Citation : ELWIN -v- ROBINSON [2012] WASC 311

Criminal law - Police powers of arrest - Whether excessive force used in the arrest - Circumstances of violence and mayhem - Whether facts in substance justified the decision - Obstruction of police officer

Criminal Appeals Act 2004 (WA), s 14(3)

Criminal Investigations Act 2006 (WA), s 16, s 128(3)

Carmichael v McGowan [1967] WAR 11

Elwin v Robinson [2012] WASC 311

Hayward-Jackson v Mason-Walshaw [2012] WASC 107

JRNT v The State of Western Australia [2011] WASCA 183

M v The Queen (1994) 181 CLR 487

McIntosh v Webster (1980) 43 FLR 112

3 The appellant was charged in the Magistrates Court with disorderly behaviour in public, obstructing a public officer in the performance of that officer's functions and refusing to supply personal details to a police officer. He was convicted after trial of the offence of obstructing a public officer in the performance of that officer's functions. This is an offence contrary to s 172(2) of the Criminal Code (WA). The appellant was acquitted of the other charges. He was fined $400 and given a spent conviction order.

4 The appellant appealed against his conviction. The appeal was heard by McKechnie J who dismissed it: Elwin v Robinson [2012] WASC 311. The appellant now appeals to this court against McKechnie J's decision on two grounds which I will set out later in these reasons. Leave to appeal has been granted in respect of these grounds.

5 An extension of time is required to bring this appeal. The appeal was filed approximately one week out of time. The reason for the delay has been adequately explained and the extension of time is not opposed. I would grant an extension of time.

6 At about 4.40 am on New Years' Day 2010 a fight involving several men broke out on James Street, Northbridge, in the vicinity of the Paramount Nightclub. On the night there was a considerable police presence in the area. Within a short time of the commencement of the fight a large number of uniformed police officers with distinctive yellow fluorescent vests descended upon the scene, on bicycles and in police vehicles.

7 Senior Constable Robinson observed a person later identified as the appellant on top of a second male over a street barricade which they had knocked to the ground. Senior Constable Robinson testified that the appellant had the second male 'in some sort of grip with both hands up near his neck' (7/6/2011, page 7). In essence, the two men appeared to be

fighting. Senior Constable Robinson grabbed the appellant from behind and pulled him off the second male. The learned magistrate found that at this point the appellant was unaware that this person was a police officer. However, when Senior Constable Robinson twisted the appellant around so that the two men faced each other, the appellant became aware that Senior Constable Robinson was a police officer. It is not disputed that Senior Constable Robinson told the appellant that he was under arrest.

8 Closed-circuit television (CCTV) footage of the incident taken by two cameras (exhibit 1) shows Senior Constable Robinson and another police officer, a female, dragging the appellant away from the second male and apparently trying to place him on the roadway. It is clear that the appellant physically resisted these efforts. The CCTV footage also shows Senior Constable Robinson and the other police officer pushing the appellant back onto the nearby footpath. It is obvious that the appellant was resisting this manoeuvre by moving his arms and legs.

9 The CCTV footage then shows the appellant and Senior Constable Robinson facing each other on the footpath, and the female officer kneeing the appellant in the leg, evidently to bring him to the ground. These measures were unsuccessful. It is accepted that Senior Constable Robinson directed the appellant to go to the ground but he refused to do so.

10 A group of officers then forcefully 'barrelled' the appellant to the footpath. One of the officers then deployed a taser to the appellant. The whole incident occurred in less than a minute.

11 No particulars were sought or given before the trial concerning the nature of the conduct said to constitute the obstruction. The police prosecutor did not make an opening statement except to inform the learned magistrate that the case was about an incident that occurred in Northbridge and to tender by consent exhibit 1. There was a brief defence opening. Defence counsel asserted that on the night the appellant was not fighting (in the sense that he was the aggressor) but was the victim of an assault. As to the charge of obstructing a public officer, defence counsel said this:

As to the obstruct [sic], your Honour, we will - in closing submissions I will be saying that the officers were not performing a function of their duty and in fact the officer who effected the arrest used far too much force. It was excessive force and therefore he was acting unlawfully your Honour (7/7/2011, page 5).

12 On behalf of the prosecution three police officers were called to give evidence namely, Senior Constable Edward Robinson, Constable Matthew Dwyer and First Class Constable Christopher Martin. The appellant gave evidence in his defence. It is necessary to summarise that evidence.

13 Senior Constable Robinson testified that he was on bicycle patrol near the Paramount Nightclub. He saw two groups of males about 40 m from where he was. He saw a male throw a punch at another male, following which a fight broke out. He immediately went to the location shouting 'police stop'. He said he saw the appellant on top of a second male (who was later identified as Cody Shortland) and that both men were over a street barricade that had been knocked to the ground. He said that he saw that the appellant had Mr Shortland in a grip near his neck. He testified that he continued to shout 'police stop'. He said that he grasped the accused and pulled him from Mr Shortland using a neck restraint. He said that the appellant twisted to face him and that he told the appellant that he was under arrest and to get on the ground. He said he was being assisted by Constable Tomczak.

14 Senior Constable Robinson testified that as he was attempting to place the appellant on the ground the accused physically resisted, saying 'Okay, but I won't get on the ground'. Senior Constable Robinson said that he and Constable Tomczak continued to struggle with the appellant and the struggle moved them to the side of the road. He testified that 'another officer' came in and deployed a taser to overcome the appellant's resistance. Senior Constable Robinson then left the accused to be restrained by other officers.

15 In cross-examination, Senior Constable Robinson agreed that he used a head lock to drag the appellant away from Mr Shortland (7/6/2011, pages 18 and 26). He said he did so because he approached the appellant from behind and it was 'inappropriate' to grab his arms. He said that once he had dragged the appellant off Mr Shortland and tried to put him on the ground, he lost the grip around the appellant's neck and gripped the appellant's arm.

16 Senior Constable Robinson repeated that the appellant acknowledged that he was under arrest but would not get onto the ground (7/6/2011, page 30). He said, 'We were telling him "you are under arrest. Get on the ground" ... he was agreeing that he was under arrest but he would not get onto the ground'.

17 In cross-examination Senior Constable Robinson explained why he wanted the appellant on the ground. He said:

Now, we like to have people on the floor [sic] because there is less chance of harm to everyone. There is less chance that someone is going to fall over, strike their head that sort of thing. So a good knee strike is either the leg collapses; the person goes down; maybe you cork the thigh; they then decide to stop struggling (7/6/2011, page 31).

18 Senior Constable Robinson explained his last memory of the incident in these terms:

My last memory of this incident was the police officers taking him [the appellant] out of my hands you have just seen in that sort of - that sort of ruck, for lack of a better word...(7/6/11, page 33).

19 In re-examination Senior Constable Robinson said that he chose to grab the accused in a head lock because he believed that it was 'the only option' (7/6/2011, page 41).

20 Constable Dwyer testified that he saw two males 'punching each other' in the middle of James Street. He said that, as this was occurring, Senior Constable Robinson rode off towards them shouting 'police stop' and he ran behind him. He said that Senior Constable Robinson grabbed the appellant off the other male who he identified as Mr Shortland. Constable Dwyer then placed a handcuff on Mr Shortland.

21 Constable Dwyer said that he saw Senior Constable Robinson and Constable Tomczak dealing with the appellant. He said that he saw that the officers were holding him by each of his arms. He said that he saw Constable Tomczak knee the appellant three times to his right thigh. Constable Dwyer testified that he ran towards the group. He said that other police officers 'got involved' and that the appellant had 'sort of gone to the ground'. Constable Dwyer said that he deployed his taser on the appellant 'to prevent further injury' (7/6/2011, page 44).

22 In cross-examination Constable Dwyer explained that he tasered the appellant because:

[the appellant] was still continuing to struggle so to prevent injury I tasered him. From where he was originally grabbed, if the whole resisting is still there, I didn't want anyone to get injured so I tasered him (7/6/2011, page 63).

23 Constable Martin was on van patrol duties. He testified that he saw Senior Constable Robinson and another police officer attempting to restrain the appellant who was 'physically struggling' with Senior Constable Robinson (7/6/2011, page 71). He said that he heard Senior Constable Robinson tell the appellant to 'get on the floor'. Constable Martin said that he ran to assist his colleague who was still struggling with the appellant. Constable Martin said that he took hold of the appellant and brought him to the ground 'to try and control the situation'. At that point he saw a taser deployed. Constable Martin testified that shortly after this the appellant was handcuffed.

24 The appellant testified that he and a group of friends, including his brother, celebrated the new year in Northbridge. In the early hours of New Year's Day 2010 the appellant and his group were in the Paramount Nightclub. There, his brother was assaulted. The appellant did not see the assault, but believed the assailant had dreadlocks. The appellant testified that he left the nightclub and walked onto James Street looking for the assailant. The appellant said that he came upon a group of three people. He said that he was pushed, pulled and punched by them. The appellant said that one of them, Mr Shortland, put him in a headlock and hit him. The appellant said that Mr Shortland let go and at the same time he heard someone behind him yell 'Police. Stop'. He said that he stood completely still with his hands to his side 'to show as submissive a pose as possible' (8/6/2011, page 6). He said that all of a sudden he was grabbed from behind in what he described as a choke hold. He said that he assumed that it was one of the three men who had been attacking him. He said that he struggled to break the hold because he could hardly breathe, but eventually he was able to do so. He testified that he was being grabbed and that he repeated over and over 'please stop hitting me, what are you doing?' (8/6/2011, page 8). The appellant said that it felt like both his arms were being pulled and that someone was kneeing him.

25 The appellant testified that he then turned and realised that the police were behind him. He denied being told that he was under arrest. The appellant recalled being tasered. He asked one of the police officers why he had been tasered, to which the officer responded 'because you didn't get on the ground' (8/6/2011, page 9).

26 In cross-examination the appellant, in effect, did not dispute that he had struggled both to break free of the choke hold and to be otherwise restrained. He said that he was not aware that the police were involved in the physical confrontation with him until he had been tasered (8/6/2011, page 28).

27 With respect to the charge of obstructing a public officer, the police prosecutor submitted that the CCTV footage revealed that Senior Constable Robinson had used reasonable force by placing him in a headlock in order to effect the appellant's arrest and prevent the appellant from committing further offences (8/6/2011, page 35). The prosecutor submitted that the appellant:

continued to struggle after that whereupon Constable Tomczak [tried] to get him onto ground to secure him for the safety of him and the officers... (8/6/2011, page 35).

28 It appears from the prosecutor's closing address that the prosecution case was that the appellant was aware of his arrest from the time the appellant had been placed in a headlock by Senior Constable Robinson and that from that point until he was tasered, he obstructed the police by resisting their efforts to put him to the ground.

29 Defence counsel submitted that Senior Constable Robinson's use of what defence counsel described as a head restraint constituted excessive force because there were other lesser force options available. Defence counsel submitted that from 'the moment [Senior Constable Robinson] used excessive force the police were acting unlawfully and if they are acting unlawfully then the obstruct police [charge] doesn't stand' (8/6/2011, page 49).

30 Defence counsel submitted that Senior Constable Robinson's evidence that he liked people who had been arrested in violent situations to be on the ground was an insufficient basis for the use of physical force (8/6/2011, page 52).

31 Defence counsel submitted that the appellant 'had no idea he was dealing with police until not long before he was tasered' (8/6/2011, page 51).

32 Defence counsel submitted that at the time the neck restraint was placed on the appellant, he was not resisting arrest and that from that point onwards 'panic set in' (8/6/2011, page 53). He submitted that Senior Constable Robinson acted unlawfully and that 'everything that followed is tainted by the manner in which he started that arrest' (8/6/2011, page 53).

33 The learned magistrate's findings were based substantially on the CCTV footage. She found that Constable Robinson's use of a neck restraint in order to get the appellant off Mr Shortland was, in all the circumstances, a reasonable use of force. She further found that at this point the appellant did not realise that the person who had applied the restraint was a police officer and that his resistance at that point was not unlawful. However, once the appellant was upright and facing Constable Robinson, the learned magistrate found that the appellant was aware that his 'assailant' was a police officer and that he was engaged in what her Honour described as the 'process of arrest' (8/6/2011, page 64). None of these findings are challenged in this appeal.

34 Her Honour found that from that point the appellant was 'resisting or obstructing' the police officers in the performance of their function until he was subdued by the application of the taser, which her Honour said occurred 'at the end of the whole process of arrest' (8/6/2011, page 64).

35 As amended, the grounds of appeal that were pursued before McKechnie J were as follows:

1. The learned magistrate made an error of law in convicting the appellant based on a finding that 'he was resisting or obstructing the police officers in the performance of their functions'.
2. [Abandoned at the hearing].
3. A miscarriage of justice was occasioned by the failure of the learned magistrate to properly consider whether the prosecution had established that the applicant had obstructed a public officer contrary to s 172 of the Criminal Code.
4. There has been a miscarriage of justice as the verdict of guilty was unreasonable or cannot be supported having regard to the evidence.

36 His Honour took ground 1 to be, in substance, a complaint that there was a lack of particularisation of the charge. His Honour's reasons on this ground read as a whole reveal that, while his Honour accepted that the charge had not been particularised and in that sense the ground was made out, it gave rise to no miscarriage of justice, let alone a substantial miscarriage of justice ([9] - [13] and [29]). The appellant does not challenge this decision and nothing more needs to be said about it.

37 His Honour dealt with grounds 3 and 4 together (describing them as grounds 2 and 3). He said that the crux of the appellant's argument in respect of these grounds was that the magistrate was obliged, but failed, to consider whether, at the point after the neck restraint had been released and the appellant was said to have submitted to the arrest, the police used excessive force to bring the appellant to the ground, thereby entitling him to resist that force ([14]).

38 His Honour then proceeded to summarise the evidence, witness by witness. It is apparent that his Honour misapprehended an aspect of the evidence. The evidence which his Honour said had been given by Constable Dwyer had in fact been given by Senior Constable Robinson. This misapprehension has no significance to the outcome of this appeal.

39 His Honour accepted that the learned magistrate should have identified as the issue for her determination, but failed to do so, whether the prosecution had established beyond reasonable doubt that the police officers' use of force to put the appellant on the ground was force that was reasonably necessary in the circumstances to exercise the power of arrest.

40 Notwithstanding this failure, his Honour found that the facts of the case, in substance, supported the decision: Criminal Appeals Act 2004 (WA), s 14(3). His Honour elaborated in these terms:

The magistrate made critical findings which are not challenged, including the finding that Robinson chose what he believed was his best option in the heat of the moment. What Robinson chose was a neck restraint to get the appellant to the ground for the purposes of arrest. The magistrate held that he acted reasonably in using appropriate force on the appellant. Necessarily connoted within that finding is that the decision to bring the appellant to the ground was a reasonable one.

There is no evidence to contradict Robinson's belief that getting people on the floor there is less chance of harm to everyone and less chance that someone is going to fall over and strike their head.

The events occurred very quickly. This is clear on the CCTV footage. Robinson chose to use force necessary to cause the appellant to submit, by pulling him to the ground as part of the arrest process. The magistrate held that this was appropriate force in the circumstances; that is, not excessive force. As the CCTV shows, although the appellant might have said 'Okay but I won't get on the ground', he did not by any gesture actually submit to the arrest.

The police were confronted with a boisterous New Year's Eve in Northbridge and two men (one the appellant) who appeared to be fighting. It was necessary to separate the men and subdue each. Even though the magistrate did not expressly so find, I am satisfied beyond reasonable doubt that in the particular circumstances of the night, and having regard to the magistrate's finding of the appropriateness of Robinson's action in applying a neck restraint, all the police officers continued the application of reasonable force in order to bring the appellant to the ground for safety and to restrain him there. The appellant obstructed these lawful actions [23] - [26] (emphasis added).

41 His Honour concluded that ground 1 was made out, but that it caused no miscarriage of justice in the circumstances. Further, ground 3 was made out, but he did not set aside the decision because the facts in substance supported it. As a consequence of this finding, his Honour concluded that the appellant had 'failed to make good ground 3 [sic: ground 4]'.

42 The grounds of appeal relied upon in this court are as follows:

1. The learned primary Judge erred in deciding, pursuant to s 14(3) of the Criminal Appeals Act 2004 (WA), that he was not required to set aside the decision of the learned Magistrate to convict the appellant of the charge of obstructing a public officer on the basis that the facts in substance supported the decision.

Particulars

The facts in substance did not support the decision of the learned Magistrate to convict the appellant of the charge of obstructing a police officer.

1. The learned primary Judge erred in law in deciding that there had not been a miscarriage of justice on the ground that the verdict of guilty on which the appellant's conviction of the charge of obstructing a police officer was based was unreasonable or cannot be supported having regard to the evidence.

43 In support of ground 1, the appellant submitted, in substance, that the primary judge erroneously used the finding made by the learned magistrate about Senior Constable Robinson's lawful use of a neck restraint to justify Senior Constable Robinson's use of force to bring the appellant to the ground.

44 In support of ground 2, the appellant submitted that it was not open to the learned magistrate to be satisfied beyond reasonable doubt that the officers were acting lawfully in the performance of their duties at the time the appellant was alleged to have been obstructive.

45 It was submitted that the 'overwhelming effect' of the evidence adduced by the prosecution at trial was that the appellant submitted to the arrest. In these circumstances, according to the appellant, it was not reasonably necessary for the police officers to force the appellant to the ground in the exercise of the power of arrest and, if it was, the force that was used was more than was reasonably necessary.

46 Addressing both grounds 1 and 2, counsel for the appellant submitted that the key question to be determined was 'whether the command by the respondent, Officer Robinson, to the appellant to 'get on the ground' was a lawful one and therefore whether his resistance to that [instruction] was obstructing police in the exercise of their duty' (appeal ts 20). Counsel encapsulated the appellant's case as being that the request was unlawful because there was no reason for it and because the appellant had submitted to the arrest.

47 The respondent submitted that the prosecution's case was that the appellant had obstructed the police officers from the outset until he was subdued by the taser, and that this was apparent from the way in which the parties had approached their closing addresses at trial.

48 It was submitted on behalf of the respondent that the primary judge did not err in his exercise of the power contained in s 14(3) of the Criminal Appeals Act, and that ground 1 had not been made out. In respect of ground 2, the respondent submitted that while the evidence was to the effect that the appellant acknowledged that he was under arrest, it was well open on the evidence to conclude that the appellant had not submitted to the arrest and that the police were therefore entitled to use reasonable force to effect the arrest. In these circumstances, having regard to the appellant's conduct in obstructing or resisting attempts to arrest him, it could not be said that the appellant's conviction was unreasonable or that it could not be supported. The respondent submitted that it was reasonable to request that the appellant go to the ground and that having regard to the appellant's resistance to that request, the police were entitled to use reasonable force and, indeed, used reasonable force to enforce the request.

49 In her oral submissions, counsel for the respondent submitted that the offence of obstruction was committed by the appellant as soon as he acknowledged that he was under arrest and said, 'I'm not going to the ground'. Counsel for the respondent submitted that if the request to go to the ground was a reasonable one but the appellant refused to comply, that refusal alone constituted an offence of obstructing police. In other words, the offence had been committed before the appellant was kneed by Constable Tomczak and before he was forced to the ground and tasered by Constable Dwyer (appeal ts 52). In making this submission, the respondent did not confine its case to this verbal refusal. The respondent maintained that the appellant physically resisted the police after the verbal refusal and until he was tasered.

50 It was pointed out in the course of oral submissions that the respondent's submissions were a further refinement of its case in a way which had not been put either at first instance or before the primary judge. The appellant's counsel accepted that the refinement of the respondent's case did not give rise to any procedural unfairness. It was accepted that this court could deal with this argument based on the trial record (appeal ts 59).

51 Section 172 of the Criminal Code is in these terms:

Obstructing public officer

(1) In this section -

obstruct includes to prevent, to hinder and to resist.

(2) A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer's functions is guilty of a crime and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 18 months and a fine of $18,000.

52 It is common ground that the definition of 'public officer' in s 1 of the Criminal Code includes a police officer.

53 The offence requires proof of three elements, being:

(1) that the person who was obstructed was a public officer (or a person lawfully assisting a public officer);

(2) that at the time of the conduct said to constitute the obstruction, the public officer was engaged in the performance of his or her functions; and

(3) that the conduct said to constitute the offence, obstructed the public officer in the performance of his or her functions.

54 The definition of 'obstruct' in s 172(1) is inclusive. It has been held that 'to obstruct' means to make it more difficult for police officers to carry out their duty: Carmichael v McGowan [1967] WAR 11, 13 and Hayward-Jackson v Mason-Walshaw [2012] WASC 107 [20] - [21]. The conduct said to constitute an offence of obstruction is not confined to physical obstruction.

55 The prosecution case was that at the time the appellant was alleged to have obstructed Senior Constable Robinson and the other police officers, they were acting in the performance of their functions, in that they were engaged in the arrest of the appellant.

56 There is no issue in this appeal that the police had the power, pursuant to s 128(3) of the Criminal Investigation Act 2006 (WA) (CIA) to arrest the appellant. Further, there is no issue that Senior Constable Robinson lawfully placed the appellant under arrest.

57 The issue here concerns the force used by Senior Constable Robinson and other police officers in the process of the appellant's arrest.

58 Section 16 of the CIA provides that a person exercising a power under that Act may use any force that is reasonably necessary in the circumstances to exercise the power and overcome any resistance offered. Section 16 is subject to ch XXVI of the Criminal Code: s 16(3) CIA. The sections in ch XXVI of the Criminal Code which are relevant to this case are s 231 and s 260. Section 231 of the Criminal Code provides that it is lawful for a person engaged in making an arrest (or any person lawfully assisting in that process) 'to use such force as may be reasonably necessary to overcome any force used in resisting' that arrest.

Excessive force is unlawful

In any case in which the use of force by one person to another is lawful, the use of more force than is justified by law under the circumstances is unlawful.

60 The effect of these provisions is that if a police officer uses more force than is reasonably required in the circumstances to effect an arrest, that use of force is unlawful and the police officer will not be performing a function of his or her office. In such circumstances, an offence against s 172 of the Criminal Code cannot be made out.

61 The question of what force is reasonably necessary to effect an arrest depends upon an objective evaluation of all of the surrounding circumstances. In performing such an evaluation it must be remembered that the purpose of an arrest is not only as a step in bringing an alleged offender to justice, it is also part of a police officer's general duty to preserve order: Glanville L Williams, Requisites of a Valid Arrest [1954] Crim LR 6. In this respect, the functions of a police officer include duties to keep the peace, prevent the commission of offences and protect the safety of others (including the alleged offender and police).

62 It must also be borne in mind, when assessing what force is reasonably necessary, that arrests often occur in situations of sudden violence and mayhem. In the context of public disturbances such as street fights, it will frequently be necessary for police to swiftly defuse the situation in order to preserve order and prevent injury. In such situations, it may not be possible or practical for a police officer to stand back and consider which individuals or which group were in the wrong or to make fine judgments about what force is necessary in the circumstances. In these situations, a police officer must have the discretion to act quickly and decisively. In McIntosh v Webster (1980) 43 FLR 112, 123, Connor J put it this way:

Arrests are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.

63 This is not to say that police officers are unaccountable and can act with impunity when arresting persons alleged to be involved in public disturbances. Acknowledging the difficulties that police officers face in such circumstances, the actions of police are subject to the scrutiny and judgments of the courts against the yardstick of what was reasonably necessary in all the circumstances of the particular case.

64 With respect to ground 1, it may be accepted that a finding that the use of the neck restraint was lawful did not compel the conclusion that the use of force to bring the appellant to the ground was lawful. However, as the appellant recognised, such a conclusion is not determinative of the appeal if, in fact, the conviction was justified having regard to all of the evidence. Accordingly, this appeal cannot succeed unless the appellant makes good ground 2.

65 The approach this court must take to ground 2 is the approach mandated by the High Court in M v The Queen (1994) 181 CLR 487, adapted to take into account that the proceedings at first instance were before a magistrate. In JRNT v The State of Western Australia [2011] WASCA 183, I explained (at [59] - [62]) the relevant principles as being:

The question which this court must ask itself is whether, upon a consideration of all of the evidence, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487, 493. The word 'open' in this context is important. As Hayne J said in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559:

[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard [113]. (emphasis in original)

This court must undertake its own independent assessment of all of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support a verdict: SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571. Full regard must be given to the considerations that the jury is the body primarily entrusted with the responsibility of determining guilt or innocence, and that it has had the benefit of having seen and heard the witnesses.

The test laid down in M v The Queen must be applied in this way:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495).

See also Martinez v The State of Western Australia [2007] WASCA 143; and Scriva v The State of Western Australia [2010] WASCA 89.

66 I have reviewed the trial record. The learned magistrate had the considerable advantage that this court does not have of seeing and hearing the witnesses who were called.

67 The evidence shows that the appellant and others were engaged in a street fight. It may be accepted that the appellant did not start the fight and was set upon by others, but it was a fight in public nevertheless. The fight did not commence in the presence of police officers, but by the time the officers arrived at the scene it was in progress and it was impractical for them, at that point, to ascertain who was in the right and who was in the wrong. The imperative was to stop it.

68 On any view of the evidence, the appellant was engaged in a physical confrontation with Mr Shortland. It was reasonable for Senior Constable Robinson to suspect that the appellant was committing the offence of disorderly conduct by fighting and that if he was not arrested the offence would continue. As I have already said, it was common ground in this appeal that Senior Constable Robinson's power to arrest the appellant, pursuant to s 128(3) of the CIA, was enlivened.

69 His evidence was that he approached the appellant and shouted, 'Police. Stop'. The appellant, in his evidence, acknowledged that at the time he was struggling with Mr Shortland he heard someone behind him yell, 'Police. Stop'.

70 Senior Constable Robinson grabbed the appellant by the neck from behind to get him off Shortland. The learned magistrate found that in the circumstances this was a reasonable use of force. This was a conclusion that was open on the evidence and it was not challenged in this court.

71 Senior Constable Robinson said that he and the appellant faced each other and that he told the appellant he was under arrest and was required to get to the ground. Senior Constable Robinson testified that the appellant acknowledged that he was under arrest, but refused to go to the ground. Exhibit 1 bears out Senior Constable Robinson's testimony to the extent that it is clear that at one point after the appellant had been removed from Mr Shortland, the two men are facing each other so that the appellant could have been under no misapprehension that he was dealing with a uniformed police officer. In this appeal, the appellant does not challenge Senior Constable Robinson's evidence. Indeed, he relies upon it to base his case that he had 'submitted' to the arrest.

72 The appellant argued that, having submitted to the arrest, it was not reasonably necessary for Senior Constable Robinson to require him to go to the ground. It was said on the appellant's behalf that the use of force when the request was refused was not reasonably necessary and was unjustified. Accordingly, Senior Constable Robinson and indeed all of the officers who assisted him were acting unlawfully and were not performing a function of their office. In these circumstances, it is said by the appellant, he was justified in resisting the attempts to bring him to the ground.

73 The appellant's submissions cannot be accepted. It is clear from the evidence of the prosecution witnesses and a viewing of exhibit 1 that Senior Constable Robinson and the other officers were required to deal with a number of men fighting in a street in Northbridge. It was, in my view, reasonable for the police to do what they did, that is, break up the fights and separate the participants from each other. In order to:

(a) calm the participants and to ensure that there was no continuation of the fight, and

(b) preserve their safety and the safety of police and bystanders,

it was reasonable to require the participants (including the appellant) to go to the ground and stay there where no harm could be done. Senior Constable Robinson's instruction was, in the circumstances, lawful, and properly part of the process of arrest.

74 The appellant was legally required to comply with the instruction. It is plain that he did not do so. While he acknowledged his arrest and, in this sense, submitted to it, he verbally refused to go to the ground. By that refusal, the appellant made the task of Senior Constable Robinson and Constable Tomczak more difficult. In my view, the offence of obstruction for which he was charged was committed by the appellant's refusal to go to the ground. I would uphold the respondent's submission in this regard. However, it seems to me that what followed was a further and continued obstruction.

75 It is clear, particularly from a viewing of exhibit 1, that the appellant physically resisted the attempts of Senior Constable Robinson and Constable Tomczak to bring him to the ground. Initially, Senior Constable Robinson and Constable Tomczak tried to pull the appellant to the ground by his arms. That was, in my view, a reasonable use of force. These attempts were physically resisted by the appellant, who can be seen to be attempting to pull his arms away from the officers.

76 At this point, Constable Tomczak attempted to force compliance by the use of knee strikes to the appellant's thighs. These actions were also, in my view, a reasonable use of force. The knee strikes were apparently ineffective. The appellant remained on his feet and can be seen in exhibit 1 continuing to resist efforts for him to go to the ground.

77 The measures employed by both Senior Constable Robinson and Constable Tomczak were reasonable uses of force and were lawful. Both officers were acting in the performance of their duties as police officers. The appellant's physical resistance obstructed the police in the performance of their functions. Thus, his actions continued to constitute the offence of obstruction.

78 The actions by a number of police officers in 'barrelling' the appellant to the ground, followed by the application of the taser by Constable Dwyer are perhaps more problematic. But it is unnecessary to say anything more about this. This is because, even if, having regard to the evidence at its most favourable for the appellant, the police officers did not, at this point, act in the performance of their function, the appellant had already committed the offence for which he was charged and convicted.

79 It was submitted by the appellant that the evidence of Senior Constable Robinson as to why it was necessary for the appellant to go to ground was general in its terms and did not address the specific situation of the appellant. There are two answers to this submission. First, although Senior Constable Robinson's evidence was couched in general terms, it was given in the context of the specific events with which the case was concerned. It was well open to be interpreted as a general statement which applied to the situation on the night in question. Second, the question of whether any instruction to go to the ground was reasonable can also be judged based on the evidence of witnesses and what was shown in exhibit 1. Without wishing to be unduly repetitive, the situation was, when the police arrived, plainly volatile and required quick and decisive action in order to defuse it. By placing the participants on the ground, that aim was achieved.

80 I have weighed the appellant's testimony. Parts of it do not accord with the CCTV footage and cannot reasonably be accepted. For example, the appellant does not stand completely still with his hands to his side in a submissive pose. His testimony that he did not know that the police were involved until he had been tasered is contrary to the evidence led on behalf of the respondent (and now relied upon by the appellant) that he acknowledged that he was under arrest after Senior Constable Robinson dragged him off Mr Shortland.

81 In my view, it was well open on all of the evidence to conclude beyond reasonable doubt that the appellant had obstructed the police and had committed an offence contrary to s 172 of the Criminal Code.

82 For these reasons, the appeal must be dismissed and I would so order.