Supreme Court of WA|2011-02-15|Before: Murray J

FOX -v- BERINGER [2011] WASC 38 (15 February 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File No : MJ 797 of 2008, MJ 798 of 2008, MJ 812 of 2008, MJ 813 of 2008

Criminal law and procedure - Appellants convicted of obstructing public officers (police) - One appellant acquitted of assaulting a public officer performing a function of his office - Whether that appellant was lawfully arrested - Whether, even if not, appellants were rightly convicted of obstructing public officers - Meaning of the officers' 'functions'

Haifawi v Police [2000] SASC 19

O'Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] AC 286

1 By prosecution notices issued out of the Magistrates Court at Manjimup, the respondents, two police officers, charged the appellants with four offences, all committed in Manjimup on 5 December 2008. The charges were expressed quite generally, but it was clear at trial to what events they referred.

2 The appellant, Thomas Fox, is the other appellant's father. He was, at the relevant time, a man aged 60 years. He was charged with two offences -

Assaulting PC Francis, 'a public officer then performing a function of his office', contrary to s 318(1)(d) of the Criminal Code (WA).
Obstructing a public officer, 'in the performance of the officer's functions', contrary to s 172(2) of the Criminal Code.

3 Daniel Fox, the son, was, at the relevant time, a man aged 31. He was charged with two offences of obstruction, each charge being expressed in the same way, and in the same way as the charge of obstruction against Thomas Fox.

4 The accused persons pleaded not guilty and were brought to trial in the Magistrates Court at Mandurah before Magistrate Edwards. The trial was first heard on 15 July 2009, and then concluded over 13 and 14 May 2010. Her Honour reserved her decision, which she gave, at the same time publishing her reasons, on 27 August 2010.

5 Thomas Fox was acquitted of the charge of assaulting PC Francis. He was convicted of the charge of obstruction, and Daniel Fox was convicted of both such charges which had been brought against him. The defence were awarded costs of $1,500 in respect of the charge which resulted in the acquittal, but Thomas Fox was fined $800 for the obstruction offence, and a global fine of $1,500 was imposed on Daniel Fox for the two obstruction offences of which he had been convicted.

6 It is necessary to explain that although the police prosecutor made no opening statement and, as I understand it, no particulars of the offences charged had been provided, as the prosecution case was presented at the joint trial of the appellants it was clear that the assault charge brought against Thomas Fox, and one of the two obstruction charges brought against Daniel Fox, arose out of an incident at the Southern Forest Hotel, or the Overlander Hotel as it is also known, during the evening of 5 December 2008.

7 It appears that a Christmas function had been organised. The appellants were invited guests. As the evening wore on, as her Honour found, Daniel Fox became intoxicated and commenced to behave in what her Honour described as 'an obnoxious manner', demanding beer, abusing staff and slamming a plastic beer jug into a pool table. The bar staff were directed not to serve him any more alcohol, but it seems that Daniel Fox's behaviour was such that the bar manager called the police, to have him removed from the hotel.

8 The two police officers who first arrived were PC Francis and PC Beringer. At this stage I need not discuss the dispute at trial about whether anything happened in the bar of the hotel, but it seems that, according to the findings made by her Honour, the police officers were told that Daniel Fox was outside in the beer garden. They went there. Beringer led the way and approached Daniel Fox, followed by PC Francis.

9 I will return to the significant evidence in relation to the issues in the appeal in more detail later. It is sufficient for now to say that the incident which caused Thomas Fox to be charged with assault was one between him and PC Francis. PC Francis said that Thomas Fox assaulted him by grabbing him by the upper arms from behind and pushing him forward. PC Francis then arrested Thomas Fox and he said that he took him to the police van where he was lodged, after being told that he was under arrest for assault. By the time the incident occurred two other police officers, PC Scholes and PC Bovell, had arrived. They assisted to make the arrest of Thomas Fox and to place him in the police van.

10 The other charge which arose out of the incident at the hotel was a charge of obstruction brought against Daniel Fox. That arose in this way. PC Beringer had approached Daniel Fox and was speaking to him, telling him that he must leave the hotel because the bar manager wanted him to do so. It was at that time, he said, that the assault upon PC Francis occurred, and the other three officers proceeded to arrest Thomas Fox and take him to the police van.

11 Beringer said that Daniel Fox became agitated and, although the police officer attempted to move him away from the other incident, Daniel Fox became aggressive and abusive and tried to become involved in the struggle that was going on to complete the arrest of Thomas Fox, to subdue him and place him in the police van. PC Beringer's evidence was:

I was standing in front of Daniel Fox trying to stop him from becoming involved, repeatedly telling him not to interfere, it is not his concern, and then Daniel became very abusive and kept trying to get past me to get to Thomas and continued to do it and became abusive, yelled and swore at me, so I arrested Daniel and placed him in the rear of the police van. By that time Senior Constable Francis assisted me and then First Class Constable Scholes and Constable Bovell placed Thomas Fox in the rear of the van (ts 38).

12 It is clear, therefore, that the obstruction charge arising out of the incident at the hotel was brought for the obstruction of Beringer, when Beringer was attempting to stop Daniel Fox from interfering with the activities of the other three police officers who were attempting to overcome the resistance of Thomas Fox to his arrest and placement in the police van. I should add that her Honour accepted the evidence of the police officers that Daniel Fox resisted the process of getting him into the van, and her conclusion that Daniel Fox was guilty of obstruction also relied in part upon this finding of fact.

13 The other two charges of obstruction relate to an incident at the police station. Both appellants had been taken there and lodged in a cell. After some time, the officers decided that they were ready to release the appellants on bail. Beringer gave evidence that he and Francis were again the two officers involved. He entered the cell, told the appellants what was to happen and that one person at a time was to come out of the cell. The other person was to stay in the cell, 'for safety reasons' while the first person was dealt with.

14 The appellants refused to be separated. Incredibly, both men resisted the attempts of the police officers to get Thomas Fox out of the cell while Daniel Fox remained in it. Again, Daniel Fox struggled with Beringer while PC Francis overcame the struggles of Thomas Fox and handcuffed him. The two officers then managed to get Daniel Fox back into the cell. Thomas Fox then complied with the processes required for his release on bail, and ultimately the release on bail of Daniel Fox was accomplished (ts 38).

15 The evidence of PC Francis was to the same effect. They were the only two police officers present at the station at the time. Their two colleagues were attending to another matter in the town. They were not cross-examined with any particularity in relation to that incident. It was merely put to PC Francis that the police evidence was a total fabrication. Beringer was not cross-examined about this incident at all. Both appellants gave evidence about the incident, saying that they cooperated with the police at the police station and were duly released on bail.

16 At [57] of her reasons, the magistrate, however, accepted the evidence of the police officers and rejected that given by the appellants in respect of this incident. Her Honour concluded that, remarkable though the behaviour was:

I am satisfied that notwithstanding that the officers were wanting to process them for the purposes of bail, Daniel and Thomas Fox took the opportunity to cause further difficulties for the police. I am therefore satisfied that each of them obstructed the officers. And that each of the officers were performing a function of their office when they were attempting to remove Thomas Fox from the cell in order to process him for bail.

17 Her Honour therefore convicted the appellant of those offences which, it will be observed, she approached upon the basis that the relevant obstruction was of the two police officers performing a function of their office to process the appellants for their release on bail, but to deal with one appellant at a time, starting with Thomas Fox and leaving Daniel Fox in the cell until his father had been dealt with.

18 Her Honour's reasons commenced with some background observations, a statement of the elements of the offences, identifying what factual matters were in issue, a discussion of Daniel Fox's behaviour at the hotel before the police arrived, and the factual question about which there was some controversy at trial as to whether there was any, and if so what sort of contact, between the police officers and Daniel Fox in the bar before the incidents in the beer garden.

19 Her Honour then dealt with the charge of assault which was the matter which arose first, and led to the charge of obstruction at the hotel against Daniel Fox, the arrest of both appellants, their lodgement in the cell at the Manjimup police station, and the obstruction charges during the process of their release. Her Honour discussed the evidence in some detail, noting that there were a number of witnesses, both police officers and people who may be described as civilian witnesses. Her Honour noted that there was, unsurprisingly, considerable confusion in the evidence. Such was the divergence in the two versions of what occurred, given by the various witnesses, that her Honour finally found herself unable to reach any conclusion as to what actually happened between Thomas Fox and PC Francis; hence the acquittal.

20 However, her Honour did find facts constituting an obstruction of the officers in the behaviour of Daniel Fox, when he tried to intervene in the arrest of his father, and when he resisted his own arrest. Her Honour then turned her attention to the question whether PC Beringer, in particular, was acting in the performance of his functions as a police officer when he was obstructed by Daniel Fox. That question, her Honour thought, depended upon whether the arrest of Thomas Fox was lawful in all the circumstances, and at [52] of her judgment, her Honour held herself to be satisfied that the suspicion of PC Francis that he had been assaulted by Thomas Fox was, despite her Honour's incapacity to find that an assault occurred, a reasonable suspicion, making the arrest lawful.

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 ... .

22 The word 'obstruct' is defined in s 172(1) to include, 'to prevent, to hinder and to resist'. There is no question that, in the case of each of the obstruction offences, the conduct relied upon as found by the magistrate would constitute obstruction of the officers. By s 1(1) of the Code, par (a) of the definition of the term 'public officer' includes in that term, a police officer.

23 A question raised in each case was whether, when obstructed, the one or more police officers who were subjected to that behaviour, in the case of each of the three charges of obstruction, were acting in the performance of the officers' functions. The word 'function' is not defined by the Code, but there is a definition in the Interpretation Act 1984 (WA), s 5, to include a power, duty and responsibility provided or imposed by the law, whether, in the case of a police officer, that power or duty is provided by statute or by the common law under the general umbrella of the duty of a police officer to keep the peace: see the Police Act 1892 (WA), ss 7(1) and 10.

24 Consistently with that view of the law, the serious assaults defined in s 318(1) of the Code include, in par (d), assaulting a police officer, 'who is performing a function of his office or employment', and in par (e), assaulting a person, 'who is performing a function of a public nature conferred on him by law'.

25 In this case, the magistrate considered that the obstruction charge against Daniel Fox in respect of the incident at the hotel depended upon the lawfulness of the arrest of Thomas Fox by PC Francis. Although she did not say so specifically, her Honour appears to have taken the view that unless Thomas Fox was lawfully arrested, or in the process of being lawfully arrested, the attempts by Daniel Fox to interfere with the process of making that arrest could not be said to constitute obstruction of the officers generally, and PC Beringer in particular, because they would have no right to seek to prevent him interfering with an arrest which was not lawful. I put to one side, for the moment, the question whether that line of reasoning espoused on behalf of the appellants is correct.

26 PC Francis was exercising the power of arrest for a serious offence, as defined by s 128(1) of the Criminal Investigation Act 2006 (WA), under which the term:

Serious offence means an offence the statutory penalty for which is or includes imprisonment for 5 years or more or life.

By s 318(1)(m) of the Criminal Code, a serious assault which is not committed in the aggravating circumstances referred to in s 318(1)(l) is punishable by imprisonment for 7 years.

A police officer or a public officer may arrest a person for a serious offence if the officer reasonably suspects that the person has committed, is committing, or is just about to commit, the offence.

28 Section 128(2) of the Criminal Investigation Act is expressed in terms commonly found when, by statute, such a power of arrest without warrant is conferred. For example, s 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (UK) provides a police officer with a power to arrest, without warrant:

a person whom he has reasonable grounds for suspecting to be ...

(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism ... .

29 That provision was considered by the English House of Lords in O'Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] AC 286. The appellant had been arrested, without warrant, by a police officer who had been told, at an earlier police briefing, that the appellant had been involved in a murder. Apart from that information, the officer had no basis to suspect that the appellant had been involved in the commission of acts of terrorism. The appellant was later released without charge. He sued for damages for wrongful arrest, but the arrest was held to be lawful.

30 The principal judgment, with which the other members of the House agreed, was that of Lord Hope of Craighead. At 298, his Lordship said:

My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else.

31 In this case, the magistrate correctly posed to herself the questions raised by s 128(2) of the Criminal Investigation Act. Her Honour said that she was required to consider and make a finding about what was in the mind of PC Francis. Despite the fact that she was unable to find proved beyond reasonable doubt that the assault occurred, her Honour said that nevertheless, to determine the lawfulness of the arrest, she had first to consider whether PC Francis did, for his part, suspect that he had been assaulted by Thomas Fox.

32 If she so found, as she did, her Honour correctly formulated the next question as being whether, having regard to what was in the mind of PC Francis, his suspicion that he had been assaulted was an objectively reasonable one, judged at the time and in the circumstances in which the power was exercised.

33 Her Honour answered that question in the following way:

At the time of officer Francis' suspicion, he and officer Beringer were near each other and Beringer approached Daniel Fox. They were out in the beer garden. Officer Francis, attending an hotel, and having been approached by the manager and a patron was walking towards Daniel Fox behind officer Beringer. Officer Francis said that he was grabbed from behind and shoved forwards causing him to stumble. The person who appeared to have grabbed or shoved him was Thomas Fox. He described Thomas Fox as being intoxicated and angry. In my view, a person in the position of officer Francis and in the circumstances described by him objectively would reasonably suspect that he had been assaulted and that it was Thomas Fox who had committed the assault.

I am therefore satisfied that the suspicion by officer Francis that he was assaulted by Thomas Fox was a reasonable suspicion and accordingly the arrest was lawful. Therefore, I am satisfied beyond reasonable doubt that the officers were performing a function of their office when Daniel Fox obstructed them. The elements of the offence have been made out beyond reasonable doubt and the charge is proved [51] - [52].

34 Her Honour did not carry that reasoning through into her judgment about the offences of obstruction which she found to have been committed by both Thomas Fox and Daniel Fox at the police station, when they hindered efforts by the two police officers, PC Francis and PC Beringer, to get them out of the cell, one by one, and to process their right to have bail considered under the Bail Act 1982 (WA), s 5. As has been seen, her Honour simply said that she was satisfied that each of the appellants obstructed the officers:

And that each of the officers were performing a function of their office when they were attempting to remove Thomas Fox from the cell in order to process him for bail.

35 The appellants appeal against their convictions.

36 As to the incident at the hotel and his conviction for obstruction, Daniel Fox appeals on one ground:

The Magistrate erred in finding that Daniel Fox interfered in the arrest of his father Thomas Fox which was the basis of the charge of obstructing a public officer in the performance of his office when the Magistrate was unable to determine whether Constables Francis and Beringer went into the bar and arrested Daniel Fox or whether he was arrested in the beer garden when such finding was essential to the lawfulness of the arrest of Daniel Fox because:

1.1 the evidence for the defence was that Daniel Fox was arrested in the bar and taken outside and thrown on the ground and could not therefore have interfered in the arrest of his father Thomas Fox;

1.2 the evidence for the defence was that Thomas Fox was in the beer garden watching the arrest of Daniel Fox when Constable Francis purported to arrest Thomas Fox for assaulting him;

1.3 the Magistrate could not be satisfied as to the credibility of the police officers with respect to the alleged assault by Thomas Fox and should not have been satisfied as to the credibility of those police officers with respect to the arrest of Daniel Fox.

37 Upon that ground, the appellant Daniel Fox would face a very difficult task to persuade this court (not having had the opportunity presented to the magistrate, as the trial judge, to see and hear all the witnesses who gave evidence before her) that her Honour's views about the credibility of those witnesses were not open to her, and that her view of the evidence in relation to the lawful exercise of the power of arrest involved findings which would cause this court to intervene to set aside her judgment about that matter.

38 This appellate court will only intervene in such a case if it is made to appear that her Honour has failed to use the advantage presented to her as the trial judge, and denied to this court, or has clearly misused that advantage. In a case where credibility issues are involved in the decision, this court might come to such a view if it was persuaded that her Honour's decision about credibility could not stand in the face of clear evidence to the contrary, establishing incontrovertible facts, or where it was made to appear that the trial judge's decision involved a view of the evidence which was glaringly improbable: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at 127 - 129 [27] - [31].

39 In considering this ground of appeal, I must have regard to the controversy at trial over what, if anything, occurred in the public bar of the hotel when the police officers attended in response to the bar manager's request that they do so.

40 As I understand the evidence, including that provided by photographs of the hotel, exhibits 1, 2 and 3, you would not necessarily have to enter or pass through the bar to get to the beer garden. The beer garden is an open area beside a roadway, at the front and at the side of the hotel building. As I understand it, one would pass through that area to go inside the hotel. The respondents gave evidence that when they arrived they spoke to the bar attendant and the bar manager before approaching Daniel Fox in the beer garden area. Thereupon the incident developed as I have already described it, generally consistently with the evidence, not only of the police officers as to where the purported arrest of Thomas Fox took place and as to who was involved in it, but also consistently with the evidence of a number of civilian witnesses.

41 On the other hand, the appellants gave evidence that the two police officers entered the bar area and sought to arrest Daniel Fox there, dragging him out into the beer garden and throwing him to the ground with undue force. Her Honour noted that evidence, as she did the evidence of the bar manager who said that the first contact between the police officers and Daniel Fox was indeed in the bar area, from which they ushered Daniel Fox out into the beer garden.

42 Her Honour said that although the bar manager, who was a prosecution witness, was, in some aspects of his evidence, a reliable and credible witness, there were other areas of his evidence in respect of which she commented adversely. The bar manager said that, immediately before he was arrested, Thomas Fox threw a punch at PC Francis. No other witness gave such evidence. Her Honour said:

I found [the bar manager], as a witness, generally unreliable, hesitant and confused and therefore I do not accept that he was accurate in his evidence that he saw Thomas Fox throw a punch [29].

43 Her Honour noted that the evidence of the appellants was to some extent supported by two defence witnesses, whose evidence was, however, not entirely consistent one with the other. It seems to be clear that her Honour did not accept the evidence of these witnesses because, at [24], she observed that they were 'friends of both accused'.

44 Ultimately, at [25], her Honour said that she found it difficult to reconcile the evidence of the various witnesses, 'as to whether the officers entered the bar area or not'. She said that she could not make a finding either way about that. Nor was it necessary to her Honour's judgment that she should do so. But it does seem to be clear that her Honour did not accept the version of the facts about what occurred in the bar in accordance with the evidence given by the appellants.

45 That is made abundantly clear when, reading her Honour's judgment, one sees that she examined the evidence about what happened in the beer garden in the terms that I have already described, which is not consistent with the proposition that Daniel Fox was arrested in the bar before he was thrown to the ground in the beer garden with unnecessary force, and before Thomas Fox was, according to his evidence, falsely accused by PC Francis of assaulting him, and then subjected to an arrest for that offence.

46 I can see nothing in the way in which her Honour dealt with that issue to indicate that her Honour did not make a considered, objective evaluation of the testimony of the witnesses, and there is nothing to suggest that the evidence overwhelmingly required her to reject everything the police officers said and to accept the evidence given by the appellants. The ground of the appeal by Daniel Fox against his conviction for obstruction at the hotel cannot succeed.

47 However, that appeal was argued much more widely on behalf of the appellant, and it was responded to in that context on behalf of the respondents. The appellant argued that because the magistrate found herself incapable of finding beyond reasonable doubt that there was contact by Thomas Fox with PC Francis in such a manner as would constitute a deliberate assault upon him, her Honour should have found that she was unable to say, firstly, whether PC Francis did genuinely believe that he had been assaulted, and secondly, upon what grounds he held that belief.

48 Her Honour should therefore, the appellant argued, have found it impossible to determine whether the grounds for the suspicion were objectively reasonable. She should have been unable to conclude, therefore, so it is argued, that the arrest of Thomas Fox by PC Francis was lawful, with the consequence, so it is put, that Beringer could not have been acting in the course of his duty when he sought to prevent Daniel Fox from interfering with the arrest of Thomas Fox, and neither officer could be said to be acting in the course of his duty when they sought to overcome the resistance of Daniel Fox to his arrest.

My conclusion about the alleged obstruction by Daniel Fox at the hotel

49 In support of his argument, Daniel Fox relied on an unreported decision by Duggan J, Haifawi v Police [2000] SASC 19. That case also was one where the appellant had been charged with assaulting a member of the police force in the execution of his duty and resisting a police officer in the execution of his duty when the appellant was arrested. Like Thomas Fox, he was acquitted of the charge of assault, but convicted of the offence of resisting arrest.

50 Again, there was conflicting evidence, the resolution of which required the magistrate's decision. The magistrate did so by making findings which were apparently inconsistent with the evidence given by two police officers, and which were consistent, for the most part, with the appellant's version of the facts. It will be noted that, in that case, the resistance of which the appellant was convicted was to his arrest for the assault. That was not the case in relation to Daniel Fox.

51 The relevant power of arrest in Haifawi was found in the Summary Offences Act 1953 (SA), s 75, a provision substantially in the terms of s 128(2) of the Criminal Investigation Act, and almost identical with the statutory provision at issue in O'Hara, upon which decision Duggan J relied in Haifawi.

52 At [23] of his judgment, Duggan J succinctly set out the basis upon which he allowed the appeal in that case. He noted that the magistrate had not accepted the version of the facts given by the police officers, but that he went on to find that the incident may have involved accidental contact, which the arresting police officer rejected as a possibility. There was no evidence, Duggan J held, capable of establishing the version of the facts upon which the magistrate relied as providing a reasonable ground for a suspicion by the police officer that the offence of assault had been committed, although the magistrate found himself unable to conclude, beyond reasonable doubt, that there had been an assault.

53 On this point I agree with the submission made for the respondents. In this case, the magistrate did not reject the evidence given by PC Francis and other witnesses whose evidence tended to support the fact that Thomas Fox did assault Francis in the way that he had supposed had occurred. On the other hand, her Honour's findings of fact make it clear that she did not accept, as truthful and accurate, the evidence about that incident which was given by the appellants and those witnesses who denied that there had been any contact between the police officer and Thomas Fox. She was simply unable to determine, beyond reasonable doubt, that Francis had been assaulted by Thomas Fox in the way that he supposed had occurred.

54 On the other hand, it seems to be clear that the magistrate accepted that, as Francis passed Thomas Fox, there was contact between them. She accepted that Francis genuinely believed or suspected that Thomas Fox had assaulted him when, after the contact, he turned around and saw that the person near him was a very angry Thomas Fox. There was evidence, in my opinion, upon which, in those circumstances, her Honour was entitled to conclude that it was objectively reasonable for PC Francis to suspect that he had been assaulted by Thomas Fox as he proceeded past him, with Beringer in the lead, approaching Daniel Fox.

55 The divergence of evidence to which her Honour referred at [34] which prevented her reaching a conclusion, beyond reasonable doubt, that the assault had occurred was, 'as to whether Thomas Fox pushed officer Francis or whether officer Francis brushed past Thomas Fox'. It is abundantly clear, however, that her Honour accepted that there had been physical contact between the two men in the circumstances described, and her reasoning is set out at [51] - [52], to which I have referred at [33] above. In my view, her Honour was not precluded by a proper evaluation of the evidence from approaching the matter in that way, and upon that basis it would follow that Daniel Fox's appeal against his conviction for obstruction at the hotel must be dismissed.

56 However, before parting with that conviction and the basis for it, I should raise another matter which, although not originally a basis upon which the respondents opposed the appeal, was ultimately debated at the hearing of the appeal.

57 As has been seen, Daniel Fox's conviction of obstruction at the hotel was principally in relation to his attempts to interfere with the arrest apparently being made by PC Francis and by endeavouring to resist the completion of his own arrest and his placement, with his father, in the police van. His evidence, which was rejected by the magistrate, was, as her Honour noted at [42], that he was thrown to the ground by the police and kicked. He denied doing anything to resist the police officers. His evidence was that an officer threatened to use a taser on him. Daniel Fox said that he did not attempt to interfere with his father's arrest and he 'went quietly' when he was placed in the police van.

58 If it is assumed, for the sake of argument, that the arrest of Thomas Fox by PC Francis was not lawful because, although Francis genuinely believed that he had been assaulted, the circumstances were properly to be judged as not providing reasonable grounds in support of that belief, I find it difficult to see why that must inevitably dispose of the charge of obstruction brought against Daniel Fox.

59 It seems to me that, having regard to the evidence and the findings of fact made by the magistrate in this case, the question whether Beringer was acting in the performance of his functions as a public officer was to be judged from his point of view.

60 On the facts found by the magistrate, Beringer was dealing with Daniel Fox when that person sought to get past him to intervene in a process which, from Beringer's point of view, was apparently one where, initially PC Francis acting alone, and then Francis acting with the assistance of other police officers, was attempting to arrest Thomas Fox, despite that person's resistance, and to place him in the van.

61 There was no reason for Beringer to consider that what he witnessed was other than a lawful arrest. It seems to me that, even if it was ultimately held that that was not the case, it must be contrary to the law to hold that upon that ground Beringer should be held not to have been acting in the performance of his function as a police officer when he sought to prevent interference with what was apparently a lawful arrest, from his point of view. In my opinion, on the facts as found by the magistrate, Beringer was undoubtedly acting in the performance of his function as a police officer to restrain interference by Daniel Fox in the arrest of Thomas Fox.

The appeals against obstruction at the police station

62 There are grounds of appeal which attack the magistrate's reliance, in relation to what occurred at the police station, upon the evidence the respondents. The proposition advanced is that her Honour should not have accepted that evidence over the evidence of the appellants, who denied that anything like that which was given in evidence by the police officers, occurred. The appellants said they were co-operative. They denied that they had refused to come out of the cell. They said that the police evidence was deliberately untrue. Her Honour rejected that proposition. It was open to her to do so. The appeal grounded in that way cannot succeed.

63 More importantly, both appeals against the obstruction convictions resulting from what occurred at the police station are based upon a ground which asserts:

On the basis that [named appellant] was unlawfully arrested and taken in custody to the Manjimup police station and there held unlawfully in custody, the magistrate should not have found that [named appellant] obstructed Constable Beringer in the performance of a function of his office.

64 I need say little more than I have already written. Her Honour's decision is not subject to challenge on the ground that neither accused was lawfully arrested and taken in custody to the police station. For the reasons I have given, it was open to her Honour to conclude, as she did, that Thomas Fox was lawfully arrested by PC Francis at the hotel. Further, Daniel Fox was lawfully arrested at that time. They were lawfully in custody.

65 However, the point that I have made in relation to the obstruction offence committed by Daniel Fox at the hotel can be made in relation to their conduct at the police station, as found by the magistrate.

66 If it was the case that Thomas Fox should have been found to have been unlawfully arrested and unlawfully in custody thereafter, and if it was the case that upon that basis Daniel Fox could not have been held to have been guilty of obstruction at the hotel, and that he should not have been arrested for that offence, nonetheless it was the case that the magistrate found that the police officers were proceeding honestly upon the basis that they were exercising functions of their office at the relevant time.

67 If it was the case that the proper conclusion was that, contrary to the honest belief of the police officers, the arrests of the appellants and their lodgement in the cell at the police station was not lawful, nonetheless the obstruction offences said to have been committed at the police station were concerned with the officers' attempts to release the appellants to bail on the understanding that they were lawfully in custody.

68 It might have been the case that if they were unlawfully in custody they were entitled to be released absolutely. But the respondents were simply proceeding upon the basis that the appellants had a right to have their case for bail considered, within the terms of the Bail Act, because they were in custody having been charged with offences.

69 In my opinion, in those circumstances, common sense demands that the police officers should be regarded as performing a function of their office when they were simply seeking to provide to the appellants their rights under the Bail Act. In those circumstances, when, for whatever reason, the appellants resisted the performance of that procedure, I have no doubt that the proper view is that they were guilty of obstructing the police officers within the meaning of s 172 of the Code.

70 For both those reasons, their appeals against conviction for obstruction arising out of the incident at the police station must be dismissed.

71 Counsel for the respondents told me that if that should be the outcome, the respondents would seek no order for the costs of the appeals. In my opinion, in the circumstances, that was a proper concession.

72 It follows that I would simply order that each of these appeals be dismissed.

Investigation Act 2006

Terrorism (Temporary Provisions) Act 1984

FOX -v- BERINGER [2011] WASC 38 (15 February 2011)

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FOX -v- BERINGER [2011] WASC 38 (15 February 2011)