Blum v Director of Public Prosecutions for Western Australia
[2022] WASC 464
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BLUM -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 464
CORAM: LUNDBERG J
HEARD: 22 DECEMBER 2022
DELIVERED : 22 DECEMBER 2022
PUBLISHED : 23 DECEMBER 2022
FILE NO/S: SJA 1065 of 2022
BETWEEN: STEVEN JAMES BLUM
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L KEANE
File Number : BU 2625 - 2628 OF 2021
Catchwords:
Criminal law - Single Judge Appeal - Appeal against conviction and sentence - Use of motor vehicle to ram another vehicle - Unlawfully doing an act as a result of which the life, health or safety of a person was endangered - Reckless driving - Failing to stop - Whether verdicts of guilty were unreasonable or unsupported on the evidence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), pt 2
Criminal Code (WA), s 304(1)(b)
Criminal Procedure Act 2004 (WA), s 75
Magistrates Court Act 2004 (WA), s 31
Road Traffic Act 1974 (WA), ss 55(1), 56(4), 56(6), and 60(1A)(b)
Road Traffic (Miscellaneous) Regulations 2008 (WA), r 5
Result:
Leave granted to amend notice of appeal
Application to adduce further evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person (by video link) |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dansie v The Queen (2022) [2022] HCA 25; 96 ALJR 728
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Gannon v Police (2005) 93 SASR 289
Gardner v Caporn [2005] WASCA 153
Head v Palmer [2013] WASC 213
Law v State of WA [2009] WASCA 193
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Michael v State of WA [2007] WASCA 100
Pallett v Paul [2007] WASC 290
R v Clancy [2022] QCA 162
R v Greer (1992) 62 A Crim R 442
Rawle v Collins [2022] WASC 452
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Shams v Clarson [2002] WASCA 121
State of Western Australia v Maee [2018] WASCA 53
Strahan v Brennan [2014] WASC 190
Vander Waide v State of Western Australia [2019] WASCA 148
LUNDBERG J:
(This judgment was delivered ex temporaneously on 22 December 2022 and has been edited from transcript.)
A. Overview
This is an appeal against convictions for certain offences which were recorded against the appellant after a trial heard over two days before a Magistrate sitting at Bunbury, in conjunction with an appeal against the sentence imposed on the appellant by that Magistrate.[1] The appellant also brings an application in the appeal to adduce further evidence, namely several photographs of vehicles.[2] The appeal and the application are opposed by the respondent.[3]
[1] Notice of Appeal dated 17 August 2022.
[2] Appellant's application dated 23 November 2022 and supporting affidavit of Steven James Blum sworn 23 November 2022.
[3] See the Notice of Respondent's Intention dated 26 August 2022 and the respondent's submissions dated 14 December 2022.
The conduct upon which the charges against the appellant were based may be described as a terrifying and extreme incident of road rage, which has become all too common in modern society. The conduct involved the aggressive and reckless use of a Ford Falcon vehicle in the early hours of Friday, 11 June 2021 on a main road in Bunbury, by which a Toyota Corolla vehicle driven by an innocent member of the public was pursued, then tailgated, rammed from behind, and ultimately forced off the road. There was, according to the findings of the Magistrate below, more than one occasion on which the Toyota vehicle was rammed from behind.
Whether the Magistrate could be satisfied beyond a reasonable doubt the appellant was the driver of the Ford vehicle at the relevant time was the principal issue at trial before her Honour. The driver of the Toyota vehicle, being the only other witness to the events, was at all times quite frank that he could not identify the driver, nor could he be certain about the make and model of the vehicle which rammed him. Given the sudden manner in which the road rage incident unfolded, in the early morning around 2.00am, this was not surprising.
Despite articulating various layers of challenge to the approach taken by, and the decision of, the Magistrate below, and inviting this Court to accept that the Magistrate committed errors of fact and law in numerous respects, I am ultimately not satisfied that those asserted errors are made good. None of the grounds demonstrate sufficient merit to warrant a grant of leave and I propose to order that the application for leave to appeal be dismissed. There is, additionally, no merit in the application to adduce further evidence, and I dismiss that application also.
I should observe that the appellant was unrepresented on this appeal and was unrepresented during the course of the proceedings before the Magistrate. Nevertheless, as will be seen, at both trial and on this appeal the appellant demonstrated a degree of familiarity with a broad range of legal principles and deployed that familiarity in the course of argument before the Magistrate and in his detailed written and oral submissions filed with this Court.
B. Procedural history
The appellant was charged in the Magistrates Court at Bunbury with four offences under the Criminal Code and under the Road Traffic Act 1974 (WA) (RTA), namely:
No. Offence Provision 1 Unlawfully doing an act as a result of which the life, health or safety of a person was endangered (Charge BU 2626/21). s 304(1)(b) Criminal Code 2 Reckless driving (Charge BU 2625/21). s 60(1A)(b) RTA 3 Failing to stop after being involved in an incident where property was damaged (Charge BU 2627/21). s 55(1) RTA 4 Failing to report an accident to the Police (Charge BU 2628/21). s 56(4) RTA
In essential terms it was alleged at trial that the appellant had been driving a vehicle on Friday, 11 June 2021 which he used to ram the rear of another vehicle while both vehicles were in motion. The following matters were alleged by the prosecutor by way of an opening statement at the commencement of the hearing on 15 March 2022:[4]
1.The appellant was driving a white Ford Falcon, with registration number GNG 33469, at approximately 2.00am on Friday 11 June 2021. The appellant was driving in a westerly direction on Robertson Drive in Bunbury.
2.The appellant pulled his vehicle up behind a white Toyota Corolla hatchback, with registration number 1CDW 171. The Toyota was stationary in the left-hand land at a red traffic light, at an intersection. The appellant began flashing his high beams repeatedly and sounding his horn.
3.When the traffic light changed to green the appellant began tailgating the Toyota, with the appellant accelerating and decelerating, varying his distance to the Toyota, using the high beam and horn over the next kilometre.
4.The incident escalated after a short time, with the appellant changing lanes into the right-hand lane, accelerating and pulling up alongside the Toyota momentarily, before slowing and pulling back in behind the Toyota. The appellant continued to drive thereafter in a reckless and intimidatory manner up to the next intersection, causing the victim to fear for his safety.
5.At this stage, the appellant accelerated his vehicle to ram the rear of the Toyota. This caused the Toyota to jolt forward, affecting the driver's ability to control the vehicle. The driver then navigated the left turn of the roundabout onto Bussell Highway and exited the slip lane into the left-hand lane of the highway.
6.The appellant then used his vehicle to ram the rear of the Toyota a second time. The driver of the Toyota braked heavily but was nonetheless forced forward and was unable to steer the Toyota. The Toyota was then pushed forward for around 30 metres and was forced off the side of the road. The Toyota hit a roadworks sign and clipped another signpost, causing damage to the front and rear of the Toyota, and a large oil leak from the sump. The driver of the Toyota was able to drive away from the scene, and then called the Police to report the incident.
7.The appellant stopped his vehicle on the side of Bussell Highway on the verge of the southbound lanes around 100 metres south of the entrance to the South West Health Campus. The appellant exited the vehicle, removed his personal property from the vehicle and walked from the scene. The appellant did not report the incident to the Police. The Police located the Ford Falcon vehicle at the scene and impounded it. The appellant was interviewed by the Police on 16 June 2021 and made admissions that he had driven the vehicle to the location the Police found it, but denied any involvement in the offences.
[4] ts 15/3/22 at pages 15-17.
If established at trial to the requisite standard, the foregoing facts would demonstrate serious and deliberate criminal conduct on the part of the appellant, well and truly capable of grounding the first of the three charges brought against the appellant. As to the charge under s 304(1) of the Criminal Code, Mr Blum contended, at trial and on appeal, that this provision was not capable of application in the present circumstances, that is, in relation to the use of a motor vehicle in the manner alleged. He did so in broad terms by reference to extrinsic material which suggested, at least in Mr Blum’s view, that the provision was intended to apply in only particular circumstances.[5] I reject that contention. There are no words of limitation in the statutory provision and the provision is capable of applying in a broad range of circumstances. Cases such as State of Western Australia v Maee [2018] WASCA 53 (Mazza and Mitchell JJA and Pritchard J) and Vander Waide v State of Western Australia [2019] WASCA 148 (Buss P, Mazza JA and Hall J) provide examples of the manner in which the provision has been applied where motor vehicles have been involved.
[5] During argument before the Magistrate, the appellant referred to extrinsic material concerning the introduction of s 304 and made reference to the offences of failing to provide the necessities of life for children and the offence of infanticide. See ts 15/3/22 at pages 14-15 and 45-46. The appellant repeated this argument on appeal.
The fourth charge, under s 56(4) RTA, was dismissed by the Magistrate. The applicable legislation allows for a defence that the accused had reasonable cause for believing that the total value of the damage did not exceed the amount prescribed for the purposes of the provision and the owner of any property damaged was present or represented at the place where and at the time when, or immediately after, the incident occurred: s 56(6) RTA. At the time of the alleged offence, the prescribed amount was $3,000: regulation 5 of the Road Traffic (Miscellaneous) Regulations 2008 (WA). The Magistrate was not satisfied beyond reasonable doubt that the damage exceeded this amount and implicitly found the appellant had reasonable cause to believe the amount of damage was less than the prescribed value.[6]
[6] ts 28/3/22 at pages 83-84.
The trial itself was conducted in the Magistrates Court at Bunbury on 15 March 2022 and 28 March 2022.
The prosecution called the driver of the Toyota vehicle to testify at trial, together with five Police Officers: Senior Constable Hobson, Sgt. Dixon, 1st Class Constable Worrell, Sgt. Byrne and Senior Constable Mitchell. Each of the prosecution witnesses was cross-examined by the appellant. The appellant himself gave evidence in support of his own defence, and he was cross-examined by the Police Prosecutor.
C. Magistrate's reasons
In the result, at the conclusion of the second day of the trial on 28 March 2022, the Magistrate gave oral reasons for her decision. In substance, the Magistrate found the appellant guilty of the first three charges delineated above and (as noted above) not guilty of the charge of failing to report an accident contrary to s 56(4) RTA.[7]
[7] ts 28/3/22 at page 83-84.
Her Honour's comprehensive reasons run for around 20 pages of the transcript, and traverse the elements of the offences, the orthodox principles applicable to criminal proceedings, the fact the prosecution case was circumstantial given the absence of direct evidence that the appellant was the driver of the Ford vehicle, the credibility of the witnesses and the content of their evidence, particularly the evidence of the appellant himself and the internal inconsistencies in the accounts he gave. Her Honour correctly directed herself in a manner consistent with Liberato v R (1985) 159 CLR 507.
The appellant was found by the Magistrate to have used the vehicle he was driving, a white Ford Falcon, to ram the rear of another vehicle, a white Toyota Corolla, while both vehicles were in motion on Robertson Drive and Bussell Highway in Bunbury. The Magistrate found the incident involved more than one collision and at one point involved the Ford vehicle pushing the Toyota vehicle while both were in motion. Quite significantly, there was, and is, no dispute that the Ford vehicle was owned by and registered to the appellant. The driver of the Toyota vehicle was a stranger to the appellant, and there was no evident catalyst for the conduct. The driver of the Toyota vehicle could not identify the car that struck him, nor the driver. The driver of the Toyota vehicle was terrified during, and as a result of, the incident and feared for his safety.
The changing, indeed somewhat malleable, explanations given by the appellant were of particular interest to the Magistrate, who reviewed the appellant's out of court statements and his in-court statements carefully. The appellant had participated in a video record of interview (ROI) some 5 days after the events occurred. I have reviewed the ROI for the purposes of this appeal. The appellant admitted during the ROI that he had been driving the Ford vehicle proximate to the time of the offences, and admitted that he had parked the Ford vehicle near to the location where it was ultimately found by Police, but he denied driving it at the time of the offence. The Magistrate rejected the appellant's challenge to the admissibility of the ROI.
During the ROI, he proffered an explanation of sorts, which involved the appellant stopping to come to the aid of a person while driving along Bussell Highway, leaving his vehicle unattended, at which time his Ford vehicle was stolen by an unknown person and used in the offence in question. The Magistrate ultimately found this explanation to be implausible.
At trial, the appellant's explanation changed markedly and included notice of an alibi defence. The existence of an acquaintance of the appellant, a Mr Joel Crawford, then became a significant issue at the hearing, and it was contended by the appellant that it was in fact Mr Crawford, and not the appellant, who had driven the vehicle at the time. It was not in dispute that Mr Crawford had died since the events occurred on 11 June 2021. The Magistrate formed the view that the appellant had become 'well-aware' that his original explanation was implausible and he 'became conscious of the fact that he would need to provide an alternative account.' Her Honour regarded the further explanation given by the appellant under oath at trial as being 'strange' and the fact that Mr Crawford was now deceased was 'so convenient as to be far from coincidental'. Ultimately, her Honour rejected the account given by the appellant at trial and, further, was bound to reject the initial explanation as well (save for admissions that had been made), given that the appellant had described that as a 'lie'.
So, in substance, the only issue in contest at the trial before the Magistrate was the identity of the driver of the Ford vehicle. The Magistrate found that the driver of the Toyota vehicle was a credible witness and accepted that the events as described by that driver in his evidence occurred in the manner he described. His evidence was accepted in its entirety, and her Honour noted that it was different in some respects to the prosecutor's opening statement, particularly as to the precise manner in which the collisions between the vehicles unfolded. As I have noted, there was no dispute that the Ford vehicle was owned by the appellant. The Ford vehicle was located at the scene at around 2:00am and was found with damage consistent with being involved in an incident of the kind described by the driver of the Toyota vehicle. That is, the car had been used to ram another vehicle from behind. There was photographic evidence demonstrating the damage to both vehicles, clearly showing the damage to the front of the Ford vehicle and to the rear of the Toyota vehicle.
The Magistrate was well aware that the identity of the driver of the Ford vehicle was in issue in the proceedings, and that the driver of the Toyota vehicle was simply unable to give any meaningful evidence on this issue.
The Magistrate disbelieved the appellant and, having regard to the totality of the evidence, was satisfied that the only reasonable available inference was that the appellant had been the driver of the Ford vehicle during the incident. The appellant was found by the Magistrate to have driven the Ford vehicle in a highly dangerous manner during the course of the events, putting the life, health and safety of the driver of the Toyota vehicle at risk.
Some of the more salient features of the Magistrate's reasons may be summarised as follows:
1.The Magistrate noted that the evidence of the driver of the Toyota vehicle was not entirely consistent with the prosecutor's opening, but ultimately her Honour accepted that the discrepancies were not significant and found that the driver was an honest and reliable witness. Her Honour found that the Toyota vehicle had been rammed from behind on more than one occasion and was effectively pushed along at one point. Eventually, the Toyota vehicle was forced off the road by the contact, and into a roadworks sign. This gave the driver a brief moment to drive away from the scene and call the police. The Toyota vehicle was sufficiently damaged that it had to be written-off.[8]
[8] ts 28/3/22 at page 87.
2.The Magistrate found that the Police located the Ford vehicle, belonging to the appellant, a short time later at the scene. It had damage consistent with being involved in the type of accident described by the driver of the Toyota vehicle. No keys were found in the Ford vehicle and (as can be seen in the photographic evidence which was tendered) there was no indication the vehicle's ignition had been tampered with.[9]
[9] ts 28/3/22 at page 88.
3.The Magistrate found, having regard to the evidence of the Police witnesses, that the appellant was located near the scene, many hours later, in possession of the keys to his Ford vehicle.[10]
[10] ts 28/3/22 at page 88.
4.The Magistrate analysed the accounts given by the appellant in his ROI and during his evidence at trial. In essence, her Honour found that the appellant was making it up as he went along. Significantly, the appellant contended at trial that his account during the ROI was a lie, which he had developed to protect Mr Crawford. The Magistrate found that the account given during the ROI was in any event confusing and implausible. The appellant testified that his second account, given under oath at trial, was the truth. The Magistrate sought to clarify this new account during the appellant's evidence, out of fairness to him.[11]
[11] ts 28/3/22 at page 88-89.
5.The Magistrate found that the second account or explanation given by the appellant during his evidence was merely an alternative constructed story, developed by the appellant once he realised his initial account would not hold water. The Magistrate summarised the second account as follows:[12]
[12] ts 28/3/22 at page 90-92.
Of course, Mr Blum says that he gave that account [being the account on the ROI] after being directed to do so by Joel Crawford, the man who borrowed his car on the night of the incident. That leads me to Mr Blum's evidence from today which I will now go through in some detail. Mr Blum has said that he left his mother's house somewhere, perhaps, around 9.30, 10 o'clock or so. He arrived at the house of Joel Crawford at about 10, 10.30 at night. It may seem like a late hour to go visiting a friend. However, it's noted that it was a Friday night and it's not necessarily unusual and certainly not implausible that Mr Blum would go around to his friend's house at that time.
My note of Mr Blum's account in his evidence-in-chief is that he said a couple of guys came around. He didn't know who they were. That evidence later became that only one other man came around. Mr Blum again said that he did not know who that person was. He said that Ms McDonald, a young girl, arrived. My note is that it was one of the men who asked for a lift to the ATM. I accept my note may be wrong in that regard and, certainly, Mr Blum's later evidence was that it was Ms McDonald who asked for a lift to the ATM. Mr Blum told her - whether it was actually the man in the first instance or Ms McDonald - that he could not do that as he did not have enough fuel. Mr Blum went on to say that Mr Crawford then asked to borrow the car to visit a friend in Bunbury. Mr Blum believed he had a licence.
I note that in the first part of his evidence-in-chief Mr Blum made no reference to there being a discussion of any sort of remuneration, any money exchanging hands or Mr Crawford being told that he needed to put fuel in the car. It seems to me that these details were added at a later stage to answer the fact that it seems entirely implausible and makes no sense that Mr Blum would say that he couldn't drive a person to an ATM because in the - you know, quite late at night, I must say - because he didn't have enough fuel but he would then loan his vehicle to Mr Crawford to drive it to Bunbury some 30 to 40 minutes away.
Mr Blum said that some time later Mr Crawford called to say that the vehicle had run out of fuel at the intersection of Bussell Highway and Robertson Drive where Mr Crawford had left the car. Some time later, around 30 to 60 minutes later, Mr Crawford arrived at the address in a red Hyundai. Mr Blum asked for a lift back to this car with the driver of the red Hyundai whose name Mr Blum did not know. I note that again in this part of Mr Blum's evidence there was no reference to Mr Crawford telling him that there had been a fender bender, a scrape or indeed any sort of incident involving a car. Mr Blum said that the person in the red Hyundai drove him back to the hospital and he looked for his car, that is, Mr Blum looked for his car.
He said at this point - Mr Blum said at this point that he was never provided the exact location. He was just told it was on the side of the road in that area. Mr Blum then said in response to me asking why he did not ask any questions - further questions of the driver of the red Hyundai was that he had been provided by enough - provided with enough information by Mr Crawford to locate the car. But, of course, on Mr Blum's own account he was taken to that location and his car wasn't there and yet he did not consider at that point that he should ask either the driver of the red Hyundai whether he was aware of any other information as to where the car was located and Mr Blum provided all these explanations as to why the driver would not have known but he simply, I note, did not ask nor did he try and call Mr Crawford and ask Mr Crawford for any further information as to where his car was located.
But I return to Mr Blum's account. He says that he rang police in the early hours of Friday morning. He spoke with Sergeant Talbot. He relayed that conversation and when he was advised that he didn't need to really come in until Monday morning, it was not so important as for him to come in now and he was also directed to speak with Capel Police Station which he later did. He was told that the vehicle was probably at a towing yard. He called the towing yard and they didn't have the vehicle. At that time he started to panic thinking it was stolen. He searched for his vehicle, rang the police again and he said that the attending police became irate with him.
This is an incident or an interaction that I heard evidence from the police officer about in respect of police attending at the scene of a potential burglary - no suggestion of Mr Blum having any connection to that - at about 11 o'clock later that morning. It was established some time after this that the car was in fact at Bunbury Towing. Returning to the events of the night, Mr Blum said that when Mr Crawford came back to his house he alluded to the fact that he had no licence. Mr Blum asked the driver of the red Hyundai for a lift and that guy said, “Yes. All right.” Again, no reference to Mr Crawford advising Mr Blum that there had been a fender bender, a scrape or any kind of incident involving Mr Blum's car.
In fact, Mr Blum said – and this is going from my notes so I accept it is not verbatim – that it became clear that Mr Crawford didn't have a licence and what Mr Crawford was that if there was – that if there were any problems, that Mr Blum should tell them the following story and that was the story that Mr Blum then provided in his video record of interview. I made a note at this point of Mr Blum's evidence that by the time he was being interviewed by police he must have known that something serious had happened. He would not be spoken to by police in an interview setting for some sort of minor infraction of the Road Traffic Act. Plus, he knew that his car had been towed, had been removed from the scene.
So it struck me as strange that he would provide this false account protecting Mr Crawford, knowing that he must have been interviewed about something serious. Of course, when this was put to Mr Blum later he said it was because he was afraid of retribution, Mr Crawford being someone, it seems, who has bikie connections and who is quite a scary individual and Mr Blum was concerned about the potential repercussions which is why he perpetuated the lie that Mr Crawford had told him. The fact that Mr Crawford has now died and is not able to give evidence either for the prosecution or the defence seems to be to me to be so convenient as to be far from coincidental.
6.The Magistrate characterised the reliance on Mr Crawford as little more than a convenient alibi or scapegoat. The Magistrate detailed various discrepancies in the appellant's evidence at trial (as to when certain matters were said by Mr Crawford or the appellant during the evening, including as to the payment of money by Mr Crawford and the oddity of agreeing to allow Mr Crawford to take his car, nearly out of fuel, to drive to Bunbury, even though he had apparently given his car to Mr Crawford on a previous occasion and that resulted in an incident of some concern to the appellant) and noted that the appellant's account seem to be developed as the cross-examination progressed. The Magistrate was also conscious that the appellant had testified as to certain mental health issues and raised with him the possibility that the incident happened during a psychotic event. The appellant testified that he felt well on the evening and stated that he did not believe he was the driver.[13]
7.Having traversed the evidence, the Magistrate found that the appellant was not a credible witness in the sense that he was not being honest as to whether he was the driver of the Ford vehicle on the morning in question. The Magistrate found the alternative account proffered by the appellant was implausible and rejected it in its entirety.[14]
8.The Magistrate reviewed the balance of the evidence which had been presented, including the evidence of the Police witnesses, and rejected the challenges to the credibility of the Police witnesses and did not doubt their veracity. Her Honour essentially found that the appellant's Ford vehicle was found near the scene of the incident, found the damage was consistent with that car being involved in the incident described by the driver of the Toyota vehicle, found that the appellant had admitted to Police that he had been driving the Ford vehicle at around the time of the offence and in the area in question, that the appellant admitted he had parked the car at the exact location where it was later found by Police, that the appellant was found later with the keys to the Ford vehicle in his possession, and that there was no evidence the ignition of the Ford vehicle had been tampered with.[15]
9.The Magistrate thus found that it was beyond reasonable doubt that it was the appellant's car which was involved in the collision and concluded that the only available reasonable inference on the evidence was that it was the appellant who was driving that car at that time.[16]
10.The Magistrate then found beyond a reasonable doubt that, given the account of the driver of the Toyota vehicle as to the circumstances of the collision and the event generally, that his safety had been endangered by the incident. Further, the manner of the appellant's driving (repeatedly ramming a vehicle from behind over an extended period of time and over an extended distance) was wilful and deliberate behaviour and was inherently dangerous.[17]
11.The Magistrate also found that the appellant had failed to stop following the incident, although the appellant did contend in submissions that he wasn't able to stop and swap details with the other driver because the other driver had driven off. This factual submission seemed to run counter to the evidence given by the appellant that he was not the driver. In any event, the Magistrate found that the appellant fled the scene after committing an egregious criminal offence rather than remain in order to provide details to a police officer.[18]
[13] ts 28/3/22 at page 92-93.
[14] ts 28/3/22 at page 94-96.
[15] ts 28/3/22 at page 95-97.
[16] ts 28/3/22 at page 96.
[17] ts 28/3/22 at page 97.
[18] ts 28/3/22 at page 98.
The matter was then adjourned for several months for sentencing. On 26 July 2022, the Magistrate passed sentence on the appellant after hearing submissions from the appellant and the prosecutor. The sentences were as follows:
No. Offence Sentence 1 Unlawfully doing an act as a result of which the life, health or safety of a person was endangered, contrary to s 304(1)(b) Criminal Code 15 months' imprisonment 2 Reckless driving, contrary to s 60(1A)(b) RTA Disqualified from holding or obtaining a driver's licence for 6 months 3 Failing to stop after being involved in an incident where property was damaged, contrary to s 55(1) RTA Fine of $750
The Magistrate did not impose any additional penalty for the reckless driving charge as the conduct relevant to that charge was bound up with the conduct on the first charge under the Criminal Code.[19] The Magistrate's approach accords with s 11(1) Sentencing Act 1995 (WA). The disqualification penalty is automatic, though: s 60B(3)(a) RTA.
[19] ts 26/7/2022 at page 14.
D. Notice of appeal
Within the appellant's notice of appeal, three broad challenges to the Magistrate's findings were included, namely a contention that the Magistrate 'made error(s) of law', 'made error(s) of fact', and 'made mixed errors of law and fact'.[20] These grounds were devoid of any particularity. Subsequently, and in accordance with the directions made by Registrar Whitbread on 17 October 2022, the appellant filed detailed written submissions in which he articulated numerous grounds of challenge to the convictions, and to his sentence, through those submissions.
[20] Notice of Appeal dated 17 August 2022.
On its face, the Notice of Appeal does not incorporate a challenge to the conviction for reckless driving, only as against the conviction for unlawfully doing an act as a result of which the life, health or safety of a person was endangered, and the conviction for failing to stop after being involved in an incident where property was damaged. That said, the appellant's submissions include a statement which challenges the reckless driving charge.[21] I raised this issue with the parties during the hearing of the appeal and granted leave to the appellant to include the challenge to his conviction for this offence in the appeal, albeit it was out of time. I did so because the issue was raised in the appellant's submissions filed on 25 November 2022 and because I formed the view there was no evident prejudice to the respondent in granting that leave.
[21] Appellant's submissions [10].
Although the appellant's submissions are comprehensive, they do not delineate the grounds of appeal with any precision. As summarised by the respondent in its submissions,[22] the appellant appears to raise the following wide-ranging complaints in relation to the decision of the Magistrate, although some of them are little more than bald assertions or generic statements without elucidation:
[22] Respondent’s submissions [5].
1.That the decision was unreasonable or unsupported by the evidence.
2.That the Magistrate erred in refusing the appellant's applications to adjourn the trial to obtain further evidence or to compel the attendance of potential witnesses for the prosecution.
3.That the Magistrate erred in admitting into evidence the video recording of the interview conducted between the appellant and Police and photographs of the damage to the complainant's vehicle.
4.That the Magistrate erred in not upholding the appellant's submission that there was no case to answer.
5.That a miscarriage of justice was occasioned by the Magistrate asking questions of witnesses.
6.That the Magistrate erred in refusing to amend one of the charges.
7.That the Magistrate erred in refusing to allow photographs shown by the appellant to the complainant to be admitted into evidence.
8.That the Magistrate erred by failing to give adequate reasons for her decision.
9.That the Magistrate erred in striking out witness summonses issued by the appellant.
10.That the Police Prosecutor erred in failing to call material witnesses.
In addition, the appellant asserts that the sentence imposed was manifestly excessive or amounted to double punishment, and the Magistrate erred in sentencing the appellant on the basis that the appellant was intoxicated at the time of the offences.[23]
[23] Appellant’s submissions [16].
The application for leave to appeal is made under div 2 pt 2 of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act). Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[24] In essence, the ground is required to have a rational and logical prospect of succeeding.[25] If leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.[26]
[24] Criminal Appeals Act s 9(2).
[25] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[26] Criminal Appeals Act s 9(3).
Further, even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[27]
[27] Criminal Appeals Act s 14(2).
E. Application to adduce evidence
I will first deal with the appellant's application to adduce further evidence on the appeal. The appellant seeks leave to include in the evidence the photographs which he had shown to the driver of the Toyota vehicle during the course of the trial. According to the appellant's affidavit sworn 23 November 2022, the photographs apparently show Ford Falcon sedans from a different year to the appellant's vehicle and a trade utility vehicle. There are 7 photographs in total and 4 vehicles depicted. The photographs appear to be taken of vehicles in showrooms.
It is apparent from the transcript these photographs (or some of them) were shown to the driver of the Toyota vehicle during the trial, when cross-examined by the appellant. The photographs were marked for identification and the Magistrate informed the appellant that he could testify regarding the photographs.[28] However, the appellant ultimately did not deal with or explain the photographs when he gave evidence, and so no explanation was given by the appellant at trial as to the origin of the photographs or the vehicles depicted therein. The photographs were never formally tendered.
[28] ts 15/3/22 at page 34.
The thrust of the appellant's contention appears to be that the driver of the Toyota vehicle was unable to exclude the possibility that the types of vehicles in these photographs were the offending vehicle on the morning in question.
The difficulty with the appellant's position is that the driver of the Toyota vehicle was at all times frank that he could not identify the vehicle which rammed him. The Magistrate made this point to the appellant at the time he sought to tender the photographs.[29]
[29] ts 15/3/22 at page 33-34.
This Court has the power to allow additional evidence to be adduced on appeal.[30] However, in my view there is no cogent basis to admit these photographs on the present appeal. I say this for the following reasons:
1.The photographs were sought to be tendered below and were marked for identification. The appellant had an opportunity at trial to adduce this evidence and did not avail himself of that opportunity.
2.There is no evidence as to the provenance of the photographs or the vehicles depicted therein.
3.Fundamentally, the evidence would not assist this Court to determine this appeal given the evidence of the driver of the Toyota vehicle before the Magistrate was that he was simply unable to identify the vehicle which rammed him.[31] The case below was not fought on the basis of the ability of the driver of the Toyota vehicle to correctly identify the offending vehicle - the case was presented on the basis of circumstantial evidence which demonstrated that the vehicle was the car belonging to the appellant and that the only reasonable inference was that he was the driver at the time of the incident. The photographs simply do not assist with any of this analysis.
[30] Criminal Appeals Act s 40(1)(e).
[31] ts 15/3/22 at page 34.
The appellant's application to adduce this additional evidence should therefore be dismissed.
F. Disposition - Conviction
I turn now to the challenges raised by the appellant to the decision of the Magistrate. I will deal with them in the order set out in paragraph 26 above, although the appellant's written submissions deal with the various complaints in a different order. The appellant's written submissions are relatively comprehensive, covering 8 pages, referring to 28 legal authorities and 5 statutes. During his oral address on the appeal the appellant developed some additional points and referred to additional authorities, but my assessment is that those points did not advance matters beyond those raised in his written submissions.
As explained below, the challenges raised by the appellant to the convictions recorded at the conclusion of the trial are without merit. In any event, even if any of the grounds might be decided in the appellant's favour (contrary to my view), there is in any event no substantial miscarriage of justice apparent in the present circumstances.
That the decision was unreasonable or unsupported by the evidence
The appellant contends that the Magistrate's decision to convict him on the charges pursuant to s 304(1)(b) Criminal Code and s 55(1) RTA was unreasonable and cannot be supported having regard to the evidence.[32] The appellant did not, within the notice of appeal expressly challenge the conviction for reckless driving contrary to s 60(1A)(b) RTA, but as I have noted above I granted leave to permit this course.
[32] Appellant's submissions [1].
The appellant's primary criticism, as evident from the first paragraph of his written submissions, was the adequacy of the evidence which demonstrated that he was the driver of the vehicle. The appellant points to the uncertainty of the evidence of the driver of the Toyota vehicle in this regard, referring to the cross-examination at pages 21 to 33 of the transcript (on the first day of trial, 15 March 2022). The appellant also asserts that the 'guilty verdict for the reckless driving offence cannot be supported by the evidence'.[33]
[33] Appellant's submissions [10].
The respondent's submissions reject the appellant's criticisms and summarised the evidence which was admitted below which supports the guilty findings. The respondent drew my attention to the relatively recent decision of the High Court in Dansie v The Queen[34] which addresses the approach to be taken by an appellate court in considering an appeal on the grounds that a verdict in a case relies on the drawing of inferences. The following statements from the High Court in Dansie are instructive:
That is because the function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.[35]
The authoritative guidance to be gained from the joint judgment in M has not diminished with time. M was unanimously affirmed in MFA v The Queen and again in SKA v The Queen, where it was spelt out that the "test set down in M" required a court of criminal appeal to undertake an "independent assessment of the evidence, both as to its sufficiency and its quality" and that consideration of what might be labelled "jury" questions does not lie beyond the scope of that assessment. Coughlan v The Queen illustrates that an independent assessment of the evidence in a case in which the evidence at trial was substantially circumstantial requires the court of criminal appeal itself "to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard" and in so doing to form its own judgment as to whether "the prosecution has failed to exclude an inference consistent with innocence that was reasonably open".[36]
Where the trial has been by judge alone, the reasons of the trial judge must be approached by the court of criminal appeal performing that function with circumspection lest the findings of fact made by the trial judge divert the court from undertaking the requisite independent assessment of the evidence. The court will be required to consider the arguments of the parties in the appeal and will be entitled to treat findings of fact made by the trial judge about which no issue is taken in the appeal as an accurate reflection of so much of the evidence as bore on those findings. But the question for the court in every case will remain whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the trial judge can be taken to have had by reason of having seen and heard the evidence at trial.[37]
[34] Dansie v The Queen (2022) [2022] HCA 25; 96 ALJR 728 (Dansie). The Court was there dealing with an appeal against an intermediate appellate court decision in which it was contended that the court had misinterpreted and misapplied the approach required to be taken in accordance with M v The Queen [1994] HCA 63; (1994) 181 CLR 487, as applied in Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47.
[35] Dansie at [7].
[36] Dansie at [12].
[37] Dansie at [16].
On my assessment of the evidence which was adduced at trial in the Bunbury Magistrates Court, which includes the transcript of the oral evidence of the witnesses, the documentary exhibits and the video ROI, I have formed the view that the appellant's criticism that the guilty findings were unsafe, and cannot be supported on the evidence, should be rejected.
The evidence was clearly capable of supporting findings to the effect that the appellant was the owner of the Ford vehicle (a certificate was tendered demonstrating the vehicle was registered to the appellant and indeed he admitted this on transcript), that he had been driving the vehicle in the vicinity on the morning in question, that he had parked it in the location it was found by Police after the incident, and that he was located in the vicinity some hours later in possession of the keys. The photographs of the Ford vehicle do not show any tampering with the ignition mechanism.[38] The photographs show damage consistent with the incident in question.[39] There was no doubt that the Ford vehicle, which the appellant owned, had been the vehicle which collided with the Toyota vehicle. It was objectively unlikely that another person could have assumed control of the Ford vehicle, driven to another location and then following behind the Toyota vehicle and committing the offences, before leaving the appellant's Ford vehicle, damaged, at the same location.
[38] Exhibit 4.
[39] Exhibit 4.
The only reasonable inference available on the whole of the evidence was that the appellant was driving his Ford vehicle at the time and that he had committed the offences. The evidence included two accounts given by the appellant to demonstrate that he was not the driver. The first was given 5 days after the incident, on a video ROI. The second was proffered at trial, without notice. Both were inherently fanciful and implausible.
As I have earlier said, the appellant's accounts were malleable. The only ring of truth to either account given by the appellant can be found in the first account, given during the video ROI, in which the appellant admitted that he had driven his vehicle on the morning in question in the very location where the incident occurred and parked the vehicle near to the spot the Police later found the vehicle and then impounded it. The appellant tried to resile from these admissions at trial, relying upon a tortured explanation to do so.
The reality is that the appellant was conscious when he first spoke with Police that he had been seen in the vicinity some hours later, that he had his car keys with him, that he knew the vehicle had been found by Police at the location he left it, and he was forced to accept that he had himself driven the vehicle to that location. Of course, the appellant then developed a story by which he left the vehicle and followed a person to provide assistance, in the early hours of a Friday morning, all of which struck me (as it had the Magistrate) as being highly unbelievable.
As I have earlier noted, the criticism of the quality of the evidence of the driver of the Toyota vehicle in terms of the identification of the driver of the offending vehicle can be put to one side. The driver did not purport to give evidence that identified the driver of the other vehicle, much less the type of vehicle that collided with his car. Those criticisms simply miss the point.
The evidence as to the nature and effect of the driving of the Ford vehicle on the morning in question comes from the evidence of the driver of the Toyota vehicle. His evidence was clear and painted a vivid picture of the seriousness of the incident and the manner in which the Ford vehicle was driven.
There is also no room for doubt that the appellant wilfully drove his Ford vehicle into the back of the Toyota vehicle, pushed the Toyota vehicle along the road, and caused the Toyota vehicle to leave the road surface. It is beyond question this conduct was wilful, was inherently dangerous, and that this endangered at least the safety of the driver of the Ford vehicle. Accordingly, it cannot be said that the convictions pursuant to s 304(1)(b) Criminal Code and s 60(1A)(b) RTA were unsupported on the evidence. In my view, the criticism that the Magistrate engaged in some process of 'fact finding by choice' cannot be sustained – the Magistrate examined the evidence in an objective manner and was conscious of the need to avoid simply choosing between competing witnesses or cases.
The final charge on which a conviction was recorded was the failure to stop offence contrary to s 55(1) RTA. The evidence outlined above demonstrates that the appellant left the scene before Police arrived. Properly construed, the obligation under the provision includes an obligation to provide information to a Police Officer, not only to the other driver, so the fact the driver of the Toyota vehicle left the scene does not exculpate the appellant.
As submitted by the respondent, the duty under s 55(4) to provide information to a police officer would be meaningless unless the requirement to stop 'for as long as is necessary to comply with subsection (4)' includes a requirement, at least, to remain at the location for a reasonable time for a police officer to attend and imposes that requirement where it is not possible to provide the information to the person whose property is damaged, or to advise police of the occurrence of the incident.
Accordingly, the broad challenge to the convictions on the grounds they are unsupported by the evidence is without merit.
That the Magistrate erred in refusing an adjournment of the trial
The appellant complains that the Magistrate erred in refusing the appellant's applications to adjourn the trial to obtain further evidence or to compel the attendance of potential witnesses for the prosecution. This complaint appears to focus on the failure by the prosecutor to call a forensic officer on the first day of the trial, and the refusal of the Court to allow an adjournment on the second day to allow the appellant to call an unnamed corroborating witness. The appellant's submissions on this issue are spread across his written submissions, at [2], [4], [17] and [18].
The respondent submits that the forensic officer was not a material witness and, in any event, an adjournment of the trial so this officer could attend was entirely speculative. The respondent points to the fact there were no results of any examinations, as the samples of paint from the cars had not been sent for analysis. Any adjournment would have been futile, according to the respondent.
The respondent further submits that the refusal by the Magistrate to adjourn the proceedings on day 2 to allow the unnamed corroborating witness to attend was not an error. The witness was not named. The appellant had not summonsed the witness. There was no proof that the witness was in COVID isolation as contended by the appellant.
The decision whether to adjourn a proceeding plainly involves an exercise of a discretion. I refer to s 75 of the Criminal Procedure Act 2004 (WA). It is necessary for the appellant to demonstrate a miscarriage of justice in order to succeed on an appeal against a refusal to allow an adjournment.[40] More fundamentally, 'adjournments are not to be granted merely for the asking, still less upon an unreasoned and unjustified demand'.[41] The interests of the community are at stake in criminal proceedings, in addition to interests of the accused. That interest is the prompt disposal of charges of criminal offences, particularly where the accused person is in custody, and especially where the offence is a serious one. 'It undermines the orderly disposal of the work of the courts when trials, particularly criminal trials, are adjourned unnecessarily'.[42]
[40] Pallett v Paul [2007] WASC 290 [118] (Hasluck J).
[41] R vGreer (1992) 62 A Crim R 442 at 448 (Kirby J).
[42] R vGreer (1992) 62 A Crim R 442 at 448 (Kirby J).
In the present matter, I am satisfied the Magistrate's refusal to allow an adjournment on either day 1 or on day 2 of the hearing did not deny the appellant an opportunity of an acquittal, and did not lead to a miscarriage of justice. The absence of a forensic officer to give evidence was immaterial and would have added nothing to the evidentiary material as there had been no forensic analysis conducted. It would simply have delayed the trial. The Magistrate was informed there was no forensic evidence to lead, and correctly refused to adjourn the matter on this basis.
As for the adjournment which was sought on day 2 of the trial, the vague manner in which the appellant articulated the request and the absence of material before the Magistrate (and before this Court) to demonstrate the probative value to the matters in issue of allowing the additional, unnamed witness to give evidence, indicates the request was little more than speculative. Again, it would only have been productive of a delay in the trial. The appellant's position would have been strengthened had he summonsed the witness ahead of the trial, which he had ample opportunity to do, given the proceeding had been adjourned part heard (and the issuing of a summons would have made clear the identity of the witness and assisted the Court to understand their potential relevance to the matters in issue). The appellant has also demonstrated a degree of knowledge of the rules of procedure applicable in Magistrates Court proceedings, so I have little doubt the appellant was aware of the process by which a summons could have been sought.
The appellant's complaint concerning the refusal to adjourn the proceeding, or to insist that a forensic officer be called to give evidence, is without merit and I reject it.
That the Magistrate erred in admitting into evidence the video ROI conducted between the appellant and Police and photographs of the damage to the complainant's vehicle
The appellant raises an issue regarding the admission into evidence of the video ROI and the photographs of the complainant's vehicle.[43]
[43] Appellant's submissions [3], [7] and [8]. See Exhibits 1.1 - 1.8.
As to the video ROI, the appellant complains that the interview 'was not properly contested on a voir dire' and was presented despite the appellant indicating he would not be giving evidence. The appellant also states that the interview was presented and received in evidence at the request of the Magistrate rather than the prosecutor. None of these complaints are substantiated when the transcript is examined. The prosecution led evidence through an officer that the interview was undertaken, and the ROI was played as part of the prosecution case. It was not presented at the request of the Magistrate. Whether or not the appellant was going to testify or not was also irrelevant to the admission of the ROI.
Further, the evidence led before the Magistrate and the circumstances which are apparent from the ROI itself make it plain that there is simply no basis to sensibly contend the interview was conducted in a circumstance of unfairness to the appellant. The appellant was cautioned and participated in the interview willingly. There is no error apparent in the Magistrate's approach to the admission of the ROI.[44]
[44] ts 15/3/22 at page 42-44.
The appellant contends that the Magistrate erred by improperly admitting the photographs into evidence at the primary hearing.[45] The appellant contends that it was improper for the Magistrate to admit the photographs into evidence, because it was not the witness who personally took the photographs of his car.[46] The appellant contends, therefore, that the Magistrate made an error of law by admitting the photographs into evidence at the hearing.
[45] Appellant's submissions [7] – [8].
[46] Appellant's submissions [8].
The respondent submits that there is no requirement that photograph evidence can only be tendered by the person who took the photographs, and, in any event, the respondent submits that the witness identified the vehicle depicted in the photographs and confirmed that the damage shown in the photographs was caused during the incident.[47]
[47] Respondent's submissions [38].
The argument raised by the appellant has no merit. The photographs were capable of being tendered other than through the person who took the photographs, having regard to the additional evidence which was led through the driver and owner of the vehicle to explain the contents of the photographs. Even if there is an error demonstrated in this regard, there is no substantial miscarriage of justice on this basis alone.
That the Magistrate erred in not upholding the appellant's submission that there was no case to answer
The appellant contends that he was denied procedural fairness in that the Magistrate rejected his 'no case to answer' submission.[48] The appellant indicated before the close of the prosecution case that he intended to make a no case submission.
[48] Appellant's submissions [5].
The Magistrate indicated that such an application 'will not be successful' and explained why that was the case. As matters transpired, the appellant did not make such a submission at the close of the prosecution case.[49] The Magistrate explained the position as follows:[50]
All inferences that are available to be drawn should be drawn in favour of the prosecution case. In other words, where I'm looking at evidence – and it could go either way – I'm to draw all of those inferences, all of those conclusions, in favour of - - - the prosecution and if I do that, Mr Blum, I have a car registered to you involved in an incident, as described by the complainant, in circumstances where you admit to being in the vehicle at about that time, in about that area, in fact, that exact area at one point, and that you had the keys.
that is what is currently available on the prosecution case. So if I draw all of the inferences in favour of the prosecution case on the basis of those matters I've just outlined, there is a case …
[49] ts 28/3/22 at page 8 and 37-38.
[50] ts 28/3/2022 at page 8.
The respondent observes that there is no appeal from a decision to refuse to uphold a decision that there is no case to answer.[51] The respondent contends that, rather, the question to be decided is whether the refusal to uphold the appellant's 'no case to answer' submission resulted in a miscarriage of justice, as the appeal is properly against the conviction.[52]
[51] Respondent's submissions [39] citing Davis v The Queen (1990) 5 WAR 269, 271 (Malcolm CJ).
[52] Respondent's submissions [39].
In my view, the argument raised by the appellant has no merit. This ground fails in its entirety. The Magistrate correctly approached the issue in accordance with accepted principle, that is whether the evidence in respect of every element of the offence, 'considered at its strongest from the point of view of the prosecution' and on the assumption that all inferences that are reasonably open are drawn, the evidence is capable of proving the guilt of the accused.[53]
That a miscarriage of justice was occasioned by the Magistrate asking questions of witnesses
[53] Respondent's submissions [40].
The appellant contends that the Magistrate 'donned the mantle of the prosecutor',[54] because her Honour asked questions of the witnesses[55] and 'interjected with the cross examination of a witness.'[56]
[54] Appellant submissions [7].
[55] Appellant submissions [7], [22].
[56] Appellant submissions [12].
The respondent submits that while the Magistrate did ask questions of the witness, they were by way of clarifying the witnesses' evidence or questions asked of the witnesses. The respondent submits that the questions asked by the Magistrate were not of the nature or extent considered in cases such as R v Mawson[57] or R v Sharp,[58] nor were they of a nature so as to give rise to an apprehended bias.[59] The respondent submits, therefore, that none of the questioning was improper.[60]
[57] [1967] VR 205.
[58] [1994] QB 261.
[59] Respondent submissions [47].
[60] Respondent submissions [44].
This challenge has no merit and I reject the criticisms of the Magistrate which are raised by the appellant. The Magistrate intervened on a limited number of occasions during the hearing, in order to assist the questioning, to clarify matters with a witness and to ensure the trial proceeded in a fair manner. The approach taken by the Magistrate cannot be described as excessive or unfair and indeed, showed a patient approach during the course of the two-day hearing. There was no departure from the due and orderly processes so as to amount to a miscarriage of justice.[61]
That the Magistrate erred in refusing to amend one of the charges
[61] Head v Palmer [2013] WASC 213 [22] (McKechnie J). See also Michael v State of WA [2007] WASCA 100 [75] and R v Clancy [2022] QCA 162 [20]-[24] (McMurdo and Flanagan JJA and Beech AJA).
The appellant contends that the Magistrate erred by refusing to amend charge BU 2626/2021, particularly, without hearing the appellant's full submissions.[62] This is the charge brought pursuant to s 304(1)(b) of the Criminal Code.[63]
[62] Appellant's submissions [9].
[63] The appellant’s concern in this regard appears to have arisen out of his view that s 304(1)(b) Criminal Code could not be deployed in circumstances involving the use of a motor vehicle, which point I have dealt with above at paragraph 8 of these reasons.
The respondent submits in response that there is no power to amend a charge at the request of an accused,[64] and that it is a matter for the prosecutor to determine what charges will be brought against an accused and how the charge will be proved.[65]
[64] Respondent's submissions [49].
[65] Respondent's submissions [50].
The complaint is without merit. Section 132(3) of the Criminal Procedure Act 2004 (WA) allows the Court to amend a charge on the application of a prosecutor. There are no other relevant powers which would allow a defendant in proceedings such as these to apply to amend the charges. Indeed, it would be remarkable if such a course were permitted. The Magistrate was correct to allow the prosecution to proceed to trial on the charge as drafted and, as the Magistrate found on the totality of the evidence, the charge was ultimately found to be proven beyond reasonable doubt.
That the Magistrate erred in refusing to allow photographs shown by the appellant to the complainant to be admitted into evidence
This challenge is somewhat puzzling given the appellant did not seek to tender or explain the photographs when he testified. He had the opportunity to do so. I have already dealt with the appellant's application on this appeal to admit these photographs into evidence and explained why I reject that application. The appellant's complaint in this regard simply goes nowhere and continues to miss the point that the driver of the Toyota vehicle was not in a position to identify the vehicle which collided with him, from the rear, without notice, and in the darkness of a Bunbury morning at around 2.00am.
That the Magistrate erred by failing to give adequate reasons
The appellant asserts in his written submissions that a Magistrate must give adequate reasons, and the failure to do so is an error of law. The appellant makes reference to Shams v Clarson [2002] WASCA 121 [18]-[19], and to Gannon v Police (2005) 93 SASR 289 (White J). No granularity or detail in support of this submission is included in the appellant's submissions.
In response, the respondent draws attention to s 31 of the Magistrates Court Act 2004 (WA). Section 31 provides:
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
The respondent also refers to the statement by Martin CJ in Strahan v Brennan [2014] WASC 190 at [89]-[92] to the effect that a Magistrate's reasons must disclose the underlying intellectual process which has given rise to the conclusions therein. The respondent submits that the Magistrate's decision in the present case satisfies the requirements of s 31 and demonstrates that her Honour correctly directed herself as to the burden and standard of proof. The respondent submits that the Magistrate correctly directed herself as to the process of drawing inferences adverse to the appellant, gave reasons for her findings, including for rejecting the evidence of the appellant.[66]
[66] Respondent's submissions [64]-[66].
It is relevant to observe, as Forrester J recently did, that an appeal court should not be overly critical of the reasons given by a Magistrate, or to infer from infelicity of language that error is thereby demonstrated, given the volume and pace of the workload of a Magistrate.[67]
[67] Rawle v Collins[2022] WASC 452 [49] (Forrester J), citing Gardner v Caporn [2005] WASCA 153 [59] (Roberts-Smith JA) and Rundle v Innerd [2015] WASC 340 [117] (Jenkins J).
As I have demonstrated earlier in these reasons, the Magistrate undertook a detailed analysis of the evidence before her and provided comprehensive reasons. There can be no complaint that the Magistrate failed to disclose the underlying intellectual process which gave rise to the conclusions she reached. The Magistrate detailed her approach to the evidence and the legal issues and explained why she reached the conclusions on credibility issues and also as to the drawing of inferences. The appellant's criticism of the Magistrate, to the effect that her Honour failed to give adequate reasons, is without merit and I reject it.
That the Magistrate erred in striking out witness summonses issued by the appellant
A number of witness summons were obtained by the appellant in the lead up to the trial.
The appellant arranged for witness summonses to be issued to require production of a copy of 'telephone call recordings to Bunbury Police Station' made by the appellant the day after the offences.[68] The Magistrate struck out the summons on the basis the appellant had not established a legitimate forensic purpose for the telephone call.[69] The Magistrate was correct to do so. The discussion between the appellant and the officer who called him regarding the fact his vehicle had been located and impounded was not likely to be relevant to any matter in the prosecution case or by way of defence. It was simply immaterial.
[68] ts 15/3/22 at pages 3 and 5.
[69] ts 15/3/22 at page 7.
The appellant also arranged for a witness summons to be issued to produce 'the acts on camera footage of the discussion and breathalyser, et cetera' of the driver of the Toyota vehicle.[70] There was no evidence before the Court that such footage existed. As the defence position, as explained to the Magistrate, was focused on the issue of identity, the Magistrate struck out the summons as having no legitimate forensic purpose.[71] It was little more than a fishing expedition by the appellant.
[70] ts 15/3/22 at page 7.
[71] ts 15/3/22 at page 9-10.
The appellant also summonsed three Police Officers to give evidence at the hearing. The Magistrate struck out these summonses at the conclusion of the first day of the trial.[72] The interchange between the Court and the appellant as to the relevance of the summons indicated to the Magistrate that the evidence the appellant intended to adduce from the witnesses was not relevant.[73] This included the possibility of adducing forensic evidence from a forensic officer, yet the position was that no forensic examination or sampling had been undertaken.
[72] ts 15/3/22 at page 87.
[73] ts 15/3/22 at page 87-89.
The Magistrate was correct to cancel these witness summonses. Even if her Honour has erred in cancelling the witness summonses, the appellant has not demonstrated how this has occasioned a miscarriage of justice.
G. Disposition - Sentence
The appellant's challenge to the sentences imposed is not easy to follow. The challenge appears to include a complaint concerning the sentence for reckless driving (which he says was manifestly excessive) and a criticism as to whether the appellant was affected by drugs on the occasion, and how this impacted his sentence. The appellant asserts that he has been unfairly punished for each offence.[74] I have allowed the appellant leave to include in the appeal a challenge to the conviction for reckless driving and will approach the appellant's appeal as to sentence on the basis that he complains about the sentences imposed for all three offences for which he was convicted.
[74] Appellant's submissions [6] and [16].
The Magistrate correctly recognised that there were common factual elements to the offences of unlawfully endangering life, health or safety and reckless driving. Quite properly, her Honour imposed no penalty for the reckless driving, other than the mandatory disqualification from holding a driver's licence. There can be no valid criticism of this approach. There is similarly no valid basis to challenge the imposition of a $750 fine for the appellant's offence of failing to stop contrary to s 55(1) RTA.
Further, the appellant's complaint concerning his intoxication does not demonstrate any error in the Magistrate's exercise of the sentencing discretion. The fact of intoxication was not relied upon by the prosecution as an aggravating feature, and its absence was not relied upon by the appellant as a mitigating feature. Accordingly, there was no need for the Court to determine this issue.[75]
[75] The respondent referred to Law v State of WA [2009] WASCA 193 [29]-[34] (Buss JA) in this regard.
I note the Magistrate observed that it was 'much more likely' that the appellant had engaged in illicit substance use at some point. However, this comment was made in the context that the appellant has a history of psychotic episodes which were drug related and whether the appellant was not taking his prescribed medication. Importantly, this was not a finding to the effect the appellant was intoxicated at the time of the offence. The respondent submitted, correctly in my view that this comment was 'made in the context of the appellant having been found to have committed a very serious offence, for which there was no apparent explanation, where the appellant did not have a history of similar offending and very few of his prior offences contained any element of violence'.[76] The Magistrate did not regard the appellant's substance use as an aggravating factor, only as a possible explanation.
[76] Respondent's submissions [78].
In my view, the Magistrate was correct to form the view that the only appropriate sentence for the offence of unlawful act endangering life, health or safety was a sentence of imprisonment. I have described the conduct earlier in these reasons. It was a terrifying and serious offence, upon an innocent member of the public, without any catalyst or precipitating conduct, which involved a serious risk of harm to that person. The Magistrate had regard to the appellant's mental health, noted that it was exacerbated by the appellant's ongoing use of drugs.[77] As the respondent notes, there was no mitigation in this case for youth, prior good character, or a plea of guilty.
[77] ts 26/7/22 at page 17-18.
I cannot discern any specific error on the part of the Magistrate in the sentencing process, but must also consider whether the sentence imposed may involve an implied error, in the sense of being manifestly excessive. In this regard, I must be conscious of the need to avoid simply substituting my opinion for that of the sentencing Magistrate merely because I would have exercised the discretion in a different manner. I refer to the statement of the Court of Appeal in Allen v State of WA [2017] WASCA 203 at [66] (Buss P, Mazza and Mitchell JJA):[78]
The rule against appellate courts 'tinkering' with sentences is a corollary of the need for the sentence imposed to be unreasonable or plainly unjust before error of principle can be inferred from the result. It may also be regarded as a corollary of recognising that 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice' and that there is no single unique correct sentence.
[78] Referring to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
Although it may be said the sentence of 15 months' imprisonment is a significant sentence for the offence under s 304(1) Criminal Code, I am not satisfied it can be characterised as manifestly excessive, particularly when one examines the serious nature of the conduct, the time of night it occurred, the effect on the victim, the need for protection of the community, and the need for general deterrence in matters of this nature. I therefore reject the challenge to the sentencing discretion as exercised by the Magistrate.
H. Orders
For the foregoing reasons, I will dismiss the appellant's application to adduce further evidence and refuse the appellant leave to appeal against the convictions recorded by the Magistrate for Charges BU2625/2021, BU 2626/2021 and BU 2627/2021, and in respect of the sentences imposed by the Magistrate.
I will make formal orders to the effect that:
(1)The appellant have leave to amend the notice of appeal to include an appeal against the conviction recorded (and the sentence imposed) for the offence under s 60(1A)(b) RTA.
(2)The appellant's application to adduce further evidence is dismissed.
(3)Leave to appeal be refused.
(4)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SAO
Associate to the Honourable Justice Lundberg
23 DECEMBER 2022
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