Walley v Mansell
[2007] WASC 56
•19 FEBRUARY 2007
WALLEY -v- MANSELL [2007] WASC 56
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 56 | |
| Case No: | SJA:1086/2006 | 19 FEBRUARY 2007 | |
| Coram: | HASLUCK J | 18/02/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction and penalty quashed Judgment of acquittal entered | ||
| B | |||
| PDF Version |
| Parties: | BELINDA ANNE WALLEY STUART ANTHONY MANSELL |
Catchwords: | Criminal law Appeal against conviction Alleged failure to comply with "Move On" Notice Not guilty plea entered No evidence led to prove element of charge that written order was in an approved form Appeal allowed Conviction and penalty quashed Judgment of acquittal Turns on own facts |
Legislation: | Police Act 1892 (WA), s 50(1)(b)(iii), s 50(5), s 50(6), s 52A, s 52B |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
STUART ANTHONY MANSELL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE J G MUSK
File No : FTLE 1665 of 2006
Catchwords:
Criminal law - Appeal against conviction - Alleged failure to comply with "Move On" Notice - Not guilty plea entered - No evidence led to prove element of charge that written order was in an approved form - Appeal allowed - Conviction and penalty quashed - Judgment of acquittal - Turns on own facts
(Page 2)
Legislation:
Police Act 1892 (WA), s 50(1)(b)(iii), s 50(5), s 50(6), s 52A, s 52B
Result:
Appeal allowed
Conviction and penalty quashed
Judgment of acquittal entered
Category: B
Representation:
Counsel:
Appellant : Mr R W Richardson
Respondent : Mr N C Monahan
Solicitors:
Appellant : Aboriginal Legal Service
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
(Page 3)
- HASLUCK J:
Introduction
1 The appellant, Belinda Anne Walley, seeks leave to appeal against a conviction after trial in the Magistrates' Court at Fremantle on 22 June 2006.
2 The appellant was charged that on 11 January 2006 at Fremantle without reasonable excuse she failed to comply with an order given by a police officer contrary to s 50(6) of the Police Act 1892 (WA). The order in question is described conveniently as a "move on" order. This was provided for by amendments to the Police Act that came into force on 1 June 2005.
3 The matter was brought on for hearing before Magistrate Musk. The appellant was represented by counsel and entered a plea of not guilty to the charge.
The hearing
4 The prosecution adduced evidence at the hearing that at approximately 10 am on 11 January 2006 the respondent, a police officer, observed the appellant in a public park bordered by Cantonment and Parry Streets, Fremantle.
5 The appellant was allegedly affected by solvents and behaving in a manner which caused the respondent to suspect that the appellant was likely to use violence against another person.
6 The respondent served on the appellant a written move on notice under s 50(5) of the Police Act. The appellant was ordered to leave the park pursuant to s 50(1)(b)(iii) of the Police Act.
7 In addition to ordering the appellant to leave the park the respondent ordered the appellant to move away from the Fremantle central business district (an area described in the notice as being bordered by Stirling Highway, Leach Highway, Ord Street, Hampton Road and Douro Road) for a period of 24 hours pursuant to s 52A and s 52B of the Police Act.
8 There was evidence that at approximately 12 pm on the same date the respondent located the appellant at the intersection of Queen and Cantonment Streets, Fremantle, not far from where the move on order was issued. The appellant was then arrested and charged with not complying with the move on notice pursuant to s 50(6) of the Police Act.
(Page 4)
The statutory provisions
9 The statutory provisions in question can be summarised as follows.
10 Section 50(1) of the Act provides that a police officer may order a person who is in a public place to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person is doing or is just about to do certain specified acts such as using violence against a person or intends to commit an offence.
11 By s 50(2) a police officer giving such an order may in addition do either or both the following, namely, "order the person to go beyond a reasonable distance from a place, or the part of a place, set by the officer" (s 50(2)(a); "order the person to obey the order or orders for a period set by the officer; but the period must not be longer than 24 hours" (s 50(2)(b)).
12 By s 50(5) any order given under this section to a person must be in writing in a form approved by the Commissioner of Police and be served on the person by giving it to the person or by leaving it near the person and orally drawing his or her attention to it.
13 By s 50(6) a person who, without reasonable excuse, does not comply with an order given by a police officer commits an offence.
The outcome
14 The appellant did not give evidence at the hearing on 22 June 2006. Thus, after hearing submissions, the learned Magistrate proceeded to deliver her reasons for decision.
15 The Magistrate observed that the facts before her were undisputed that the appellant was under the influence of solvents. She characterised this as not a one off matter but as a course of conduct that continued. Looked at in that light, a period of 24 hours specified on the notice was not an unreasonable length of time in the circumstances.
16 Her Honour observed that as the appellant's home address was given as Mosman Park, and she indicated that she was going to get the train, it was not unreasonable to set boundaries as the police officers did when they required the appellant to leave the area. Her Honour held that the conditions set out on the subject notice were not unreasonable.
17 Finally, the learned Magistrate held, having regard to the form of the notice, and to the evidence of the police officers, that the only reasonable
(Page 5)
- inference to be drawn was that it was a form approved in accordance with the requirements of s 50 of the Police Act. She then held that the charge had been proved and recorded a conviction. Her Honour proceeded to impose a fine of $200 and make an order for $53 in respect of costs.
18 The appellant sought leave to appeal against the conviction on the grounds set out in the appeal notice filed by the appellant on 17 August 2006.
Grounds of appeal
19 The grounds of appeal were essentially that (a) the learned Magistrate erred in law by finding that the appellant had been served with a valid notice under s 50 of the Police Act or erred in failing to find that the move on notice was a nullity; (b) the learned Magistrate erred in law and in fact in finding that the prosecution had proved beyond reasonable doubt that the appellant was in breach of the move on notice because the notice did not comply with the requirements of s 50 of the Act or because the terms of the notice were vague, imprecise and ambiguous.
20 It is said also that by reason of these alleged errors and omissions there was a miscarriage of justice.
21 On 30 October 2006 Blaxell J ordered that the application for leave to appeal was to be adjourned to a date to be fixed. The application for leave to appeal and the appeal were to be heard together.
22 I note in passing that s 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. Leave to appeal must not be given unless the Court is satisfied that the ground has a reasonable prospect of succeeding.
23 By s 14 of the Criminal Appeal Act the Supreme Court may dismiss or allow an appeal or set aside or vary the decision or remit the case for rehearing.
24 By s 39, the Court must decide the appeal on the evidence and material that were before the primary Court, but this does not prevent consideration of any evidence that the primary Court refused to admit.
25 I have described the relevant provisions of the Police Act. I note, more particularly, that by s 50(1)(b)(iii) of the Act a police officer may order a person who is in a public place to leave it if the officer reasonably suspects that the person is just about to do an act that is likely to cause a person to fear violence will be used by that person against another person.
(Page 6)
Submissions
26 The parties filed written submissions prior to the listed date for the hearing of the application for leave and the appeal.
27 Counsel for the appellant submitted that the elements of the offence created by s 50(6) of the Police Act were as follows: that the accused was in a public place; a police officer had a relevant belief on reasonable grounds, namely, suspicion in respect of one or more of the matters specified in the provision; the police officer issued a written order in compliance with the requirements of the provision; a written order was in a form approved by the Commissioner of Police; the accused contravened the written order without reasonable excuse.
28 It was said by counsel for the appellant that the move on notice in the present case was not sufficient to support a conviction. The prosecution had led no evidence that the standard form used by the police officer was authorised by the Commissioner of Police and this deficiency could not be saved by the so called presumption of regularity.
29 Moreover, counsel contended, the printed form in the present case did not comply with the requirements of the statutory provision. The subject notice or order did not conform with s 50 by providing that the recipient was directed to move away from the specified place and to stay away from that place until a nominated time. The statutory provision required that the order be in writing, with the result that the evidence of the police officer as to what the appellant was verbally advised was irrelevant.
30 Counsel submitted also that it was clear from the words of the provision that "a place" is confined to the approximate physical location of the person.
31 Counsel for the respondent delivered written submissions prior to the hearing of the appeal. It was said that the subject notice met the written and service requirements of s 50(5) of the Police Act, with the result that the conviction was soundly based, having regard to the evidence adduced before the learned Magistrate.
32 Further, it was said, leave to appeal should be refused in respect of both grounds because the appellant had no real prospect of success.
(Page 7)
The hearing of the appeal
33 At the hearing of the appeal, the Court and the appellant were advised by counsel for the respondent that further inquiries had established that the subject notice had not in fact been approved by the Commissioner of Police in the manner required by s 50 of the Act.
34 After some discussion it was acknowledged by counsel for the respondent that leave to appeal should be allowed, and the appeal should succeed, pursuant to the first ground of appeal. A minute of orders agreed by counsel was submitted to me.
35 Having regard to the nature of the concession made by the respondent concerning a central element of the offence, I consider that leave to appeal should be granted and the appeal should be allowed on the ground that the appellant was not served with a written order in a form approved by the Commissioner of Police.
36 It follows from the concession made by counsel for the respondent that there is no need for me to rule on issues raised by the second ground of appeal or other issues raised on behalf of the appellant at the hearing or in her written submissions.
37 I will therefore make orders in terms of the minute of proposed orders agreed by counsel.
Summary
38 The orders to be made are as follows:
(1) there be an extension of time in which to appeal,
(2) leave to appeal be granted on ground 1,
(3) the conviction and penalty be quashed, the appeal be allowed and judgment of acquittal be entered,
(4) the appellant is entitled to the costs of the trial under the Official Prosecutions (Accused's Costs) Act 1973 (WA) fixed at $2000.
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