Constable Thomas helped the appellant get Ms Swann on her feet. The appellant described Ms Swann as a bit dazed for a few seconds but added that she recovered quickly, (ts 14, 12 March 2015).
30 Ms McCagh gave evidence that after Constable Thomas and the appellant had got Ms Swann on her feet they went to take her through the sliding doors and, 'The sliding doors didn't open and her head smashed into the doors', (ts 38, 11 March 2015) though she qualified her description of Ms Swann's head smashing into the door somewhat by saying, 'I wouldn't say it was a massive bang or anything. It was just, yes - just a head hitting a door', (ts 39, 11 March 2015). The appellant said that Ms Swann's head did not hit the sliding doors, (ts 6, 12 March 2015).
31 Constable Thomas and the appellant took Ms Swann to the lock up area in the police station.
32 Ms Swann was released and attended Sir Charles Gairdner Hospital. She gave evidence to the effect that when she presented at the hospital she had a right broken thumb and a large amount of swelling and bruising on the left side of her face near her temple. She said her thumb was sore and she had a slight headache, (ts 23 - 24, 11 March 2015).
33 At hospital Ms Swann was cared for by Ms Helena Halton, a nurse practitioner. Ms Halton gave evidence that Ms Swann presented with a large haematoma on her left 'temple forehead area' of about 9 to 10 cm in diameter and swelling, (ts 53 - 54, 11 March 2015).
34 Ms Halton also observed swelling at the base of Ms Swann's right thumb. The area was sore on examination. An x-ray was taken and this revealed a fracture to the base of the first metacarpal bone.
35 The following day, 26 August 2013, Ms Swann returned to hospital. She was seen once again by Ms Halton. Ms Halton's evidence was, '… she came back the second day with head pain. She had a pain from the injury to her head', (ts 57, 11 March 2015). Ms Halton observed that Ms Swann's 'head area' was extremely swollen and that the swelling and bruising had doubled in size and was a lot more discoloured. Ms Halton described the bruising as, '… very, very large bruising', (ts 57, 11 March 2015).
36 Ms Halton expressed the opinion that it would have taken 'a large impact for that sort of haematoma to occur' and that, 'it would have taken quite a lot of force for a big bruise like that'. She expressed the opinion that Ms Swann's head would have hurt for quite some number of days, if not for weeks, (ts 57, 11 March 2015).
37 On 28 August 2013 Ms Swann underwent surgery to repair the fracture to her thumb.
The issues raised at trial
38 Two defences were run on the appellant's behalf: first, that the assault on Ms Swann took place as the appellant was engaged in the course of a lawful arrest and that the force used by him was reasonably necessary to overcome Ms Swann's resistance to the arrest: s 231(1) of the Code; and secondly, that the appellant acted in self-defence: s 248(4) of the Code.
39 In closing the appellant's counsel accepted that the magistrate would have no difficulty in finding that the appellant had assaulted Ms Swann; and, that he might find by inference that the bodily harm, namely, the injury to Ms Swann's thumb and the bruising, may have been caused when Ms Swann hit the ground after the straight arm bar had been applied by the appellant.
The magistrate's findings
40 The magistrate rejected the appellant's evidence that he had formed an intention to arrest Ms Swann before he placed her in the escort hold. In his reasons, the magistrate said, (ts 5, 24 March 2015):
Officer Thomas testified that as Officer Trewin was approaching Swann, he spoke to Ms McCagh. He said to her, 'Get her out of here before she's arrested'. This, in my view, indicates that Trewin had not formed the view, at the time that he spoke to Thomas, that he was going to arrest Ms Swann. Trewin's evidence, which I reject, was that he had formed that intention. If he had formed that intention he clearly hadn't communicated that to Officer Thomas, as one might expect, when he was seeking Officer Thomas' assistance. I find that what occurred was that Trewin, consistent with Tuffin's evidence and Officer Thomas' utterances to Ms McCagh, was simply going to move Ms Swann on from the Northbridge Police Station.
41 The appellant does not challenge this finding.
42 In relation to the defence that the assault occurred as the appellant was arresting Ms Swann the magistrate concluded, (ts 7, 24 March 2015):
For the reasons previously stated I do not accept that Officer Trewin was arresting Ms Swann at the time she was placed in the escort hold, nor is there any evidence before me which would enable me to conclude that following the first blow by Ms Swann to his person he formed such an intention.
43 The magistrate's findings in relation to the defence of self-defence were as follows, (ts 7, 24 March 2015):
As to self-defence, I'm satisfied to the required standard that Ms Swann's first blow to Officer Trewin was a harmful act, as defined by the Criminal Code; and, secondly, that by reason of the first blow, and the imminent blow, Officer Trewin could have formed the belief that it was necessary to defend himself. The question then becomes, whether the - Officer Trewin's use of the arm bar, in the manner that it was used, was a reasonable response. In this regard, I have weighed, firstly, the disproportionate size between Ms Swann and Officer Trewin, he being much larger than that complainant; secondly, the relatively now [sic] impact, as I assess them, of the blows delivered, or attempted to be delivered by Ms Swann, and I note they caused no injury to Officer Trewin.
Next, that Officer Trewin's training and experience as a police officer in dealing with a volatile person. Next, the fact that Ms Swann had a phone in hand when she struck Officer Trewin - This does not, in my view, significantly amplify the threat posed by her given the nature of the blows thrown by her and her state of intoxication - next, the proximity of Officer Thomas and his availability to assist Officer Trewin; and lastly, but importantly, the CCTV footage, which, in my view, speaks for itself.
The question is has the prosecution negatived beyond a reasonable doubt the exculpatory provisions of section 248 raised by the accused or raised by the evidence as a whole? It has been held that where there is an attack, so the defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of the necessary defensive action.
There can be no doubt that Ms Swann's conduct and assault upon Officer Trewin on 25 August - sorry. I will start that again - on 24 and 25 August 2013 were inexcusable. Equally, however, I am of the view that Officer Trewin's response to Ms Swann's harmful act was disproportionate, that it was not a reasonable response. The force used was in excess of that required to be used to effect a defence of himself. For these reasons, I find that the charge against Officer Trewin is proved to the requisite standard and a judgment of conviction will be recorded.
The approach to the grant of leave to appeal
44 Leave to appeal is required for each ground of appeal, s 9(1) of the Criminal Appeals Act 2004 (WA), (the Act). Leave must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of success, s 9(2) of the Act, that is a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193. The appeal is taken to have been dismissed unless the court gives leave to appeal on at least one ground of appeal: s 9(3) of the Act.
Ground 1
45 The appellant sought and was granted leave to amend the first ground of appeal. In its amended form it reads as follows:
1. The learned Magistrate erred in fact and law in finding that a defence under section 231 of the Criminal Code (WA) was not available in that the learned Magistrate:
1.1A failed to find that the Appellant was arresting Ms Swann or had formed the intention to arrest her after Ms Swann first struck the Appellant when the weight of the evidence supported such a finding;
1.1 found that the Appellant was not arresting Cassandra Swan[n] at the time she was placed in the escort hold not was there any evidence that the Appellant had formed the intention to arrest Ms Swann after Ms Swann first struck the Appellant when that was irrelevant to whether the Appellant was arresting Ms Swann or had formed the intention to arrest her after the Appellant had struck or attempted to strike the Appellant for the second time;
1.2 failed to direct himself to consider whether the Appellant was arresting Ms Swann or had formed the intention to arrest her after Ms Swann had struck or attempted to strike the Appellant for the second time;
1.3 failed to find that the Appellant was arresting Ms Swann or had formed the intention to arrest her after Ms Swann had struck or attempted to strike the Appellant for the second time when the weight of the evidence supported such a finding.
46 Section 231(1) of the Code is in the following terms:
It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.
47 I have already referred to the magistrate's rejection of the appellant's evidence that he had formed an intention to arrest Ms Swann before placing her in an escort hold.
48 The appellant's evidence about his intention after he had placed Ms Swann in an escort hold was as follows, (ts 4 - 5, 12 March 2015):
I was coming up at an angle to her left to take hold of her arm in a double escort hold. Just as I took hold of her arm, I told her she was under arrest and took hold of her arm with my left hand at around her left wrist area and my right arm higher or my right hand higher up. She turned before I got to her side, so she ended up facing me, still swearing at me. She then struck me in my lower left jaw area and I could feel that she had some object in her right hand. I continued to move to my left as she also did to her left, taking some small steps, but - and she still had her right arm up, and it was then that she also struck me again to my face, and in doing that, to defend myself - it happened quickly. I was considering my safety. I then transferred to the arm bar hold. I placed my right arm on her tricep and, to prevent any further attack on me, her right arm still being free with the object in it and still trying to face me, I then used the arm bar to force her down to the floor. My intention there was to stop her striking me and to force her to the ground. Because I had hold of her, I didn't really - I did not consider moving away from her. It was in a fairly confined space and I already had hold of her. So I didn't consider it appropriate to use any other force option. I tended [sic] to force her to the ground, her - not to throw her to the ground. Her feet were moving in small steps. Her right arm was still out and she - then she went to the ground. (my emphasis)
49 The magistrate said this about the appellant's intention after he was struck for the first time (ts 7, 24 March 2015):
… nor is there any evidence before me which would enable me to conclude that following the first blow by Ms Swann to his person he formed such an intention.
50 This observation was, in effect, a finding that the appellant did not form an intention to arrest Ms Swann after he had been struck by her for the first time.
Ground 1.1A
51 The contention is that the magistrate should have found that the appellant was arresting Ms Swann, or had formed the intention to arrest her, after she struck him for the first time. It is contended that the weight of evidence favoured such a finding.
52 It was submitted on the appellant's behalf that as the dictionary definition of the word 'arrest' included the meanings, 'cause to stop', 'lay hold upon or apprehend by legal authority', 'a seizure or forcible restraint', the appellant's restraint of Ms Swann constituted a lawful arrest.
53 I do not accept this submission. Physical restraint by a police officer of a citizen does not amount to a lawful arrest. An intention to arrest is required for an arrest to be lawful: Williams G L, 'Requisites of a Valid Arrest' [1954] Crim L R 6.
54 Thus, in so far as the ground was intended to draw a distinction between a lawful arrest, (as opposed to mere physical restraint), and an intention to arrest, this distinction is illusory.
55 In support of the contention that the weight of evidence supported a finding that the appellant had formed an intention to arrest Ms Swann after the first strike, it was submitted on the appellant's behalf that the, '… only evidence is therefore the CCTV footage and that of the appellant'.
56 The appellant's evidence as to why he applied a straight arm bar did not support a finding that he had formed an intention to arrest Ms Swann after she had struck him for the first time. His evidence was to the effect that he applied the straight arm bar in order to defend himself. He made no mention of having an intention to arrest as he did so.
57 The CCTV footage shows the assault clearly. There is no sound track. The footage provides no direct evidence of the appellant's intentions. The appellant's argument is that the magistrate should have inferred from the appellant's restraint of Ms Swann that he intended to arrest her.
58 I do not accept that such an inference arose in the light of the appellant's evidence that he restrained Ms Swann in order to defend himself.
59 For these reasons there is no discernible error in the magistrate's finding that the appellant did not form an intention to arrest Ms Swann after the first strike or in the magistrate's failure to find that the appellant was engaged in a lawful arrest after the first strike.
Grounds 1.1 and 1.2
60 By these grounds the appellant contends that the magistrate's finding that the appellant did not have an intention to arrest Ms Swann at the time he applied the escort hold was irrelevant to the question of whether he held such an intention after the second strike or attempted strike, and the magistrate misdirected himself either by failing to consider whether the appellant was arresting Ms Swann after the second strike or attempted strike, or alternatively, failed to consider whether the appellant had formed the intention to arrest Ms Swann after the second strike or attempted strike. For the reasons stated in my consideration of ground 1.1A, any distinction sought to be drawn between a lawful arrest and an intention to arrest is illusory.
61 Given the speed with which the appellant applied the straight arm bar and took Ms Swann to the ground there is, with respect, an air of artificiality in the contention implicit in this ground that the magistrate should have assessed whether the appellant's intention changed second by second.
62 Moreover, given the speed with which the appellant acted, I consider that the finding that the appellant's intention at the time he applied the escort hold was relevant to his intention seconds later.
63 On my analysis of the CCTV footage, at the most three seconds elapsed between Ms Swann striking the appellant for the first time and her ending up on the ground. In this time, Ms Swann had struck or attempted to strike the appellant for a second time.
64 In the context of an assault that lasted two or three seconds at the most, the magistrate's finding that the appellant had no intention to arrest Ms Swann after the first blow must be read as a finding in respect of the appellant's state of mind for the entirety of the (very brief) period beginning after the first blow and ending with Ms Swann being on the ground. This period encompassed the seconds in which Ms Swann struck or attempted to strike the appellant for the second time.
65 In effect the magistrate gave consideration to whether the appellant formed an intention to arrest Ms Swann at any stage in the course of his physical interaction with her and held that no such intention was formed. I do not consider that the magistrate failed to direct himself correctly.
Ground 1.3
66 Ground 1.3 contends that the weight of the evidence supported a finding that the appellant had formed an intention to arrest Ms Swann after the second strike or attempted strike.
67 The evidence relied upon by the appellant is an inference said to have arisen from the physical restraint of Ms Swann by the appellant.
68 For the reasons stated in my consideration of ground 1.1A, given that the appellant's evidence was that his intention was to defend himself, I do not accept that such an inference arose. Thus, in my view it cannot be said that the weight of evidence supported a finding that the appellant had formed an intention to arrest Ms Swann after the second blow.
69 I am not satisfied that ground 1 has a reasonable prospect of success. I refuse leave to appeal in respect of it.
Ground 2
70 Ground 2 is as follows:
2 The learned Magistrate erred in fact and law in finding that the appellant's response to Ms Swann's harmful act to the appellant was not a reasonable response pursuant to s 248(b) of The Criminal Code (WA) in that:
2.1 the Magistrate failed to apply the correct test of determining whether the Appellant's harmful act was a reasonable response pursuant to s 248(4)(b) by failing to consider the circumstances as the Appellant believed them to be;
2.2 the evidence of the Appellant and Officer Blackwood supported a finding that the Appellant's use of force was a reasonable response in the circumstances as the Appellant believed them to be and that there were reasonable grounds for the Appellant's use of force;
2.3 the Magistrate found that the Appellant's response to Ms Swann's harmful act was not a reasonable response because it was disproportionate when that was not the correct test pursuant to s 248(4)(b).
(4) A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
As to self-defence, I'm satisfied to the required standard that Ms Swann's first blow to Officer Trewin was a harmful act, as defined by the Criminal Code; and, secondly, that by reason of the first blow, and the imminent blow, Officer Trewin could have formed the belief that it was necessary to defend himself.
73 This is a finding in the appellant's favour to the effect that the appellant believed that the action taken by him was necessary to defend himself from Ms Swann's harmful act. The finding meant that the appellant satisfied the requirements of s 248(4)(a) of the Code.
74 Section 248(4)(b) of the Code involves two concepts: first, the concept of the accused's belief as to the circumstances; secondly, the concept of whether the accused's response to the harmful act was a reasonable response. The accused's response must be a reasonable (objective) response in the circumstances as the accused subjectively believes them to be: see the observations of Mazza JA at [172] in Goodwyn v The State of Western Australia [2013] WASCA 141.
Ground 2.1
75 This ground focusses on the following sentence in the magistrate's findings:
The question then becomes, whether the - Officer Trewin's use of the arm bar, in the manner that it was used, was a reasonable response.
76 The magistrate did not record whether or not he directed himself to consider whether the response was a reasonable one in the circumstances as the appellant believed them to be for the purposes of s 248(4)(b) of the Code, (the subjective element).
77 The appellant submitted that the magistrate only considered the objective component of s 248(4)(b) without the associated subjective qualification. In this respect the appellant submitted that the magistrate made the same error in his approach to s 248(4)(b) as was made by the magistrate in Francis v Todd [2011] WASC 185: see in particular [36] and [37].
78 In considering this ground it is important to appreciate the narrow basis on which the case was put by the prosecution and how the defence of self-defence was put by the appellant at trial.
79 The prosecution did not contend that the appellant's choice of technique for defending himself was unreasonable. The prosecution accepted that it was reasonable for the appellant to apply a straight arm bar but contended that he applied it with such force that Ms Swann was thrown to the ground rather than being forced to the ground in a controlled manner and that this amount of force was unreasonable.
80 At trial the appellant's counsel identified the fact that the appellant was being attacked by Ms Swann as the only relevant subjective circumstance for the purposes of s 248(4)(b) of the Code. In closing the appellant's counsel said, (ts 22, 12 March 2015):
The second element, subsection (b), has a subjective component to it, that is the circumstances that Mr Trewin, in the circumstances that Mr Trewin believed them to be, has explained what those circumstances are, that is that he was being attacked by Ms Swann possibly with a weapon by strikes to the head.
81 As I have noted, the magistrate considered the fact that the appellant believed it was necessary for him to defend himself was a belief that satisfied s 248(4)(a). The magistrate did not expressly identify this belief as the relevant subjective circumstance for the purpose of s 248(4)(b). This was perhaps not surprising when the very same belief was relied upon by the appellant for the purposes of satisfying s 248(4)(a) and the subjective circumstance element of s 248(4)(b) of the Code.
82 In my opinion, when the magistrate's reasons are read in the context of the way in which the appellant's counsel had put the appellant's case in relation to the s 248(4)(b) subjective circumstance, it is implicit in the reasons that the magistrate did, in fact, consider whether the appellant's harmful act (the assault) was a reasonable response in the circumstances as he believed them to be, namely that he was being attacked and that he needed to defend himself.
83 I hold this opinion because the only subjective circumstance identified by the appellant's counsel at trial was the belief that he was being attacked. Moreover, in the sentence immediately before the magistrate posed the question of whether the use of the straight arm bar, in the manner that it was used, was a reasonable response, the magistrate made express reference to the appellant's belief that it was necessary to defend himself.
84 It was submitted on the appellant's behalf that the magistrate should have given consideration to the appellant's belief as to the existence of the following five circumstances:
1. The appellant's intention was to stop Ms Swann hitting him and to force her to the ground.
2. As the appellant had hold of Ms Swann, he did not consider moving away from her.
3. As the appellant and Ms Swann were in a fairly confined space, the appellant did not consider it appropriate to use other options to defend himself, such as a taser, baton or OC spray.
4. The appellant thought that Police Constable Thomas was with him, but he was not.
5. The appellant felt Ms Swann's first strike and it forced him to step back.
85 In my view these circumstances do not provide any support for this ground of appeal.
86 As to the first circumstance, namely that the appellant's intention was to stop Ms Swann hitting him, this is the very circumstance, which, in my view, the magistrate took into consideration. At the risk of being repetitious, it was the only subjective circumstance relied upon at trial for the purposes of s 248(4)(b).
87 In relation to circumstances 2 to 5 these are, in substance, reasons which justified the appellant's use of the straight arm bar to defend himself as opposed to some other technique or device.
88 If the prosecution case had been that the appellant should not have used the straight arm bar technique but some other technique, then it may have been necessary for the magistrate to give consideration to those circumstances, but that was not the way in which the prosecution put its case.
89 I am satisfied that the magistrate did, in fact, consider the relevant subjective circumstance identified by the appellant's counsel at trial, for the purposes of considering whether the appellant had satisfied the elements of s 248(4)(b). I am satisfied that the magistrate did not misdirect himself in the manner contended for in ground 2.1.
Ground 2.2
90 I have set out the appellant's evidence to the effect that his intention was to force Ms Swann to the ground, not to throw her to the ground. He also gave evidence that Ms Swann ended up going to the ground with her upper body first because she was stepping and had her right arm raised as he applied the straight arm bar to her left arm, (ts 13, 12 March 2015).
91 In cross-examination the appellant denied that he executed the straight arm bar poorly. He denied that he threw the appellant to the ground and denied, in effect, that he had used excessive force.
92 The magistrate was not bound to accept the appellant's evidence as to the reasonableness of the force used by him or his explanation of why Ms Swann hit the ground as she did. Indeed, the magistrate was required to assess the evidence, most importantly the CCTV footage, for himself and reach his own conclusions: see the observations of Hall J in Shaw v Mansell [2012] WASC 451 [39].
93 Police Sergeant Blackwood was called by the prosecution. The Sergeant was attached to the Operational Safety Tactics Training Unit at the WA Police Academy. He described his role as being in the 'Use of Force' team.
94 Sergeant Blackwood had seen the video footage of the incident and gave evidence that the straight arm bar was one of several Empty Hand Tactic techniques taught to police officers. Sergeant Blackwood described the straight arm bar technique and referred to training manuals which were tendered in evidence.
95 The magistrate referred to Sergeant Blackwood's evidence in some detail in his reasons and noted that Sergeant Blackwood had described the appellant's arm bar as being 'generally consistent with the procedure contained in the manual' but went on to say:
The difference, in my view, between what is contained in the manual and what is shown on the CCTV footage lies in the manual stating that the complainant 'can then be forced to the ground,' presumably to prevent further painful locking of the elbow, as opposed to being thrown, which occurred, in my view, on 25 August 2013.
The training manual described a hold with control. In the present case, I find that Officer Trewin had no such control.
96 Essentially, ground 2.2 was an invitation to review the evidence considered by the magistrate and reach a different conclusion. In my opinion the ground does not identify an error in the magistrate's consideration of the evidence which justifies appellate intervention.
Ground 2.3
97 This sub-ground focuses on the following passage of the magistrate's reasons:
Officer Trewin's response to Ms Swann's harmful act was disproportionate, that is that it was not a reasonable response. The force used was in excess of that required to be used to effect a defence of himself.
98 The appellant contends that the use of the word 'disproportionate' by the magistrate indicates that the magistrate did not apply the correct test pursuant to s 248(4)(b), namely whether the harmful act was a reasonable response by the person in the circumstances as the person believed them to be.
99 The use of the word 'disproportionate' reflects a step in the magistrate's reasoning as to whether the response was a reasonable response. In the course of making that evaluative judgment, it was quite appropriate for the magistrate to consider whether the appellant's response was proportionate or disproportionate. As Mazza JA observed in Goodwyn v The State of Western Australia at [161] the criminal law does not protect those who act disproportionately.
100 The contention, in effect, that the magistrate misdirected himself is without merit.
101 For the reasons I have outlined above, I do not consider that ground 2 has a reasonable prospect of success and I do not grant leave to appeal in respect of it.
Ground 3
102 This ground is as follows:
The learned Magistrate erred in fact and law in finding that the force used by the Appellant was in excess of that required to be used to effect a defence of himself when such a finding was against the weight of the evidence of the Appellant and Officer Blackwood to the effect that the force used was not more than is justified pursuant to section 248(4) and/or section 260 of The Criminal Code (WA).
103 Section 260 of the Code is as follows:
In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.
104 For the reasons explained by Mazza JA in Elwin v Robinson [2014] WASCA 46 at [65] the approach that I should take to this ground is the approach mandated by the High Court in M v The Queen (1994) 181 CLR 487, adapted to take account into account that the proceedings at first instance were before a magistrate.
105 The question is: whether on a consideration of all of the evidence, was it open to the magistrate to be satisfied of the appellant's guilt beyond reasonable doubt? Shortly stated, the well-known principles direct me to be mindful of the fact that the magistrate had the primary responsibility for determining the appellant's guilt or innocence and had the benefit of seeing and hearing the witnesses. My role is not to substitute a trial by this court for a trial by a magistrate. Having said that, if I have a doubt, it is doubt that the magistrate ought to have experienced unless his advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by me.
106 In support of ground 3, reliance was placed on the evidence given by the appellant in cross-examination to the effect that his aim was not to force Ms Swann to the floor but that, as a result of movement by her, she 'ended up going with her upper body first'. I have made reference to this evidence in my consideration of ground 2.3.
107 It was submitted that it was not put to the appellant that his explanation of why Ms Swann went down with her upper body first was wrong and that thus there was no reason for the magistrate to reject the appellant's evidence. The appellant also relies upon the evidence of Police Sergeant Blackwood to which I have already referred.
108 It is correct to say that it was not put directly to the appellant that his explanation of why Ms Swann's upper body hit the ground first was 'wrong'. His evidence on this topic cannot, however, be described as unchallenged. It was put to the appellant that the straight arm bar was 'poorly executed' and it was put to him that, in effect, he threw Ms Swann to the floor using an excessive level of force.
109 Further this was not a case in which the magistrate was obliged to accept the appellant's evidence because it was uncontradicted.
110 Rather, the magistrate was required to assess the appellant's explanation of why Ms Swann went to the ground with such force against the background of what he could see on the CCTV footage.
111 The CCTV footage showed the incident clearly. The footage had been enlarged. Additionally, the appellant's counsel had produced a clip of the CCTV footage which had been slowed down. This was tendered by consent.
112 It is apparent from the magistrate's reasons that he gave careful and detailed consideration to the CCTV footage and reached the conclusion that the force used by the appellant was excessive. It is necessarily implicit in that finding that the magistrate rejected the appellant's explanation as to why Ms Swann's upper body hit the ground first.
113 I have viewed both versions of the CCTV footage of the assault carefully. I have also considered the evidence of the appellant and Sergeant Blackwood carefully.
114 Having considered all the evidence I am satisfied that it was open to the magistrate to be satisfied of the appellant's guilt beyond reasonable doubt.
115 I do not consider that ground 3 has a reasonable prospect of success.
Ground 4
116 This ground is in the following terms:
The learned Magistrate erred in fact and law in finding that the Appellant caused bodily harm to Ms Swann when such a finding was not supported by the evidence.
117 The appellant's submitted that the magistrate erred in the following respects:
(i) by finding that the bruising suffered by Ms Swann amounted to bodily harm;
(ii) by finding that the bruising suffered by Ms Swann occurred in the course of the assault;
(iii) by finding that Ms Swann's thumb was fractured in the course of the assault.
Did Ms Swann suffer bodily harm?
118 'Bodily harm' is defined in s 1(1) of the Code as 'any bodily injury which interferes with health or comfort'.
119 Bruising has been held to constitute bodily injury: Cramer v The Queen (Unreported, WASCA, Library No 980620, 28 October 1998); Smejlis v Matthews [2004] WASCA 158 [54].
120 Pain without bodily injury does not constitute bodily injury: Scatchard v The Queen (1987) 27 A Crim R 136.
121 In this case Ms Swann suffered bodily injury in the form of what was described by Ms Halton as 'very, very large bruising'. She had pain in the form of a headache when she presented at the hospital on the morning of the assault. When Ms Swann re-presented to hospital on the following day, Ms Halton observed that, 'She had a pain from the injury to her head'. The only injury Ms Swann had to her head was the swelling and bruising Ms Halton had described. Ms Halton offered the opinion that Ms Swann's head would have hurt for some days, if not some weeks, (ts 57, 11 March 2015).
122 This is not a case in which a victim of an assault had a bodily injury, in the form of bruising, but no interference with health or comfort, cfSmejlis v Matthews or pain but no bodily injury, cfScatchard v The Queen.
123 Ms Swann suffered bodily injury in the form of bruising and swelling and pain which interfered with her comfort. I am satisfied that Ms Swann suffered bodily harm and that the Magistrate did not make any error in arriving at his finding to that effect.
Was the bruising sustained in the course of the assault?
124 The appellant submitted that there was no evidence on which the magistrate could have concluded beyond reasonable doubt the appellant's action caused the bruising and swelling.
125 The magistrate found that Ms Swann's head hit the ground first. Having viewed the CCTV footage I consider that this finding was open to the magistrate.
126 The evidence which supported the finding that the swelling and bruising suffered by Ms Swann was sustained in the assault was as follows:
1. The CCTV footage showing the speed with which Ms Swann was taken to the ground and which part of her body hit the ground first.
2. The appellant's evidence that Ms Swann was dazed for a few seconds after she hit the floor and that she hit the floor quite hard.
3. Ms Halton's evidence that it would have taken a 'large impact' and 'quite a lot of force' to cause the bruising suffered by Ms Swann.
127 I am satisfied that it was open for the magistrate to find on this evidence that the bruising and swelling was sustained as a result of Ms Swann's head hitting the floor hard as a consequence of being taken to the floor by the appellant.
128 It was submitted on the appellant's behalf that the magistrate could not have been satisfied beyond reasonable doubt that Ms Swann's bruising was not caused by the punches she had received earlier in the morning or by her head hitting the sliding doors after the assault.
129 In my opinion, it was open to the magistrate to be satisfied to the required standard that the bruising was not caused by the two punches Ms Swann had received prior to the assault for the following reasons:
1. Ms Swann's evidence that the first punch was not very hard and resulted in a slightly sore jaw.
2. Ms McCagh's unchallenged evidence was that when she and Ms Swann arrived at the police station she did not notice whether Ms Swann had any injuries, and that her left cheek looked fine.
3. The absence of any discernible evidence on the CCTV footage prior to the assault that Ms Swann was troubled by any injury of the nature she ultimately sustained.
130 In assessing whether the bruising was caused by Ms Swann's head hitting the sliding doors after the assault, it must be remembered that the appellant's evidence was that Ms Swann's head did not hit the sliding doors. I was urged to accept that whilst the magistrate had rejected parts of the appellant's evidence, the magistrate did not find that he was a generally unreliable witness and that I should approach his evidence on that basis. If I was to adopt that approach I would reject the theory that Ms Swann's bruising was caused by her head hitting the sliding doors without any further consideration of the evidence.
131 Even if one assumes that the magistrate rejected the appellant's evidence that Ms Swann's head did not hit the sliding doors, Ms McCagh's evidence does not suggest that Ms Swann's head hit the door with such force as would have caused the extensive bruising she suffered. Whilst Ms McCagh did say that Ms Swann's head was 'smashed' into the doors, in a subsequent answer, she qualified her evidence by saying she '… wouldn't say it was a massive bang or anything. It was just, yes - just a head hitting a door'.
132 It is not clear from the CCTV footage that Ms Swann's head did hit the sliding doors. Had it not been suggested that this occurred I would not have thought of that possibility on viewing the footage. Having viewed the footage in the light of the suggestion that Ms Swann's head hit the sliding doors I can see that this may have occurred but there is nothing on the CCTV footage which would suggest an impact capable of causing the injuries actually suffered by Ms Swann. More particularly, the CCTV footage does not suggest that Ms Swann's head hit the sliding doors with an impact of the force which Ms Halton described would be necessary to cause the bruising and swelling suffered by Ms Swann.
133 I am satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the bruising and swelling was not caused by anything other than the impact of her head hitting the floor as a result of the assault.
Was Ms Swann's right thumb fractured in the course of the assault?
134 The appellant accepts that the fracture to Ms Swann's thumb constitutes 'bodily harm' but submits that it was not open to the magistrate to find the fractured thumb was caused by the assault.
135 Ms Swann did not have any recollection of the assault. She did remember, however, that when she arrived at the hospital she had a sore thumb.
136 The appellant's submissions identified a number of possibilities which it contended were other 'reasonable possibilities' as to the cause of the injury which the prosecution was required to eliminate beyond reasonable doubt. These were:
(i) the injury was sustained when Ms Swann struck the appellant whilst holding an object in her hand, (her mobile telephone);
(ii) the injury was sustained when Ms Swann 'fell' to the floor clutching the phone in her hand;
(iii) the injury was sustained when Constable Thomas lifted Ms Swann to her feet;
(iv) the injury was sustained as Ms Swann tried to pull away from Constable Thomas.
137 None of these possibilities were put to any of the witnesses at trial and they were not raised by the appellant's counsel in closing.
138 I will, however, address each one in turn.
139 The magistrate assessed the blows delivered by Ms Swann to the appellant as of 'relatively low impact'. Having viewed the CCTV footage I agree with his assessment. Accordingly, in my view, the possibility that Ms Swann fractured her thumb when she struck the appellant may be excluded.
140 Ms Swann did not fall to the floor. The magistrate found that the appellant threw her to the floor and, as a result and as the magistrate found, she sustained a fracture to her thumb. The fact that Ms Swann had her phone in her hand which may have been the cause of the fracture, does not involve any break in causation which would have the effect of exculpating the appellant.
141 Having viewed the CCTV footage there is nothing on those images which would suggest that the fracture to Ms Swann's thumb occurred as Constable Thomas lifted Ms Swann to her feet or as she tried to pull away from him.
142 In my view, the finding that Ms Swann's thumb was fractured in the course of the assault as opposed to by any other means was open on the evidence.
143 For the reasons set out above I do not consider that ground 4 has a reasonable prospect of success and I refuse leave to appeal in respect of it.
Conclusion
144 For the reasons I have set out above, on my view none of the grounds of appeal have a reasonable prospect of success and I refuse to grant leave to appeal in respect of any of them.
145 I dismiss the application. I will hear the parties in relation to costs.
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