Supreme Court of WA|2011-09-14|Before: Magistrate Sharratt

BAUERHUIT -v- DEAN [2011] WASC 253 (14 September 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BAUERHUIT -v- DEAN [2011] WASC 253

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : GN 1422 of 2010, GN 1423 of 2010, GN 1424 of 2010, GN 457 of 2011

Criminal law and procedure - Particulars of assault provided by prosecution - Prosecution failed to prove particulars - Magistrate convicted on different particulars - Power of magistrate to amend particulars at conclusion of evidence

Criminal law - Defence of emergency - Adequacy of magistrate's reasons - Whether verdict unsafe and unsound - Turns on its own facts

Criminal Code (WA), s 74A(2)(a), s 172(2), s 318(1)(d), s 591, s 525

Criminal Procedure Act 2004 (WA), s 21, s 132, sch 1 cl 5, cl 8

Appeal allowed and conviction on GN 1422 of 2010 set aside

Bennett v Carruthers [2010] WASCA 131

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627

Francis v Todd [2011] WASC 185

Giles v Samuels (1972) 3 SASR 307

Hawker v Coulthard [2011] WASC 139

Ibrahim v Herring [2010] WASC 190

Ingham v McKenzie [2009] WASC 351

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Johnson v The State of Western Australia [2009] WASCA 71

McKay Investments Pty Ltd v Kent [2011] TASSC 11

R v Johal; R v Ram [1973] QB 475

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Sheppard v Blakey [2001] WASCA 309

1 COMMISSIONER SLEIGHT: On 14 and 15 March 2011 before his Honour Magistrate Sharratt, in the Geraldton Magistrates Court, the appellant was tried on four charges:

One count of behaving in a disorderly manner in a public place contrary to s 74A(2)(a) of the Criminal Code (WA) (GN 1423 of 2010).
One count of obstructing a police officer in the performance of his functions contrary to s 172(2) of the Code (GN 1424 of 2010).
One count of assaulting a public officer then performing a function of his duty contrary to s 318(1)(d) of the Code (GN 1422 of 2010).
One count of assaulting a public officer then performing a function of his office contrary to s 318(1)(d) of the Code (GN 457 of 2011).

2 The magistrate acquitted the appellant of charge number 4 above and found the appellant guilty of the remaining charges. The appellant appeals against his conviction under counts 2 and 3. Count 3 relates to an alleged assault on a police officer, Constable Dean.

3 The appeal is pursuant to s 8 of the Criminal Appeals Act 2004 (WA) (CA Act). Section 8(1) of the Act provides:

An appeal may be made under this Division on one or more of these grounds -

(a) that the court of summary jurisdiction -

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice.

4 Leave can only be granted on a ground of appeal if the court is satisfied that a ground has a reasonable prospect of succeeding: CA Act, s 9(2). This means that the ground should have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

5 The appeals against conviction are on the following grounds:

The Learned Magistrate erred in law in that he found the Appellant guilty of assaulting a public officer by attempting or threatening to apply force to the complainant ('Constable Dean') by raising his fists and motioning to punch without his consent under such circumstances that the person making the attempt or threat had the apparent or present ability to effect his purpose, whereas this was not the subject of a charge against the Appellant:-

(a) The Appellant was charged with 2 counts of assaulting a public officer namely Constable Paul Anthony Dean a public officer then performing a function of his office by:

(i) spitting blood and saliva onto Constable Dean's face, neck and shirt; and

(ii) biting Constable Dean's right hand.

The Appellant was not charged with assaulting a public officer as described above in paragraph 1 and the Appellant did not defend that allegation as it was not the subject of a charge.

In the alternate on the grounds stated in the above Ground 1 that there has been a miscarriage of justice in that the Appellant did not believe he was charged with an offence arising out of the circumstances for which he was convicted and did not prepare a defence in that regard.
With respect to the charge of assaulting Constable Dean the Learned Magistrate erred in law in failing to consider and/or to make findings as to each specific element of the defences of:-

(a) self defence; and

(b) prevention of repetition insult;

With respect to the charge of assaulting Constable Dean the Learned Magistrate erred in law in failing to adequately consider or rejecting the defences mentioned above in Ground 3 given:

(a) the Appellant's evidence with supporting evidence from Prosecution witness Tamara Cross that he had been assaulted by being punched in the face by Sharon Maes a short time prior to the incident;

(b) the Appellant's evidence, defence witness Matthew Davis' evidence and Constable Dean's evidence that when the Appellant was walking away before being grabbed by the shoulder both Constable Dean and Sharon Maes were behind him;

(c) the Appellants evidence that he did not hear Constable Dean say he was under arrest given the evidence of both Prosecution witnesses and defence witnesses of the level of noise at that particular time; and

(d) the fact there was no forensic or supporting evidence to support Constable Dean's allegations that he was spat on or bitten by the Appellant and therefore his evidence was unreliable in that he feared being punched by the appellant.

With respect to the charge of obstructing a public officer the Learned Magistrate erred in law in failing to consider and/or to make findings as to each specific element of the defences of:

(a) emergency; and

(b) excessive force;

With respect to the charge of obstructing a public officer the Learned Magistrate erred in fact and law in rejecting the defences of emergency and excessive force given:

(a) the undisputed medical evidence that the Appellant had previously broken his back and was still suffering pain from this prior to the incident;

(b) there was no forensic or supporting evidence to support Constable Dean's allegations that he was spat on or bitten by the Appellant and therefore his evidence was unreliable as to the way in which the Appellant was handled;

(c) the evidence of the Appellant, defence witness Matthew Davis and Prosecution witnesses Rani Randell and Grant Russell of the force used by Constable Dean during the incident; and

(d) the inconsistency in evidence between Constable Dean with regards to taking the Appellant to ground and the medical evidence of injuries to the Appellant's ear during the incident.

6 The respondent has conceded grounds 1 and 2 and agrees that the conviction on count 3 should be set aside. I conclude that the concession is correctly made, for the reasons that I will set out below. In view of the conviction on count 3 being set aside on grounds 1 and 2, it is unnecessary for me to consider the further grounds of appeal relating to that count, being grounds 3 and 4.

7 The statement of material facts served on the appellant alleged that on 16 March 2010:

(a) the appellant was assaulted by a female person and then he assaulted her;

(b) the appellant then used indecent language towards the female person and Constable Dean on the corner of Leister Avenue and Fitzgerald Street in Geraldton, a public place;

(d) at the time of that arrest, the appellant spat at the police officer in the process of the arrest (the spit);

(e) the appellant then using a clenched fist, motioned to punch the officer in the face (the shaping up);

(f) the appellant then was taken to the ground by the officer, and, while resisting violently, bit the officer in the left arm, without breaking the skin (the bite);

(g) the appellant continued to struggle violently, and threatened to kill the officer.

8 On initial appearances before the Magistrates Court in Geraldton, the appellant was charged with only one count of assaulting a public officer then performing a function of his office. The court was informed that the prosecution was relying upon the spit, the shaping up and the bite as constituting the assault. After submissions were presented to his Honour Magistrate De Vries on the issue of duplicity, the prosecution presented a second charge of assaulting a public officer then performing a function of his office. The written submissions presented by the respondent set out the history of communication between the prosecutor and the legal representatives of the appellant concerning the particulars that applied to the two charges of assaulting a public officer. It appears from this history that there may have been some misunderstanding as to the particulars that the prosecutor intended to rely upon. However, by the time the matter came to trial, it is clear that defence counsel had been informed that one count related to the spit and one count related to the bite. The incident of the shaping up was purely contextual.

9 The charges against the appellant came before his Honour Magistrate Sharratt on 14 March 2011. Prior to the commencement of the trial, counsel appearing for the appellant informed the magistrate that he had been told by the prosecution that one assault related to the spit and the other assault related to a bite (ts 2). The prosecutor did not refute this statement. The prosecutor did not seek leave to amend the particulars of the charges at any time during the trial.

10 Once both the prosecution and defence cases were closed, the magistrate considered the evidence on the basis that the assaults were the spit and the shaping up. Defence counsel objected to this and submitted that at all times the appellant had gone to trial on the basis that the particulars of the assault were a spit and a bite (15 March 2011, ts 45). The magistrate indicated there was insufficient evidence to prove the charge of an assault by a bite and he considered the second assault charge related to an allegation that the appellant had been shaping up to the arresting officer (15 March 2011, ts 46).

11 The following exchange occurred between the magistrate and defence counsel:

HIS HONOUR: - - - I have not been worried about the bite, I can tell you. As soon as Constable Dean admitted in the witness box that he did not know how it was caused and that it was not any size, I was not worried about it. I have forgotten about it immediately. It has not done you any damage. You have asked every witness questions about that moment because it is as irrelevant to his powers of arrest as to whether he was in execution of his duty as it is to whether there is an assault or not.

So I am not going to entertain any submission by you that I cannot find him guilty of that offence because, in my view, it is clear; not clear that he is guilty, but clear that this was a dispute. So there has been no problem, as far as your case presentation is concerned. You have asked many questions about it.

JARDINE, MR: Yes, sir. I guess I am just trying to think now how it would be any different, and I guess - - -

HIS HONOUR: It would not have been any different. It would have been the same. You would have asked all the witnesses if you had seen him raised his fists, as you did, and which was he raised it and you would have asked them to give an explanation. You asked the witnesses who appeared on his side what they saw and your witness, Mr Davis, said he did not even see it. He just saw him dragged over the knee.

JARDINE, MR: Yes, sir.

HIS HONOUR: So no, it would not have been any different. (15 March 2011, ts 48)

The effect of providing particulars and the power to amend

12 A prosecution commences in the Magistrates Court by a prosecution notice (s 21 of the Criminal Procedure Act 2004 (WA) (the Act)). Section 23 and sch 1 of the Act deal with the formal requirements of a prosecution notice and the charges contained in the notice. Clause 5 of sch 1 of the Act requires that the accused be informed in enough detail to enable the accused to understand and defend the charge. By cl 5(2)(a), it is sufficient to describe an offence in the words of the written law that creates it. In Ingham v McKenzie [2009] WASC 351, Hasluck J concluded that the rules in question were clearly designed to ensure that the accused would be fully acquainted with the case to be met, but, at the same time, it is apparent that the rules 'eschew pedantry and aim for a practical approach' [86].

13 Clause 8 of sch 1 of the Act provides that where it is alleged that a person committed more than one assault on one other person during one incident, the person may be charged with 'one offence of assault, or of which assault is an element, in respect of the other person'. This would, for example, enable the prosecution to charge a person with a single assault if the victim was struck several repetitive blows. Notwithstanding this provision, in this matter, as a result of pre-trial rulings, the prosecutor was required to specify which of the three alleged assaults (the bite , the spit and the shaping up) it relied on. I express no opinion about the correctness of this pre-trial ruling. It was not challenged on the hearing of the appeal. The prosecutor then decided to proceed in relation to the alleged spit and bite matters as two separate charges. The election meant the accused was not charged in relation to the shaping up incident.

14 The question arises whether the magistrate was entitled to amend the particulars of the charge and thereby amend the substance of the charge. Under s 132 of the Act, a court may, on its own initiative, amend the charge. Section 132 provides as follows:

(1) The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.

(2) The powers in this section may be exercised by a court on its own initiative or on the application of a prosecutor or an accused, unless the contrary intention appears.

(3) A court, on the application of the prosecutor, may amend a charge.

(4) Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.

(5) If one charge alleges 2 or more offences and a court is satisfied that the one charge is not permitted by Schedule 1 clause 8, it may amend the prosecution notice or indictment containing the charge so that each of the offences is the subject of a separate charge.

(6) If one charge alleges 2 or more offences and a court is satisfied -

(a) that the one charge is permitted by Schedule 1 clause 8;

(b) that the trial of the accused on the charge would be unfair because it alleges the 2 or more offences;

(c) that it is reasonably practicable for any of those offences to be the subject of a separate charge; and

(d) that the separate charge would be in accordance with Schedule 1,

the court may amend the prosecution notice or indictment containing the charge so as to include one or more separate charges.

(7) A court that amends a charge, prosecution notice or indictment must ensure the prosecutor and the accused are each given a copy of it.

(8) If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.

(9) If a court amends a prosecution notice or indictment to include a separate charge and at the time of the amendment a trial of the prosecution notice or indictment is in progress, the court -

(a) may discontinue the trial of all of the charges in, and adjourn, the prosecution notice or indictment; or

(b) may continue with the trial of any charge in the prosecution notice or indictment other than the charge that has been included, and adjourn that charge.

(10) A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -

(a) the amendment is material to the merits of the case;

(b) the amendment would prejudice the accused's defence of the charge, prosecution notice or indictment; and

(c) an adjournment would not overcome the prejudice.

(11) If one charge alleges 2 or more offences and a court refuses to amend the charge, the court may order the prosecutor to tell the court to which of the 2 or more offences the charge relates.

15 The Act was introduced as a part of a reform package of the Code and criminal procedure following the Murray Review of the Code in 1983 and the Law Reform Commission of Western Australia's paper Review of the Criminal and Civil Justice System in Western Australia Final Report (1999). Section 132 replaced s 46 of the Justices Act 1902 (WA) (which related to amendments to a complaint in summary proceedings) and s 591 of the Code (which related to amendments in matters commenced by indictment).

16 Section 46 of the Justices Act 1902 was in more succinct terms than s 132 of the Act. Section 46 provided:

No objection shall be taken or allowed to any complaint, or to any summons or warrant to apprehend a defendant issued upon any complaint, for any alleged defect therein, in substance or in form, or for any variance between it and the evidence in support thereof, and any such variance shall be amended by order of the justices at the hearing.

17 Section 591 of the Code was in different terms from s 46 of the Justices Act 1902. Section 591 relevantly provided:

If, on the trial of a person charged with an indictable offence, there appears to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or that any words that ought to have been omitted have been inserted, the court shall unless it considers that the variance, omission, or insertion, is material to the merits of the case, and that the accused person will be prejudiced thereby in his defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms, if any, as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.

18 It is significant that s 132 does not contain the qualification of the former s 591 of the Code that an amendment is not to be made if the court considers the amendment is 'material to the merits of the case, and that the accused person will be prejudiced thereby in his defence on the merits'. The power to amend under s 132 is framed in purely discretionary terms.

19 The general rule at common law has always been that the prosecution must give sufficient details of the charge so an accused will know the case to be met. In other words, an accused must be informed not only of the legal nature of the offence with which he is charged, but also the manner in which the offence was allegedly committed. The rationale of that requirement is to be found in the need to inform the court of the identity of the offence with which it is required to deal and provide the accused with particulars of the charge so he can prepare his defence: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 519 (Mason CJ, Deane & Dawson JJ); Ingham v McKenzie [77] (Hasluck J); Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J). When particulars are supplied the prosecutor is bound by those particulars: **Johnson v Miller (**480) (Latham CJ); Giles v Samuels (1972) 3 SASR 307, 310 (Bray CJ), McKay Investments Pty Ltd v Kent [ 2011] TASSC 11 [32] (Blow J). This, in effect, means that once particulars are supplied those particulars become a part of the charge.

20 The respondent concedes that effectively what occurred before the magistrate was the charge was amended to create a new charge after the hearing of the evidence and concedes that this amendment created a substantial miscarriage of justice. I agree. It is quite a different thing for an allegation to be dealt with as a contextual evidentiary allegation, as opposed to the essence of the charge.

21 In R v Johal; R v Ram [1973] QB 475, the Court of Appeal offered the general observation that:

On the other hand this Court shares the view expressed in some of the earlier cases that amendment of an indictment during the course of a trial is likely to prejudice an accused person. The longer the interval between arraignment and amendment, the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby (481).

22 In my opinion, an unfair trial occurred as counsel for the defence prepared for trial and presumably framed questions (particularly in cross-examination) which treated the shaping up allegation as simply contextual to the main allegations to be dealt with at trial. This is a different situation from where no particulars are sought and no particulars provided. In such a situation, where the evidence is concluded and reveals two or more acts which could constitute the offence, a magistrate might put the prosecution to an election as to which act it relies and may cause no injustice: Johnson v Miller (489). However, in this case the prosecution had been put to an election before the trial commenced. The prosecution made an election to rely on the spit and the bite as constituting the two alleged assaults. Having failed on the bite allegation (the magistrate indicated that he was not satisfied the bite had been proved beyond reasonable doubt), it was unfair to then allow the prosecution to effectively introduce a third charge of assault at the end of the evidence. It is not surprising that counsel struggled to indicate how he may have conducted the defence differently. The difference in questioning might have been minimal, but subtly significant.

23 In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, Deane J said:

Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence (57).

24 Also, the amendment made in this case was not due to the charge or particulars being pleaded in terms which were inaccurate, incomplete or otherwise defective in form. The amendment went to the heart of the allegation.

25 An appeal against a magistrate's decision may be made on the grounds that there has been a miscarriage of justice: s 8 of the CA Act. In my opinion, for the reasons set out above, a miscarriage of justice has occurred in that the appellant was convicted of assaulting a public officer based upon particulars which were different from those upon which the appellant had prepared and conducted his defence. Therefore, on grounds 1 and 2, I grant leave to appeal and allow the appeal.

26 Section 14 of the CA Act provides, relevantly, that if the court allows an appeal, it may set aside and substitute the order of the magistrate or send the matter back to the Magistrates Court to be dealt with again.

27 In Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ in relation to such a discretion said:

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused (630).

28 In view of the relatively minor nature of the alleged assault (without any actual physical contact), the previous election made by the prosecution not to proceed with a charge based upon the alleged shaping up incident and the conviction and punishment for obstructing a public officer, I do not believe that it is in the public interest that the matter be remitted to the Magistrates Court for a retrial. Accordingly, I exercise my discretion to set aside the conviction in count 3 (GN 1422 of 2010) and substitute it with a judgment of acquittal in relation to that charge.

29 To understand grounds 5 and 6 of the appeal, it is necessary to elaborate on the evidence given at the trial.

30 It is common ground that the appellant and his female partner, Ms Maes, were engaging in disorderly conduct at the junction of Leister Avenue and Fitzgerald Street, Geraldton. They were abusing each other. Constable Dean, who was on duty nearby, was alerted to the disturbance and attended the scene. He tried to calm things down by standing between the appellant and Ms Maes. Constable Dean's evidence was that he was telling the appellant to calm down, but the appellant did not listen and continued to abuse Ms Maes. Constable Dean informed the appellant that he was under arrest. The appellant denies hearing this. The appellant commenced to walk off. Constable Dean took hold of the appellant's left arm. The appellant swung around with a raised fist. Constable Dean said in his evidence that he thought the appellant was going to hit him. In response, Constable Dean said he took hold of the appellant's arm, kicked his feet away from him and the appellant fell onto the ground on his back. Whilst on the ground, the appellant struggled. The appellant's evidence was that he struggled because he was concerned for a neck injury he had suffered in April 2009. The neck injury was described as a compression fracture of the C5 vertebra. The appellant underwent operative treatment, but had, after a period of being off work, returned to full-time employment. In cross-examination, the appellant said that Constable Dean was hurting the appellant's neck immediately after the appellant hit the ground and that the appellant attempted to get back to his feet, as he was fearful of further injury to his neck (15 March 2011, ts 30 - 31).

31 The struggle between the appellant and Constable Dean was captured on a street security camera. The video-recording shows the appellant lying passively on his back with Constable Dean sitting with his weight on the appellant's upper body, pinning the appellant's arms to his chest. There is no direct pressure that can be observed being placed upon the appellant's neck area, as evidenced by the fact that the appellant at one point lifts his head freely off the ground. The appellant then tries to break loose and a violent struggle occurs. During the struggle, Constable Dean applies pressure to the appellant's neck. At another point, Constable Dean eases the pressure off the appellant's neck, but the appellant escalates the struggle. Eventually, Constable Dean is able to force the appellant face-down and place his arm behind his back until the other police arrive to provide assistance.

32 The magistrate in his decision stated as follows:

As far as the obstruct [sic] goes, it has been put to me that it is extraordinary reasons and the extraordinary emergency defence applies. I reject that. It might have been raised on the facts, but I reject it instantly. The option for the accused, once he was arrested, was to simply submit to the arrest. He would have found the pressure on his neck lessened instantly, and the officer tried it. We know he tried it because Grant Thomas Russell told us he went and told him to lay off the pressure on his neck and, as soon as he did that, you could see on the tape, after the person we all thought was a taxi driver but was not spoke to him, he starts to struggle twice as much. Plenty of cervical neck movement flapping up and down then. He had to be restrained by Constable Dean.

If he had submitted to the arrest instead of thrashing around, he would not have had the difficulty he had. He was the cause of his own injury to his neck and if he hurt, his neck during that arrest that was his fault, firstly for trying to escape when he was clearly told 'You're under arrest', taking advantage of the officer being busy with his missus to sneak off, number 1; number 2, by not submitting to the arrest. So I find him guilty of the obstruction ... (15 March 2011, ts 61).

(1) This section does not apply if section 32, 246, 247 or 248 applies.

(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).

(3) A person does an act or makes an omission in an emergency if -

(i) circumstances of sudden or extraordinary emergency exist; and

(ii) doing the act or making the omission is a necessary response to the emergency;

and

(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

34 A 'sudden emergency' has been described as one that comes upon the accused unexpectedly, catching her or him off-guard. An 'extraordinary emergency' is one which has been said to be 'unexpected or sudden', but a situation of 'gravity and abnormal or unusual danger': Johnson v The State of Western Australia [2009] WASCA 71 [60].

35 For the prosecution to prove beyond reasonable doubt that s 25 does not excuse criminal responsibility, it must prove one of the following:

(a) that the accused did not believe circumstances of sudden or extraordinary emergency existed; or

(b) the accused did not believe the act or making the omission was a necessary response to the emergency; or

(c) the act or omission was not a reasonable response to the emergency in the circumstances as the accused believed them to be; or

(d) there were not reasonable grounds for the beliefs held by the accused.

36 Ground 5 of the appeal is essentially that the magistrate failed to give adequate reasons. It is submitted the magistrate needed to consider the elements of the defence of emergency and also state in his reasons that the prosecution had the burden of proving beyond reasonable doubt that s 25 did not apply.

37 The obligation of a magistrate to provide adequate reasons has been considered in a number of decisions: Sheppard v Blakey [2001] WASCA 309; Francis v Todd [2011] WASC 185 (Edelman J); Bennett v Carruthers [2010] WASCA 131; Ibrahim v Herring [2010] WASC 190 [24] (Hall J); Hawker v Coulthard [2011] WASC 139 [78] (Sleight C).

38 In Sheppard v Blakey, McLure P [25] stated:

The failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered. This is particularly so in the Court of Petty Sessions where a Magistrate is not obliged to give full and detailed reasons on all aspects of the decision-making process. The reasons may be stated shortly without being developed in detail. It is sufficient if they disclose the essential intellectual process by which the decision was arrived at: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248; R v Nevermann (1989) 43 A Crim R 347 at 350. In the absence of credible evidence to the contrary, it is to be assumed that the Magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998; Bienke v Minister for Primary Industries and Energy (1966) 63 FCR 567 at 576 - 577 [25].

39 This decision was prior to the enactment of s 31(1) of the Magistrates Court Act 2004 (WA) which provides as follows:

(1) The Court's reasons for a judgment in a case -

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so;

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so;

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

40 By relieving the magistrate of the need to canvass all the evidence and/or all the factual and legal arguments or issues arising in the case, the section is designed to reduce the obligation which arises when a magistrate is giving his or her reasons for a decision. This recognises that magistrates are generally dealing with long lists of matters and have little opportunity to spend long periods framing their decisions. Most decisions are given on an extempore basis and are meant to provide a summary disposition of the matter before the court. Although the operation of the section reduces the extent to which a magistrate must give reasons, the magistrate is still required to identify the intellectual process for reaching a decision: Bennett v Carruthers [31] (Mazza J); Francis v Todd [17] (Edelman J).

41 In this matter, the magistrate stated at the commencement of his decision that the appellant was presumed innocent, the prosecution had the burden of proving the charges beyond reasonable doubt and this included a burden on the prosecution to negative any defence (15 March 2011, ts 56).

42 The magistrate specifically referred to the defence of emergency and, although he did not analyse the components of the defence, he was not obliged to do so. The magistrate rejected the defence expressly on the basis of a factual finding that the appellant had created any risk of injury to his neck himself by not submitting to the arrest. Based upon this factual finding, it is implicit in the magistrate's decision that the prosecution had proved that the defence did not apply. The struggle was not responsive to an emergency. Therefore any belief by the appellant that he needed to struggle because of the existence of a sudden or extraordinary emergency was not based on reasonable grounds. Although it would have been preferable if the magistrate had expressly referred to the component or components of the defence which he found not to have been proved, in my view, his reasons were sufficiently clear and adequate to disclose his underlying intellectual process behind the conclusion he reached that the defence did not apply.

43 Accordingly, although I will grant leave to appeal on ground 5, the appeal is dismissed.

44 Ground 6 of the appeal is on the basis that a miscarriage of justice has occurred because the magistrate should not have rejected the defence of emergency. This ground of appeal is based upon a contention that on the evidence given at the trial, the verdict was unsafe and unsound and therefore a miscarriage of justice has occurred.

45 In Hawker v Coulthard [11] - [16], I set out the legal principles that apply on an appeal based upon the grounds that a verdict is unsafe and unsound. It is unnecessary for me to repeat these principles in full. On such an appeal, the appellate court must ask itself the question whether upon the whole of the evidence it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson & Toohey JJ).

46 In this matter, on the whole of the evidence before the magistrate, it was open to the magistrate to reject the defence of emergency. One particular significant piece of evidence against the appellant was video surveillance coverage of the incident. As described earlier in this decision, there was no apparent pressure on the appellant's neck until the appellant instigated a struggle. Further, the closed-circuit television film shows the appellant struggling violently. The appellant shows a remarkable degree of flexibility, strength and persistence for a person who has a serious neck injury. In fact, his behaviour is inconsistent with any serious limitation. This is notwithstanding that he may have suffered a serious neck injury back in 2009. The magistrate noted the degree of flexibility shown by the appellant before concluding that the appellant was guilty of the obstruction charge.

47 In my opinion, on the totality of the evidence, the decision reached by the magistrate was open to him on the evidence.

48 On ground 6, I refuse leave to appeal, but, in any event, would have dismissed the appeal on this ground.

49 In summary, on grounds 1 and 2, I grant leave and grant the appeal. In view of this decision, there is no need to consider grounds 3 and 4.

50 On ground 5, I grant leave, but dismiss the appeal. On ground 6, I refuse leave to appeal.

BAUERHUIT -v- DEAN [2011] WASC 253 (14 September 2011)

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BAUERHUIT -v- DEAN [2011] WASC 253 (14 September 2011)

Legislation Cited (3)

Cases Cited (9)