Alkaisi v WA Police - [2024] WASC 511

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ALKAISI -v- WA POLICE [2024] WASC 511
CORAM:   FORRESTER J
HEARD:   17 DECEMBER 2024
DELIVERED          :   17 DECEMBER 2024
FILE NO/S:   SJA 1047 of 2024
BETWEEN:   ALIA ABDUL-HASSAN ABDUL-JALIL ALKAISI
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
For File No:   SJA 1047 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B TYERS
File Number            :   EX 62 of 2023

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Failure to comply with requirement to accompany police to police station pursuant to s 66D of the Road Traffic Act 1974 (WA) - Whether police first used testing device approved under s 72(2)(d) of Road Traffic Act 1974 (WA) - Whether error of law - Whether there was a failure to consider medical evidence that the motorist was medically fit to drive after using dexamphetamine - Whether verdict was unreasonable and unsupported by the evidence

Legislation:

Road Traffic Act 1974 (WA)
Road Traffic (Drug Driving) Regulations 2007 (WA)

Result:

Appeal allowed
Conviction and sentence set aside
Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	Ms A Kildea

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Riley v Eason (1993) 19 MVR 478

FORRESTER J:

(This judgment was delivered extemporaneously on 17 December 2024 and has been lightly edited from the transcript).

Introduction

In this matter the trial commenced in the Exmouth Magistrates Court shortly before 3.45 pm. When it was called on, the only prosecution witness had left for the day and had to be recalled. That witness was, it appears, either insufficiently prepared or alternatively, the case was always doomed to fail. The accused was stressed, operating under a considerable misapprehension as to the applicable law, and self‑represented. The trial had previously been listed to proceed twice before, but had not been reached, meaning there was substantial pressure to proceed. In those difficult conditions, it is perhaps unsurprising that the trial proceeded in a less than ideal manner.
On 5 August 2024, the appellant filed an appeal against her conviction and sentence. The respondent has now conceded that the appeal should be allowed.
For the reasons which follow, the respondent's concession was properly made. The appeal is allowed, the conviction and sentence are set aside and a judgment of acquittal is entered.

Proceedings in Magistrates Court

On 24 July 2024, the matter came on for trial. In the following summary of the trial, I will only refer to those parts necessary to dispose of this appeal.
It was common ground that on 22 April 2023 the appellant was driving in Exmouth and was stopped by police. She was required to, and did, provide a sample of oral fluid for a preliminary drug test pursuant to s 66C(1) of the Road Traffic Act 1974 (WA) (RTA). As a result of that test, pursuant to s 66D(1) of the RTA, the police…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASC 511
Decision Date: 17 DECEMBER 2024

CaseChat Overview and Summary

In the case of Alkaisi v WA Police, the appellant challenged his conviction for failing to comply with a police officer's direction to accompany him to a police station for the purpose of a breath test. The respondent, the State of Western Australia, defended the conviction based on the appellant's refusal to provide a breath sample after being found in possession of a quantity of dexamphetamine. The appeal was heard in the Supreme Court of Western Australia.

The central legal issue was whether the trial judge had erred in concluding that the appellant had failed to comply with a direction to accompany the police officer to the station. A critical point of contention was whether the police officer had first used a testing device approved under section 72(2)(d) of the Road Traffic Act 1974 (WA) before directing the appellant to accompany them to the police station. Additionally, the court considered whether the trial judge had failed to appropriately consider medical evidence suggesting that the appellant was medically fit to drive after using dexamphetamine, and whether this omission rendered the verdict unreasonable and unsupported by the evidence.

The court found that the trial judge had indeed erred in his assessment of the police officer's compliance with the statutory requirement to use an approved testing device before directing the appellant to the police station. The court held that the failure to use the approved device before issuing the direction was a material error of law. Furthermore, the court determined that the trial judge had not adequately considered the medical evidence presented, which was relevant to the appellant's fitness to drive. As a result, the court concluded that the verdict was unreasonable and not supported by the evidence. The appeal was thus allowed, and the conviction was quashed.

The court ordered that the conviction be quashed and remitted the matter to the Magistrates Court for rehearing, with specific directions for the trial judge to consider the medical evidence and the proper use of the approved testing device.

Orders