WILLIAMS-JONES v Miller - [2017] WASC 276

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WILLIAMS-JONES -v- MILLER [2017] WASC 276

CORAM: SMITH AJ

HEARD: 7 SEPTEMBER 2017

DELIVERED : 29 SEPTEMBER 2017

FILE NO/S: SJA 1029 of 2017

BETWEEN: JUSTIN WILLIAMS-JONES
Appellant
AND
THOMAS JAMES MILLER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE T R HALL
File No  :PE 61465 of 2015

Catchwords:

Criminal law - Appeal against acquittal - Aggravated assault public officer - Whether magistrate erred in finding self defence combined with a honest and reasonable mistaken open as a defence - Construction of s 248(5) Criminal Code (WA) when read with s 24 Criminal Code considered

Legislation:

Criminal Code (WA), s 23, s 23A, s 23B, s 24, s 25, s 36, s 248, s 249, s 250, s 318(1)(d), s 318(4)(b)
Criminal Law (Homicide) Act 2008 (WA), s 5, s 8
Interpretation Act 1984 (WA), s 18, s 19(1)(a)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr R G Wilson
Respondent: Ms N R Sinton

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: Legal Aid (WA)

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

House v The King [1936] HCA 40
Gronow v Gronow [1979] HCA 63
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Binetti v Feasey [2015] WASC 93
Director General of Department of Transport v McKenzie [2016] WASCA 147
Egitmen v The State of Western Australia [2016] WASCA 214
Geraldton Fisherman's Co‑operative Ltd v Munro [1963] WAR 129
Goodwyn v The State of Western Australia [2013] WASCA 141
Kerber v Towler [2014] WASC 419
Lean v The Queen (1989) 1 WAR 348
Mahmood v The State of Western Australia [2009] WASCA 220
Marwey v The Queen (1977) 138 CLR 630
Rodrigues v Ainsworth [2014] WASC 101
Steel v The State of Western Australia [2010] WASCA 118
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483

SMITH AJ:

Background

On 27 March 2017, the respondent, Thomas James Miller, was acquitted by Magistrate Hall of a charge of aggravated assault of a public officer. It was alleged pursuant to s 318(1)(d) and s 318(4)(b) of the Criminal Code (WA), Mr Miller assaulted Jason Bruce Fraser, a police officer, who suffered bodily harm being a cut above his eye requiring three stitches, when performing a function of his office.
At the trial, the prosecution called two witnesses, Constable Fraser and Probationary Constable Thomas Blackshaw. Mr Miller elected not to give evidence, as was his right. CCTV footage of the incident was tendered, and a police video record of interview, together with transcript of admissions made by Mr Miller, were also tendered into evidence.
Constable Fraser was injured by Mr Miller who punched Constable Fraser in the face late in the evening on 11 December 2015, at the Perth Bus Station in Roe Street, Perth, after Constable Fraser and Constable Blackshaw intervened to stop several young males and females from fighting. The assault occurred when Constable Fraser rushed at Mr Miller with speed, pushed him to the fence and arrested him.
At the hearing before the learned magistrate, on behalf of Mr Miller, it was contended that the evidence established that he had honestly and mistakenly believed that at the time he was tackled by Constable Fraser, he was acting in self‑defence as:
(a)he thought it was someone coming to 'mob' him and did not realise he was tackled by a police officer;
(b)he tried to 'get out of it' by trying to swing a punch but his arm was grabbed; and
(c)as soon as he realised his arm had been grabbed by a police officer he stopped.
The learned magistrate acquitted Mr Miller on grounds that the prosecution had not negated the defence of self‑defence, combined with the defence of honest and reasonable mistaken belief.

The evidence at trial

On Friday, 11 December 2015, Constable Fraser and Constable Blackshaw were on duty conducting bicycle patrols in the Northbridge area. They were in Roe Street shortly before 11.00 pm when they saw a group of people yelling and fighting at the bus station and saw some transit officers trying to deal with the situation. There were about seven or eight people fighting in a group of about 12 people.
The Constables went to assist the transit officers. Constable Fraser stopped several different fights. He stopped fights as others started, including two females fighting on the ground. He then saw a female holding a broken bottle so he placed her in handcuffs.
Constable Blackshaw saw a male in the melee. He intervened and put him on the ground and told him to stay put. Constable Blackshaw then separated two females who were fighting. He looked up and saw Mr Miller shaping up to fight with another male. Constable Blackshaw ran over to Mr Miller and grabbed him and pushed him towards the fence near the bus shelter and told him to stay there. Mr Miller told Constable Blackshaw he would stay there. Constable Blackshaw turned and saw other people fighting and he assisted Constable Fraser to separate two girls, one of whom had a broken bottle in her hand.
Constable Fraser turned around and saw Mr Miller with his shirt off and fighting another male. Constable Fraser went over to them. The other male was on the ground. Constable Blackshaw drew his pepper spray and pointed the spray at Mr Miller who moved backwards towards the fence. Constable Blackshaw then saw Constable Fraser running in at an angle from his right and tackle Mr Miller to the ground.
All of these events and the subsequent incident which led to the charge against Mr Miller occurred very quickly. This can be seen from the surveillance CCTV footage which is summarised by the learned magistrate after he watched the footage a number of times in slow motion. It is to be noted the CCTV footage has no audio. His Honour's summary of the events from the CCTV footage is as follows:
(a)at about 10.58.40 you can see Mr Miller with a group of friends coming down the footpath at the bus station with a couple of other males and some females;
(b)at 11.00.40 you can see something happens as you can see them gesturing across the road to other people and then they suddenly go off screen;
(c)you do not see anything until 11.02.33 when you see Constable Blackshaw come into view. He is holding Mr Miller. He is grabbing one of his arms and he eventually pushes Mr Miller back to the fence. Mr Miller walks over to the fence and he stays there. He leans with one arm against the railing;
(d)at 11.02.49 you see Mr Miller start to lift his shirt off. You cannot see why, initially, you just see him start to take his shirt off and he is looking at something that is off screen;
(e)at 11.02.51 another young man comes into view. He has got no shirt on and he is coming towards Mr Miller. At one point, he has got his hands open as if to say, 'Come on', inviting him to fight. Mr Miller is still standing in the vicinity of the fence where he has been told to stand, but he has now got his shirt off. Mr Miller is holding it in one of his hands and as the man comes towards him Mr Miller raises his fists in a defensive boxing stance and is bouncing up and down like a boxer would do in a boxing match. Changing his weight from one foot to another and then as the other man gets closer the other man starts to rush at Mr Miller and Mr Miller stands his ground;
(f)as the other man is rushing at Mr Miller you can see that Constable Blackshaw and a transit officer are a few metres back from the other young man who is coming towards Mr Miller but they are approaching as well;
(g)the other male launches towards Mr Miller, they come together and Mr Miller appears to strike him in the face, but it is the other male that is attacking Mr Miller;
(h)the other male falls to his backside and starts to get up and Mr Miller does not go in for the attack. He stands there. He raises his arms as if to say, 'I'm the champ', and he does a little victory dance on the spot. He does not go in; he just stands back and by that stage Constable Blackshaw and the transit officer are right there in the vicinity of the two males; and
(i)at 11.02.54 [sic] you see Constable Fraser come into view, just in the bottom left‑hand corner of the screen. From here it happens very quickly from when he first comes onto the screen. Initially, he appears to run towards the man on the ground, but then he changes direction and rushes at Mr Miller with some speed. Mr Miller only has a split second to see from his peripheral vision, and you see he raises his fists in a similar defensive stance to what he had when the other male rushed at him, and then very quickly Constable Fraser who has got all of the momentum has pushed him into the fence and taken him to the ground. Mr Miller does not really resist once he is on the ground.
Constable Blackshaw said when giving evidence that he did not spray Mr Miller with the pepper spray, as Mr Miller moved away but when he saw Constable Fraser 'tackle' Mr Miller, Mr Miller was facing him (Constable Blackshaw) as he was pointing the pepper spray at him. As the tackle occurred Constable Blackshaw turned and pepper sprayed two males who were fighting behind him. Once they were subdued he turned and saw Constable Fraser walking towards him with a cut above his right eye and blood running down his face. Constable Blackshaw then arrested Mr Miller who was at that point in time being held by two transit security guards.
Constable Fraser gave evidence he saw Mr Miller fighting with another male and he saw Constable Blackshaw going to assist. Before Constable Fraser got to Mr Miller and the other male he saw they had thrown punches at each other. He ran towards Mr Miller. When he got to Mr Miller, he said, 'Police. Stop fighting!' Mr Miller turned towards him, faced him and punched him in the face just above his right eye in a clenched fist in an upswinging motion as he grabbed Mr Miller. As he did so, he pushed Mr Miller against the fence, he told Mr Miller to get onto the ground and he did so. He told Mr Miller to put his hands behind his back and he placed handcuffs on Mr Miller whilst he was on the ground.
An hour later Mr Miller was interviewed by the police at a police station. At the interview Mr Miller admitted he was feeling a bit intoxicated by alcohol at the time of the interview and that he had drunk two bottles of 700 ml Jim Beam. The learned magistrate made no findings of fact about his intoxication other than to observe that in the interview Mr Miller said he was intoxicated.
In the video record of interview, Mr Miller said:
(a)he was with family and friends, a few of them were men at the bus station;
(b)their enemies (the Jackamarra's) came over to fight;
(c)'Calvin Jackamarra came over to fight, so we just walked up and started to fight'. He was angry. After 'he dropped him' he got pulled over by a transit officer or a police officer; he was not sure;
(d)he was standing by the fence and a police officer or transit officer was holding the person he was fighting with on the floor;
(e)he just saw a figure running at him like a body figure running coming from the side. It was a quick reaction 'cause I thought I was gonna [sic] mobbed or something';
(f)he did not know the person who ran at him from the side was a police officer. He 'tried to get out of it' until he realised he was a police officer and then he just stopped;
(g)he remembered he was trying 'to swing' but his arm was grabbed;
(h)it was all a fast reaction; and
(i)he did not know if he swung or anything but he knew he put his hand 'up like that!';
When asked in the interview whether the police officer would have said to him 'Police' before being approached, Mr Miller said:
(a)he was not sure;
(b)'probably if I'd heard him properly, but I was intoxicated. That's the thing. And just as I was shouting at the other person at the time … if I did hear him, I would've stopped. If I didn't hear him, I wouldn't know. I probably would've kept on going or something too'.
(c)he could not see where he was throwing the punch at; and
(d)'it was an accident, he rushed me. If I had seen him properly and wasn't a bit really too intoxicated, I would have stopped. I was intoxicated and was in a really bad mood'.

Relevant findings made by the magistrate

The material findings made by his Honour are as follows:
(a)the best evidence is the surveillance footage. Unlike human recall, surveillance footage is not subjective;
(b)from the video record of interview Mr Miller is raising the defence of self‑defence combined with an honest and mistaken belief that he did not know who he hit or he did not know it was a police officer acting in the execution of his duty on grounds:
(i)he does not deny hitting Constable Fraser but says he thought it was someone else coming running at him and he accidently hit them;
(ii)it was a quick reaction because he thought he was going to be mobbed; and
(iii)he did not know it was a police officer (he hit) until he jumped up and grabbed him and then he stopped;
(c)Constable Fraser was acting in the course of his duty;
(d)Constable Fraser suffered bodily harm;
(e)he could not be satisfied that Mr Miller was not acting in self‑defence when he punched Constable Fraser;
(f)Mr Miller is distracted by Calvin Jackamarra who is getting up (after being punched) and by Constable Blackshaw who approaches him and holds the pepper spray out towards him;
(g)Mr Miller is looking at Calvin Jackamarra and then looking at Constable Blackshaw but he is not attacking either and has no aggression towards Constable Blackshaw or the transit officer (who is near Constable Blackshaw);
(h)Constable Fraser comes in and tackled Mr Miller with some momentum. It is the sort of tackle you might see on a footy or rugby field;
(i)Mr Miller only has a split second to react. You can see his fists are raised up just before he gets tackled;
(j)you do not see Constable Fraser getting punched. Nor does Constable Bradshaw see the punch;
(k)it is not a situation where you see Mr Miller size up Constable Fraser and take aim;
(l)it is that quick. You see Mr Miller's fists up, you do not see the punch, you see Mr Miller's back against the fence and then on the ground; and
(m)Constable Fraser cannot be criticised for running at Mr Miller with speed. Even on slow motion his run is fast on the surveillance video.
In these circumstances, the speed of Constable Fraser and the speed at which Mr Miller had to react, the learned magistrate was not satisfied beyond a reasonable doubt that Mr Miller:
(a)had not mistakenly raised his fists in self‑defence; and
(b)was not acting in self‑defence based on an honest and reasonable, but mistaken belief that he was being attacked.

The grounds of appeal

The grounds of appeal are:
1.The trial magistrate made an error of law, by failing to direct himself as to the manner in which s 248(5) Criminal Code applied
Particulars
The finding of the trial magistrate to the effect that Constable Jason Bruce Fraser was performing a function of his office when he moved to restrain the respondent engaged s 248(5) and negated self‑defence combined with honest and reasonable, but mistaken, belief (s 24 read with s 248(4) Criminal Code) because the 'harmful act' of Constable Jason Bruce Fraser, in moving to restrain the respondent, was lawful.
2.The trial magistrate made an error of law, by failing to direct himself as to the relevance of the intoxication of the respondent to self‑defence combined with honest and reasonable, but mistaken, belief (s 24 read with s 248(4) Criminal Code).
3.The trial magistrate made an error of law, by failing to take into account a relevant matter (when considering whether there were reasonable grounds for the respondent's belief as to the circumstances, s 248(4)(b) read with s 248(4)(c) Criminal Code), namely that the respondent knew of the close presence of officers before he punched Constable Jason Bruce Fraser.
Particulars
That the respondent knew of the close presence of officers is the only reasonable inference open upon a combination of the evidence. This evidence includes the testimony of Constable Jason Bruce Fraser and Constable Thomas Dominic Blackshaw to the effect that the respondent had earlier been warned to stop fighting; and the testimony of those two officers, security camera footage, and video admissions by the respondent, to the effect that police and transit officers were close to the respondent and were wearing high visibility clothing.
4.The trial magistrate made an error of law, by failing to take into account a relevant matter (when considering whether there were reasonable grounds for the respondent's belief as to the circumstances, s 248(4)(b) read with s 248(4)(c) Criminal Code), namely the uncontradicted testimony of Constable Jason Bruce Fraser that he told the respondent 'Police. Stop' when close to the respondent and before the respondent punched him.
5.The trial magistrate made an error of law, by failing to take into account a relevant matter (when considering whether there were reasonable grounds for the respondent's belief as to the circumstances, s 248(4)(b) read with s 248(4)(c) Criminal Code and, specifically, finding that the respondent 'only [had] a split second to see from his peripheral vision'), namely the uncontradicted testimony of Constable Jason Bruce Fraser to the effect that the respondent turned and faced him before then punching him.
6.The trial magistrate made an error of law, by failing to take into account a relevant matter (when considering whether there were reasonable grounds for the respondent's belief as to the circumstances, s 248(4)(b) read with s 248(4)(c) Criminal Code), namely the video recorded admission of the respondent to the effect that a reason he did not hear Constable Jason Bruce Fraser identify himself as a police officer was because he was intoxicated.

Ground 1 of the appeal - was self‑defence open to be raised as a defence

In ground 1 of the appeal, the prosecutor contends that the action of Constable Fraser in moving to restrain Mr Miller was a lawful use of force, which invoked the exclusion to a defence of self‑defence by operation of s 248(5) when read with s 248(4) of the Criminal Code.
Section 248(1), (2), (4) and (5) of the Criminal Code provide:
(1)In this section -
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
…
(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.
(5)A person's harmful act is not done in self‑defence if it is done to defend the person or another person from a harmful act that is lawful.
In support of this argument, the prosecutor relies upon a finding made by Kenneth Martin J in Kerber v Towler [2014] WASC 419 [110] that where an attempted citizen's arrest is ultimately assessed as lawful, then by reason of s 248(5) there will be no occasion to consider any potential activation of s 248(4) as the issue of self‑defence would not be live.

With respect of the argument put on behalf of the prosecutor, his Honour's observations do not assist as his Honour was not called upon to consider the circumstances in which an issue of honest and reasonable mistake was raised about whether the use of force was lawful.
As counsel for the prosecutor points out, the relationship between s 24 and s 248 is not settled. In Mahmood v The State of Western Australia [2009] WASCA 220, the trial judge had remarked to the jury that it was for the State to satisfy them that the wounding or assaults did not occur in self‑defence and that acting in self‑defence includes acting under an honest and mistaken belief, provided it is reasonable that act was necessary to be done in self‑defence. Although the point was not taken on appeal, Owen JA (McLure P [1] and Miller JA [92] agreeing) observed that if these remarks of the trial judge [64]
… is taken as a reference directly to Criminal Code s 24 it may be problematic. Whether, and if so to what extent, s 24 applies to s 248 remains a matter of some controversy; see Marwey v The Queen (1977) 138 CLR 630, 637; Lean v The Queen (1989) 1 WAR 348, 349. No complaint was made either at trial or on appeal in relation to that aspect of his Honour's directions.
In Lean v The Queen (1989) 1 WAR 348, the Full Court of the Supreme Court applied the approach of the High Court in Marwey v The Queen (1977) 138 CLR 630 to the Queensland equivalent of the then operative provision of s 248 of the Western Australian Criminal Code. When Lean was decided, s 248 and s 249 (now repealed) did not contain an equivalent provision to the current form of s 248(5) of the Criminal Code. The Full Court in Leandid not however find that s 24 of the Criminal Code had no relevance to the defence of self‑defence under the then operative provisions of s 248 and s 249. In Lean, Chief Justice Malcolm said (349):
There may well be cases where there is room for the operation of the defence of honest and reasonable but mistaken belief in a state of things under s 24 of the Criminal Code as distinct from the defence of self‑defence under s 248 or s 249 of the Code. In the present case the accused claimed that he acted in the belief that he had been slashed with a knife, that his throat had been cut and that he was going to die. That belief was mistaken. This was a belief in a state of things pursuant to s 24. Given that the belief was honest and reasonable, as well as mistaken the appellant would not have been criminally responsible for any greater extent than if the real state of things had been such as the appellant believed to exist: s 24 of the Code. In the context of ss 248 and 249 of the Code it is not necessary to have resort to s 24 unless, as Barwick CJ said in Marwey v The Queen (1977) 138 CLR 630 at 637:
'… the reasonable grounds for the necessary belief included the accused's erroneous understanding of some fact which, had it been as the accused understood, would have supported the existence of reasonable grounds.'
Section 24 of the Code has no relevance to ss 248 and 249 except to the extent that it may in that way be relevant to the existence of reasonable grounds.
Under such circumstances, where it is necessary to have resort to s 24 it should be made the subject of a direction: R v Lawrie [1986] 2 Qd R 502 at 504 per Connolly J.
In Lean, Justice Brinsden at (350) and Seaman J at (356) applied the same passage of Barwick CJ in Marwey. At (355) Seaman J rejected the argument put on behalf of the Crown that s 248 and s 249 encompassed all of the ingredients of honest and reasonable or mistaken belief in s 24 of the Criminal Code. Seaman J applied Barwick CJ's reasoning in Marwey at (636 ‑ 637) and said this reasoning demonstrates that s 24 does apply to the defence in this matter under s 248 and s 249 as it was the appellant's case that he erroneously understood as the fact that he had been cut in the throat by a knife wielded by the victim when he threw a punch at the victim with a glass in his hand (when in fact he had simply been punched by the victim).
Turning to the question raised in this matter, whether s 248(5) impliedly excludes s 24 of the Criminal Code, the current provision of s 248 was enacted as a replaced provision for s 248, s 249 and s 250 of the Criminal Code by s 8 of Act No 29 of 2008 the Criminal Law Amendment (Homicide) Act 2008 (WA). Section 4 of Act No 29 of 2008 also repealed and replaced s 23 (intention and motive), s 23A (unwilled acts and omissions), s 23B (accident) and s 5 of Act No 29 of 2008 repealed and replaced s 25, (emergency).
As counsel for Mr Miller points out the defence of emergency is expressly excluded if s 248 applies: s 25(1) of the Code. However, s 24 is not expressly excluded from application to s 248. Other than the amendment made to s 25, s 248 was not expressly excluded from the operation of any other defence under the Criminal Code by Act No 29 of 2008.
Given that when s 248 was amended by Act No 29 of 2008, and no amendment was made to the defence of mistake of fact when s 248 was re‑enacted, the question arises, can an intention be discerned in s 248, in particular in s 248(5), to effect an implied repeal of the operation of the rule in s 24.
The principles for determining whether s 24 is impliedly excluded as a defence to a statutory offence were recently considered by Corboy J in Binetti v Feasey [2015] WASC 93. In Binetti, Corboy J at [51] observed that the test to determine whether s 24 is excluded as a defence by a statutory offence created outside the Criminal Code has not been questioned since the decision of the Full Court in Geraldton Fishermen's Co‑operative Ltd v Munro [1963] WAR 129; The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483 (Wheeler JA [103]). As Corboy J found in Binetti the test approved in Munro is whether:
(a)where there is no express exclusion, s 24 and the section creating the offence must, if possible, be read together so that s 24 cannot be treated as having been excluded by implication unless, on a fair reading of the offence creating provision, it can be seen that the provision is inconsistent with the coexistence of s 24 so that effect cannot be given to both provisions at the same time - that is, 'if on a fair interpretation of the words used it can be seen the two sections can stand together, then the fact that an exclusion would have been reasonable, or even the fact that an exclusion might have been expected, cannot … justify the adoption of a gloss on the words used';
(b)the fact that an offence is a strict liability offence (that is, the offence does not include a mental element such as knowledge or intention) does not, by implication, exclude the operation of s 24 (and see McPherson v Cairn [1977] WAR 28 (30); see also, Lappan v Hughes [2003] WASCA 173 in which Miller J cited with approval the summary of principles identified by Burt J in McPherson v Cairn ‑ those principles were, in turn, extracted from the Full Court's decision in Geraldton Fishermen's Co-operative v Munro);
(c)the operation of s 24 is not, by implication, excluded by reason of the subject matter of the statute - that is, the implication must arise from the 'implied provisions of the law relating to the subject' and not from 'the subject to which the law relates' [53].
Whilst these principles apply to whether the operation of s 24 is excluded by a statutory offence created outside the Criminal Code the principles whether two provisions can stand together or whether another provision abrogates s 24 can in my opinion be applied to a consideration of whether the operation of s 248(5) impliedly excludes the operation of s 24.
It is argued on behalf of the appellant that if a 'causative' approach is applied to s 248(5), there is no scope to enliven an accused's state of mind as s 248(5) must be construed as a provision that deems an accused's act to be done in defence of a harmful act if the harmful act is lawful.
Alternatively, counsel for the prosecution put a submission that if s 248(5) is interpreted by using a 'purposive approach', the words 'to defend' in s 248(5) should be interpreted as a person's harmful act is not done in self‑defence if it is done 'in order to defend' him or herself from a harmful act of another person that is lawful. If this construction is preferred, it is said to follow that an accused's state of mind is enlivened. Further, it is conceded on behalf of the appellant that if a purposive approach is applied to the interpretation of s 248(5), s 248(5) and s 24 can stand together.
As a consequence of the alternative approaches to construction, it is put on behalf of the prosecution that s 248(5) is ambiguous. I do not agree. I do, however, agree that a purposive approach to the construction of s 248(5) should be applied.
It is well‑established that the modern approach to statutory construction is reflected in s 18 of the Interpretation Act 1984 (WA) that a construction of the provision in an Act that would promote the purpose or object is to be preferred to one that would not do so. Meaning must be determined not only within the statute as a whole but also in context. Thus, it is artificial to focus on words in a statute in isolation.
The proper modern general approach to statutory construction is purposive. The general principles that apply to the construction of a statute were recently summarised by Buss P in Director General of Department of Transport v McKenzie [2016] WASCA 147 wherein his Honour observed [45] ‑ [48]:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].'
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd[1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
These principles were recently applied by Mitchell JA in Egitmen v The State of Western Australia [2016] WASCA 214 when considering the construction of s 248 of the Criminal Code. At [232] ‑ [234] his Honour remarked:
This court recently referred to the applicable general principles of statutory construction of the Criminal Code, including the importance of giving primacy to the statutory text, in L v The State of Western Australia ([2016] WASCA 101 [52]).
As with any task of statutory construction, the court must have regard to the language of the Act viewed as a whole, considered in its context (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 [42]). An important part of that context will be the purpose of the legislation, ascertained from what the legislation says (rather than any assumption about the desired or desirable reach or operation of the relevant provisions) (Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21]). A construction that would promote that purpose of the legislation shall be preferred to one that would not do so (Section 18 of the Interpretation Act 1984 (WA)).
Section 248 of the Criminal Code, in its current form, was introduced with other amendments relating to the law of homicide by the Criminal Law Amendment (Homicide) Act 2008 (WA) (Amendment Act). The Attorney General's second reading speech (Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, 1209 (Mr JA McGinty, Attorney General)) and the explanatory memorandum to the Bill for the Amendment Act (Explanatory memorandum to the Criminal Law Amendment (Homicide) Bill 2008, 1) indicated that it was intended to generally implement many of the recommendations made by the Law Reform Commission in its Final Report: Review of the Law of Homicide (September 2007) (Commission's Report). In construing the current form of s 248 of the Criminal Code it is permissible to have regard to that material (Section 19 of the Interpretation Act).
In this matter, counsel for the prosecutor produced copies of the Attorney's General second reading speech of the Criminal Law Amendment (Homicide) Bill 2008 and the explanatory memorandum to the Bill. It is agreed the statements made in those documents do not assist in determining whether the operative effect of s 248(5) is to exclude s 24. Counsel however, also provided to the Court an extract ch 4 of the Law Reform Commission, Review of the Law of Homicide, Final Report (September 2007). At (171 ‑ 172) of the Law Reform Commission report under the heading 'Lawfulness' it is stated:
The concept of self‑defence generally implies that defensive force is used against an unlawful assault or attack. In Zecevic, Wilson, Dawson and Toohey JJ held that:
'Whilst in most cases in which self‑defence is raised the attack said to give rise to the need for the accused to defend himself will have been unlawful, as a matter of law there is no requirement that it should have been so … for example, self‑defence is available against an attack by a person who, by reason of insanity, is incapable of forming the necessary intent to commit a crime ((1987) 162 CLR 645, 663).'
The VLRC concluded that an accused should not be able to rely on self‑defence if he or she was aware that the 'attack' was lawful (VLRC, Defences to Homicide, Final Report (2004) [3.80]). This does not mean that a person cannot rely on self‑defence just because the person 'attacking' the accused would not be held criminally responsible. For example, an accused can defend himself or herself against an attack by a child under the age of criminal responsibility or by a person who was insane at the relevant time (Ibid [3.81]). Similarly, the Model Criminal Code provides that self‑defence 'does not apply if the conduct to which the person responded was lawful and that person knew that it was lawful' (The section also provides that conduct is not lawful merely because the person carrying it out is not criminally responsible for it: see MCCOC, General Principles of Criminal Responsibility, Report (1992) 70, s 313.3). It is also made clear that conduct is not lawful just because the person is not criminally responsible for it. In contrast, s 422 of the Crimes Act 1900 (NSW) provides that self‑defence is not excluded merely because:
(a)the conduct to which the person responds is lawful, or
(b)the other person carrying out the conduct to which the person responds is not criminally responsible for it.
An accused may be mistaken about the lawfulness of an attack and if the mistake is both honest and reasonable the accused should be entitled to rely on self‑defence. For example, an accused who is deaf may be lawfully arrested by a police officer, but not hear the police officer identify himself or explain that he is being arrested. This accused should be entitled to rely on self‑defence if his response to the physical application of force by the police officer was reasonable. The Commission is of the view that it should be expressly stated that the defence of self‑defence does not apply if the defensive force was used in response to lawful conduct. The Commission emphasises that if the accused was not aware the conduct was lawful he or she may be able to rely on the defence of mistake under s 24 of the Code.
Leaving aside the statements made by the Law Reform Commission, I am of the opinion that, the proper construction of s 24 of the Criminal Code when read with s 248(5), is that s 24 is not excluded as a defence under s 248(5) where the person is mistaken about the lawfulness of a harmful attack by another person. This construction, in my opinion, is the ordinary meaning of s 248(5) when read with the whole of the Criminal Code in the context of:
(a)the legislative history of the enactment of s 248 by the enactment of Act No 29 of 2008, where no amendment was made to s 24, yet amendments of substance were made to other defences in pt1 ch V of the Criminal Code, in particular where the operation of s 248 was expressly excluded from the defence of emergency;
(b)the purpose and context of s 24 is that it is a pt1 ch V defence which, pursuant to s 36, is an exculpatory defence that applies to all persons charged with any offence under the statute law of Western Australia;
(c)section 24 by its terms is to apply to all criminal acts unless expressly or impliedly excluded by the implied provisions of the subject. When regard is had to the words of s 248(5) there is no intention expressed in the subject of s 248(5) to imply s 24 is excluded. The operative effect of s 248(5) and s 24 are capable of standing together. Whilst s 248(5) is a provision of limitation of the defence of self‑defence, its effect does not preclude by implication s 24. Section 24 provides:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
(d)in Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 McLure JA (Roberts‑Smith & Buss JJA agreeing) held the reasonable person test raised in s 24 is as follows:
For there to be an operative mistake under s24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive [43].
(e)when applied to s 248(5), the words 'mistaken belief in the … state of things' in s 24 are capable of application to the state of things in s 248(5), being 'the harmful act that is lawful'. That is, a person's subjective belief as to whether a harmful act is lawful, or is not, is not inconsistent with the otherwise exclusionary operation of s 248(5) of the Criminal Code.

In my opinion, the recommendation by the Law Reform Commission that where a person makes a mistake of fact about the lawfulness of an attack that is honest and reasonable the person should be allowed to rely upon self‑defence, is material that regard can be had to assist in the ascertainment of the meaning of s 248(5) to confirm the meaning of s 248(5) is the ordinary meaning conveyed by the text, taking into account its context and its underlying purpose or object (s 19(1)(a) of the Interpretation Act).
For these reasons, I am of the opinion that ground 1 of the appeal has no merit.

Ground 2 of the appeal

In ground 2 of the appeal the appellant contends the learned magistrate erred in law in failing to direct himself as to the relevance of the intoxication of Mr Miller when considering the application of the defence of self‑defence combined with mistake of fact.
The elements of the defence of self‑defence were enumerated by Buss JA in Goodwyn v The State of Western Australia [2013] WASCA 141 as follows:
So, it is apparent that s 248(4) enumerates four elements. First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a)). Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4)(b)). Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c)). Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
If the accused satisfies the evidential onus in relation to self‑defence then the burden is on the State to negative the defence by excluding at least one of its elements beyond reasonable doubt [95] ‑ [96].
In Steel v The State of Western Australia [2010] WASCA 118 [2] McLure P observed that an accused is not required to lay the foundations for the justification that he was acting in self‑defence. The accused bares the evidential burden of adducing evidence, or pointing to prosecution evidence, capable of raising the issue of self‑defence.
Applying the criteria in Goodwyn to the incident in this matter, the question is whether the evidence before the learned magistrate establish:
(a)Mr Miller (subjectively) believed that it was necessary to defend himself from the harmful act of being tackled;
(b)the punching of Constable Fraser by Mr Miller was a reasonable (objective) response by Mr Miller in the circumstances as he believed them to be; that is Mr Miller subjectively believed he was being 'mobbed' by an assailant and he did not know the person was a police officer;
(c)there were reasonably (objective) grounds for Mr Miller's (subjective) belief that punching Constable Fraser was necessary to defend himself; and
(d)there are reasonable (objective) grounds for Mr Miller's (subjective) belief as to the circumstances.
The prosecutor argues that in assessing whether Mr Miller's subjective beliefs were objectively reasonable in the circumstances, his beliefs must be tested against the standard of a sober man.
In Aubertin, McLure JA made it plain that the reasonable man would now be replaced by the reasonable person. As to the assessment of reasonableness under s 24 her Honour said:
Self-induced impairment by alcohol or drugs can only be a negative or at best neutral factor in assessing whether the appellant's belief was reasonable. That is, reasonableness is not to be assessed by reference to the perception or appreciation of an alcohol or drug impaired accused [44].
The prosecutor points to the evidence of what Mr Miller said when interviewed by police as evidence that establishes Mr Miller believed he was not aware he was being tackled by a police officer because he was intoxicated.
Mr Miller also said at the time he was interviewed by police that he was a bit intoxicated. Notwithstanding this admission and the admissions relied upon by the prosecutor, as counsel for Mr Miller points out the level of intoxication of Mr Miller at the time of the incident was not established. I have viewed the video of the record of interview of Mr Miller and police which is an interview recorded one hour and nine minutes after the incident occurred. It is apparent from the video and audio record of that interview that Mr Miller answered all questions put to him coherently.
It is also clear that from the video of the record of interview, that irrespective of the general admissions made by Mr Miller that he was intoxicated when Constable Fraser approached him, Mr Miller did not depart from his subjective evidence that he did not see that Constable Fraser was a police officer when he was tackled by Constable Fraser because:
(a)he only saw a body figure running fast at him from his left‑hand side;
(b)his punch in response was a very fast reaction because he thought he was being mobbed;
(c)he did not know if Constable Fraser said anything to him as he was shouting at Calvin Jackamarra.
In these circumstances, I agree that the level of intoxication of Mr Miller at the time of the incident could not be established. Given that the learned magistrate viewed the video of the record of interview it is not surprising that when regard is had to the speed at which the incident occurred and to the evidence that Mr Miller was distracted when Constable Fraser was approaching him at speed that his Honour did not assess whether the beliefs of Mr Miller were objectively reasonable by regard to the admissions made by Mr Miller that he was intoxicated when the incident occurred.
For these reasons, ground 2 of the appeal does not have a reasonable prospect of success and leave to appeal on this ground should be refused.

Grounds 3, 4, 5 and 6

Grounds 3, 4, 5 and 6 of the grounds of appeal seek to set aside the judgment of acquittal on grounds that the learned magistrate failed to take into account relevant matters. The grounds raise the principles that apply to appellate review of primary judge's discretionary decision which involve conflicting assessments of matters of weight.
An appellate court will only intervene in discretionary decisions where it is demonstrated that the exercise of discretion below has miscarried. A discretionary decision cannot be set aside because the appellate court would have exercised the discretion in a different way.
In House v The King [1936] HCA 40; (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ observed (504 ‑ 505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
As Stephen J in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 explained, a disagreement only on matters of weight by no means will necessarily justify a reversal of a trial judge's decision. This is because it is well‑established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion (519).
Part of the appellant's contentions in these grounds is that the learned magistrate erred in regarding the CCTV footage as the best evidence of the incident. It is also argued that his Honour gave insufficient weight to the collective matters set out in grounds 3 to 6 which the prosecutor contends were established by the evidence when considering whether there were reasonable grounds for the respondent's belief as to the circumstances. Those matters are:
(a)Mr Miller had earlier been told to stop fighting by officers, including Constable Blackshaw;
(b)police and transit officers were in close proximity to Mr Miller and were wearing high visibility clothing;
(c)Constable Fraser told Mr Miller 'Police. Stop' prior to approaching him;
(d)Mr Miller turned and faced Constable Fraser before punching him; and
(e)Mr Miller admitted he had not heard Constable Fraser because he was intoxicated.
For reasons that follow I am not persuaded that grounds 3, 4, 5 or 6 have any reasonable prospects of success.

(a) Ground 5

In ground 5, it is alleged that the learned magistrate erred in finding Mr Miller only had a split second to see from his peripheral vision, by failing to take into account a relevant matter, namely the uncontradicted testimony of Constable Fraser that Mr Miller turned and faced him before then punching him.
I do not agree that the learned magistrate erred in making this finding. The CCTV footage does in fact demonstrate Mr Miller only had a split second to see Constable Fraser coming at him from his left side. I also do not agree that his Honour erred in finding the CCTV footage of the evidence was the best evidence (of the incident in question). The DVD of the CCTV footage was an exhibit. As Le Miere J remarked in Rodrigues v Ainsworth [2014] WASC 101, a CCTV recording is [17] ‑ [20]:
[R]eal evidence, tendered to show what it was that was recorded. The result of an examination of the exhibit does not stand in place of the evidence; it is the result of the perception of the evidence itself: Kozul v The Queen (1981) 147 CLR 221, 227 (Gibbs CJ). The magistrate is entitled to prefer the evidence provided by the DVD to that given orally by the witnesses. The magistrate is entitled to view the exhibits, including the DVD, when he is privately considering his decision. A DVD cannot be viewed without the aid of a computer or other device. A magistrate is entitled to view the DVD on the magistrate's computer or other device.
In this case, the issue of natural justice or procedural fairness arises because the magistrate viewed the DVD using a laptop and high definition screen which produced a better picture quality than when the DVD had been viewed by the magistrate and counsel in the courtroom in the course of the trial. The magistrate said that the equipment that he used was better than that used in the courtroom and had enabled him to see the images better. The magistrate said that viewing the CCTV footage on his better laptop had helped him greatly. In reviewing the evidence the magistrate said:
'The CCTV is going to be extremely determinative in this trial because it is so clear.'
The magistrate's finding that the complainant did not hit the appellant in the face is based upon his private viewing of the CCTV.
In Kozul v The Queen the High Court held that the jury were entitled to examine an exhibit and evaluate the evidence provided by the exhibit. In that case the court held that the jury were entitled to handle the exhibit, a revolver, and pull the trigger of the revolver so that they might judge for themselves how much pressure was necessary to cause it to discharge. In experimenting in that way the jury were doing no more than using their own senses to assess the weight and value of the evidence. Gibbs CJ said that when the experiments conducted by the jury go beyond the mere examination and testing of the evidence and become a means of supplying new evidence they become impermissible.
In this case the magistrate did not do anything to enhance the CCTV images recorded on the DVD, which was the exhibit. He merely viewed it on a laptop and high definition screen, devices which are readily available. He did so at the invitation of senior counsel for the appellant to view the DVD in his chambers on his laptop. The magistrate made no error in doing so.
In this matter, the advantage of viewing the evidence contained in the CCTV video is that it was able to be viewed by the learned magistrate in slow motion. Because of the speed at which Constable Fraser approached Mr Miller the recorded events cannot be seen clearly without slowing the speed of the CCTV recording. Whilst the CCTV footage only shows the incident from one angle and has no audio, by viewing the footage at a slow speed it was open to his Honour to find that the CCTV video was more reliable evidence of what occurred in the incident than the evidence of the recollection of the participants in the incident. Both Constable Fraser and Constable Blackshaw witnessed the incident at speed and were called upon to recollect the incident 15 months after it occurred.
After being invited by counsel for the appellant to view the CCTV footage of a single frame at 11.02.53, I viewed the CCTV footage frame by frame from 11.02.53.698 to 11.02.53.964. At 11.02.53.698, you can see Mr Miller is looking directly at Constable Blackshaw who is holding a can of pepper spray towards Mr Miller as Constable Fraser is approaching Mr Miller. At 11.02.53.864, Mr Miller starts to put his hands up (whilst still facing Constable Blackshaw who is on his right). By this time Mr Miller's head has moved very slightly to the left toward the direction of Constable Fraser. Mr Miller however is still facing Constable Blackshaw. At 11.02.53.964, Mr Miller's hands are up but he has not turned his head any further. His head is still facing Constable Blackshaw who is still holding a can of pepper spray directed towards Mr Miller. At 11.02.54.031, Constable Fraser tackles Mr Miller whilst Constable Blackshaw is still facing Mr Miller. At that point in time Mr Miller's head has not turned any further to the left. His head is still facing Constable Blackshaw.
When regard is had to this evidence which was viewed by the learned magistrate, there is no ambiguity in what the CCTV footage depicts and it is clear that his Honour did not err in making the finding that Mr Miller only had a split second to see Constable Fraser from his peripheral vision.

(b) Ground 3 - the close presence of officers before Mr Miller punched Constable Fraser

The fact that Mr Miller knew of the close presence of police and transit officers was not a matter in dispute.
His Honour in his reasons noted Constable Blackshaw and the transit officer were 'right there' in the vicinity of Mr Miller and Calvin Jackamarra. As the CCTV footage shows, Mr Miller's attention is on Constable Blackshaw and Calvin Jackamarra when he is tackled from his left side by Constable Fraser. There were also two other persons behind Constable Blackshaw who were not a police officer or transit officer. Consequently, the presence of Constable Blackshaw and a transit officer could not be said to have the result that Mr Miller could not have reasonably believed that the person coming towards him was a person who intended to fight him.

(c) Grounds 4 and 6

In grounds 4 and 6, the appellant argues that the learned magistrate failed to take into account as relevant matters:
(a)the uncontradicted testimony that Constable Fraser told Mr Miller, 'Police. Stop', when close to Mr Miller and before Mr Miller punched him; and
(b)a reason why Mr Miller did not hear Constable Fraser identify himself was because he was intoxicated.
As counsel for Mr Miller points out, it is clear from the entirety of the evidence that there were a number of explanations for Mr Miller's failure to hear Constable Fraser's statement which are entirely independent of his level of intoxication. These were the speed at which Constable Fraser was moving towards Mr Miller, the fact that Mr Miller only had a split second to react to Constable Fraser's tackle and the fact that Mr Miller was distracted by the actions of Constable Blackshaw and was yelling at Calvin Jackamarra when he was approached by Constable Fraser.
As the learned magistrate properly found, it was for the prosecution to negative at least one of the key elements of self‑defence. The matters asserted in grounds 3 ‑ 6 do not materially assist in meeting this burden on the prosecution.

Conclusion

As none of the grounds have any reasonable prospect of success I would refuse leave to appeal and dismiss the appeal.