Carden v WA Police
[2023] WASC 462
•19 DECEMBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: CARDEN -v- WA POLICE [2023] WASC 462
CORAM: HOWARD J
HEARD: 17 NOVEMBER 2023
DELIVERED : 19 DECEMBER 2023
FILE NO/S: SJA 1003 of 2023
BETWEEN: CILLA LOUISE CARDEN
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE THOMPSON
File Number : PE 8652 of 2022
JO 1096 of 2022
Catchwords:
Criminal law - Single judge appeal - Appeal against convictions under Criminal Code (WA) and Bail Act 1982 (WA) - No error identified - Leave to appeal on all grounds refused
Legislation:
Bail Act 1982 (WA)
Constitution
Crimes Act 1900 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Investigation Act 2006 (WA)
Result:
Leave to appeal denied
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | D Van Nellestijn |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Samuels v State of Western Australia (2005) 30 WAR 473
HOWARD J:
The appellant's conviction and sentence
The appellant was convicted on 9 December 2022 in the Magistrates Court at Joondalup of two offences, namely:
1.unlawful assault of Shae Norelle Toia (complainant) (charge JO 1096 of 2022), against s 313(1)(b) of the Criminal Code (WA) (Criminal Code) on 1 February 2022 (first conviction); and
2.without reasonable cause, failing to appear at the Magistrates Court at Joondalup on 2 March 2022 in breach of a bail undertaking signed at the Warwick Police Station on 2 February 2022 (charge PE 8652 of 2022), against s 51(1) of the Bail Act 1982 (WA) (Bail Act) (second conviction).
The first conviction was in relation to an assault on the complainant outside a shopping centre at Alexander Heights. The complainant was an employee of a Liquorland store in the shopping centre who had followed the appellant out of the shopping centre after an incident at the entrance of the store.
The following day, on 2 February 2022, the appellant was arrested in her home on suspicion of assault and theft. She was granted bail at the Warwick Police Station on her undertaking to appear at the Magistrates Court in Joondalup on 2 March 2022. She failed to appear on that date. An arrest warrant was issued, and the appellant was subsequently arrested and was granted bail until the trial below.
The trial took place on 22 November 2022, and after delivering reasons on 9 December 2022 the learned Magistrate convicted the appellant of both charges and imposed the following penalties:
1.on the first conviction (JO 1096 of 2022): $600 fine; and
2.on the second conviction (PE 8652 of 2022): $150 fine.
Relevant provisions for this Appeal
The appellant seeks to appeal pursuant to s 7(1) and s 8(1)(a)(i) and (b) of the Criminal Appeals Act 2004 (WA).
The appellant's convictions are 'decisions' within s 6(c) of the Criminal Appeals Act.
By s 9(1) of the Criminal Appeals Act, the appellant requires leave on each of her appeal grounds.
By s 9(2) of the Criminal Appeals Act, leave must not be granted on a ground unless this Court is satisfied that the ground has a reasonable prospect of succeeding.[1]
[1] Samuels v State of Western Australia (2005) 30 WAR 473 [56].
The significance of the appellant having to satisfy the Court that any of her grounds have a reasonable prospect of succeeding will be returned to below.
An appeal such as this is limited to the detection of error by the Magistrate. A disagreement with the result reached by the Magistrate (however strongly felt) does not indicate an appellable error.
The trial
At the trial below, five witnesses gave evidence for the prosecution:
1.Nicholas Joseph Margo (Commercial Asset Manager of the Alexander Heights shopping centre management corporation);
2.Shae Norelle Toia (complainant);
3.Tanya Wheat (assistant manager of Liquorland Alexander Heights);
4.Detective Senior Constable Andrej Dragojevic (investigating and arresting officer on 2 February 2022); and
5.Senior Constable Matthew Horsley (attending officer).
The appellant also gave evidence.
It was not in dispute that on 1 February 2022, the appellant attended the Alexander Heights shopping centre.[2]
[2] Trial ts 114 (Ms Cilla Carden).
The prosecution evidence was that:
1.the accused approached staff (including the complainant) at the Liquorland store, behaving in a disruptive and belligerent manner, criticising the COVID-19 safe practices in place at the time;[3]
2.as a result of the appellant's disruptive behaviour, Liquorland staff approached the appellant and asked her to leave the area. Failing to do so, the staff called the police, at which point the appellant left the store;[4]
3.the complainant followed the appellant out of the store and took a photograph of the appellant's vehicle at the request of police to obtain identifying information from the appellant;[5]
4.the appellant ran back to confront the complainant in an attempt to retrieve the photo from the complainant's phone, blocking the complainant's path and pushing her with both hands, causing the complainant to stumble back;[6] and
5.the appellant then took the complainant's phone and, after a short interaction with another member of the public, attempted to delete the photo. Being unable to do so, the appellant placed the mobile phone on the ground and left the scene.[7]
[3] Trial ts 30 (Ms Shae Toia).
[4] Trial ts 31 (Ms Shae Toia).
[5] Trial ts 61 (Ms Tanya Wheat).
[6] Trial ts 33; 35 (Ms Shae Toia). See also, Exhibit 3.
[7] Trial ts 35 - 36 (Ms Shae Toia).
CCTV footage taken outside the shopping centre was tendered as Exhibit 3.
As to the second charge, the prosecution evidence (largely undisputed) was that:
1.on 2 February 2022 the appellant was arrested at her home on suspicion of assault and theft (from the incident the day before) and was taken to the Warwick Police Station, where she entered into a bail undertaking. One of the conditions required her to appear at the Magistrates Court in Joondalup at 8.45 am on 2 March 2022;[8] and
2.the appellant failed to appear at the required time, and a warrant was issued for her arrest. She was subsequently arrested on that warrant on 4 March 2022.[9]
[8] Trial ts 68 - 69 (Detective Senior Constable Andrej Dragojevic).
[9] Trial ts 74 (Detective Senior Constable Andrej Dragojevic).
The Magistrate's reasons on the first conviction
In the trial below, the Magistrate made the following findings of fact in relation to the first conviction:
1.the identity of the accused was admitted by the appellant as the person in question in the CCTV footage tendered as Exhibit 3, and was not in dispute;[10]
2.after the complainant took a photo of the appellant's vehicle, the appellant ran across the road to approach the complainant in an aggressive manner, running and getting in front of her;[11]
3.the appellant assaulted the complainant by pushing her with both hands, to the chest or arm area, causing the complainant to stumble back;[12] and
4.the assault was not lawful, in that it was not otherwise excused, justified or permitted at law.[13]
[10] Reasons ts 15.
[11] Reasons ts 14.
[12] Reasons ts 17.
[13] Reasons ts 19.
On the defence of provocation, the learned Magistrate said:
The question that arises is whether that assault was unlawful, and it is necessary to consider two defences of self‑defence and provocation.
Whilst I've touched on them briefly I will do so in more detail now. In terms of provocation, whilst the defendant, Ms Carden, does not raise provocation I will address it. Because it was raised on the evidence. It was evident that the defendant was angry at the complainant. However, that was in relation to the act of taking a photograph of her vehicle.
…
As I have said, in my view, there was no wrongful act done towards Ms Carden by Ms Toia in taking a photograph of her. The defence of provocation should therefore fail at that point.[14]
[14] Reasons ts 17 - 18.
On the defence of self‑defence, the learned Magistrate said:
The defendant says that there was a harmful act by the complainant. Her evidence is that the complainant first thrust her fists up into her face, and she had to block it. She said the only contact was because the complainant contacted her. In cross-examination, she added that the complainant had lunged into her. As I have said above, this is simply not supported by the CCTV evidence. The complainant was consistent in her version given to the court, whereas the defendant, to the contrary, was to a degree inconsistent in terms of the version that she provided in her examination‑in‑chief, and then expanded upon in her cross‑examination.
But for the reasons I've indicated, the CCTV is clear, and I do not accept the version led by the defendant in circumstances where I do not accept that there was a harmful act by the complainant which came before the assault by the defendant, then the defence of self‑defence must also fail. Put another way, although both defences have been raised, on the evidence, I am satisfied beyond a reasonable doubt that neither defence applies. I am satisfied beyond a reasonable doubt that there was an application of force by the accused in pushing the complainant with two hands causing her to stumble backwards.
…
I am satisfied beyond a reasonable doubt that there was an assault and that it was unlawful, in that it was not otherwise excused, justified or permitted at law. I am also satisfied beyond a reasonable doubt that there was no consent to the assault. Ultimately, Ms Carden accepts it is her in the footage, and I've made some comments about that, in any event. Identity is also proven. In the circumstances, I find that the offence of common assault is proven, and the defendant will be convicted of that offence.[15]
[15] Reasons ts 18 - 19.
On the issue of the evidence provided by the complainant and the issue of CCTV footage, the learned Magistrate said:
Part of the questioning of the complainant's reliability relies on two things. (1) the precision in terms of times when the phone call to police was supposed to be made, versus the defendant's own shopping receipts, as well as some other notations in police disclosure, and secondly, the complainant's … assertion that the interaction between her and the defendant lasted four to five minutes.
…
In my view, neither of these things truly affect the reliability of the complainant. She was, in my view, a credible witness and a reliable witness. She gave honest and direct answers, including when the defendant spoke to her, in what was a fairly improper manner, and made accusations of her in cross-examination which weren't properly framed as questions. Ultimately, the CCTV footage captures the entire incident.
…
It is clear to me that after the complainant takes a photograph of the defendant's vehicle and walks back in towards the shop entrance, the defendant runs across the road in order to confront her. There is nothing unlawful by the complainant in taking a photograph of the defendant's car in the manner in which she did in this case. Moreover, it could not be said to be a wrongful act even if it was not an unlawful act, in terms of any provocation defence to which I will come shortly. As I've said, my assessment of the CCTV footage, the defendant approaches the complainant in an aggressive manner. She runs and gets in front of her.
…
The defendant … pushed the complainant and she stumbles backwards.
…
There is nothing in the footage which gives rise to or corroborates the defendant's version that the complainant was, in fact, the one to thrust her fist into the defendant's face … nor to lunge at her.
Simply looking at the CCTV footage, it is clear to me that the defendant assaults the complainant by pushing her … causes the complainant to stumble backwards.[16]
[16] Reasons ts 15 - 16.
The Magistrate's reasons on the second conviction
The learned Magistrate found in relation to the second conviction the following:
1.identity of the appellant was conceded at trial and was not in dispute;[17]
2.the second element, without reasonable cause, was also not in dispute, however an explanation was raised;[18] and
3.the third element, the requirement to appear, was also not in dispute, as evinced largely by documentary evidence such as bail undertakings as signed by the appellant.[19]
[17] Reasons ts 21.
[18] Reasons ts 21.
[19] Reasons ts 21.
Sections 28 and 51(1) of the Bail Act 1982 (WA) provide relevantly:
28.Bail undertaking, when required and nature of
…
(2)A bail undertaking is an undertaking in writing by an accused in the prescribed form -
(a)that he will appear at a time and place specified, or deemed by section 31(3) to be specified, in the undertaking; and
…
51.Failing to comply with bail undertaking, offence
(1)An accused who, without reasonable cause, fails to comply with the requirement of his bail undertaking mentioned in section 28(1)(a) commits an offence
…
The learned Magistrate said:
It is clear to me that the defendant did not comply with the requirement of her bail undertaking to appear at court on 2 March, as she accepted (indistinct) during the trial. The real question is whether or not she had any reasonable excuse or reasonable cause not to appear. The defendant raises, firstly, that she entered into the bail undertaking under duress.
…
The defendant spoke to the fact that she was at gunpoint, and pushed around, and they deprive you of all your liberties. I take this to mean she was under the pressure of being in a police station when she was required to sign a bail undertaking. There was certainly no evidence given by her in these proceedings that a threat had been made to her or that a threat would be carried out unless an offence was committed.
The signing of a bail undertaking is not an offence, and in any event, it is quite clear to me that the offence of duress simply does not apply here. Put simply, the defendant had two options. She had, at that point, been charged with two criminal offences. The common assault. And there was then a stealing offence also, which was later discontinued. But at that point in time she could either sign the bail undertaking, and have her liberty.
Alternatively, she could refuse to sign the bail undertaking, which required her to attend Joondalup Magistrates Court on 2 March 2022. I have seen the correspondence sent to the Department of Justice Western Australia Police Force, Warwick Police Station and others, on 28 February 2022.
…
Having regard to all of the above, and the concessions made by the defendant, I am satisfied that she did sign the bail undertaking which required her to attend at Joondalup Magistrates Court on 2 March 2022. She did not appear at court on that date as was required of her. An arrest warrant issued, and she was subsequently arrested on that warrant also. I've had regard to any defence in the form of a reasonable excuse, and in my view, there is none.[20]
[20] Reasons ts 22 - 23.
Appellant's material for the Appeal
On 6 January 2023, the appellant filed an appeal notice with 19 appeal grounds.
On 1 May 2023, the appellant filed a modified Form 20 - appeal notice.
On 1 May 2023, the appellant filed an affidavit which 'verified' the modified Form 20 dated 1 May 2023.
On 15 May 2023, the appellant filed a document which was headed 'Commonwealth of Australia Affidavit' and which had a subheading of 'Notice of breaches by Joondalup Magistrates Court'.
On 19 June 2023, the appellant filed a modified appeal notice which contained at least 24 paragraphs purporting to be appeal grounds.
On 19 June 2023, the appellant filed an affidavit.
On 30 June 2023, the appellant filed an application in an appeal.
On 21 August 2023, the appellant filed an affidavit.
On 21 August 2023, the appellant filed an application in an appeal.
On 21 August 2023, the appellant filed a modified appeal notice with a lengthy 'preamble' and then what appears to be 17 further appeal grounds.
On 21 August 2023, the appellant filed a 6-page document headed 'Commonwealth of Australia Affidavit'. This appears to be submissions in respect of the first conviction - 'Charge JO 1096/2022 - Common Assault'.
On 21 August 2023, the appellant filed a 6-page document headed 'Commonwealth of Australia Affidavit'. This appears to be submissions on the second conviction, being 'Charge PE 8652/2022 - breach of bail'.
On 21 August 2023, the appellant filed a 34‑page document which appeared to contain some submissions and some still screen‑shots from the CCTV footage and exhibits at the trial.
On 17 November 2023, the appellant filed a 'Response to respondent's submissions' which was a 32‑page document.
On 17 November 2023, the appellant represented herself at the hearing and made oral submissions.
For the purposes of considering whether to grant the appellant leave or not, I have had regard to all that the appellant has filed herein.
Grounds of Appeal on first conviction
By her modified appeal notice filed 21 August 2023, the appellant asserts 13 appeal grounds on the first conviction.
Doing the best I can, I have summarised my understanding of them as follows:
Ground 1:The complainant's actions were in contravention of the Constitution section 51(xxiiiA)
The vaccination certificate of the COVID-19 vaccination is itself in contravention of the Constitution, s 51(xxiiiA), and thus the learned Magistrate and arresting officers disregarded this throughout the course of the proceedings.
Ground 2:False testimony was provided by the complainant
The appellant alleges an error on behalf of the learned Magistrate by accepting the complainant's 'false' testimony given in her witness statement.
Ground 3The store policy requiring the complainant to take down a customer's details did not apply to the appellant
As the appellant was not a customer of the store, the appellant alleges that the store policy did not apply to the appellant and thus did not support the taking of the appellant's licence plate details.
Ground 4:The learned Magistrate erred in disregarding the accusation of stalking by the complainant
Under the Criminal Code s 338E, stalking is defined as pursuing another for the purpose of intent to intimidate. The learned Magistrate erred in disregarding accusations of stalking by the complainant.
Ground 5:The learned Magistrate erred in not recognising self‑defence in the act of grabbing the complainant's mobile phone
The learned Magistrate erred in discounting the appellant's defence of self-defence in response to the complainant following the appellant, and the grabbing of the complainant's mobile phone in self‑defence.
Ground 6:The learned Magistrate erred in not recognising self‑defence in the appellant preventing herself being struck
The learned Magistrate erred in discounting the appellant's defence of self-defence raised in circumstances where the action of grabbing the complainant's mobile phone was done in response to the appellant being struck by the device.
Ground 7:The learned Magistrate erred in applying the incorrect jurisdiction
The High Court and the Commonwealth has jurisdiction over business and trading activities, and thus the learned Magistrate erred in not applying the relevant section to the matter.
Ground 8:The learned Magistrate erred in not recognising the complainant's acts of self-defence
Expressed with reference to the Crimes Act 1900 (Cth), the appellant alleges error on behalf of the learned Magistrate by not recognising an act of self-defence by the complainant in response to stalking by the complainant.
Ground 9:The learned Magistrate erred in admitting a false declaration
The learned Magistrate erred in allowing an incorrect statement by the complainant that the appellant was 'abusing staff', which was factually incorrect.
Ground 10:The learned Magistrate erred in admitting several false declarations by the complainant
The complainant made several false declarations, which were admitted as evidence and relied on by the learned Magistrate. This therefore constitutes an error of fact on the basis that this information was relied on by the learned magistrate in her decision making.
Ground 11:The learned Magistrate erred in admitting several false declarations by the complainant
This ground is expressed in the same terms as Ground 10 above.
Ground 12:The findings of the learned Magistrate were not supported by the evidence
The findings of the learned Magistrate were not supported in the CCTV footage tendered as evidence and thus the learned Magistrate erred in the fact-finding.
Ground 13:One of the elements of assault was not made out
The learned Magistrate erred in incorrectly finding that the 'apprehension' element of the assault charge was not made out, on the basis that there was no evidence to this effect as illustrated by the CCTV footage tendered as evidence.
Consideration of the grounds on the first conviction
Of the grounds asserted on the first conviction, they may be grouped as follows:
1.evidence provided by the complainant was defective, untrue or incorrect and thus was a defective basis for the decision of the learned Magistrate (grounds 2, 4, 9, 10, 11);
2.the CCTV evidence tendered in the trial did not support the facts found by the learned Magistrate and thus could not support a finding of guilt (grounds 12, 13);
3.the learned Magistrate failed to recognise the appellant's claims of self‑defence (grounds 5, 6, 8); and
4.there were some unlawful or unauthorised acts which had occurred in the shopping centre prior to the incident outside of the centre (grounds 1, 3, 4, 7).
It was a very strong theme of the appellant's oral submissions that the complainant's evidence was untrue and was unsupported by the CCTV footage. The appellant accepted that she had agitated those matters before the learned Magistrate.[21]
[21] Appeal Hearing ts 28.
Related to those two propositions was the appellant's submissions that she was acting in self defence and was not the aggressor. Again the appellant accepted that she had agitated that before the learned Magistrate.[22]
[22] Appeal Hearing ts 35.
The appellant is clearly aggrieved that the Magistrate accepted the complainant's evidence and did not accept her evidence. She has a passionate conviction that the Magistrate was wrong to do so.
However, it is not the place of this Court to consider whether it would reach the same findings on the facts as the learned Magistrate did. The question is whether there is some error in the Magistrate's (relevant) findings.
Nothing in the appellant's material before this Court, nor in her oral submissions, identifies or suggests an error flowing from the appellant's complaints which I have grouped at [42.1], [42.2] and [42.3] above.
The last set of complaints - set out in [42.4] above - related to what had occurred at the entrance to the Liquorland store in the shopping centre before the incident in question occurred outside the shopping centre.
Leaving aside for a moment the immediately obvious lack of merit in the matters complained of (for example, at the hearing the appellant placed great reliance on the Constitution s 51(xxiiiA)[23]), none of them was capable of indicating an error in the conviction reached.
[23] Appeal Hearing ts 35 - 36.
Disposition of appeal on first conviction
In all of the circumstances, without needing to do a line-by-line analysis of the voluminous materials put before the Court, none of the complaints made, nor any of the individual grounds of appeal, could be said to have any prospect of succeeding, let alone a reasonable prospect of succeeding.
Accordingly, I would not grant the appellant leave to appeal on any of grounds 1 - 13.
Grounds of appeal on second conviction
By her modified appeal notice filed on 21 August 2023, on the second conviction the appellant asserts four appeal grounds.
Doing the best I can, I have summarised them as follows:
Ground 14:WAPOL entered the complainant's residence and arrested the complainant without a warrant to do so
The arrest warrant for the appellant was dated 2 March 2022, and therefore the original arrest on 2 February 2022 was done so without a valid warrant.
Ground 15:The learned Magistrate erred in not following due procedure in ensuring there was a valid arrest warrant for the arrest on 2 February 2022
The learned Magistrate erred in not following due process in confirming an arrest warrant was provided for the initial arrest on 2 February 2022.
Ground 16:The learned Magistrate erred in ignoring the lack of consent by the appellant
The appellant clearly displayed a 'trespass notice' on their front door, which was visible to police officers. This was subsequently ignored by both police and the learned Magistrate resulting in an error of law.
Ground 17:The prosecution notices were fraudulent and/or defective
The appellant provides several reasons for which the prosecution notice and the judicial process is defective, and thus the learned Magistrate erred in failing to correct the procedural deficiencies alleged.
Consideration of the grounds on the Second Conviction
Grounds 14 and 15 contend that as the arrest warrant issued on 2 March 2022 came after the initial arrest on 2 February 2022, that initial arrest was unlawful.
Ground 16 assumes the correctness of grounds 14 and 15, and then contends that the appellant did not consent to the police 'trespassing' on her property on 2 February 2022.
Ground 17 contends that there was a defect or defects in the prosecution notices.
At the oral hearing, the appellant focussed mostly on the police 'trespassing' on her property rather than the other appeal grounds.
The issue raised by grounds 14 and 15 was agitated before the Magistrate.[24]
[24] Trial ts at 73 - 74; 82 - 83; 85; 135.
For the appeal grounds to have a reasonable prospect of succeeding, the appellant would need the legal proposition to be accepted that the police required a warrant on 2 February 2022 to arrest her.
The difficulty which the appellant cannot overcome, in my view, is that s 128 of the Criminal Investigation Act 2006 (WA) allowed police to arrest the appellant on 2 February 2022 without a warrant if they reasonably suspected an offence had been committed: see the definition of 'serious offence' in that section, and s 378 of the Criminal Code which carried a penalty of seven years' imprisonment.
Evidence was given at the trial by Officer Dragojevic, who gave evidence of arresting the appellant on 2 February 2022 on suspicion of assault and stealing.[25]
[25] Trial ts 68; 83.
Further, the lawfulness of the arrest on 2 February 2022 was not an element of the charge which resulted in the second conviction and, even if it was correct, which it is not, it would not raise an arguable appeal ground.[26]
[26] Reason ts 23 – 24; Respondent's Submissions at [54].
Further, and correspondingly, ground 16 is, on its face, without merit.
As to ground 17, the appellant in her submissions which appeared to relate to charge PE 8652 of 2022 - breach of bail - filed 21 August 2023 at [20], identified matters which it was asserted were missing from the prosecution notice and rendered it deficient. The alleged deficiencies identified by the appellant include:
1.no common seal;
2.no WAPOL logo;
3.no Magistrates Court of Western Australia logo;
4.no court registry location;
5.not witnessed by a Justice of the Peace or prescribed Court Officer;
6.no record of date lodged;
7.the appellant's name was misspelled;
8.no witness signature;
9.no Australian Business Number(s);
10.no Department of Justice logo; and
11.both prosecution notices received by the appellant had the same ID and brief numbers.
None of those raised a question or issue which had a reasonable prospect of succeeding.
The formal requirements for a prosecution notice are contained within the Criminal Procedure Act s 23, and Schedule 1, Division 2. Without repeating all requirements, in relation to the two charges the prosecution notices only required: the prosecutor and the accused be identified; a description of the alleged offences; and an allegation of the particular matters and offences.
Considering the requirements for the prosecution notices outlined in the Criminal Procedure Act, I do not detect a defect leading to an error in the prosecution notices provided to the appellant.
Disposition of appeal on the Second Conviction
Accordingly, I would not grant the appellant leave to appeal on any of grounds 14 - 17.
Overall Disposition
I dismiss the appellant's appeal on both convictions.
I will hear parties on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to Hon Justice Howard
19 DECEMBER 2023
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