ELWIN -v- ROBINSON [2012] WASC 311 (31 August 2012)

4 My use of the plural is deliberate because that is the way the prosecution notice is worded and that is the way in which the trial was conducted.

5 At the trial the prosecution called a number of police officers to give evidence and the appellant also gave evidence.

6 A central part of the case was CCTV footage from two cameras in Northbridge which covered much but not all the interaction.

7 The finding of the magistrate was nuanced. She found:

Now, the charge of obstruct. Obstructing a public officer in the performance of the officer's functions. I find that two officers arrived when the accused was on top of Shortland, perhaps having fallen over the barricades, but the officers said they yelled, 'Police, stop' as did, that few seconds later, officer Martin when he arrived on the scene when they were struggling to get the accused onto the ground.

Dwyer arrested Shortland, who he said was compliant - and that seems apparent from the video. Robinson grabbed the accused around the neck and pulled him up onto his feet backwards, and he said that the accused was not compliant and was struggling with him and Tomczak - and then others, including Martin, arrived to assist in their arrest of him - and again when Martin arrives he said, 'Police, stop. Get on the floor'.

At the very end of the incident when Martin had him on the ground - when they all had him on the ground with Martin's help, the taser was deployed by Dwyer - and Martin's evidence, which I accept, is consistent with the video at that part of - in that point of time. By that time the struggle had gone on for several seconds - four or five seconds.

I accept the police evidence that from the time Robinson arrived on the scene the officers yelled out, 'Police, stop' - as did Martin a bit later. Besides it was a reasonably well lit area by street light and the police were generally highly visible in their uniforms and fluoro vests, and there were quite a few of them. One arresting Shortland who was underneath - if you like, in front of the accused in terms of vision, at the same time as the arrest of the accused by Robinson - and I do accept that the New Year's crowd, which one of the witnesses said, had thinned out a bit by that time - evidenced by the video footage at around that time, being 4.40 am.

The accused says that from the outset the officer used excessive force in arresting him by putting him in a choker hold which he resisted. He also says that when he was down on the ground he was punched - although that part is denied by Martin and not clear from the video footage. By the time of the tasering the incident out of which the obstruct charge has arisen was practically over.

The footage indicates that the accused ought to have seen the police, but he says everything was a blur and he thought he was being attacked from behind by one of these three who had attacked him just before - people who weren't the police. Robinson used a neck restraint. Then when he was - when the accused was on his feet Tomczak tried to kick out his feet with her knee and get him on the ground, and he wouldn't readily go to ground. He was still trying to free himself from the officer's grip for this whole time.

The whole incident of arrest lasted four to five seconds. Robinson says it was appropriate to grab the accused in a headlock first, only for a short time. The struggle continued when the accused was up on his feet and facing the officer. He tried, as he described it in terms of the use of force options, presence and words first. Then he could see Dwyer arresting Shortland, and then Robinson chose to pull the accused back up by the use of his neck hold from behind.

The police officers were confronted with a violent situation, and the issue has arisen of whether Robinson used reasonable or excessive force in all of the circumstances of his arrest of the accused. One can argue that Robinson could've rolled the accused over onto his back, or used some other technique to subdue the accused, given that Shortland was being arrested by Dwyer, rather than chose to get him back up on his feet with a neck hold from behind - which had the effect of the accused feeling as if he was being chocked.

Now, Robinson says he chose what he believed was his best option in the heat of the moment. A violent situation, which the officers all run up to, to deal with - and in all of the circumstances I accept that, from his evidence and from viewing the footage - that he acted reasonably in all those circumstances in using appropriate force on the accused. However, the accused was panicking and didn't realise initially that the person that he said was choking him was a police officer, even though he'd heard someone yell out the, 'Police, stop'.

Now, my finding is that one is entitled to resist being choked from - from behind held from behind, but that can only - that can only be until, in this case, the two were upright and facing each other and it was clear that the person he considered to be an assailant coming from behind was a police officer and not one of the three men who had earlier attacked him, and yet he still resisted or struggled for a couple of seconds.

He clearly knew the two police officers - that two police officers had him but he continued to resist until Martin came in, with the help of others, and took him to the ground - and at that stage he's tasered in the back - which occurred, as I said, at the end of the whole process of arrest and something which I don't really need to comment on because it happened after the facts (indistinct) incident - which constitutes the resist or obstruct charge had already occurred.

The accused continued to struggle all the way through to the end - and from the time he was upright and the neck hold off, and he could see who he was dealing with, I find that he was resisting or obstructing the police officers in the performance of their functions - who are acting, I find, within that framework - and therefore I find that that charge is proven to the required standard of beyond a reasonable doubt (ts 62 64).

8 In essence, the magistrate held that the appellant was entitled to resist the neck restraint until such time as he became aware that the persons involved were police officers. After that time he continued to struggle all the way through to the end. By so struggling he committed the offence.

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'. (emphasis added by appellant)

9 The prosecution notice detailed the offence as follows:

Description: Obstructing public officers

Date or period: 01/01/2010

Place: Northbridge

obstructed a public officer in the performance of the officer's function.

10 The charge was not further particularised and particulars were not sought. Issue was joined by the defence on the basis that all police officers were not performing a function of their office:

[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 (ts 5, 7/6/11).

[I] find that he was resisting or obstructing the police officers in the performance of their functions (ts 64, 8/6/11).

12 Had the magistrate found that one officer had used excessive force while another had not, nice questions might have arisen as to duplicity. However, in this case, the whole encompasses the part. Counsel accepted this was so but argued that the significance of the ground was the way it fed into grounds 2 and 3.

13 The way in which the trial played out, the issues that were joined and the magistrate's conclusion means there was no miscarriage of justice, let alone substantial miscarriage of justice by the lack of particularisation of the charge.

1. A miscarriage of justice was occasioned by the failure of the learned Magistrate to properly consider whether the prosecution had established that the appellant had obstructed a public officer contrary to s 172 of the Criminal Code.
2. There has been a miscarriage of justice as the verdict of guilty was unreasonable or cannot be supported having regard to the evidence.

14 The nubbins of the appellant's argument is that the magistrate was obliged to but did not consider whether at the point after the neck restraint had been released, and the appellant was said to have submitted to arrest, the police used excessive force in bringing the appellant to the ground thereby entitling him to resist that force.

[I] observed a male person who I now know to be Jason Cameron Elwin, the accused in this matter, on top of a second male. He was on his back over the top of a barricade which had been knocked flat to the ground.

...

Yes, okay?---One of the road closure signs.

The accused had a second male in some sort of grip with both hands up near his neck. I continued to shout, 'Police, stop', and I grasped the accused and pulled him from the second male. The accused twisted to face me and I grasped hold of one of his arms. Constable -

Which is spelt? T-o-m-c-z-a-k

had grasped hold of his other arm. I told the accused he was under arrest and to get on the ground. I was attempting to place him on the ground by using force on his arms towards the ground. The accused struggled against both of us saying, 'Okay, but I won't get on the ground'. We both continued to struggle with the accused and this moved us over several metres to the side of the road. Another officer came in and deployed a Taser against the accused to overcome his resistance. I then left the accused to be restrained by other officers and I spoke with other persons (ts 6 7).

15 In his evidence Constable Robinson indicated that he repeatedly tried to put the appellant on the ground. For example:

My memory was I came in, grabbed him from - I'm not sure whether it was from behind or the side. I've pulled him up and off Mr Shortland and then from there you can see I continue on and try to put him down on the ground (ts 22, 7/6/11).

Now, you're an experienced officer. 'I don't recall,' is you're not saying, 'Yes, it - - -'?---My recollection is we were telling him, 'You are under arrest. Get on the ground'. He was agreeing - I can't see exactly what he was saying. He was agreeing that he was under arrest but he would not get onto the ground (ts 30).

No, a good knee strike would be to collapse his leg which he'd then go on the floor. Now, we like to have people on the floor because there's less chance of harm to everyone. There's less chance that someone's 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 (ts 31).

Constable Robinson was attempting to restrain this male and was physically struggling with him. I could also hear Senior Constable Robinson asking him to get on the floor, saying, 'Police, stop; get on the floor'. I saw that he needed some assistance. I got out of the driver's side of the vehicle and ran over towards them. On the way I shouted, 'Police, stop; get on the floor,' to try and assist Senior Constable Robinson and at that time he was struggling with a male who I now know to be Mr Elwin and I took hold of Mr Elwin and brought him to the ground to try and control the situation. When he was on the ground, I tried to tell Mr Elwin that it was all over and to stop resisting and then I heard the words, 'Taser; Taser,' and I saw a Taser deployment, prongs, and I think it was Mr Elwin's - left-hand side of his body it would've been and I looked up and I was being assisted by Constable Dwyer. We were on the floor at this point. Mr Elwin was eventually handcuffed, I believe, and was placed in the rear of our police vehicle that we had left at the scene. Several bits of paperwork were completed and we escorted him to the Perth Watch House (ts 71).

17 Constable Martin was principally engaged in the arrest of Shortland. After Shortland was subdued:

[H]ad grasped hold of his other arm. I told the accused he was under arrest and to get on the ground. I was attempting to place him on the ground by using force on his arms towards the ground. The accused struggled against both of us saying, 'Okay, but I won't get on the ground'. We both continued to struggle with the accused and this moved us over several metres to the side of the road. (ts 7, 7/6/11)

18 Martin confirmed in crossexamination that he did not have any dealings with the appellant and was unaware whether he was given his rights because he was dealing with Shortland.

After that - pretty soon after that I turn back to the person in front of me - and, like I said, I still don't know how many people were around me - and then someone grabbed me by the neck again and pulled me backwards. It just felt like I was being pulled backwards. I didn't know if it was to the side or - I didn't know which way I was being pulled. It just felt like backwards. I was pulled to the ground and I remember hitting the ground, and then I remember being hit in the side of the face on the check and I raise my - - -

Are you able to point to which side of your face? Do you recall?---This side of my face and my cheek.

So you're pointing to your left cheek?---Yes.

All right. Now, independently of what you've seen on CCTV footage are you are to identify who struck you in the face?---No. At that point in time I didn't know. I just felt like - it felt like someone punched me on the side of the face, but I didn't know who was around at the time and I immediately just put - tried to put my hands up towards my face to cover my face, because I thought they were just going to keep on hitting me.

All right. What happened next?---After that it felt like there were a couple of people on me. It felt like there were - not just a couple of people, it felt like there were a whole bunch of people just on top of me. I tried to keep my hands above my face and then something hit me in the back and I felt just - I now know it was me being tasered, and at that point in time I - it still felt like everyone was on top of me - and a police officer said to me - well, I assume it was a police officer, and I'm not sure which one, said, 'You've just been tasered, mate' and I said, 'Why did you taser me?' and he said, 'Because you didn't get on the ground' (ts 9, 8/6/11).

19 It is not in issue that police were entitled to arrest the appellant and use their powers under Criminal Investigation Act 2006 (WA) s 128(3). In carrying out an arrest police officers may use reasonable force: Criminal Investigation Act s 16. Excessive force is unlawful: Criminal Code (WA) s 260.

20 The particular conduct that the magistrate found constituted obstructing was the appellant continuing to struggle after Robinson had released the neck restraint and the appellant realising that Robinson and Tomczak were police officers. The obstruction occurred in resisting the officers placing him on the ground. The appellant argues that the overwhelming effect of the prosecution evidence was that at the critical time after the neck restraint had been released, and when the appellant was told that he was under arrest, he submitted to that arrest. The appellant only obstructed the police officers' attempts to force him to the ground after he had submitted to being arrested. Accordingly, the real issue to be determined by the magistrate in the light of her findings was 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 to use in the circumstances to exercise the power of arrest for the purposes of the Criminal Investigation Act s 16(1)(a).

21 It is said that the magistrate committed the same error as the judge in R v Hardy [2010] QCA 28. The error is not of the same magnitude but the magistrate should have determined the issue just outlined as in Hardy.

22 An arrest may be made by words. If a defendant is aware that he is under compulsion, and thereafter submits to that compulsion, he is arrested.

23 Accepting that the magistrate should have identified whether the police were still acting in the execution of their duty and did not, I am able to determine the matter because I consider that even though the magistrate omitted making the necessary findings, the facts in substance support the decision: Criminal Appeals Act s 14(3). 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.

24 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.

25 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.

26 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.

27 Ground 1 is made out but it caused no miscarriage of justice in the circumstances.

28 While ground 2 is made out, I do not set aside the decision of the magistrate because the facts in substance support the decision.

29 As a necessary consequence the appellant has failed to make good ground 3.