HAYWARD-JACKSON -v- MASON-WALSHAW [2012] WASC 107 (29 March 2012)

Supreme Court of WA|2012-03-29|Before: Heenan J

1 EM HEENAN J: After a trial in the Magistrates Court of Western Australia before her Honour, Magistrate B A Lane on 24 November and 3 December 2010 the appellant was convicted on 10 December 2010, as charged, of obstructing a public officer in the performance of his functions contrary to s 172(2) of the Criminal Code. For this offence, he was fined $800 and ordered to pay costs of $62.50. Her Honour refused an application by the appellant's counsel to impose a spent conviction order. The notice of appeal asserts that the fine imposed was in the sum of $400 but the transcript of the sentencing proceedings in the Magistrates Court on 10 December 2010 and the record of conviction each show the sum of $800 as being the amount of the fine. Nothing turns on this in these current proceedings.

2 By an appeal notice dated 19 January 2011, some 12 days out of time, the appellant sought leave to appeal against this conviction and applied for an extension of time within which to appeal. His proposed grounds of appeal are:

3 By an affidavit sworn 25 January 2011, Mr HaywardJackson set out the grounds upon which he applies for an extension of time to appeal. Essentially, these relate to his restricted financial position, initial difficulties in arranging legal representation and the fact that it was difficult to obtain legal advice and response during the December Christmas/New Year period. There was no objection to the application for an extension of time and I made an order extending time at the commencement of this hearing on 10 December 2011.

4 On 7 June and again on 1 July 2011, Hall J made orders and directions on the application for leave to appeal. These included a direction that the application for leave to appeal be heard at the same time as the appeal. Other incidental orders and directions in common form were also then made.

5 On 2 July 2010 about 50 or so people attended a public demonstration on the pavement outside the offices of the State Director of Public Prosecutions at 26 St George's Terrace, Perth. This was a demonstration held to protest against deaths in custody. A video of portion of the demonstration, and some of the events in controversy in the prosecution, was played in the Magistrates Court. At the date when this appeal was heard the CD of that video had apparently been lost. Fortunately, due to the efforts of the DPP and the appellant, it has since been located and a copy has been provided to the court by the DPP on 29 February 2012 with the knowledge and consent of both parties. I have since viewed that video.

6 Essentially, this was an orderly demonstration. The video shows two people holding a large banner protesting about deaths in custody, standing at or near to the entrance of the building. In front of them there is a man addressing a group of people standing on the pavement. This group of people are spread out across the pavement towards the kerbside. At the rear of the group, either just on or off the kerb, is a man holding a staff bearing a large Aboriginal land rights flag the red and black flag with the central golden sun which has now become a familiar symbol in contemporary Australian life. That person is Mr HaywardJackson, the present appellant.

7 According to all the evidence, the demonstration was peaceful and there was no shouting, struggling, abuse or threats. A spokesman for the protestors was addressing the small crowd, all of whom were listening.

8 The presence of this group of people spread across the pavement meant that normal pedestrian traffic east and west along the north side of St George's Terrace in that area was partially obstructed or diverted. The evidence was to the effect that passing pedestrians moved out on to the roadway to pass around the group of protesters and then walked back on to the footpath on the other side of the group a distance of, it would seem, some 15 to 20 metres or so. By doing so, these pedestrians stepped into the kerbside lane of St George's Terrace. Although there was the usual volume of traffic in this major thoroughfare for that time of the day, there was no traffic in the kerbside lane because a short distance to the west a number of vehicles were parked in available parking spaces. That meant that only two lanes of the three lane roadway in that vicinity were carrying eastward moving traffic during this period.

9 Police arrived at the scene and noticed that the appellant was carrying the staff with the large Aboriginal flag which, in the position in which it was then held, draped across his shoulder, meant that the pennant of the flag hung down over part of the roadway and was a potential obstacle to pedestrians moving around the crowd. In the view of the police, this presented a hazard to these pedestrians by forcing them to go further on to the kerbside laneway of St George's Terrace, and so closer to the moving traffic. They intervened to direct the appellant to move his flag and to move his position. What then happened led to him being arrested and charged. As the details of these facts are disputed, I shall leave them until after a description of the evidence at the trial and the findings of the learned magistrate has been set out.

10 The prosecution notice alleged that the appellant:

On 2 July 2010 at Perth obstructed a public officer in the performance of the officer's functions contrary to section 172(2) of the Criminal Code.

172. Obstructing public officers

(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.

12 The definition of a 'public officer' is found in s 1 of the Criminal Code and, so far as is material to the present case, provides:

The term public officer means any of the following:

(a) a police officer;

(aa) ...

13 Section 172 of the Criminal Code was repealed and reenacted in 2004 and, in its present terms, effectively replaces the former s 172 and the now repealed s 20 of the Police Act 1892 (WA). By its terms the offence requires proof of three elements, namely (a) the person who was obstructed should be a public officer (or a person lawfully assisting a public officer); (b) that at the time of the commission of the offence the public officer was acting in the performance of his or her functions; and (c) that the conduct complained of obstructed, prevented, hindered or resisted the public officer in the performance of his or her functions.

14 There are many authorities on former comparable legislation to the effect that an essential element of such an offence is that the public officer was, at the time of the alleged offence, acting in the performance of his or her function. I have already noted that this element appears directly from the proper interpretation of s 172(2) itself but it has been a feature of much earlier legislation see for example R v Marsden (1868) LR 1 CCR 131 and R v Mabel [1841] EngR 102; (1840) 9 C&P 474; 178 ER 918. See also R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 and Bonder v Howell [1984] WAR 76.

15 In some instances it may be necessary to prove some anterior fact or circumstance before it can be established that the public officer was, at the relevant time, acting in the performance of his or her function. The discussion by Blaxell J in Lackenby v Kirkman [2006] WASC 164 is an illustration of how and why this may be necessary because, in that case, the allegation that a police officer was acting in the course of his duty in requiring the accused to cooperate in having his fingerprints taken itself required proof of the existence of circumstances, or a belief, as to the necessity or desirability of having the fingerprints taken. No such anterior or preliminary condition to establish that the officer in this case was acting in the performance of his functions was necessary.

16 Obstruction in the form of prevention or hindrance of an officer in the performance of his or her functions need not involve the establishment of any actual physical interference. So a lookout posted outside licensed premises which was selling liquor in contravention of liquor licensing laws in circumstances where the lookout warned the publican of approaching police involved such a case of hindering: Maingay v Mansfield (1919) 21 WAR 70.

17 It has been held, with respect to the former comparable offence against s 20 of the Police Act 1892, that there is no obligation for the prosecution to prove that the person charged held a specific intent to 'disturb, hinder or resist' a police officer acting 'in the execution of his duty'. It was sufficient to prove that the person charged had the intent to perform the act, or to refuse to follow a direction or order of the police officer which constituted the offence so that it did not need to establish that the person charged who had performed that act, or refused to follow the direction or order of the police officer had an intent to obstruct the public officer in the performance of his or her duty. Hence, the question of whether or not the act or omission forming the subject matter of this charge, did amount to an obstruction within the meaning of s 172 needs to be determined objectively. The prosecution will still need to establish, by direct evidence or by inference from all the circumstances, that the act or omission constituting the alleged obstruction was a voluntary willed act of the person charged. Accordingly, that leaves open to a person charged with such an offence the defences of lack of a willed act, honest and reasonable mistaken belief in relation to a material fact, or other like defences under s 23A, s 23B and s 24 of the Criminal Code and other sections relating to the elements of criminal responsibility.

18 In many, if not most, cases involving a prosecution for this offence, as in the present case, a crucial issue is likely to be whether or not the willed act or omission charged against the accused person did constitute an obstruction of the public officer in the performance of his or her functions within the meaning of the section contrast the views of Taylor, Menzies and Owen JJ (majority) and Dixon CJ and Kitto J (dissenting) in R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 where, as one of the majority, Menzies J, observed, at 403:

Having regard, therefore, to the words of s 40 [of the Crimes Act 1958 (Vic)], to the object of the section and the longstanding acceptance of the view that to make a case thereunder it is not necessary for the prosecution to prove more than the facts that the person assaulted or resisted or wilfully obstructed by the accused was a police officer acting in the due execution of his duty, I consider that the decision in Reg v Galvin [No 1] [1961] VicRp 113; [1961] VR 733 was correctly decided ...

19 As opposed to the view of the minority expressed by Dixon CJ at 386 387:

My conclusion is that to be guilty of the offence of assaulting a member of the police force in the due execution of his duty the intent of the supposed offender must go to all the ingredients of the offence. I do not of course use the word 'intention' to refer to the consequences of an act or the desire that a result shall ensue but simply to the commission of what I regard as a compound offence. The offence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. That is a compound offence and I think that the guilty mind should go to the elements of which it is composed.

20 There are many authorities dealing with what constitutes 'obstruction' under comparable legislation. Several of these are collected in Carter's Criminal Law of Queensland (18th ed) [340.30] where the learned authors observe:

As to what amounts to obstruction, see Bastable v Little [1907] 1 KB 59; Betts v Stevens [1910] 1 KB 1 (giving warning); Pankhurst v Jarvis (1910) 22 Cox CC 228; Despard v Wilcox (1910) 22 Cox CC 258 (refusal to disperse); Hinchcliffe v Sheldon [1955] 3 All ER 406 where it was held that 'to obstruct' means to do any act which makes it more difficult for the police to carry out their duty. See also Rice v Connolly [1966] 1 QB 414; Green v Moore [1982] 1 QB 144; Hills v Ellis [1983] 1 QB 681; Lewis v Cox [1985] 1 QB 509. In Carmichael v McGowan [1967] WAR 11 it was held that the ordinary meaning of the word 'obstruct' includes hinder, impede, retard and delay and the offence is not confined to physical obstruction. Rice v Connolly was explained and distinguished in Ingleton v Dibble [1972] 1 QB 480; where it was held that although a refusal to act could not amount to obstruction unless the accused person was under a legal obligation to act in the manner requested by the police officer, there was not a ground for saying that where the obstruction consisted of a positive act it must be unlawful independently of its operation as an obstruction of a police officer.

21 This approach was adopted in Cumby v Rhodes (Unreported, WASC, Library No 5367, 29 May 1984) where the Full Court observed that the offending conduct should be such as to make the performance of the police officer's functions more difficult. That case was cited and applied in Howell v City of Perth (1984) 56 LGRA 354, 358 (Brinsden J). Similarly, in Plunkett v Kroemer [1934] SASR 124 hindering was established by any obstruction or interference which made the duty of the police officer substantially more difficult in performance. In Hinchcliffe v Sheldon [1955] 3 All ER 406 the obligation was expressed in like terms where the court held that obstruction was constituted if it was established that the offender had done any act which made it more difficult for the police to carry out their duty. Some caution about the uncontrolled application of that test was sounded by Owen J in Arevalo v Fallows (Unreported, WASC Library No 920705, 19 December 1992) where his Honour gave the example that a refusal or failure to answer questions from a police officer would not amount to an offence but to lie deliberately to a police officer so as to prevent him or her obtaining information which the officer had a duty to obtain would be a contravention of s 20 of the former Police Act.

22 As to what constitutes a public officer acting in the performance of his or her functions, that is an element of the offence which will need to be determined having regard to the nature of the public office held and the particular function or functions which the officer was attempting to perform at the time in question. In view of the many different duties and the wideranging ambit of 'public officer' as now contained in s 1 of the Criminal Code, the performance of such a function is likely to vary considerably from officer to officer and from occasion to occasion. Nevertheless, the authorities from the past dealing with the performance of duties by police officers remain of relevance and assistance in the present case. In Rice v Connolly [1966] 2 QB 414 Lord Parker CJ said, 419:

It is part of the obligation and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.

23 That case was cited by Cosgrove J in Innes v Weate [1984] Tas R 14; 12 A Crim R 45 71 where his Honour stressed the need for a broad definition of the scope of duty of a police officer saying:

The range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty often depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong. These difficulties cannot be overcome. It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the State and by doing so affect the rights and duties of other citizens.

24 See also Thomson v C [1989] NTSC 23; (1989) 67 NTR 11, 13; [1989] NTSC 23; 95 FLR 116 and Re K (1993) 118 ALR 596. 600; 46 FCR 336; 71 A Crim R 115; and for further references Carter's Criminal Law of Queensland [251, 265.1].

25 In the present case, there was no suggestion that the complainant and other police officers were acting other than in performance of their functions as public officers. That could hardly be disputed. There was a public demonstration being conducted in a busy part of the central city in front of a major office designed to attract public attention. It was inevitable, necessary and proper that police officers should be in attendance to observe the conduct of the participants and to be ready to intervene if there was any actual or threatened breach of the peace or other breach of the law.

The cases at trial for the appellant and for the prosecution

26 In particulars provided to the appellant of the charge the prosecution alleged that Mr HaywardJackson obstructed Police Sergeant Baldock, who was attending the demonstration and who directed Mr HaywardJackson to move from the position where he was standing at the time (on the edge of the footpath near the roadway) and that the appellant failed to comply with that direction (ts 2 3). The prosecution also contended that Sergeant Baldock was hindered by the appellant from ensuring the free flow of pedestrian and road traffic at the location during the demonstration by Mr HaywardJackson refusing to move his flag away from the roadway which, according to the prosecution, had caused pedestrians attempting to move around the demonstration to move near the second or middle lane of traffic on St George's Terrace (ts 4).

27 At the trial the prosecution led evidence from three police officers who were at the scene, including Sergeant Baldock. Another police officer who had measured the flag later at the police station was also called. Those were the only witnesses for the prosecution.

28 Mr HaywardJackson gave evidence on his own behalf at the trial and was cross-examined. In addition, evidence on his behalf was called from three lay witnesses who were present at the demonstration. They included a solicitor, Ms Menkens, and a justice of the peace, Mr Maughan.

29 The evidence from the three police officers who attended the scene was to the effect that:

(a) Mr HaywardJackson was standing on the footpath just off the roadway, holding a large flag over his left shoulder;

(b) the flag was impeding pedestrian traffic on the left lane of St George's Terrace heading east, with the result that some people either ducked under or through the flag as if pushing through a curtain, or walked around it into the centre lane on which motor traffic was passing;

(c) the left or kerbside lane was effectively closed to moving traffic because vehicles were parked in it (this was common ground); and

(d) Sergeant Baldock asked Mr HaywardJackson to keep his flag off the roadway, but the appellant disputed that it was on the roadway and said that he was not moving.

30 In relation to the appellant's position on the roadway and his conduct over the short period during which it was alleged the offence was committed, Sergeant Baldock's evidence was that:

(a) Mr HaywardJackson was very close to the edge of the footpath (ts 10.7);

(b) for him to move forward would have been difficult (ts 10.8, 14.3, 17.5 and 19.3); and

31 The entire episode during which it is alleged the offence was committed was very short a matter of only 30 seconds or less between Sergeant Baldock approaching Mr HaywardJackson and the appellant being arrested and dragged away (ts 13.8). According to one of the other officers, Sergeant Heesters, the verbal interchange between Sergeant Baldock and the appellant took about 20 to 30 seconds (ts 25.2).

32 As is common in many cases, there were slight variations in the details of certain events as described by different witnesses. In his evidenceinchief Sergeant Baldock asserted that because of the size of the flag, pedestrians were being forced to walk out into the centre lane (ts 6.8) but in cross-examination he repeatedly said merely that they were walking very close to that lane (ts 11.5 12.6). One of the witnesses for the appellant, the solicitor, Ms Menkens, said in her evidence that the pedestrians whom she saw skirting around the flag were certainly closer to the kerb than to the centre lane (ts 66.8). Similarly, Mr Maughan did not see any pedestrians crossing into the middle lane (ts 80.1).

33 With regard to the central point about the discussions between Sergeant Baldock and the appellant immediately before his arrest, the two other police officers, Sergeant Heesters and Sergeant Sacco, gave evidence supporting that of Sergeant Baldock that the appellant had loudly refused to follow the direction of Sergeant Baldock to move his flag because it was causing pedestrians to walk on to the roadway to get around it with Mr HaywardJackson disputing that the flag was on the roadway and saying that he was not moving (see Baldock, ts 6.3, Heesters, ts 21.5 and Sacco, ts 31.5 32.4).

34 Mr HaywardJackson himself said in evidence (ts 55.1) that he believed that he was still on the roadway when he was approached by a police officer who said to him, 'Mate, you've got to move, somebody is going to get killed' to which he replied, 'Don't be silly. Nobody is going to get killed.' The appellant then said that the first police officer said, 'Come on, mate, get off the road' and that at that stage a space was available on the footpath so that he, Mr HaywardJackson, jumped on to it and also put his flag straight upright.

35 According to the defence witness, Ms Menkens, she did not hear any shouting before the appellant's arrest although she was certain she would have heard any such shouting because of her proximity to the appellant at the time (ts 70.9). Mr Maughan heard no shouting before the arrest and he also was sure that he would have heard loud shouting if it had occurred (ts 80.6).

36 The essential details of the case for the prosecution were contained in the evidence of Sergeant Baldock (ts 4 6). Initially, this police officer gave his unaided oral account of the events in question after which he was asked whether he had made notes of the events and, having confirmed that he did make notes about an hour after the incident, he was permitted to read from those notes and in doing so said:

I approached the accused and said, 'Gidday, mate, can I ask you to keep your flag off the roadway, please.' He said, 'It's not on the fucking roadway'.

I said, 'It's already hit people and others have had to walk around it into traffic. I don't want anybody getting run over.' He said, 'Don't be so stupid. People won't get run over.'

I said, 'It's already hit some people and I want you to move it off the road, please.' He said, 'You've asked and I'm not moving, now fuck off.'

I said, 'All I'm asking is that you move your flag away from pedestrian traffic.' He said, 'Look, fuck off,' in a loud voice, 'I'm not moving and I'm not on the road.'

I said, 'Come with me,' with the intention of issuing a moveon order. He shouted, 'No, fuck off.'

Then what happened?---By that stage Sergeant Heesters and Acting Senior Sergeant Sacco were in close proximity. I - as I said, 'Come with me,' he spun around and flailed his arm towards Sergeant Sacco and faced him in an aggressive manner. I took control of the accused's left arm and arrested him.

What was the obstruction?---At the time all my focus was on him. I couldn't effectively police the - police the protest nor could I ensure public safety of those people that were trying to use the area as a thoroughfare.

37 Later, in the course of crossexamination, Sergeant Baldock confirmed that the appellant's position at the time in question was on the footpath and not the roadway (ts 10). He also confirmed that his direction to the appellant was to move his flag and not to move himself (ts 14). Sergeant Baldock described the appellant as having used a loud voice, slightly elevated but not shouting (ts 15). The size of the flag was estimated to be 2 metres by 1.5 metres (Baldock, ts 18).

38 Sergeant Heesters gave an account which was generally consistent with the account given by Sergeant Baldock except that (ts 21) he said that after Sergeant Baldock had told the appellant to get his flag off the roadway and the appellant had replied, 'Fuck off', Sergeant Baldock had said, 'Come with me' whereupon the appellant basically 'attained a bit of a fighting stance and took a swing with his left arm, or he swung his left arm. I can't say if it was to strike him [Sergeant Sacco] or not. It might have been just to put his point across because he was very agitated, and Sergeant Baldock grabbed his left arm.' Sergeant Sacco then grabbed the appellant's right arm to stop the scuffle and at that point Sergeant Baldock said, 'You're under arrest for disorderly and obstruct'. According to Sergeant Heesters, there was a lot of noise at the time, a lot of chanting from the crowd and a man addressing the crowd using a loudhailer (ts 27).

39 At ts 31 Sergeant A R Sacco gave substantially the same evidence as Sergeant Baldock confirming that Sergeant Baldock had asked the appellant to keep his flag off the roadway and had received an aggressive answer. According to Sergeant Sacco, the conversation then continued as follows:

Sergeant Baldock said, 'It has already hit some people and others are walking around it into the traffic lane and I don't want anyone to get run over'. Mr HaywardJackson said, Don't be so stupid, people won't get run over'. Sergeant Baldock said, 'It has already hit some people. I'm just asking you to move the flag off the road' and his response was Mr HaywardJackson's response was, 'No, fuck off'. He said, 'You've already asked me to move the flag and I'm not going to so just fuck off'. Sergeant Baldock then said, 'I'm just asking you to move the flag off the road so that people away from the pedestrian traffic' and Mr HaywardJackson said, 'No, just fuck off'. This could be heard by people standing around, you know, standing nearby so Sergeant Baldock then said, 'Come with me' and he said, 'No, fuck off. I'm not coming with you' so I then approached Sergeant Baldock and Mr HaywardJackson and in doing so Mr HaywardJackson has swung his right arm around towards me and then faced me in an aggressive manner so Sergeant Baldock has then grabbed him by the arm and escorted him away and in doing so told him he was under arrest, advised him of the charges.

40 Sergeant Sacco was cross-examined extensively about how many people were there at the demonstration, how many pedestrians were diverted and, if so, to what extent by the presence of the appellant and his flag, where exactly the appellant was standing and whether he had room to move. From this crossexamination it emerged that Sergeant Sacco made his notes of the event the following day and that in doing so he had conferred with Sergeant Baldock before he had prepared his statement for court (ts 42) and that both of them read their statements to ensure that they would read the same (ts 43). Sergeant Sacco also said that when Mr HaywardJackson was swearing at the police officers he spoke so loudly that someone standing within touching distance of him would have heard him say that easily (ts 45).

41 An additional witness for the prosecution was called to give the dimensions of the flag. This officer said that the flagstaff was a wooden stick 2 metres 20 in length and that the flag was 177 centimetres by 170 centimetres and that the staff and flag weighed something in the region of three to five kilos (ts 49).

42 Mr HaywardJackson was then called and gave evidence on his own behalf (ts 55 57). He confirmed that he was standing outside the building on St George's Terrace on the footpath at the bottom of the kerb within touching distance of the nearest person and holding the flag. According to him, within 30 seconds of standing there a police officer approached him while he was still on the laneway and said, 'Mate, you've got to move' or, more accurately, 'Mate, you've got to move. Somebody is going to get killed.' He responded by saying, 'Don't be silly. Nobody is going to get killed.' Mr HaywardJackson then said that he could hear another police officer coming in from his right-hand side, shouting in a very loud voice, 'The flag, the flag' and that as this officer was getting closer the first officer said, 'Come on, mate, get of the road' and at that stage the crowd moved and he jumped into a vacant space on the footpath and put the flag upright. According to Mr HaywardJackson, the first officer then said, 'Keep moving' and he, the appellant, tried to do so but could not, and thereupon said the word 'Fuck' but not towards the policeman, and then he said 'off'. The appellant then said then one of police officers said that he swore. 'He swore, arrest him. He swore, arrest him' and then two officers grabbed him but neither said, 'You're under arrest' or anything to that effect, and then they lifted him off and took him away. He denied saying 'Fuck off' three times and says that on the only occasion that he used those words, but separately, they were not addressed to the police officers. Further evidence was given inchief and he was cross-examined, but the above description outlines the essential differences between the appellant's evidence and the evidence for the prosecution.

43 The next witness was Ms Lara Menkens, a solicitor who had been present at the demonstration. Although she did not know Mr HaywardJackson at the time, she saw him carrying the flag and said that he was standing beside her, within a metre to a metre and a half. Although there was somebody speaking on a megaphone, the surrounding noise was not very loud and she was able to speak to her colleague (ts 65 66). It was she who was filming the crowd with her iPhone. She noticed the appellant before the incident just quietly standing on the kerb with the flag. She did not hear any matter of significance prior to the appellant's arrest. She had been taping the demonstration and stopped doing so for a moment and said that it was then quiet, and suddenly she heard a big commotion behind her and turned to look and there were several people together in a bit of a scuffle, and Mr HaywardJackson was being dragged up the street by some police officers (ts 67).

44 Her video record of the incident had been transferred to a DVD, which was then played to the court. Ms Menkens said that she did not hear any words passing between the police officers and Mr HaywardJackson before the arrest. In particular, she did not hear Mr HaywardJackson say in a loud voice to the police, 'Look, fuck off' and then a moment later, 'No, fuck off'. She heard nothing until immediately following the arrest (ts 70). She said that she was certain she would have heard any shouting at that point.

45 The next witness for the appellant was Mr Maughan, a justice of the peace. He had attended the protest at St George's Terrace on 2 July 2010 and had been present from the beginning. He had not met the appellant ever, or ever spoken to him, either before or after this incident. He did not see the appellant being arrested 'because I never heard anything in terms of an arrest' (ts 76). Mr Maughan believed that the appellant could not have been more than a metre and a half away from where he was standing (ts 78). His account of the critical incident appears from the following passage of the evidence at ts 79.

You saw a scuffle of some kind and did you see some police officers there?---I saw two police officers holding a man, escorting a man around the corner. I wouldn't describe it as a scuffle even.

Were the two police officers - did they physically have hold of the gentleman?---Yes, they had what I guess is a normal - they had him under each one had him under the arm, armpits, as I recall it.

When you have earlier - I think you said you were aware of a flag. Did you see where the flag was in relation to the footpath and the roadway?---No. As I said, I didn't see - I wasn't particularly aware that the man was carrying a flag, I'm sorry.

That's fine?---The first time I saw him he was in the hands of two police officers. Now, it happened extremely quickly and I guess I didn't particularly notice the flag.

Did you hear any shouting coming from your left immediately prior to what you described as being the crowd reaction and you turning to look at - - - ?---I heard nothing whatsoever until I heard the crowd reaction.

Did you hear anybody using the words 'Fuck off'?---Never.

Did you a police speak to the accused there, 'Mate, you've got to move. Somebody is going to get killed' and it was meant to have been said quite loudly?---No, I didn't.

You didn't hear that?---I didn't hear that.

Did you hear the accused say, 'Don't be silly. Nobody is going to get killed'?---No, I did not.

Didn't hear that?---No, I did not.

And did you hear a police officer say, 'The flag, the flag. Come on, mate. Get off the road'?---No, I did not hear that.

Did you hear a police officer say, 'He swore. Arrest him. Arrest him'?---No.

Right. Did you hear the police officers ask the accused to please take the flag off the roadway?---No, I did not.

47 It was suggested to this witness that he wore a hearing aid and that this might affect his hearing. He admitted to wearing two hearing aids but said that, no, his hearing (as aided) was very good.

48 Another account of the events was given by the fourth witness for the defence, Mr P Chilton. The substance of his evidence emerges from the following passages taken from pages 86 and 87 of the transcript:

Right. Did you see or hear anything passing between Mr HaywardJackson and the police officers before he was arrested?---No, I didn't hear.

What was the first thing you saw or heard that drew your attention back to - - - ?---What I first saw - because I turned to - either to see if he would acknowledge me because, you know, we're not that good a friends - I saw a police officer approach him and it seemed to me that the police officer was quite strident. He went up very close to Iva.

Yes. How close?---Certainly in his personal space. I would think quite up close to his face.

Did you see whether they spoke with each other?---They did speak with each other.

Were you able to overhear anything said between them?---Not really.

Did you continue to watch them or were you turning back to the - - - ?---I did turn back briefly to watching the goings on out the front of the DPP.

And so how long were you watching over at the police officer?---Well, only probably - probably only a few seconds before I turned back because there was more going on - - -

...

So having turned back to look at the speaker or the front of the building, what was the next thing that you saw concerning Iva?---Well, I turned back towards them because I heard basically raised voices.

About how long after your earlier observation of the police officer coming over and speaking to him?---This all took place in a very short period of time. I would even say less than a minute.

Okay. So you turned back - sorry, you said because what, because you heard some - - - ?---I heard raised voices.

Did you see what was happening when you turned back?---Yes.

What was happening?---The police officer that initially went up to speak to Iva was now quite aggressive and was saying something along the lines of, 'What did you say to me, what did you say to me, what did you say to me?'

Did you hear those words?---Yes.

What is it about the officer's behaviour or voice that causes you to describe him as being quite aggressive?---Well, basically he was continuing asking this question over and over again and his demeanour reminded me of somebody who was basically looking for a fight. That's the only way I can describe it.

What was Mr HaywardJackson doing at this time?---He looked shocked and surprised and he was moving, moving trying to move away, I think

What happened next?---Well, the police officer continued his aggressiveness and Iva backed away and during that time Iva stepped on to the road.

What happened then?---Basically other police officers came in and they restrained Iva.

And did they take him away?---Yes.

Did you at any point hear Iva - that's Mr HaywardJackson shouting?---Possibly, but I can't really recall.

Do you recall hearing anything that he said? What were the words that he said?---I don't recall hearing any words that he said.

49 In cross-examination Mr Chilton said that he did not hear anybody say 'Fuck off' nor any part of the conversation alleged to have occurred by Sergeant Baldock or the other prosecution witnesses.

50 The evidence taken at the trial occupied the whole of the day's hearing on 24 November. The case was then adjourned for submissions by counsel on 3 December. After hearing those submissions her Honour reserved her decision. On 10 December 2010 the matter was relisted and, for written reasons then published by her Honour, the appellant was convicted as charged. Her Honour's reasons for decision, consisting of 11 transcript pages, are part of the material before this court on the present application.

51 For leave to appeal to be granted this court needs to be satisfied that Mr HaywardJackson has reasonable prospects of success Criminal Appeals Act 2004 (WA) s 9(2). It is necessary for leave to appeal to be obtained in relation to each proposed ground of appeal. For leave to be granted this court must be satisfied that each proposed ground of appeal has a rational and logical prospect of succeeding. This requirement means that it would not be irrational, fanciful or absurd to envisage it succeeding: Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473, 487.

52 The two proposed grounds of appeal have already been set out. The first contends that there was an error of law by the learned magistrate by failing in her reasons for decision to address and make findings about the key factual dispute which emerged at the trial and which was directed to the credibility of the appellant, on the one hand, and the police officers, on the other, over whether or not the appellant had shouted at the police officer during the events leading up to his arrest. Submissions for the respondent are to the effect that the learned magistrate provided written reasons in which she set out all of the evidence and clearly articulated her reasons for preferring the evidence of the police officers over that of the appellant and others and, furthermore, that the reasons for decision given amply satisfy the requirements of s 31(1) of the Magistrates Act 2004 (WA) as considered in Bennett v Carruthers [2010] WASCA 131 [34]. For this reason, it is contended that there is no basis upon which leave to appeal should be granted on the first proposed ground.

53 The second proposed ground of appeal contends that her Honour erred in law by taking into account the evidence of mobile telephone footage showing the appellant struggling after his arrest when determining the credibility of the testimony of the witnesses concerning the events before and leading up to the point of arrest. The respondent submits that the learned magistrate correctly determined the issue of credibility on the version of events given by the witnesses leading up to the incident. The respondent further submitted that the appellant neither gave evidence nor was cross-examined about any struggle with the police after his arrest as shown on the mobile phone footage but, as his evidence was to the effect that he was peacefully arrested, it was open to her Honour to consider his description of his arrest as another matter going to his credibility.

54 At the point of determining whether or not leave to appeal should be granted on any particular ground, it is not appropriate or necessary to determine finally whether or not a particular ground of appeal will succeed. It will be enough to determine that if the ground was made out, that could lead to success in the appeal and that there is some arguable substance for the ground being proposed. Adopting that approach, I consider that each of the two proposed grounds of appeal in the present case is arguable and that leave to appeal should therefore be granted.

55 The passages from the evidence at the trial which I have set out above reveal that the decision on this prosecution and trial required a consideration of whether or not the prosecution had proved all the elements of the offence under s 172(2) of the Criminal Code against the appellant beyond reasonable doubt. As already stated, in the context in which this case arose, the elements of the offence which had to be proved to this degree were:

(b) if so, whether at the time in question he was acting in the performance of functions of his office; and

(c) whether the appellant obstructed Sergeant Baldock by preventing, hindering or resisting him in the performance of the functions of his office.

56 There can be no doubt that Sergeant Baldock was a public officer within the meaning of the section. Similarly, it was clear beyond any doubt that he was, at the time, acting in the performance of his functions as a police officer in observing a public demonstration and in taking steps to ensure the freedom of safe pedestrian movement in and around the participants in the demonstration.

57 The only contentious issue is whether or not, in those circumstances, the appellant obstructed Sergeant Baldock in the performance of those duties in the sense of doing some act, or refusing to follow some direction lawfully given by the officer, which rendered the performance of the public officer's duty more difficult. On the issues of fact joined at the trial this latter question came down to whether or not Sergeant Baldock had directed the appellant to move his flag so as to reduce obstruction to passing pedestrians and/or to move himself and the flag from the edge of roadway on to the pavement so that the draping flag did not force pedestrians to move further on to the roadway. Associated with this issue was whether or not Mr HaywardJackson refused to follow this instruction by swearing at the police officer and saying words to the effect that there was no danger to pedestrian traffic and that he was not going to move. If it could be established that the appellant had been told by the police officer to move his flag and himself so as to remove obstructions to pedestrian traffic and if he then failed to do so, even more so if he refused to do so, then it was open for the learned magistrate to convict the appellant as charged.

58 The resolution of these controversial issues of fact was a task which had to be performed by the learned magistrate only on the evidence adduced at the trial and bearing in mind that the onus of proof on all these matters lay with the prosecution to establish the essential fact or facts beyond reasonable doubt. That was a task which had to be performed by taking into account evidence from the appellant himself denying the critical allegations and evidence from independent and respected lay witnesses, whose integrity and impartiality was not questioned, that the appellant had been standing at or near the kerb holding his flag before this incident in a quiet and peaceful manner. Two of the witnesses, Ms Menkens and Mr Maughan, heard no raised voices or arguments or swearing from any person before the incident. Mr Chilton said that the only loud voice or voices which he heard were voices of one or other of the policemen and that one of the police officers had, from the outset, adopted a very aggressive attitude towards the appellant.

59 In the introductory paragraph of her Honour's reasons for decision, after setting out the background, her Honour, in my view, quickly and correctly identified the focus of the controversy where she wrote:

Sergeant Baldock spoke to Mr HaywardJackson and asked him to move the flag off the roadway. In a short time Mr HaywardJackson was arrested for obstructing the police. Mr HaywardJackson contends that he did not obstruct the police and moved the flag upright, but was still arrested.

60 Her Honour then referred to the obligation of a court in giving reasons for judgment to identify certain facts and the law applicable as required by s 31 of the Magistrates Courts Act. Her Honour then correctly identified the issue for decision and the onus and burden of proof. In the paragraphs which then followed her Honour summarised the evidence given by Sergeant Baldock, Sergeant Heesters and Sergeant Sacco, including the passages which I have cited earlier in these reasons. Her Honour then addressed and recorded the evidence given by Mr HaywardJackson, Ms Menkens, including reference to her video recorded mobile phone footage of parts of the demonstration, Mr Peter Maughan and Mr Phillip Chilton, again including the substance of the passages which I have set out.

61 In describing the video recorded footage of the event her Honour set out the details and then said that the chanting (from the demonstrators) was quite loud and that it would have been difficult, if not impossible, for anyone to hear what was said between Sergeant Baldock and Mr HaywardJackson because of the chanting and traffic noise. Her Honour mentioned that the video footage showed that the appellant was at the protest for a few minutes before the police spoke to him and arrested him, and that it clearly showed him standing on the footpath at all times. Her Honour concluded that the video footage showed the position of some of the people who gave evidence 'and contradicts the evidence given' in the sense that it showed them to be further away from the appellant than they had described in their oral evidence.

62 Her Honour then set out the relevant terms of s 172 of the Criminal Code, identified the 'obstruction' relied upon by the prosecution and concluded, contrary to submissions which she had then received, that Sergeant Baldock was performing a function of his office at the time. Her Honour then proceeded to deal with the factual controversy as follows:

[23] I find that Mr HaywardJackson was firstly standing on the footpath, not on the roadway. The mobile phone footage clearly shows three people walking behind him on the roadway and traffic on the roadway, which creates a hazard not only for the pedestrians, but for the traffic. There was evidence that the police were stopping pedestrians walking on the roadway until it was safe due to the traffic (Sergeant Sacco).

[24] Mr HaywardJackson's actions of holding the flag over the kerb and side lane were clearly creating a traffic hazard and there is no contest it was a function of Sergeant Baldock's office to take reasonable steps to remove that hazard.

63 Her Honour then addressed a submission advanced by counsel for the appellant at trial that the police evidence should be rejected because there had been conferral between the police witnesses in the preparation of their statements by observing that this did not mean that the officers were misleading the court by deliberately being untruthful. Her Honour concluded that the three police officers gave accurate, honest and reliable evidence corroborated to some extent by the mobile phone footage.

[27] I accept Sergeant Baldock's version of events, not because three police officers said so, but Mr HaywardJackson's version is incredulous that he complied by moving and raising his flag. He did not, the mobile phone footage shows him already on the footpath, not on the roadway. The arrest takes place 78 seconds after the first mobile phone footage, Mr HaywardJackson was not approached by the police within 30 seconds of standing on the roadway. Mr HaywardJackson swore at the police and refused to move the flag. He was rude and belligerent to Sergeant Baldock. The mobile phone footage shows him struggling violently after he was arrested, which is contrary to his evidence that he was lifted up and carried away to the police van.

[28] Mr HaywardJackson was untruthful. He swore at the police officer and refused to remove the flag, even though he looked behind when a male tugged at the flag as he walked through it on the roadway. Mr HaywardJackson's attitude towards the police was objectionable and belligerent and he clearly obstructed Sergeant Baldock, who was performing a function of his office (see Bissaker v Ault (2007) WASC 162. The defence witnesses in my opinion were unable to hear any of the conversation between the police and Mr HaywardJackson. The mobile phone footage shows that they were oblivious to the events leading up to the arrest and the arrest and only turned to look once Mr HaywardJackson was struggling with the police on the roadway. Their comments indicate that they were not aware of what happened prior to the arrest.

65 In submissions for the appellant his counsel submits that there were shortcomings in her Honours reasons for decision because they did not engage in any way with the substantial conflict in the evidence given by the two groups of witnesses, who on the face of things are likely to be honest and reliable. It was further submitted that the reasons do not enable the reader, and in particular the appellant, to see exactly why it was that the magistrate upon consideration concluded that she had no reasonable doubt in the light of all the evidence that the appellant had shouted and sworn, and had failed and refused to comply with the request to move his flag. It was further submitted that there were no reasons given for the finding that the appellant was untruthful.

66 With respect, I do not consider that these submissions can be made out. Her Honour did identify the crucial factual issue which had to be determined and did so after identifying the proper legal setting in which the controversy arose and the location and burden of the onus of proof. It is not to be forgotten that in his crossexamination the appellant himself admitted that he had, in the interval which immediately followed Sergeant Baldock speaking to him, used the word 'fuck' and then a little later the word 'off', although he made it plain that the first of these words was effectively spoken by him in consternation in being placed in the dilemma that he found himself and that the latter word was apparently used in an attempt to get nearby persons at the demonstration to move to allow him to comply with the officer's direction.

67 The burden of the evidence of Sergeant Baldock was that his initial discussion with the appellant was directed towards him moving the flag and ceasing the obstruction to the roadway and it was only when he was sworn at by the appellant and told explicitly that the appellant would not move that the arrest was made. It is clear that the entire episode was very brief. Not only does this emerge from the oral evidence of the witnesses but the videotape which I have viewed shows that, if anything, it was even shorter than the periods estimated. The person addressing the demonstration by loudhailer was speaking at the time and held the attention of most of the observers or participants in the demonstration. The appellant was standing at the back of the crowd near the kerb and I consider that her Honour was entirely correct to include that very little, if any, attention was being paid to him until he was actually arrested and taken in charge by the police after which there was a small commotion and a minor struggle. The video shows the participants in the demonstration turning to look once that altercation had begun but not before. There is no audio on the videotape produced and it is not possible from that to determine the level of the crowd noise, the sounds of the person addressing the demonstration over the loudhailer or passing traffic noise, but there is certainly evidence to the effect that there was sound from all those sources. The video also shows that there was some discussion between the appellant and another person immediately before the arrest. The video is not clear as to who it was who spoke to the appellant but the police officers are shown as being close to him at this point. It is also evidence that the appellant reacted to what was said. In these circumstances, there certainly was evidence which supported the conclusion reached by her Honour that the appellant had been asked or directed to move either himself or the flag but had not done so and had responded in a manner which connoted a refusal to follow the direction of the police officer.

68 The question is whether or not this conclusion could or should have been drawn to the requisite degree of satisfaction when faced with evidence from independent witnesses for the appellant that they had not heard any swearing or shouting (with the exception of Mr Chilton) immediately before the arrest. In all the circumstances, it is certainly more than possible that those witnesses could not or did not hear what was said between the appellant and the police officers because their attention was focused on the demonstration, because of other background noise, and because they were slightly further away from the appellant's position than they had realised was the case. Whether the fact that they did not hear the words described by the police was a fact which refuted or rendered unreliable the police testimony was a decision of fact to be taken having regard to all the circumstances. This was appreciated by the learned magistrate and there does not appear, with respect, any reason for determining that that conclusion was wrong, unjustified or inconsistent with other evidence.

69 The obligation of a magistrate to give reasons for decision and the necessary content of those reasons to satisfy the requirements of s 31 of the Magistrates Court Act have been examined recently in a number of cases. This duty was examined by the Court of Appeal in Bennett v Carruthers [2010] WASCA 131, where the principles were discussed and set out by Mazza J at [26] [27] in passages which were agreed to by McLure P and Newnes JA and which followed the observations of Heydon J in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [84]. The principles were again canvassed by Sleight C in Bauerhuit v Deane [2011] WASC 253 [37] [40]. In doing so, the learned Commissioner cited from the observations of McLure P in Sheppard v Blakey [2001] WASCA 309, a decision made prior to the enactment of s 31(1) of the Magistrates Court Act 2004 but which, nevertheless, was considered to be applicable. In that case, McLure P said:

The failure by a decision maker to mention a matter expressly in his or her reasons does not necessarily give rise to an inference that it was not considered. This is particularly so in the Court of Petty Sessions where a magistrate is not obliged to give full and detailed reasons on all aspects of the decisionmaking process. The reasons may be stated shortly without being developed in detail. It is sufficient if they disclose the essential intellectual process by which the decision was arrived at: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248; R v Nevermann (1989) 43 A Crim R 347 at 350. In the absence of credible evidence to the contrary, its is to be assumed that the magistrate has complied with the duties imposed by the legislation and taken relevant matters into account: Bessell v The Queen (Unreported, CCA SCt of WA, Library No 980199; 4 March 1998); Bienke v Minister for Primary Industries and Energy (1966) 64 FCR 567 at 576 577 [25].

70 In Francis v Todd [2011] WASC 185 the obligation to give reasons for decision sufficient in the circumstances of the case and in compliance with s 31 of the Magistrates Court Act was examined by Edelman J. After referring to the common law duty to give reasons for decision at [13] and [14] and then referring to s 31 of the Magistrates Court Act, Edelman J went on to observe:

[17] Section 31 of the Act therefore requires that the judgment identify the facts accepted and the law applied, the reasons for doing so, as well as the underlying intellectual process behind the conclusions reached: Tran v Clayton [2003] WASCA 318 [37] [38] (McLure J); Bennett v Carruthers [2010] WASCA 131 [31] (Mazza J).

[18] In each case, an assessment of whether the minimum content, or sufficiency, for reasons has been met requires considerations of the reasons as a whole, including findings which can be inferred from reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA); Bennett v Carruthers [27] (Mazza J). Further, the reasons considered as a whole, cannot be divorced from the context of the case, including the manner in which the case is conducted, the significance of evidence or legal issues, concessions which are made, and matters which are not disputed. Other factors to consider are whether (as in this case) the decision was reserved (see Pallot v Harrison (Unreported, WASC, Library No 950261, 12 May 1995) 6 (Owen J)) and, associated with that, the time period for which it was reserved (seven weeks in this case), whether there were substantial oral or written submissions (in this case, 31 pages of closing submissions from the accused and 27 pages from the respondent) and the nature and content of those submissions in relation to the issues concerned.

71 These are all factors which need to be considered when determining the first ground of appeal in the present case according to the principles contained in these authorities. With respect, I do not see any basis for concluding that there has been a breach of the duty to give reasons as required either at common law or by s 31 of the Act. The process by which her Honour arrived at her ultimate conclusion is clear to see and it has been described in the proper context of the legal issues and the onus of proof applying in the circumstances. For these reasons, therefore, the first ground of appeal has not been made out and cannot be upheld.

72 Turning to the second ground of appeal relating to the significance of her Honour's observations about the mobile telephone video footage showing the appellant to have been struggling after his arrest, I consider that no error has been demonstrated by the learned magistrate making reference to this part of the evidence nor in reaching the conclusion which she did concerning its impact on the credibility of the appellant.

73 The video footage of the struggle between the appellant and two police officers following his arrest did appear on the video recording which was put in evidence and, therefore, was part of the evidence before her Honour at the trial. It had not been the subject of oral evidence or cross-examination of any of the witnesses during the course of their testimony but that does not prevent the magistrate having regard to it. Perhaps the most obvious explanation for the absence of reference to this sequence of events in the course of the oral evidence is that there was no dispute between the parties that what was shown on the video had, in fact, occurred. Obviously, it had, as the video shows. No attempt was made to recall any witness for further examination or crossexamination after the video evidence had been shown although, if it had been thought that it was not accurate or that there were some extenuating circumstances which needed to be demonstrated in order for the conduct to be appreciated in its proper context, then that could have been done. The simple fact of the matter is that the evidence showed that there was a struggle by the appellant, although a relatively minor one, after he had been taken in charge by the police officers and that this episode was more consistent with the course of events described by the police witnesses than it was with the accounts of passive conduct on his part by the appellant. There was no objection to the admissibility of the evidence, it was relevant as part of the immediate aftermath and the events giving rise to the arrest, and it was evidence, along with all other evidence, to which the learned magistrate was entitled to have regard when reaching her conclusion about whether or not the charge had been proved.

74 The determination of the prosecution of the appellant in the Magistrates Court involved a need for the learned magistrate to decide, on all the evidence, whether the prosecution had established the essential elements of the offence beyond reasonable doubt. Her Honour addressed those issues and reached a conclusion having regard to the established principles. It has not been suggested that there was no evidence upon which a decision to convict the appellant could be justified. Rather, the case for the appellant suggests that the magistrate should not, in all the circumstances, have reached this particular conclusion. The question emerging, therefore, was whether or not her Honour was satisfied to the requisite degree of persuasion that proof of the offence had been established. Rational reasons for reaching that conclusion, consistent with all the legal principles, were set out and I am not satisfied that there was any error in the conclusion reached which would warrant the decision being set aside or varied.

Magistrates Act 2004(WA)

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