Bonifacio v Dalgreen - [2022] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BONIFACIO -v- DALGREEN [2022] WASC 4
CORAM:   SOLOMON J
HEARD:   15 NOVEMBER 2021
DELIVERED          :   12 JANUARY 2022
FILE NO/S:   SJA 1039 of 2021
BETWEEN:   JACK EDWARD BONIFACIO
Appellant
AND
RYAN DALGREEN
Respondent

ON APPEAL FROM:
For File No:   SJA 1039 of 2021
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B P MAHON
File Number            :   AR 6774/2020

Catchwords:

Criminal law - Appeal against sentence - Use of mobile phone whilst driving a vehicle - Alleged use of alarm clock - Evidence of police officers - Extraordinary drivers licence

Legislation:

Criminal Appeals Act 2004 (WA), s 9
Road Traffic Code 2000 (WA), r 265, r 265(1), r 265(2)

Result:

Leave to appeal denied on both grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	H T Gawley
Respondent	:	J J E Perera

Solicitors:

Appellant	:	Holborn Lenhoff Massey
Respondent	:	State Solicitor's Office

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

Koushappis v The State of Western Australia [2007] WASCA 26
Webb v Tang [2021] WASC 344

SOLOMON J:

Regulation 265(2) of the Road Traffic Code 2000 (WA) provides that a driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked. Regulation 265(1) defines 'use' to include holding the phone or operating any function of the phone.
The appellant was convicted of a contravention of reg 265(2) in the Magistrates Court at Armadale on 9 June 2021. Pursuant to Part 2 Division 2 of the Criminal Appeals Act 2004 (WA), the appellant in this application seeks to appeal against his conviction.
The nub of the appellant's defence before the learned magistrate was that he was not using a mobile phone. Rather, he was turning off the alarm on an alarm clock which he had removed from his work bag on his way to work that morning as a concreter.

Evidence at trial

In the Magistrates Court, the prosecution led evidence from two police officers, Senior Constable Ryan Dalgreen and Constable Luke Kirkham. The appellant gave evidence in his own defence. The following evidence emerged before the learned magistrate.
On 20 March 2020 at approximately 6.46 am the appellant was driving a vehicle at the intersection of Holmes Street, Amherst Road and Warton Road in Canning Vale, which is controlled by traffic lights. The appellant was turning right into Warton Road from Holmes Street.
Senior Constable Dalgreen and Constable Kirkham were in a stationary marked police vehicle waiting at the lights at Warton Road. Senior Constable Dalgreen was driving and Constable Kirkham was in the front passenger seat. The police vehicle was a four-wheel drive Ford Ranger which gave the occupants an elevated vantage point.

Evidence of Senior Constable Dalgreen

Senior Constable Dalgreen gave evidence-in-chief that it was a bright, clear day. As a Landcruiser driven by the appellant passed in front of him, Senior Constable Dalgreen observed through the open window of the appellant's vehicle, the appellant looking down at and manipulating a mobile phone in his right hand. Senior Constable Dalgreen estimated that he was 20 metres away when he observed the appellant and that there were no obstructions. The police officers then pulled the appellant's vehicle over. Senior Constable Dalgreen asked the appellant if there was an emergency that caused the appellant to use his phone. The appellant responded that he 'was just turning his alarm off on his phone'. An infringement notice was then issued.
In cross-examination, Senior Constable Dalgreen said that he could not be certain that the appellant was holding a mobile phone. He accepted it could have been a calculator. Senior Constable Dalgreen was shown a photograph of the alarm clock, which the appellant asserted was the instrument he was holding. Senior Constable Dalgreen clearly rejected the suggestion that the object could have been an alarm clock. Senior Constable Dalgreen said the object was thin and was being manipulated by the appellant. The alarm clock was too thick to have been the object he saw. In response to questioning, Senior Constable Dalgreen's evidence was that when he approached the appellant, the appellant said he was 'turning off my alarm'. Senior Constable Dalgreen did not accept that the appellant said he was turning off his 'alarm clock'. Senior Constable Dalgreen rejected the suggestion that the appellant had told him he was turning off his alarm clock, stating in evidence that if that were so 'the appellant would have shown me his alarm clock'. Senior Constable Dalgreen expressly rejected the suggestion that the appellant had tried to show him the alarm clock.
In re‑examination, Senior Constable Dalgreen confirmed that he saw a black mobile phone in the appellant's car and did not see any alarm clock.

Evidence of Constable Kirkham

In his evidence‑in-chief, Constable Kirkham said that as the police vehicle he was in with Senior Constable Dalgreen was coming to a stop at the intersection, Senior Constable Dalgreen said to him 'he's on his phone'. He looked up and saw the appellant driving a Landcruiser and holding a mobile phone while turning right. It was a black phone and the appellant was using the thumb of his right hand to manipulate it in the manner of a mobile phone.
In cross-examination, Constable Kirkham insisted he had a clear view of the appellant at the time. Constable Kirkham rejected the suggestion that the object may have been something other than a mobile phone. He said he was certain it was a mobile phone. Constable Kirkham expressly rejected the suggestion that the object might have been the alarm clock depicted on the photo he was shown.

Evidence of the appellant

The appellant gave evidence that as he was turning through the intersection his alarm clock went off in his work bag which was sitting on the passenger seat. He leant over, got the alarm clock out of his bag, switched it off, then put it back in the bag. The appellant was asked in his evidence‑in-chief why he had an alarm clock in his work bag. He explained that he does not take his phone with him on site; he leaves his phone at the 'yard' and takes the alarm clock to the work site. The appellant explained that he used the alarm clock on site to know the length of the lunch breaks and for timing the acceleration and retardation of concrete.
The appellant's evidence-in-chief was that when he was pulled over by the police, he explained that 'I was turning my alarm off'.[1] He was then asked: 'did you take that any further?'.[2] The appellant's evidence in response was:
Well, I tried to have a conversation. And, yes, there was no reasoning on the side of the road at the time ... I was trying to tell him that I wasn't using my phone and I was turning my alarm off and yes, that's what I was trying to explain to him and showing him the alarm clock, but it wasn't.[3]
[1] Transcript, Western Australia Police v Bonifacio, Magistrates Court of Western Australia at Armadale, 9 June 2021, 37.
[2] ts 9 June 2021, 37.
[3] ts 9 June 2021, 37 - 38.
The appellant accepted that he had the mobile phone with him in the car. It was a black iPhone. In cross‑examination, the appellant explained that he had used the alarm clock for work purposes for about two years. The appellant's evidence was that he kept the alarm clock in in his work bag and when he is using the alarm clock, it sits in his pocket. The appellant was asked to explain why the alarm clock did not bear marks from two years of use. He explained that it was not used as regularly as other tools like a shovel, and it sat in his work bag or in his pocket, so it was not exposed to the elements.

Magistrate's remarks and conclusions

The learned magistrate correctly explained the approach to be taken in accordance with the Court of Appeal's decision in Koushappis v The State of Western Australia.[4]
[4] Koushappis v The State of Western Australia [2007] WASCA 26.
The respondent accurately summarised the relevant comments of the learned magistrate as follows:
(a)if he believed the evidence of the [a]ppellant, he should acquit;
(b)if he had difficulty in accepting the [a]ppellant's evidence, but thought it might be true, he should acquit, including if there was any failure by the prosecution to negative the case put by the defence; and
(c)even if he rejected the [a]ppellant's evidence, the prosecution case still needed to be proven to the criminal standard of beyond reasonable doubt.
In accordance with those principles, the learned magistrate assessed and rejected the appellant's version of events and considered whether nevertheless the prosecution had proven the charge beyond reasonable doubt. The learned magistrate said:
Having rejected Mr Bonifacio's evidence and put it to one side, I still need to be satisfied on a totality basis beyond reasonable doubt of each and every element of the charge, and I pause for thought and consider that again. I am within the circumstances of the case satisfied beyond reasonable doubt in relation to each and every element of the case, the way in which the police officers have handled this has been sensible and proportionate.
Having rejected Mr Bonifacio's assertions and versions of events for the reasons I've set out, having accepted the officers', and being satisfied on a pause that on a totality basis each and every element has been proven beyond reasonable doubt, I find Mr Bonifacio guilty of the offence and enter a judgment of conviction accordingly.[5]
[5] ts 9 June 2021, 54.

Leave to appeal

Section 9 of the Criminal Appeals Act requires leave to appeal. I shall deal with the question of leave in respect of each ground as it is considered.

Grounds of appeal

The appellant seeks to advance two grounds to challenge his conviction. The first ground (Ground 1) asserts error in the learned magistrate's acceptance of the evidence of the police officers, so as to be satisfied of the appellant's guilt beyond reasonable doubt. The second ground (Ground 2) asserts error in the learned magistrate's rejection of the appellant's version of the events and asserts that the magistrate's evaluation was impermissibly influenced by the evidence that the appellant was on an extraordinary driver's license (EDL), rendering the consequences of conviction more acute and thus motivating the appellant to fabricate his version.
Both grounds seek to challenge conclusions drawn from the evidence. It is therefore necessary to descend to some detail of the evidence and the magistrate's remarks. However, it is important first to make a general observation about the evidence that emerged at the trial in order to place the learned magistrate's remarks in their appropriate context.
The learned magistrate's comments and analysis need to be understood against what was plain from the evidence. There was no dispute that the appellant was operating a function on some device in his right hand while driving. As the appellant's counsel accepted, the singular contest as to what was in the appellant's right hand was between an iPhone and the alarm clock depicted in photographs tendered at trial. There was no evidence at all that the object was, or realistically could have been, anything else – such as a calculator (a suggestion that faintly emerged in cross-examination of the police officers). The assessment of the learned magistrate's comments about the evidence need to be understood in that light.

Ground 1

As to Ground 1, the appellant submits that the learned magistrate should have found that a reasonable doubt existed as to whether the appellant was using a mobile phone, by reason of aspects of Senior Constable Dalgreen's testimony, in that, in his evidence, Senior Constable Dalgreen:[6]
a)agreed that he could not be certain that the appellant was actually holding a phone;
b)stated that the object the appellant was holding 'could have been a calculator';
c)could not be certain of the colour of the object in the appellant's hand;
d)stated that the appellant had a 'black object in his right hand and was manipulating it'; and
e)stated that 'the item he was holding was slim, such as a calculator would be'.
[6] ts 9 June 2021, 10 - 13.
The appellant further submits that the learned magistrate should have found that a reasonable doubt existed as to whether the appellant was using a mobile phone, by reason of aspects of Constable Kirkham's testimony, in that, in his evidence, Constable Kirkham: [7]
a)accepted the assertion that he expected to see someone on their phone after hearing Senior Constable Dalgreen state 'he's on his phone';
b)believed the object the appellant was holding was black;
c)stated that 'I would say that I think it was a mobile phone but then said he was certain it was a mobile phone';
d)agreed that he would not be able to comment on the dimensions of the object with any precision; and
e)could not say that the object in the appellant's hand was all black (because he could not see the whole object).
[7] Appellant Written Submissions dated 15 September 2021 [6].
Ground 1 amounts to a contention that the verdict was unreasonable and cannot be supported having regard to the evidence at trial.
Drawing on established authority laid down by the High Court and the Western Australian Court of Appeal, the applicable principles were recently summarised by Quinlan CJ in Webb v Tang (with citations omitted):
As formulated, ground 1 amounts to a contention that the verdict was unreasonable and cannot be supported having regard to the evidence. As was said by the High Court in M v R:
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.
The principles to be applied in relation to such a ground are well-settled, whether in relation to the verdict of a jury, a trial judge sitting alone or a magistrate. The question for this Court is whether the learned magistrate's finding of guilt was open to his Honour on the whole of the evidence. I must review for myself the trial record for the purpose of forming my own assessment of whether or not it was open to his Honour to be satisfied beyond reasonable doubt that the appellant was guilty. The learned magistrate's finding of guilt is not to be disturbed unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or his Honour has so misdirected himself on a matter of law as to result in a miscarriage of justice. The ultimate question for the appellate court in a case such as this is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the magistrate, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.
In determining that question it is necessary to recognise the 'natural limitations' that exist in the case of any appellate court that proceeds wholly or substantially on the record. This is particularly so in relation to findings of fact made by the court below that are likely to have been affected by its advantage in having seen and heard the witnesses give their evidence. As the High Court said in Lee v Lee:
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'.[8]
[8] Webb v Tang [2021] WASC 344.
Turning then to the prosecution evidence, it is necessary to evaluate the evidence of the police officers against the following matters:
(a)the learned magistrate accepted the evidence as credible, and in particular, found that the police officers' concessions regarding what they had and had not observed increased their credibility and the persuasiveness of their evidence;
(b)it was uncontroversial that the appellant had a black iPhone with him in the car;
(c)there was no suggestion of there having been any other relevant object in the appellant's car other than an alarm clock. There was no calculator in the car. As noted, the relevant contest was between an iPhone and the alarm clock depicted in the photographs;
(d)the police officers were emphatic and unshaken in their evidence that the object they saw was not the alarm clock;
(e)the appellant did not show or present an alarm clock when confronted by Senior Constable Dalgreen even though it would have been very simple and easy, and indeed entirely natural, for him to have done so; and
(f)the action required to turn off the alarm clock would not have necessitated the alarm clock to be passed from the appellant's left hand to his right and then operated in the manner observed by the police officers.
Having regard to those matters, in my view the learned magistrate's finding of guilt was open to his Honour on the whole of the evidence.
Accordingly, I decline to grant leave to appeal in respect of Ground 1.

Ground 2

It is uncontroversial that the learned magistrate rejected the appellant's version of events that he was holding an alarm clock and not a mobile phone. It is also uncontroversial that the learned magistrate made a number of references to the appellant having been on an EDL.
The appellant contends by Ground 2 that the learned magistrate erroneously relied on the evidence that the appellant was on an EDL to support his finding that the appellant's evidence was, 'unreliable and shaped and tapered to suit a difficult circumstance'.[9] The appellant further contends that, notwithstanding the magistrate's express remarks that he did not take into consideration the type of driver's licence the appellant was driving on, it affected his evaluation of the reliability and truthfulness of the appellant's testimony.
[9] ts 9 June 2021, 54.
The appellant sought to bolster that contention by his submission that the bases for the learned magistrate's rejection of the appellant's evidence were not of themselves compelling, suggesting that it was therefore the evidence of the EDL that led to the magistrate's conclusion that the appellant fabricated his version of the events. That submission directs attention to the detail of the appellant's evidence and the learned magistrate's reasons for rejecting it.
Turning then to the evidence of the appellant, the learned magistrate identified a number of matters regarding the appellant's evidence that gave him 'pause for thought'.[10] The learned magistrate referred to these matters briefly. His remarks need to be understood in the context of his remarks and the evidence as a whole. The learned magistrate in substance referred expressly to three things.
[10] ts 9 June 2021, 54.
First, turning off the alarm clock is a very simple operation that would ordinarily be done with one hand.[11] It would not require transferring the clock from the left hand to the right hand and then manipulating the instrument in the manner observed by the police officers, albeit briefly.
[11] ts 9 June 2021, 51.

Secondly, the learned magistrate found implausible the appellant's evidence that he took an alarm clock rather than his mobile phone with him to jobs on site and left his mobile phone at the 'yard' while he attended jobs on site with his alarm clock.[12]
[12] ts 9 June 2021, 52.
It may be accepted, as counsel for the appellant emphasised, that the implausibility of that evidence of itself does not indicate one way or another whether the appellant was holding a mobile phone or an alarm clock while travelling to work in his vehicle. However, the evidence needs to be understood in the broader context. The evidence appeared to have been advanced to lend credible explanation as to why a tradesperson would be travelling to work with an alarm clock in his work bag. The police officers did not see an alarm clock and although there was some lack of clarity in the evidence, it is tolerably clear that the appellant did not produce the alarm clock to Senior Constable Dalgreen in response to his initial approach – something one would expect him to have done immediately. As counsel for the respondent quite properly accepted, it would have been a very simple thing for the appellant to grab the alarm clock he had just placed back in his bag and show it to Senior Constable Dalgreen as the object he claimed to have been holding.
The use of the alarm clock at his workplace was therefore not unconnected with the appellant's explanation for its presence in the car and the nub of his defence. In that context, the evidence regarding the appellant's use of the alarm clock and the manner in which he uses his phone at work was of some importance. The learned magistrate's finding that the evidence about the appellant's use of his phone at work was 'very implausible' was therefore of some significance to an evaluation of the appellant's version of the events.[13]
[13] ts 9 June 2021, 52.
Thirdly, the learned magistrate observed that the alarm clock did not present in a fashion that was consistent with an object that had been living in a concreter's work bag. The learned magistrate found the appellant's explanation of the alarm clock with 'nary a scratch' to be implausible.[14]
[14] ts 9 June 2021, 53.
Counsel for the appellant submitted that the three 'examples' of implausibility I have referred to above, were not of themselves sufficient to reject the appellant's version of events. The appellant placed particular emphasis on the second example, arguing that whether or not the appellant left his mobile phone at the yard or took it with him to the job site, could have no bearing at all on whether it was the alarm clock or the mobile phone that the appellant was holding in his car when observed by the police officers. In short, the appellant submits that the weakness of logical force in the learned magistrate's analyses demonstrates that he was drawn to his conclusion by another factor – the appellant's motivation to fabricate his version due to the consequences of his conviction caused by the appellant being on an EDL.
As the learned magistrate himself remarked, he found the 'totality' of the appellant's evidence and version of events implausible, 'particularly those matters that I've raised by way of those three examples' (my emphasis).[15] That is, the rejection of the appellant's evidence was not based solely on the three matters he referred to in isolation. It was based on an assessment of the totality of the evidence. As to the second 'example' upon which counsel for the appellant placed some reliance, I have already explained why the implausibility of that evidence was more significant than the appellant's submission suggested.
[15] ts 9 June 2021, 53.
As I have already noted, the competing narratives reduced to a contest between whether the appellant was holding and manipulating an iPhone in his right hand, or had taken an alarm clock from his left hand, and transferred it to his right hand in order to turn off a simple alarm function because, for an unexplained reason, the alarm clock which the appellant used for work purposes had gone off before the appellant was even scheduled to be at work.
As noted above, it is uncontroversial that the learned magistrate made a number of express references to the EDL. They too must be understood in their proper context.
In the course of his references to the EDL, the learned magistrate twice said that he had to put that issue to one side in making his determination. That is, the learned magistrate expressly observed that the matter of the EDL was irrelevant to his determination. The appellant's Ground 2 invites me to conclude that the learned magistrate took the EDL into account in his determination, even though he expressly observed that he was not permitted to do so.
In his concluding remarks, the learned magistrate does not refer to the EDL. The learned magistrate concluded:
But it comes down to this. At the conclusion of the evidence, with respect to Mr Bonifacio, it is with some regret I found myself left at the totality of his evidence, left with the sense that I was being presented with a version of events that was implausible in some regards, particularly those matters that I've raised by way of those three examples, such that I reject Mr - and I do reject Mr Bonifacio's evidence in that regard.[16]
[16] ts 9 June 2021, 53.
In my respectful view it was open to the learned magistrate to reject the appellant's version of events on the basis of the learned magistrate's assessment of the totality of the appellant's evidence. I do not consider that there was any weakness in the reasoned remarks of the learned magistrate as to the implausibility of the appellant's evidence. I have already observed that the learned magistrate's rejection of the appellant's version was not based solely on the three examples he explained but on the totality of the evidence.
In my view there was no error in the learned magistrate's rejection of the appellant's version.
The closest that the learned magistrate may have come to indicating that his conclusion was influenced by the appellant having been on an EDL would appear to be the following passage:
I understand why Mr Bonifacio, in difficult circumstances, advances what he advances, but with respect I reject his evidence in that regard, and I find his evidence on a totality basis to be unreliable and shaped and tapered to suit a difficult circumstance in a modest way, and I reject any assertion that that alarm clock was being used in a way as asserted.[17]
[17] ts 9 June 2021, 54.
In my respectful view, it is tolerably clear that the learned magistrate's remarks were intended to be generous and exculpatory. The learned magistrate had already expressed his 'regret' at the conclusion he reached. The learned magistrate, in extempore comments made in the presence of the appellant, was seeking to soften the effect of his finding that the appellant had fabricated his version of events. The observations were the product of human empathy not condemnatory judgment.
The learned magistrate's remarks do not demonstrate that his Honour's conclusion was influenced by the irrelevant consideration of the appellant having been on an EDL. Some of the remarks may have been a little gratuitous, but they do not reflect legal error.
Accordingly, I find no error in the learned magistrate's rejection of the appellant's version of events. I therefore decline to grant leave in respect of Ground 2.

Conclusion

In the circumstances the application must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NW
Associate to Justice Solomon
12 JANUARY 2022