Alkaisi v WA Police
[2024] WASC 511
•17 DECEMBER 2024
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 officer placed her under a requirement to accompany him to the Exmouth Police Station to provide a sample of oral fluid for analysis. The appellant refused. She was charged that, contrary to s 67AB(1)(a) of the RTA, she failed to comply with a requirement that she accompany a police officer to Exmouth Police Station to provide a sample of oral fluid for analysis, pursuant to s 66D of the RTA.
The appellant sought to defend the trial on the basis that she had a substantial reason for failing to comply, pursuant to s 67AB(5) of the RTA. She further contended that the police officer had not used an approved device in conducting the preliminary test and thus the requirement pursuant to s 66D(1) of the RTA was invalid.
The sole witness for the prosecution gave evidence that he used a 'Securetec Twin Combo' test kit to conduct the preliminary test.[1] He gave evidence that he was an authorised drug tester, and a certificate was tendered.[2] He also agreed that he was an authorised drug tester in relation to the 'Securetec Drug Drugwipe II Twin Combo' and a certificate was tendered to that effect.[3]
[1] Transcript, WA Police v Alia Abdul-Hassan Abdul-Jalil Alkaisi, Magistrates Court of Western Australia, 24 July 2024, 12 (ts).
[2] Exhibit 1; ts 14.
[3] Exhibit 2; ts 14.
The prosecution tendered an extract of the Government Gazette which the officer said identified that the Securetec Twin Combo was an approved device, together with the 'drug driving regulations', namely the Road Traffic (Drug Driving) Regulations 2007 (WA).[4]
[4] Exhibit 3; ts 14.
In cross-examination, the police officer confirmed that a photograph shown to him was of the same make of kit which he used on the day. That was a picture of a kit with the label 'Drugwipe II Twin'. The brand on the package was 'Securetec'.[5]
[5] Exhibit 4.
In her evidence the appellant focussed for some time on irrelevant sections of the RTA to claim that the preliminary test was not lawfully conducted.
She then raised an issue as to whether the appropriate device was used to conduct the test. She argued that a Securetec Twin Combo (which the officer had said was used) was not the same as a Drugwipe II Twin, one of which was shown in the photograph which was Exhibit 4. She also contended that the Government Gazette tendered by the prosecution showed that the previous approval for the Drugwipe II Twin had been revoked on 15 September 2017 and therefore the police officer had not used a valid test.
There was some discussion about whether the appellant was required to have cross‑examined the officer as to whether he had used an obsolete test but ultimately his Honour accepted as an exhibit an incomplete copy of the Government Gazette dated 17 October 2007[6] from the appellant.
[6] Western Australia, Government Gazette, No 218 (17 October 2007) 5605.
In his reasons, the learned magistrate found that:
[T]he clear evidence of the officer is he mentioned in his evidence very clearly, referred to the very equipment used as the Securetec Drugwipe II Twin Combo. Now – so that was his evidence. It was not challenged on the fact that that was the relevant device.
…
So, really, what is relied upon is simply an absence of the word, 'Combo', on the outside packaging, even though it does have Securetec rather than the obsolete approval not mentioning Securetec. So it, in my view, is speculative at most, as to whether the device used for the preliminary testing was the relevant one, and I am satisfied beyond reasonable doubt that it was.[7]
[7] ts 56 - 57.
His Honour then convicted the appellant.
Grounds of appeal
The grounds of appeal are, in effect:
1.There was a miscarriage of justice in that the learned magistrate failed to consider medical evidence that the appellant is medically fit to drive whilst on dexamphetamine.
2.The learned magistrate failed to consider the appellant's previous 'traumatic and unlawful encounters with the police' as a valid reason for failing to provide an oral sample.
3.The police did not use an approved device, and the preliminary test upon which the requirement was based was therefore invalid.
4.The learned magistrate failed to properly consider the appellant's defence.
5.The verdict was unreasonable and unsupported by the evidence.
The respondent concedes that ground 3, and thus ground 5, have been made out and that, as a result, the conviction and sentence should be set aside.
Disposition
The legal principles applicable to an appeal against conviction in the Magistrates Court are well settled and need not be repeated here.
Ground 3
The prosecution accepted that, in order for the police officer to validly require the appellant to accompany him to the police station to provide a sample of oral fluid pursuant to s 66D of the RTA, the appellant first had to have undergone a preliminary oral fluid test using an approved device.
An approved device was a device of a type approved by the Minister under s 72(2)(d) of the RTA for the purpose of providing a preliminary indication of the presence of prescribed illicit drugs in the oral fluid.
Exhibit 3, being the extract of the Government Gazette dated 15 September 2017 tendered by the prosecution to prove the device used was an approved device, read as follows:
ROAD TRAFFIC ACT 1974
ROAD TRAFFIC (APPROVED DEVICE) NOTICE 2017
Made by the Minister under section 72(2)(c) of the Act.
1.Citation
This notice is the Road Traffic (Approved Device) Notice 2017.
2.Commencement
This notice comes into operation as follows -
(a)clause 1 and 2 – on the day on which this notice is published in the Gazette;
(b)clause 3 and 4 – on the day following the day on which this notice is published in the Gazette.
3.Previous Approval Revoked
Under subsection 72(2) of the Road Traffic Act 1974 I revoke the Road Traffic (Approved Device) Notice 2007 which is gazetted on page 5605 of the Government Gazette dated 17 October 2007.
4.Device Approved
The SECURETEC DRUGWIPE II TWIN COMBO is approved as a type of device for the purposes of conducting drug testing of a sample of a person's oral fluid for the purposes of the Road Traffic Act 1974 section 66D.
The Notice provides that, pursuant to s 72(2)(c), the Securetec Drugwipe II Twin Combo was an approved device for a test conducted pursuant to s 66D of the RTA. However, the preliminary test conducted in this case, and which the appellant alleged was invalid, was a test conducted pursuant to s 66C of the RTA. The approval of the device for that test was required to be given pursuant to s 72(2)(d). Accordingly, Exhibit 3 did not establish that the Securetec Drugwipe II Twin Combo was an approved device for the purposes of a preliminary test.
At trial, the appellant argued that the officer's evidence in cross‑examination established that he did not use the Securetec Drugwipe II Twin Combo, but instead the Drugwipe II Twin, and that the approval for that device to be used had revoked by cl 3 of the Notice.
However, the appellant had misunderstood the revocation. The Road Traffic (Approved Device) Notice 2007 which was gazetted on page 5605 of the Government Gazette dated 17 October 2007 approved the Cozart Drug Detection System as an approved device for testing of a person's oral fluid for the purposes of s 66D of the RTA. It was that approval which was revoked by the notice dated 15 September 2017.
Exhibit 6, tendered by the appellant, had been highlighted by her at page 5606. That page contained a further notice, approving the 'Drugwipe II Twin TCH/MET' device as a type of device for the purposes of conducting preliminary oral fluid tests for the purposes of s 66C of the RTA. That notice was not revoked by the Notice tendered as Exhibit 3 and has not been revoked to this date.
In any event, the learned magistrate rejected the appellant's submission that the device the officer said he used in the preliminary test was a different test to that shown in Exhibit 4 and specifically found that the police officer had used the Securetec Drugwipe II Twin Combo.
His Honour then went on to convict the appellant. However, he did so without addressing, as a matter of law, whether the test the officer said he had used, and which his Honour found the officer had used, was in fact an approved test for the purposes of s 66C of the RTA.
In this regard, the learned magistrate apparently relied upon the prosecution having tendered the correct notice under the RTA to the effect that the Securetec Drugwipe II Twin Combo was the relevant approved device. Unfortunately, the prosecution had tendered the incorrect notice and the device was not, as a matter of law, an approved device for the relevant test.
It is entirely possible that the police officer who gave evidence was correct in cross‑examination when he said Exhibit 4 was an image of the test that he used and was in fact incorrect in his evidence in chief when he named that test as the Securetec Drugwipe II Twin Combo. However, the learned magistrate having found that the witness had correctly named the test, as a matter of law it was not open to him to convict the appellant.
Ground 5
On an independent assessment of the evidence, I am not satisfied that the evidence, as given, was capable of proving beyond reasonable doubt that the police officer used an approved device to conduct the preliminary test. This is because the officer in his evidence was equivocal as to which device he used.
In the circumstances, therefore, ground 5, which asserts that the verdict was unreasonable and unsupported by the evidence, must be upheld.
While it is not necessary to deal with grounds 1 and 2, I will do so briefly.
Grounds 1 and 2
It is convenient to deal with these grounds together.
The appellant complains that there was a miscarriage of justice in that, in considering whether the appellant had a substantial reason to fail to comply with the requirement to accompany the officer to the police station to provide a sample of oral fluid, the learned magistrate failed to consider medical evidence that she is:
[M]edically fit to drive while on dexamphetamine. My licence explicitly states that I am fit to drive on this medication.
It was not in dispute that the appellant had failed to comply with the requirement. However, s 67AB(5) of the RTA provides:
It is a defence to a prosecution for an offence against this section if the accused satisfied the court that there was some substantial reason for the accused's failure to comply other than a desire to avoid providing information that might be used as evidence.
In Riley v Eason,[8] Owen J held that no reason can be adjudged a substantial one unless the person from whom the sample is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health. The circumstances of this case give me no cause to consider that test to be inapposite.
[8] Riley v Eason (1993) 19 MVR 478.
Even if it be accepted that the appellant was fit to drive on dexamphetamine, that fact could not be a substantial reason for her failure to comply with the requirement. She was not physically or mentally incapable of complying with the requirement. Her refusal was, in essence, a desire to avoid providing information that might be used as evidence, albeit she expressed it as a desire to avoid it being misused.
The appellant cites a previous traumatic encounter with police for her failure to comply, saying that a previous sample was 'tampered with'. It appears from the appellant's evidence that on that occasion the appellant was acquitted.[9] She also claims that her 'previous four cases … have been acquitted or thrown out'.[10] However, she did not say that she was unable to comply with the requirement. She said she was unwilling to do so.
[9] ts 25 ‑ 26.
[10] ts 47 ‑ 48.
The appellant did not provide sufficient detail of her previous cases for me to understand what she was charged with or why she was, as she claims, acquitted, on those occasions. However, dexamphetamine is not a 'prescribed illicit drug'.[11] There is nothing before me which suggests that, if the appellant complied with the requirements of the police, she would not then be free to go about her business.
[11] Road Traffic (Drug Driving) Regulations 2007 (WA) r 3.
The onus of proof on this issue at trial was on the appellant. On the basis of the available evidence, the learned magistrate was entitled to find that there was no substantial reason for her failure to comply with the requirement on this occasion.
Orders
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The conviction, sentence and costs order are set aside and in lieu thereof a judgment of acquittal is entered.
4.I will hear further from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Forrester
8 JANUARY 2025
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