Something rotten in the State of WA

By Legal Eagle

In Western Australia, calls have been made for law reform after brawlers who assaulted police officers in February 2008 were acquitted of assault charges. The result is particularly poignant because one of the police officers, Constable Matthew Butcher suffered brain-damage as a result of his attempts to prevent the brawl. He now suffers from partial paralysis on the left side, as well as impairment of his vision.

This post links into the comments thread of SL’s recent post on stereotypes, where people have been commenting on the prevalence (or lack thereof) of violent assault, street brawling and crime generally.

The brawl had started between members of the McLeod family and a group of painters, and spilled out onto the street. Constable Butcher was attempting to stop Robert McLeod from continuing to fight, and tasered him. Robert McLeod’s two sons, Scott and Barry McLeod were also involved in the brawl. When Barry McLeod saw his father fall, he attacked Constable Butcher with a “flying headbutt” from behind. Constable Butcher does not recall the incident, but it was filmed by a bystander on with a mobile phone (link to video here). Scott McLeod threatened to kill the person who was videoing the brawl. Robert McLeod later collapsed from a heart attack, and ironically, his life was saved by two police officers who administered CPR.

A District Court jury found the McLeods not guilty on all charges with respect to assaulting police officers. Scott McLeod was found guilty of making threats to kill to the person who videotaped the brawl and fined $4000.

There has been widespread public outrage in relation to the verdict, and a number of police have resigned from the force in protest. It has been said that the verdict was made possible by a combination of the right to silence and the law of self-defence. The silence of the defendants on their conduct meant that the prosecution was not aware of the defendants’ account of events until they had already finished presenting the prosecution case, and therefore could not address the claims raised. Further, the McLeods managed to claim successfully that they were acting in self-defence towards police.

The Western Australian Attorney-General has indicated his intention to look at reform of the right to silence and of the law of self-defence:

“A number of ultimately complicated defences were run together. Defences of accident, self defence, the lawfulness of the police conduct and the defence of honest and reasonable but mistaken belief were run together,” Mr Porter said.

“These were not defences, which in a meaningful way were raised prior to the day the trial in this matter started.

“It was impossible for the trial judge or the prosecutor to make adverse comment about the fact these defences were not raised at the point of interview of the individuals concerned, but were only raised at the trial.

“I think that law reform in that area and modification to those rules will have a significant impact to trials on that nature in the future.”

Mr Porter said he also had concerns about the legal defence of self-defence and would investigate tougher restrictions on its use.

“Whilst it is early days, I can say . . . that I have extreme concern at the fact that the long-standing defence of self-defence operated to provide, effectively, a defence for everyone involved (in the brawl),” he said.

“The situation, it seems to be . . . that you can have four or five people involved in separate assaults on police officers, fights with police officers and each of those individuals can argue that they are acting in self defence of the other individuals involved in fights with the police officers.

“In my view, the way in which that defence is presented at present . . . is far too generous and is not in the public interest because it creates some kind of immunity when it is applied to people who engage in brawls with public officers.”

It now appears Constable Butcher will not qualify for compensation as a victim of crime.

The Right to Silence

The right to remain silent developed in 16th and 17th century England, when individuals could be brought before a body such as the Star Chamber and be forced to answer questions without knowing what the charge was. Thus, a person could unwittingly incriminate himself. Adverse inferences were drawn from silence, and therefore an accused was in a position where he was damned if he did talk, and damned if he didn’t.

The right to remain silent is a corollary of the notion that an accused is innocent unless proven guilty beyond a reasonable doubt. The policy behind this is that it is not for an accused person to have to prove their innocence, and therefore no negative inferences should be drawn from silence.

The right to remain silent can include the right to refuse to answer questions in a police interview, the right to refuse to answer questions in court, the right to refuse to incriminate one’s self in a police interview or in court, and a provision that the court or the jury cannot draw an adverse inference from the silence of the accused. The US Constitution enshrines the right to remain silent in the Fifth Amendment — we would all be familiar with the phrase “taking the Fifth”. The UK has now limited the right to silence in some regards pursuant to the Criminal Justice and Public Order Act (1994), particularly with regards to the inferences that can be drawn by a jury or a judge from silence of an accused. The amendments stemmed from a perception that in most cases, people did not exercise a right to silence, but in those cases where it was exercised, it was being used cynically by career criminals.

In most Australian jurisdictions, it is still not permissible to draw adverse inferences from a failure to answer questions. In the Butcher case, the prosecution was unable to ask the jury to draw an adverse inference from the fact that the defences alleged by the McLeods were not raised in interviews with police and indeed, had not been raised until the prosecution had made its case.

Another aspect of the right to silence that is at issue in the Butcher case, includes the issue of pre-trial disclosure. The NSW Law Reform Commission Report on the Right to Silence has a separate chapter on this question. Should an accused be required to give the prosecution some idea of the defences upon which he will rely? Some argue that requiring an accused to disclose information about his defence before trial undermines the presumption of innocence and the right to silence, and assists the prosecution in making its case. Further it is argued that accused generally have less resources at their disposal and thus it is unfair to cause them to file pre-trial disclosures of their defence.

Nonetheless, many States have a pre-trial disclosure mechanism, where the prosecution must indicate the grounds upon which it intends to rely, and the defence must give some indication of the defences upon which it intends to rely (at least in some specified circumstances eg, where the accused is claiming an alibi). It seems to me that it is fair for the defence to give at least some indication of the issues it will raise, while still acknowledging that the defence’s case may change during the trial once the prosecution has presented its case.

The law of self-defence

The law of self-defence means that conduct which would ordinarily be unlawful will be lawful if it is found that the accused acted in self-defence, to defend another or to prevent a crime.  Section 248(4) of the WA Criminal Code provides that:

(4) A person’s harmful act is done in self-defence if —

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

The jury must assess whether the accused used such force as was objectively reasonable in the circumstances (as the accused subjectively believed them to be).

A person who claims self-defence must believe, rightly or wrongly, that an attack is imminent. If the defendant was mistaken as to facts, he must be judged according to his mistaken belief of the facts, whether or not the mistake was reasonable on an objective view.

Presumably, in the Butcher case, it was argued by the McLeods that they were acting in defence of their family members and that they had an honest but mistaken belief as to the necessity of acting in self-defence. There seems also to have been an argument that police used unnecessary force in quelling the brawl. The McLeods succeeded in claiming self-defence, and therefore the assault of the police, including Constable Butcher, was not unlawful.


This case seems intuitively unjust. It probably doesn’t help matters that Constable Butcher seems to be a decent fellow who was well liked by all. This case is also potentially problematic from a public policy point of view. The criminal law is essentially sanctioning violent actions by brawlers against police who are trying to stop the brawl, on the basis that the brawlers are defending friends or family.

Nonetheless, I think we should be careful with reforms to the right to silence. Some kind of pre-trial disclosure by the defendant seems to be appropriate (and indeed, there is provision for this in my home state of Victoria). I am less sure of amendments which would allow the drawing of negative inferences from silence of an accused. On the one hand, one could argue that surely juries are intelligent enough to realise that a refusal to answer questions does not necessarily mean that an accused is guilty. On the other hand, there may be innocent and legitimate reasons why a person is silent: cultural reasons, fear of reprisal, fear of incriminating family members or friends, confusion, lack of education or difficulty in remembering details. It could be argued that it is unfair to allow juries to draw adverse inferences from silence when there are so many other innocent and legitimate factors which could have led to the accused refusing to answer questions.

In terms of self-defence, perhaps special laws need to be made for when uniformed police intervene to stop a brawl. However, I can see difficulties as to whether this principle would extend to others in a quasi-policing position. What about a bouncer who attempts to eject a rowdy patron from a pub? What if the bouncer uses excessive force on the rowdy patron, and the patron’s friend tries prevent this? Should the friend be able to defend the rowdy patron?

I’ve probably raised more questions than I’ve answered (which seems to be so often the case with my posts). Sigh. At the end of it all, I can’t help feeling sorry for poor old Constable Butcher.


I’ve fixed an error in the self-defence section which Jeremy noted – you can tell criminal law is not my speciality! (The incorrect bit is struck out so you can see what was removed).

I note that s 231 of the WA Criminal Code provides that police may use such force as is reasonably necessary in making arrests:

(1) It is lawful for a person who is engaged in the lawful execution of any sentence, process, or warrant, or in making any arrest, and for any person lawfully assisting him, to use such force as may be reasonably necessary to overcome any force used in resisting such execution or arrest.

(2) In determining whether any process or warrant might have been executed, or any arrest made, in a less forcible manner, the following shall be taken into account —

(a) whether the person executing the process or warrant had it with him or her and produced it at the time;

(b) if it was practicable to do so at the time, whether the person making an arrest, whether with or without a warrant, gave notice of the process or warrant under which the person was acting or of the cause of the arrest.

Pursuant to s 172 of the WA Criminal Code, which creates the offence of ‘obstructing’ a police officer, there is no need to know that the arresting officer is a policeman. Section 172 states:

(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.

The defences which apply are accident (pursuant to s 23B of the WA Criminal Code), mistake (pursuant to s 24 of the WA Criminal Code) and emergency (pursuant to s 25 of the WA Criminal Code).


  1. Jacques Chester
    Posted March 16, 2009 at 4:45 am | Permalink

    A very nasty case indeed, especially if you see the video. I’m surprised there isn’t an offence for interfering with a police officer carrying out their duties which would cover this situation — so often you criminal laws are written to catch you on as many offences as possible.

    So for instance they might be ‘not guilty’ for assault, but guilty for interfering. Something like that.

    But it leaves a bad taste in my mouth. Police in WA seem to be getting attacked with impunity lately.

  2. Posted March 16, 2009 at 6:56 am | Permalink

    Since when has self-defence been mitigation for resisting arrest?

  3. Posted March 16, 2009 at 7:44 am | Permalink

    It is possible to resist wrongful arrest, with the wrongfulness of the arrest providing justification for behaviour that would otherwise be a crime.

    Even so, the evidentiary bar for that is pretty high, and frankly I’d like to know what’s going on here (the video on ABC isn’t complete). Even Queensland during 20 years of Joh didn’t find it necessary to abrogate the right to silence in order to ensure the police didn’t finish up paralyzed in the course of duty.

    Would really like to get to the bottom of this, because it sounds deeply screwy.

  4. Jeremy
    Posted March 16, 2009 at 10:00 am | Permalink

    I’m very dubious about the claim that the right to silence caused an injustice in this case. Would the jury really have been ignorant about the fact that the defendants didn’t give their exculpatory accounts to the trial? Surely, they’d have noticed the lack of reference to police interviews? And why on earth couldn’t the police have just told the whole story in chief? Their complaint about being ambushed seems to suggest that they are annoyed that they missed the chance to put a different spin on their story. Anyway, the ‘rule in Browne v Dunn’ would require the defence to put contrary factual claims to the police officers when they were testifying, or face a variety of remedies (notably permission for the prosecution to reopen its case.)

    Rather, the problem here (if that is a problem) really reflects how tricky it is to prosecute brawls, basically because they are so confusing when they happen. The confusion means that defendants can credibly say that they didn’t know what was going on or were too panicked to think, factors that typically reduce criminal responsibility. It also means that the evidence is typically very confused, with contradictory accounts and uncertainty about timing and identity of participants at any particular stage. I doubt that any reform could resolve these problems.

    Re: self-defence: I think you’re wrong to say that self-defence applies whether or not a mistake of fact is unreasonable. Section 248 of WA’s Criminal Code says that beliefs founding self-defence must be based on reasonable grounds. So does the common law, since the HCA’s 1987 Zecevic ruling. That being said, the common law is pretty loose on what counts as reasonable, as it factors in characteristics of the defendant (such as being drunk or drugged or, perhaps, panicked.)

    Re: resisting arrest. I’m not sure WA – which is a ‘code state’ – requires proof that the defendant knew that the victim was a cop. Rather, unless the offence specifies otherwise (and s294 of the CC doesn’t seem to), the usual WA defences for this sort of case are ‘accident’ , ’emergency’ and ‘honest and reasonable mistake of fact’. These all typically require some sort of reasonable grounds. Victorian law currently requires subjective proof of knowledge that the victim was a cop but (because of a 1960 HCA case that is ripe for revisiting) no proof of knowledge that the cop was acting in the course of police duty.

  5. Posted March 16, 2009 at 10:44 am | Permalink

    Easy to see I wasn’t on that jury.

    Proof or no required as it may be, if several uniformed police are in attendance, the defendants knew who they were attacking.

    Juries are there to inject some justice through the middle of all the legal hogwash that lawyers/judges get caught up in.

  6. Jacques Chester
    Posted March 16, 2009 at 1:01 pm | Permalink

    Rather, the problem here (if that is a problem) really reflects how tricky it is to prosecute brawls, basically because they are so confusing when they happen.

    Normally that’s true, but in this case there’s a video of all the offenses being tried. The prosecution had the ability to step through the brawl one frame at a time. It still wasn’t enough to convince the jury.

    I can’t remember if Australian juries are gagged or not — will we see a spate of Today Tonight interviews of jurors, I wonder?

  7. Jeremy
    Posted March 16, 2009 at 1:20 pm | Permalink

    “Normally that’s true, but in this case there’s a video of all the offenses being tried. The prosecution had the ability to step through the brawl one frame at a time. It still wasn’t enough to convince the jury.”

    That makes intuitive sense, but there’s a surprising number of cases where video evidence leads to the ‘wrong’ result. Rodney King’s bashing, for instance. Possible explanations: (a) videos frustrate the usual method of proof by witnesses, because the witnesses invariably end up saying things that are contradicted by the video; (b) videos are more unreliable than witnesses, because they only catch what’s in the frame; (c) brawl verdicts (correct or otherwise) don’t get much attention unless there’s a video.

  8. Interested bystander
    Posted March 16, 2009 at 3:16 pm | Permalink

    Hm, thank you people. After reading these measured responses I feel a little better about my opinions (it’s always about me) re the Butcher/McLeod case.

    I’ve spent a little time in various forums addressing this unfortunate matter, and the responses have been, perhaps understandably, extremely hostile to opinions that stray from the “lynch the Mcleods” mentality.

    As a lay person, I too find the political and potential judicial fallout from this incident very odd — especially since we have no way of knowing what happened leading up to police intervention.

  9. AH
    Posted March 16, 2009 at 3:31 pm | Permalink

    In many instances police literally get away with murder, but they can’t handle it when the law goes against them, even though they have supposedly given themselves over to the duty of serving the law.

    Although it’s hard to see, video shows the Constable Butcher grabbing the father from behind, who then spins around and they both grapple. Two other offices pull them apart, and once they are separated, Constable Butcher gets revenge by way of his taser, which is, as we know, a deadly weapon, and nearly was in this case.

    So in the short video we see the constable make two errors, one, he jumps into a brawl presumably simply to take part in the violence as he had no chance to suppress the individual he grappled, secondly, he uses his taser for purposes of retribution since by that point the target is being subdued by assisting officers. If the police are looking for someone to blame, blame Constable Butcher, not fundamental principles of law.

  10. Lang Mack
    Posted March 16, 2009 at 3:36 pm | Permalink

    Perhaps it is seen that you cannot be charged for assault if you are only delaying arrest,not actually resisting arrest.

  11. davidp
    Posted March 16, 2009 at 4:21 pm | Permalink

    It seems to me, as a non-lawyer, that the problem is the prosecution’s inability to address the claims raised by the defence.

    The silence of the defendants on their conduct meant that the prosecution was not aware of the defendants’ account of events until they had already finished presenting the prosecution case, and therefore could not address the claims raised.

    Addressing this in some way would be a better solution than attacking the ‘right to silence’.

    This is a generic problem with our legal system, that has had some steps taken to address it (statements of non-disputed facts) but it still seems that the prosecution must address every conceivable argument before hearing any defense argument.

  12. Lang Mack
    Posted March 16, 2009 at 6:30 pm | Permalink

    Lang, I’m not sure about that. The definition of “obstruction” in s 172 includes not only “resisting arrest” but “hindering arrest”, which I would think on its natural meaning would include something like delaying arrest?

    No, I think delaying arrest is more in the interest of the party about to be arrested,and to that party’s advantage, so as to gather their wits with help most likely from advise,that they pay for.As I’m sure some commercial types are working on around about now.Similar to getting a Tax Account to delay your commitment ,and work the angles on the flawed ATO ‘bible’.
    Simple terms may well be Edward Kelly ‘resist and hinder’,Frank Gardiner ‘delay’ albiet he (Gardiner)was smart enough not to return to test the idea..

  13. robert halsey
    Posted March 16, 2009 at 9:24 pm | Permalink

    Overhaul the whole Crown Law dept and start electing our judges.

    Vote in a govt that is prepared to set a minimum of at least 10 years for all who attack policw officers,Customs officers,Para-Medics, Nurses Doctors and teachers.

  14. robert halsey
    Posted March 16, 2009 at 9:27 pm | Permalink

    Elect a govt that is prepared to set a minimum sentence of 10 years without parole for those who attack police,customs, warders paramedics and nurses and doctors

  15. William
    Posted March 17, 2009 at 2:01 am | Permalink

    This is a really sad case. I feel sorry for the officer and his family.

    With that being said, this is ONE case. One case does not justify making a new law. If you allow ONE case to justify creation of a new law you will eventually end up with no freedom.

    I do have to ponder the wisdom of arming police with tasers and the role in which it played in this event. I think all too often it’s use leads to tragic results without an attempt at dialog or fatal intentions.

  16. Posted March 17, 2009 at 2:54 am | Permalink

    DEM, with regard to resisting arrest, the prosecution must prove that the defendant knew that the person seeking to make the arrest was a police officer. I’m presuming that the defence in this case successfully argued that the McLeods did not realise the “attackers” were police officers, and thus were acting in self-defence under a mistaken belief.

    Hmm, the two tone blue uniforms in the video would be a bit of a giveaway, surely?

  17. Nick
    Posted March 18, 2009 at 8:31 pm | Permalink

    AH said: “Although it’s hard to see, video shows the Constable Butcher grabbing the father from behind, who then spins around and they both grapple. Two other offices pull them apart, and once they are separated, Constable Butcher gets revenge by way of his taser, which is, as we know, a deadly weapon, and nearly was in this case.”

    Now come on, look at the video and watch the start of it closely (make sure you go to the ABC link at the top of the page which shows a more extended version of the footage). You clearly see Robert McLeod assaulting Constable Butcher with two very hard upper-cuts to the head area. This is what caused Constable Butcher to pursue him and attempt to place him under arrest WHICH IS HIS RIGHT TO DO – he’d just been assaulted in the execution of his duty!

2 Trackbacks

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