Counsel v Glynn
[2017] WASC 7
•17 JANUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COUNSEL -v- GLYNN [2017] WASC 7
CORAM: BANKS-SMITH J
HEARD: 29 SEPTEMBER 2016
DELIVERED : 17 JANUARY 2017
FILE NO/S: SJA 1040 of 2016
BETWEEN: KEVIN JOHN COUNSEL
Appellant
AND
MARTIN SHANE GLYNN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE R S HUSTON
File No :NG 764 of 2015, NG 765 of 2015
Catchwords:
Criminal law - Appeal against conviction - Aggravated circumstances - Whether driving and failing to stop to escape police pursuit - Whether defence of emergency available - Whether error of fact material - Whether substantial miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 14(2)
Criminal Code (WA), s 25
Road Traffic (Administration) Act 2008 (WA), s 39, s 44
Road Traffic Act 1974 (WA), s 49AB, s 60
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A G Elliott
Respondent: Ms G N Beggs
Solicitors:
Appellant: Andrew Williams
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Bauerhuit v Dean [2011] WASC 253
Bentley v Greaney [2016] WASC 227
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Dean v Legal Practice Board [2016] WASCA 63
Floyd v The State of Western Australia [2013] WASCA 33
JJS v The State of Western Australia [2014] WASCA 136
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Lund v Davies [2013] WASC 52
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Nguyen v The Queen [2005] WASCA 22
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45
R v Sandoval [2010] NSWDC 255; (2010) 11 DCLR (NSW) 385
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
The State of Western Australia v Olive [2011] WASCA 25
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Van Heerden v Hawkins [2016] WASCA 42
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482
BANKS-SMITH J:
Introduction
The appellant seeks leave to appeal against his conviction of one charge of aggravated reckless driving (to escape pursuit by police) and one charge of failing to stop in circumstances of aggravation (to escape pursuit by police). Mr Counsel was convicted by a magistrate after trial and sentenced to a term of imprisonment of 6 months and 1 day for the reckless driving charge (the charge carrying a mandatory term of at least 6 months' imprisonment) and fined $5,000 for failing to stop (being the minimum fine that could be imposed). In respect of each charge, Mr Counsel was also disqualified from holding or obtaining a motor driver's licence for 2 years, to apply concurrently.
Mr Counsel does not appeal against the finding of reckless driving,[1] or the finding that he failed to stop having been directed to do so. He appeals against the finding of aggravated circumstances for each offence.
[1] Appeal ts 26.
In essence, he says that he drove in the manner that he did because he was chasing his wife who he believed was driving in her car from Perth to Albany in order to commit suicide. It follows, Mr Counsel contends, that the magistrate wrongly rejected his defence of emergency and wrongly found that he held the aggravating purpose of escaping police pursuit.
If the defence of emergency were made out, Mr Counsel ought to have been acquitted of both offences. If the defence were not made out, but the respondent failed to establish that Mr Counsel intended to escape police, then Mr Counsel accepts that the evidence was still sufficient to prove that he drove recklessly and that he failed to stop when directed by a police officer.[2] It follows that he would still be guilty of the unaggravated forms of the offences. There are significant sentencing implications for Mr Counsel. In particular, as to the first count, absent the aggravating factor, the mandatory imprisonment regime would not apply.
[2] Appellant's outline [94].
For the reasons that follow, I would dismiss the appeal.
Legislative provisions
Reckless driving
The offence of reckless driving is set out in s 60(1) of the Road Traffic Act 1974 (WA):
Every person who wilfully drives a motor vehicle in a manner (which expression includes speed) that is inherently dangerous or that is, having regard to all the circumstances of the case, dangerous to the public or to any person commits an offence.
Section 49AB of the Road Traffic Act prescribes circumstances of aggravation for the purpose of certain driving offences, including reckless driving. It provides:
(1)For the purposes of this Division, a person commits an offence in circumstances of aggravation if at the time of the alleged offence -
(a)the person was unlawfully driving the vehicle concerned without the consent of the owner or person in charge of the vehicle; or
(b)the person was driving the vehicle concerned on a road at a speed that exceeded the speed limit applicable to the vehicle, or the length of road where the driving occurred, by 45 km/h or more; or
(c)the person was driving the vehicle concerned to escape pursuit by a police officer.
(2)For the purposes of subsection (1)(c) it does not matter whether the pursuit was proceeding, or had been suspended or terminated, at the time of the alleged offence.
Section 60(5) of the Road Traffic Act provides that a court sentencing for reckless driving under s 60 committed in the circumstances of aggravation referred to in s 49AB(1)(c) must (relevantly):
(a)sentence the person to a term of imprisonment of at least 6 months; and
(b)not suspend the term of imprisonment; and
(c)for a first or second offence - order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
Failure to stop
Section 39 of the Road Traffic (Administration) Act2008 (WA) provides that a police officer may direct the driver of a vehicle to stop the vehicle. Section 43 provides that the direction may be given orally, by means of a sign or in any other manner.
Section 44 provides that a person to whom a direction is given under s 39 must not, without reasonable excuse, fail to comply with the direction. It also provides as to penalty:
[I]f the person was given the direction under s 39 and the person was, at the time the direction was given, driving the vehicle so as to escape pursuit by a police officer - imprisonment for 2 years, but the minimum penalty is a fine of 100 PU; and, in any event, the court convicting the person must order that the offender is disqualified from holding or obtaining a driver's licence for a period of not less than 2 years.
Therefore, that the vehicle was being driven so as to escape pursuit by a police officer is an aggravating factor in the sense that it is relevant to the penalty that might otherwise apply.
Defence of emergency
Section 25 of the Criminal Code (WA) provides as follows:[3]
[3] Current version introduced by s 5 of the Criminal Law Amendment (Homicide) Act2008 (WA).
Emergency
(1)This section does not apply if section 32, 246, 247 or 248 applies.
(2)A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3)A person does an act or makes an omission in an emergency if -
(a)the person believes -
(i)circumstances of sudden or extraordinary emergency exist; and
(ii)doing the act or making the omission is a necessary response to the emergency;
and
(b)the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
I refer below to the four cumulative elements of s 25(3) as the first to fourth limbs respectively. The first and second limbs require an assessment of the appellant's subjective beliefs. The third and fourth limbs introduce an objective assessment.
The evidence
Overview of prosecution evidence
The prosecution relied upon, relevantly, statements from each of the four police officers involved in the pursuit of Mr Counsel.[4] The statements were admitted by consent. Mr Counsel accepted that he had been given a direction to stop by the police and had failed to comply.[5]
[4] Exhibits 1, 3, 4 and 5.
[5] ts 82.
The following description of the events is summarised from those police statements and is not contentious.
On Sunday 7 June 2015, Mr Counsel drove his car along Albany Highway, travelling south from Perth towards Albany.
As he approached the intersection of Albany Highway and Extracts Road in Williams, police officers from Boddington police station who were conducting traffic patrols in a marked police sedan, saw him.
The officers were travelling north on Albany Highway monitoring southbound traffic. They saw the appellant's car travelling towards them at speed at approximately 3.50 pm.
The on‑board speed detection apparatus in the police car indicated that Mr Counsel's car was travelling at a speed of 171 km per hour. The speed limit for that section of Albany Highway was 110 km per hour.
The officers activated their emergency lights and turned the police car around to follow Mr Counsel's car. He did not slow down nor stop.
The officers activated the sirens and continued to activate the emergency lights. They continued to pursue Mr Counsel, but he did not stop.
The officers from Boddington police station utilised the police communications system to gain assistance from officers from the Williams police station. One of the officers at the Williams police station had pursuit driving qualifications.
The officers from the Williams police station then positioned themselves in their police vehicle on the side of the road on Albany Highway in the driveway of the CBH facility at Narrakine, about 5 km north of Williams.
Shortly after, Mr Counsel passed them, followed by the marked police car from Boddington police. The officers from the Williams police station activated their lights and sirens and joined the pursuit, ultimately taking the lead role as the primary pursuing vehicle.
Mr Counsel did not stop. He arrived at the town of Williams, travelling at about 100 km per hour in a 50 km per hour zone. As he drove through Williams, he crossed to the wrong side of the road, overtaking several vehicles and driving on a painted traffic island for about 100 m.
Mr Counsel continued to travel south on Albany Highway, accelerating to about 130 km as he left the Williams town site.
Shortly after, the pursuit reached an overtaking lane on Albany Highway, which allowed the officers from Williams to pull their vehicle alongside Mr Counsel's car. The police officer in the front passenger seat motioned to Mr Counsel to pull over. He slowed down and eventually stopped his car, got out and initially was arrested.
Mr Counsel told the officers that his partner (Mrs Counsel) was driving to Albany to kill herself by jumping off The Gap[6] and that he wanted to get to Albany to stop her.
[6] Coastal rock formation near Albany.
The officers made enquiries and established that Mrs Counsel was not driving to Albany but was in Armadale Hospital. The police agreed to release Mr Counsel so that a family member could collect him from Williams. The appellant's car was impounded.
The emergency calls
The prosecution also relied on recordings of two telephone calls made by Mr Counsel to the triple 0 emergency line whilst he was driving.[7]
[7] Exhibit 2.
Mr Counsel made the first call at 3.37 pm, before he had been seen by the police. The call lasted some two and a half minutes.
Mr Counsel made the second call at 3.58 pm, after the pursuit commenced. That call lasted for almost seven minutes and ended when Mr Counsel pulled over and stopped his car.
Both the prosecution and defence rely on those calls and invited the court to draw different inferences from them. Because of their importance in the context of Mr Counsel's intention at the relevant time, the transcripts are set out:
Call 1:
OP [operator]: How can I help?
KC [Mr Counsel]: Yeah my wife tried to kill herself the other night. She's taken off again now I think she's heading to Albany to jump off at The Gap.
OP: Okay, what was your name?
KC: Kevin Counsel.
OP: What was your contact number there Kevin?
KC: Ah, mate, didn't it come through on your screen?
OP: No
KC: I'm not sure, I'll have to go through my phone and get it.
OP: Whereabouts are you going now, to Albany?
KC: I'm heading to Albany mate flat out.
OP: Okay. Do you know whereabouts, do you know her vehicle rego or anything like that?
KC: It's a gold Prado, umm I can't quite remember the rego.
OP: Okay.We're gonna kind of need..
C: What's that?
OP: Need like more information if you can understand, because all we've basically got is your name, her name and no contact numbers or anything like that. Can you pull over and just get her number?
KC: Give you her number. I can give you my number and her number.
OP: Yeah, that's what we need so can give her a call.
KC: Okay, I'll just get into my phone..aw man..here we go, contacts...
OP: If you're on your phone you've got to pull over cause we don't want you getting in an accident.
KC: Mate, I'm not slowing down for no one.
OP: No, no, if your not using hands free I can't take information from you over the phone, cause if you..
KC: [Shouting including expletives - difficult to understand].
OP: Okay well its up to you. I'm telling you that I am not taking information from you when you are not using hands free on the phone.
KC: [a few mumbled words].
OP: Call terminated 15:39
Call 2:
OP: How may I help you?
KC: Yeah, I'm getting chased by the police at the moment, I'm heading down Albany Highway
OP: Why don't you stop for them sir
KC: Yeah well I'm not going to stop am I, obviously I want someone to get to Albany, my wife is going to jump off the bridge and you're going to have to get there before and stop it. My wife is going to jump at The Gap. I want someone I want a police officer at Albany before I pull over okay, no one's going to stop her from killing herself okay.
OP: But there's no point in you killing yourself while we are trying to do that sir.
KC: I will not stop until I get to Albany.
OP: What road are you on now?
KC: I'm on Albany Highway, half way down there.
OP: Are you in Albany at the moment?
KC: No, I'm about 100 odd Ks south still
OP: What suburb or town do you think you are in?
KC: I don't know, I think I am about half way down there
OP: Are the police actually chasing you now?
KC: They are chasing me now, they are behind me I don't care I'm not stopping
OP: So the police are behind you right now?
KC: Yes they are they have been behind me for about ten minutes.
OP: Then please stop and...
KC: I'm not going to stop until you promise that someone is going to be in Albany before I stop.
OP: Of course police are going to go to Albany. What's your name?
KC: My name is Kevin COUNSEL.
OP: Kevin COUNSEL?
KC: Yes.
OP: And so she's at The Gap in Albany is that what you said to me?
KC: I thought she was going to jump at The Gap the other day, some said she was gonna do it, ah, yeah gonna go.
OP: So Kevin what if you stop so I can talk to you over the phone
KC: (words difficult to understand) ...please can you do that? Can you have a police officer there? I am not going to stop until you tell me police are there. Can you track her phone?
OP: Yes but it is going to take time. Do you know she is there at The Gap? You said she was there last week.
KC: Yesterday or the night or the night before she tried to kill herself. I brought her back home from the hospital and she walked out of there, look, I just need you to.
OP: I just want to get more information and so I need you to stop for your sake as well.
KC: I am not stopping until I get there, I don't care about the police
OP: I need some details I need her phone number
KC: Tracey, Tracey COUNSEL, if you look up [K] Daycare Centre her name, her number is on that.
OP: You don't have her mobile number?
KC: Its in my phone and I'm driving and I'm not gonna stop.
OP: I will help if we can trace it, the daycare centre is not going to be open now.
KC: No but if you ring if you get directory assistance now you'll get the number, that's the number.
OP: It's the weekend they are not going to answer the phone.
KC: I know that they are not going to answer. If you go to directory assistance the number is the phone number.
OP: Do you understand me that I need the number the trace her.
KC: I'll get it out of my phone.
OP: Kevin, you need to stop the car.
KC: I'm not gonna stop...until I know that some is definitely gonna get there, I ain't stopping, I don't care.
OP: Police are going to spike your tyres mate.
KC: I know!...Nobody's gonna shoot my tyres please.
OP: Spike them Kevin.
KC: I've gotta get there... I'm not gonna slow down.
OP: I need her mobile number so I can do a trace on her see where she is.
KC: Okay, but the second I stop they're not gonna let me give it to yah, there gonna rip me out of the car.
OP: More than likely, well you didn't stop for the police. I suggest you get out of the car and sit on the ground.
KC: Just let give you her number, give you her number, her mobile number, I'll give it to you and then I'll stop okay. Her number is 04...04...[**** ***] hang on...[***].
OP: Stop the car and I'll call her.
KC:Do you promise?
OP: Yeah.
KC: Will you put a trace on the phone number please?
OP: Stop the car then I'll help you.
KC: Oh...this is bullshit...
OP: Are you pulling over Kevin.
KC: Yeah, I pulling over.
OP: Pulled over?
KC: She's not gonna be much further in front of me. Fucking hell.
OP: Have you stopped?
Sound of sirens and police officers.
The appellant's evidence
Mr Counsel and his wife gave evidence. They had been in a relationship for 10 years at the time of the trial, and have six children between them, four of whom live with them. Together, they run a childcare centre.
The critical events occurred on the evening of Friday, 5 June 2015 and on Sunday, 7 June 2015.
Mr Counsel gave evidence that he had trouble finding his wife on the Friday. She had been, in his words, showing signs of depression.[8] Earlier that day he had a conversation with her in which she said she wanted to take her own life. Mr Counsel says when he could not find her, he rang the police and they said they could not help[9] (evidence of that call was given for the first time during the trial and so could not be verified by the prosecution).[10] He then went to their childcare centre and found his wife. He saw empty pill packets in a bin, and his wife said she had taken them.[11] He took her to Armadale Emergency Centre. She was admitted and discharged later that evening. She told Mr Counsel that evening that she had planned to jump in the car and drive to Albany to jump off at The Gap, as that was somewhere she had seen whales and felt at peace.[12]
[8] ts 34 ‑ 35.
[9] ts 38.
[10] Appeal ts 54.
[11] ts 36.
[12] ts 37.
On Sunday, 7 June 2015, Mr Counsel last spoke to his wife at around 11.00 am. He dropped her at the childcare centre after they both attended their son's football game. He then received a phone call or message (he could not clearly recall which) from his wife's mother, saying that his wife had spoken to a sister‑in‑law about looking after the children if he (Mr Counsel) would not look after them and making arrangements for her daughter to receive a particular ring.[13]
[13] ts 38.
Mr Counsel took that to mean his wife was going to try and take her own life and went to the childcare centre to find her. She was not there.[14] He rang a friend to try and get him to go to the Albany Highway and asked him to ring a friend in Albany and ask him to also go out to the highway. He then started driving on the Albany Highway, 'to catch up with her'. He said he did not think the police would help him and his aim in driving was to, 'find her and stop her before she fell asleep behind the wheel or made it to Albany … to The Gap'.[15]
[14] ts 38.
[15] ts 39.
He admitted that during the second phone call he knew the police were chasing him and that they had asked him to stop. When asked why he did not stop, he said:[16]
Because I knew the second that I stopped the police concern would be focussed on myself and not on trying to help my wife. So ---
Why did you keep driving when you were asked - the sirens were going and you were asked to stop or why did you keep driving? ---I wanted to - to catch up to my wife and stop my wife from hurting herself or worse.
[16] ts 40.
Under cross‑examination, Mr Counsel accepted he assumed his wife was driving to Albany. He did not know whether or not that was true. Neither his wife nor mother‑in‑law had said that she was driving to Albany that day.[17]
[17] ts 42.
He also accepted that he drove some 122 km before making the first triple 0 call of that day to the police,[18] and that he was pursued by the police for some eight minutes before making the second triple 0 call. He accepted that once he stopped the car the police assisted him and located his wife.[19]
[18] ts 46.
[19] ts 48.
Mrs Counsel gave evidence confirming her admission to Armadale Hospital on the evening of Friday, 5 June 2015, and a medical report from the hospital was also tendered by consent.[20] She also said that she had told Mr Counsel that evening that she had planned to drive to Albany and jump off The Gap.[21]
[20] ts 62, exhibit 10.
[21] ts 63.
Mrs Counsel gave evidence that on Sunday, 7 June 2015, after the football game and after her husband had dropped her at the childcare centre, she had driven to two chemists and bought pills, taken those pills and then started driving but became very drowsy and pulled over. She communicated with her sister‑in‑law via text message about how she felt like giving up, and she recalled that two of her cousins turned up and took her to Armadale Hospital.[22] Hospital notes confirming her second admission were tendered by consent.[23]
[22] ts 64.
[23] ts 65, exhibit 11.
Mrs Counsel said she did not say anything to her husband (or anyone else) on the Sunday about any intention to drive to Albany.[24] She also said that although she recalled texting her sister‑in‑law, she did not recall texting her mother that day.
[24] ts 67.
The magistrate's reasons
The learned magistrate delivered detailed ex tempore reasons, convicting Mr Counsel of both charges.
He began by summarising the elements of the offences and the particulars relied upon by the prosecution as to the manner of Mr Counsel's driving. None of that was relevantly in dispute.
He then described aspects of the evidence that he said were troubling. Relevantly, the magistrate said that the principal theme of Mr Counsel's evidence as to contact with his mother‑in‑law was that he had substantial contact with her on the morning of 7 June 2015 but was vague as to whether it was telephone calls or text messages.[25] He contrasted this with evidence from Mrs Counsel that she had no contact with her mother that day but had contact with her sister‑in‑law. He also expressed concern as to an apparent inconsistency as to the evidence of Mr and Mrs Counsel as to whether their son was dropped off at home or at the childcare centre with Mrs Counsel on Sunday.
[25] ts 96.
The magistrate made the following relevant findings of fact:
(a)as to Mrs Counsel's admission to hospital on the Friday evening, there had been some financial dramas and tax issues that were causing the couple stress and that was background to the hospital admission;[26]
(b)it was the decision of Mr and Mrs Counsel that she discharge herself from hospital on the Friday night (and the magistrate noted the hospital record included the word 'abscond');[27]
(c)on the Sunday morning, Mr and Mrs Counsel attended a junior football game travelling together in Mr Counsel's car, and then sometime in the late morning, Mr Counsel dropped his wife off at the childcare centre. The purpose was for her to catch up on paperwork. Her car was already there;[28]
(d)there was no evidence to support that there were any issues or concerns as at Sunday morning in terms of there being any risk as to Mrs Counsel harming herself;[29]
(e)Mr Counsel drove his car to the business premises and then on to Albany Highway and drove south sometime later that afternoon;[30]
(f)Mr Counsel drove his vehicle at excessive speeds upwards and including 169 km per hour and at various times it was a busy road;[31]
(g)the magistrate took into account the two triple 0 phone calls, finding that, 'numerous instructions were provided to or given by the police operators, not being the same person for each of those calls, directing Mr Counsel to stop driving';[32]
(h)Mr Counsel was using his mobile phone at the time;[33]
(i)he did not pull over to use the mobile phone;[34] and
(j)the first police car to commence pursuit was a marked police car.[35]
[26] ts 98.
[27] ts 99,
[28] ts 99 ‑ 100.
[29] ts 100.
[30] ts 100.
[31] ts 100.
[32] ts 101.
[33] ts 101.
[34] ts 101.
[35] ts 102.
As to the manner of driving after the pursuit by the first police car commenced, the magistrate said as follows:[36]
I accept that they then pursued Mr Counsel, and he was well aware that they were pursuing him and that he continued to drive despite the fact that they were following him. And he observed them to change their direction from north to south to then travel south to north to follow him, activated their lights, activated their sirens. And he said that he observed the police to do that. And he said that, and I accept that, he knew what that meant. That is, for him to stop.
I accept also that he failed to stop despite the indications from the police that … that they clearly indicated to him. He understood what it meant when the lights and sirens were activated, that he was to pull over.
And I accept that he didn't do that and that he continued to travel at the speeds that they had observed and that I accept, because it's not challenged and the statements are quite clear from [the police], that he was driving in a manner that was inherently dangerous to any person that happened to be - and there were other vehicles on the road because I accept that whilst being observed by the Boddington Police, that Mr Counsel drove on the wrong side - that is, on the right-hand side - of the road, had crossed double white lines to do so and had overtaken other vehicles in a manner that was inherently dangerous, both in the manner of the overtaking and also in the speed that he was driving at the time. The police pursued - that is, followed with the intent of persuading Mr Counsel to stop for a considerable distance. And I accept that Mr Counsel failed to stop and that he was well aware that the police from the Boddington station in the marked police car were indicating for him to stop his vehicle.
[36] ts 102.
As to the manner of driving after the second police car took over the pursuit, the magistrate said as follows: [37]
They then followed Mr Counsel driving his Jeep Cherokee. He was still travelling at the speeds that are asserted by the first two police witnesses, that is excessive speeds well above 45 kilometres beyond the speed limit.
Indeed there had been, on Mr Counsel's admission, no effective change to the speed he had been travelling at, which I accept as being fairly consistent throughout that period, namely in the order of 170 kilometres an hour. That is, 60 kilometres an hour above the limit. I accept that as Mr Counsel's vehicle approached the northern outskirts of the town of Williams where the speed limit is reduced from - that is, the maximum speed limit is reduced from 110 to 80 kilometres per hour and then closer to town where it's reduced to 50, I accept that Mr Counsel did slow his vehicle to some extent.
However, I make positive findings that he still travelled at speeds well in excess of the maximum speed limits. And indeed through the town of Williams, although his speed had slowed, he was still travelling at an excessive speed. And that the speed and the manner of his driving was, having regard to all the circumstances of the case, dangerous to the public and to other road users within the town of Williams, which is itself a fairly busy town, particularly on a Sunday afternoon.
Mr Counsel himself conceded that at earlier stages on Albany Highway, the road had been busy. But I accept that at 4 o'clock or approaching 4 o'clock on a Sunday afternoon that the road was being used by other road users and that for a period of time through the town of Williams, Mr Counsel elected to - that is, consciously drove his vehicle on the right‑hand side of the road surface. That is, on the pathway of upcoming traffic. That is, he was not travelling as close to the left as he could and made a conscious decision to travel on the right.
Indeed, as he emerged from the southern side of Williams, I make a finding that as he drove past the BP Service Station, which I accept as being on the south side of the town of Williams, that he accelerated and for a period of time travelled to the right-hand side - that is, on the right-hand side of Albany Highway, which was in itself inherently dangerous given that it's a town of some size and has major intersections to the west and to the east on the southern side of the town of Williams.
In all the circumstances, I accept the prosecution evidence put forward that the manner of driving by Mr Williams - sorry, the manner of driving by Mr Counsel as he passed through the town of Williams and to the north of Williams and to the south of Williams was, in all the circumstances, inherently dangerous, both by way of speed and also in the manner of driving.
[37] ts 104 ‑ 105.
The magistrate then turned to the issue of 'escaping pursuit'. He said:[38]
I also make a positive finding that the decision he made to continue driving was so as to escape pursuit by a member of the WA Police Force, namely initially to escape pursuit by Sergeant Glynn and his colleague Andrew Brown. And then once the pursuit or the following of Mr Counsel was taken up by Senior Constable Bradbury and his colleague, First Class Constable Tinley, that the conscious decision was made by Mr Counsel to drive his vehicle not only in a manner that was inherently dangerous but in addition, he was driving the vehicle in a manner which was to escape pursuit by a member of the police force.
He accepts that he has been directed to stop. He admitted a number of times that he ignored and overlooked and chose not to comply with the direction to stop. And I accept also that he made the decision to do so so as to escape pursuit by a member of the WA Police. The manner of driving is consistent with a finding that his driving on that occasion at that speed and in the manner of overtaking and travelling on the wrong side of the road was so as to escape pursuit by the police that were following.
I have, as I've indicated, accepted in totality the evidence of the prosecution witnesses and the assertions that each of them have made in their statements I accept as being entirely factual. And that evidence in itself allows me to reach those conclusions of fact beyond reasonable doubt. And in any event, much of those assertions by the prosecution witnesses was supported by Mr Counsel in his own evidence. He conceded, if not admitted, that the speeds that he was travelling at were excessive. And he admitted having responded to directions to stop from the police operations that he simply ignored and overlooked and chose to not stop.
And I accept that in all the circumstances, having accepted the prosecution witnesses' evidence, that the manner of driving was consistent with - and I can be satisfied beyond reasonable doubt that the manner of driving in that manner was so as to escape pursuit by a member of the police force.
[38] ts 105.
Later in his reasons the magistrate re‑visited the issue, saying:[39]
I also make a finding positive that the driving of the vehicle on that occasion was to escape pursuit by a member of the police. Mr Counsel well admits that he had observed the police station and that he had been directed to stop and that in that regard, I accept the evidence of the officers from Williams that they had motioned to him to pull over and that he had failed to stop. But in any event, the decision to drive away from and to continue at the speed of 170 kilometres per hour or thereabouts when he was being followed or pursued - which I make that finding that he was being pursued - by the police from Boddington, it was to escape pursuit by the police. That is, to avoid the police.
I also make a finding in respect of the second offence that not only was he driving in the manner that I've already indicated but that he was directed to stop the vehicle a number of times, not only by the police in the marked and unmarked police vehicles. But clearly he was directed to stop on a number of occasions in the telephone calls to triple zero. And that the exchange - in fact, they're words from Mr Counsel himself. He has refused a number of times, 'I'm not stopping.' And, in fact, some of the language he used was less than pleasant. But he had been directed to stop a number of times and he failed to comply with the direction to stop.
[39] ts 112.
The magistrate then turned to the defence of emergency. He noted that it was for the prosecution to satisfy him that the defence was not available. As to the first limb of s 25(3), the magistrate said:[40]
I'm satisfied on the evidence beyond reasonable doubt that at the time of the driving, Mr Counsel did not actually believe that any emergency existed at the time. I'm satisfied beyond reasonable doubt that on the morning of Sunday, 7 June 2015, there had been some tension between he and his wife leading up to that weekend as a result of some financial challenges that their business was facing and that in addition, Mrs Counsel had had some emotional challenges that had resulted in her being hospitalised, initially for a short period of time on Sunday night, 5 June 2016.
To the extent that it has been asserted, I can accept if need be, on the evidence that seems available to me, that there was some medications that were taken by Mrs Counsel on Friday, 5 June and that there was a hospitalisation that afternoon. But that the decision had been made to discharge herself from hospital, which Mr Counsel - at least to the extent that he supported that decision because he drove her home and they went home together and they had a discussion that night. And I accept that her emotional state was somewhat fragile.
Two days later, however, on Sunday, 7 June, it seems a fairly normal Sunday morning that they went to the football game together of their son …. and sat in the car and discussed some of the issues they had.
But I accept that on the evidence that Mr Counsel then drove Mrs Counsel to the business premises for her to catch up on some paperwork that was overdue. I accept that she was a bit stressed by the fact that she felt, at least, that she had let Mr Counsel down in terms of maintaining diligence with those financial records. But Mr Counsel drove her to the business premises. He knew her car was parked there, having still been at the premises. … He knew the car was there. She said the car was there. He said the car was there.
He took her there to catch up on the paperwork. There's nothing to suggest that there was anything about her behaviour that morning that would enable me, on the evidence before the court, to form a view that Mr Counsel actually believed that the circumstances of a sudden or extraordinary emergency existed when he made the decision to drive in the manner that he did.
[40] ts 107 ‑ 108.
As to the subjective assessment of 'necessary response',[41] the magistrate found that:[42]
I'm not satisfied that the doing of that act in any event - that is, the driving at excessive speed on the wrong side of the road, overtaking in the manner that he has conceded as having done and crossing double white lines was a necessary response to the emergency.
[41] The magistrate did not identify s 25(3)(a)(ii) as a separate limb but treated s 25(a) as one limb. Nothing turns on this.
[42] ts 109.
The magistrate then considered the position, assuming he were wrong as to Mr Counsel's belief, as to whether Mr Counsel's response to the perceived emergency was reasonable (the third limb). He found that it was not, relying on the following:
(a)the act of driving in the manner that he did, particularly the speed that he was doing for the prolonged period of 122 km was not a reasonable response to the emergency;[43]
(b)the journey to The Gap at Albany is a trip in excess of four hours driving at top speed, and to follow his wife from some distance is not a reasonable response;[44]
(c)there were any number of other options in terms of stopping or calling police from other stations - including Armadale, Gosnells, Albany, Kojonup and Williams.[45]
[43] ts 109.
[44] ts 110.
[45] ts 110.
Finally, the magistrate considered whether there were reasonable grounds for Mr Counsel to believe there was a sudden or extraordinary emergency (the fourth limb). He found that there were not reasonable grounds. He said:[46]
[Mr Counsel] had dropped, by his own admission, Mrs Counsel at their business premises late morning. He knew the vehicle was there. They had had time together at the football game.
If he was of the view that Mrs Counsel was fragile or indeed that there was some messages being received or not responded to, it's not in my view reasonable for him to have held the beliefs that he did given that it was now Sunday afternoon or late Sunday afternoon and any discussion they had had about Mrs Counsel feeling particularly low was two days previously. So in terms of it being sudden or an extraordinary emergency or the response being reasonable to the circumstances as it's said that Mr Counsel believed them to be, in my view on all the evidence, there are no reasonable grounds for those beliefs if, in fact, they were held by Mr Counsel.
[46] ts 111.
Principles - defence of emergency
The defence of emergency exists to meet cases where the circumstances overwhelmingly compel disobedience to the law. The corollary is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those within the law.[47]
[47] Floyd v The State of Western Australia [2013] WASCA 33 [25]; Petersen v The State of Western Australia [2016] WASCA 66; (2016) 50 WAR 45 [43].
The defendant carries the evidential burden of raising the defence of emergency. In that regard, the test is whether there is evidence which, taken at its highest in favour of the defendant, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived.[48]
[48] Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434 [36]; Floyd v The State of Western Australia [21]; Petersen v The State of Western Australia [42].
Where there is material before the court raising the exculpatory matters under s 25, the prosecution is required to negative them beyond reasonable doubt.[49] For the prosecution to prove beyond reasonable doubt that s 25 does not excuse criminal responsibility, it must negate one of the four limbs by proving one of the following:
(a)that the accused did not believe circumstances of sudden or extraordinary emergency existed; or
(b)the accused did not believe the act or making the omission was a necessary response to the emergency; or
(c)the act or omission was not a reasonable response to the emergency in the circumstances as the accused believed them to be; or
(d)there were not reasonable grounds for the beliefs held by the accused.[50]
[49] Lund v Davies [2013] WASC 52 [35], citing CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 [8], [35]; Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, 333 ‑ 334; Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158, 161 ‑ 162.
[50] Adopting the summary set out in Bauerhuit v Dean [2011] WASC 253 [35].
Useful observations from the authorities include the following:
(a)in determining whether an emergency is sudden or extraordinary it may be relevant to have regard to the time which elapsed between the offender becoming aware of the emergency and his or her acting in response to it. However, delay is not a determinative factor;[51]
(b)a 'sudden' emergency has been described as one that comes upon the accused unexpectedly, catching him or her off-guard. An 'extraordinary emergency' is one which has been said to be 'unexpected or sudden', but a situation of 'gravity and abnormal or unusual danger';[52] and
(c)the prosecution cannot exclude the defence by proving that no sudden or extraordinary emergency actually existed. Although that fact may be relevant, the ultimate question is whether the offender reasonably believed in the existence of the emergency.[53]
[51] Nguyen v The Queen [2005] WASCA 22 [17] (noting the wording of the then s 25 was in different terms).
[52] Bauerhuit v Dean [34].
[53] Nguyen v The Queen [17].
Principles - 'to escape police pursuit'
The meaning of this phrase does not appear to have been the subject of authority in this jurisdiction. The phrase appears in both s 49AB of the Road Traffic Act and s 44 of the Road Traffic (Administration) Act and the appeal proceeded on the basis that it would bear the same meaning in both provisions.
Section 60(5) of the Road Traffic Act (which cross‑refers to s 49AB) and s 44 of the Road Traffic (Administration) Act were introduced by the Road Traffic (Miscellaneous Amendments) Act 2012 (WA). The Explanatory Memorandum to the relevant bill does not assist with the meaning of the phrase. I have considered some of the parliamentary materials available at the time of the passing of the Road Traffic (Miscellaneous Amendments) Act in order to assist in an understanding of the context and purpose of the amendments.[54] The Minister's second reading speech of the bill is helpful in this regard. The amendments formed part of a range of amendments aimed at responding to so‑called hoon behaviour and providing additional protection to police drivers after a spate of police pursuits that ended with tragic results. The following extracts provide some assistance as to purpose:
The government is concerned about the behaviour of people seeking to evade pursuit by police on our roads. Since 2009, the number of recorded incidents of people evading police pursuit has more than doubled. In 2011‑12 there were 327 such pursuits. There are a range of reasons why people fail to stop when called upon to do so by a police officer. They may be concerned that they will be apprehended for other serious criminal activity, they may be in possession of a stolen vehicle or simply engaged in thrill‑seeking behaviour. Whatever the reason, when a person decides to evade a police officer in a motor vehicle, it is an extremely dangerous course of action that poses a significant risk to the police officers and to all other road users and bystanders who unwittingly find themselves in the path of the pursuit, as well as to the individuals evading police themselves. In 2011-12, there were six incidents of death or serious injury arising out of police pursuits.
…
The second thing the bill seeks to do is ensure the law appropriately recognises the gravity of offending behaviour on our roads, and the risks to other road users that result when people seek to evade a police pursuit. It reflects the government's position that failing to stop when called upon to do so by a police officer is always a very serious matter, and that people who drive recklessly to evade police should be jailed, both in recognition of the wrongfulness of their actions and to ensure they cannot continue to put other road users at risk.[55]
The bill inserts a new provision into the Road Traffic Act 1974 to create a circumstance of aggravation for the offences of reckless and dangerous driving and failing to stop, committed when a person is attempting to evade pursuit by police.[56]
I hope that this legislation will send a very simple message to people: if a police officer asks you to stop - stop! Do not put your life at risk. Do not put the police officer's life at risk. And do not endanger innocent road users and other members of the community; please do not put their lives at risk either. If you refuse to stop when police call you to stop and instead drive away recklessly, you will go to jail.[57]
[54] In accordance with s 19 Interpretation Act 1984 (WA): see Van Heerden v Hawkins [2016] WASCA 42[55] Hansard, 24 October 2012, 7453 ‑ 7544 (Mrs L M Harvey, Minister for Police and Road Safety).
[56] Hansard, 24 October 2012, 7544.
[57] Hansard, 6 November 2012, 7858 ‑ 7859.
The scope and mandatory effect of s 60(c) was aired during the debate:
It appears that the government with this bill is weighing one circumstance of aggravation against other circumstances of aggravation, and giving it a much higher priority than others. If at some stage someone - it might be a first offender - has been pursued by police, there is the requirement, despite any mitigating circumstances, to give that person a minimum six‑month jail term.[58]
[58] Hansard, 6 November 2012, 7873 (Mrs M H Roberts, Shadow Minister for Police and Road Safety).
Despite some focus on the aim of deterring recidivist so-called hoons,[59] the tenor of the purpose of the amendments is broader. That first time offenders might be affected by the mandatory imprisonment regime was disclosed and the bill was passed regardless.
[59] Eg Hansard, 6 November 2012, 7858, 7898 (Mrs Harvey).
It should be noted that the phrase, 'to escape pursuit by a member of the police force' was inserted in the Road Traffic Act previously by way of the now replaced s 59B(4). The explanatory notes provided at the time that provision was introduced do not assist with its meaning, save that they state that:[60]
The effect of section 59B(4) is that in determining whether the person was driving the vehicle concerned to escape pursuit by a member of the Police Force, that it does not matter whether a pursuit was suspended or terminated at the time of the alleged offence.
[60] Explanatory Notes Road Traffic Amendment (Dangerous Driving) Bill 2004.
The ordinary meaning of the verb 'escape' includes (relevantly), 'to get off safely when pursued or imperilled; to avoid capture, punishment, or any threatened evil; to go unhurt or unpunished; to get clear away from (pursuit or a pursuer); to elude (a person's grasp); to succeed in avoiding (anything painful or unwelcome)'.[61]
[61] Oxford English Dictionary Online.
In my view, nothing in the Hansard extracts suggests the word should be given a construction more narrow than its ordinary meaning.
It is clear, however, that the phrase requires proof of a particular purpose or intent. This was not in issue between the parties.
It is also the approach taken by the court in R v Sandoval,[62] in which the court considered whether an objective or subjective approach was required in considering the meaning of a similar phrase, 'to escape pursuit by a police officer'. The Crown argued that the court need not look at what the accused believed as the test was objective - was the accused escaping pursuit by a police officer? The court rejected that argument, saying:[63]
On the other hand, and this is an argument that I accept, how can a person drive a vehicle 'to escape pursuit by a police officer' unless the person knows about the pursuit in the first place?
It is important to note that the words 'to escape' must be given some work to do and that if the Legislature had wanted the circumstance of aggravation to be as the Crown says it is, it could easily have described the circumstance of aggravation thus: 'the accused was driving the vehicle whilst being pursued by a police officer'. The only realistic interpretation of the words as they exist in s 52A(7)(c) is that the accused must be attempting to 'escape' and the only realistic understanding of the circumstance of aggravation is thus that the Crown has to prove that the accused knew about the pursuit.
[62] R v Sandoval [2010] NSWDC 255; (2010) 11 DCLR (NSW) 385.
[63] R v Sandoval [37] ‑ [38]. The court found that the prosecution failed to establish intent because the accused had a mental illness and did not understand that he was being pursued by police.
Nor was it in issue between the parties that a person may engage in conduct that has more than one purpose. Counsel for both parties referred to the High Court's reasons in Zaburoni v The Queen,[64] in which notions of motive, purpose and intent were discussed in the context of circumstances where the accused had been convicted of unlawfully transmitting a serious disease to another with intent to do so.
[64] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482.
Kiefel, Bell and Keane JJ outlined the following principles:[65]
It is necessary to say something in this context about the concepts of purpose, desire and motive. Discussions of proof of intention sometimes equate desire with motive. The respondent's submissions treat motive and purpose as synonyms. This is in aid of the submission that motive is irrelevant to criminal responsibility under the Code.
In ordinary parlance, purpose, desire and motive may be used interchangeably. However, in law motive describes the reason that prompts the formation of the accused's intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive for forming that intention may be to avoid repaying a debt he owes to his partner. Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose here is not to be equated with motive.
...
Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant he had as a purpose the transmission of HIV to her. A person may engage in conduct having more than one object or purpose. The complainant said the appellant preferred unprotected sexual intercourse because it was more pleasurable. Accepting that the appellant engaged in unprotected sexual intercourse because it gave him pleasure is not necessarily inconsistent with proof that he also had the intention thereby of transmitting HIV to the complainant. It is the identification of evidence from which the latter inference could be drawn to the criminal standard that is the issue in this appeal. Its resolution requires reference to the evidence given at the trial in some detail.
[65] Zaburoni v The Queen [16] ‑ [19] (footnotes omitted).
The High Court also said that:[66]
To engage in conduct knowing that it will probably produce a particular harm is reckless. It is evidence which, taken with other evidence, may support a conclusion that the person intended to produce that harm. Nonetheless, foresight of risk of harm is distinct in law from the intention to produce that harm.
Such intention or purpose may be proven either directly or inferentially.
[66] Zaburoni v The Queen [10].
In Peters v The Queen[67] Kirby J observed:
Absent a comprehensive and reliable confession, it is usually impossible for the prosecution actually to get into the mind of the accused and to demonstrate exactly what it finds was there at the time of the criminal act. Necessarily, therefore, intention must ordinarily be inferred from all of the evidence admitted at the trial. In practice this is not usually such a problem. But the search is not for an intention which the law objectively imputes to the accused. It is a search, by the process of inference from the evidence, to discover the intention which, subjectively, the accused actually had.
[67] Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, 551 [134].
The principles on appeals from a magistrate's decision
The appeal is brought under pt 2 of the Criminal Appeals Act 2004 (WA). Section 8(1) provides that:
An appeal may be made under this Division on one or more of these grounds -
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave of the court is required for each ground of appeal.[68] Leave must not be given unless this court is satisfied the ground has a reasonable prospect of succeeding.[69]
[68] Criminal Appeals Act 2004 (WA), s 9(1).
[69] Criminal Appeals Act 2004 (WA), s 9(2).
Under s 14(2) of the Criminal Appeals Act, 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. The court must decide whether a substantial miscarriage of justice has actually occurred. That task must be performed 'with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction'.[70] There are many possible kinds of miscarriage, and there can be no single test. But substantial miscarriage includes a case where there has been an error or an irregularity in, or in relation to, the trial and the appeal court cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial.[71]
[70] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [39]. See also as to the proviso Petersen v The State of Western Australia [16] ‑ [28].
[71] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [26].
Proposed grounds of appeal
The notice of appeal originally sought leave to appeal on two grounds. By the time an amended notice and written outline were filed on behalf of Mr Counsel, that number had grown to ten. There was some inconsistency (at least as to numbering) between the grounds in the amended notice and the grounds as set out in the outline. With the consent of the respondent, the hearing of the appeal proceeded on the basis of the grounds as set out in the written outline.
Those grounds allege as follows:
1.The appellant's conviction should be set aside on the basis of a wrong decision on a question of law.[72]
[72] Fifteen particulars were provided: those primarily relied upon are set out further below.
2.The learned Magistrate misconceived the defence case, erroneously reasoning on the basis that the appellant was asserting that when his wife was taken to the family business on the Sunday morning, the appellant believed that her mental stability and emotional state were troubling, when the defence case was that the appellant only became (again) concerned for his wife's safety after he received a phone call from his mother‑in‑law.
3.When considering the issue of whether the appellant believed there to be an emergency which required action on his part, the learned magistrate failed to consider the evidence of the appellant concerning a telephone call and/or text messages which the appellant received from his mother in law.
4.The learned Magistrate failed to make any finding as to the reason why the appellant was driving at speed from Perth to Albany on the day in question.
5.The learned Magistrate erroneously found that the appellant 'did not actually believe that any emergency existed at the time' of his driving.
6.The finding by the learned magistrate that the purpose of the appellant's driving was to escape pursuit by the police was against the evidence, and ignored the unchallenged and overwhelming evidence that the appellant's purpose in driving was to intercept his wife.
7.The learned magistrate made a series of rational errors, resulting in conclusions which were erroneous in law (in the sense of being unsustainable), which the learned magistrate took into account in determining both intermediate and ultimate facts, with the effect that the learned magistrate took into account irrelevant considerations, and failed to take into account relevant considerations.
PARTICULARS
a)The learned magistrate erred in concluding that there were material inconsistencies between the evidence of the appellant and his wife which justified viewing their evidence with suspicion or circumspection;
b)The learned magistrate erroneously found that 'there had been no contact between Mrs Counsel and her mother that day';
c)The learned Magistrate erred in discounting the evidence of the appellant and his wife on the basis of a general view that some answers were vague and imprecise, without identifying those answers and the basis upon which a criticism of them was open, in circumstances where the subject matter of those responses did not warrant such a criticism; and
d)The learned Magistrate erred in doubting that Mrs Counsel was in a precarious emotional state on the Sunday in question because, on the preceding Friday, she had discharged herself from the Armadale Kelmscott Hospital.
8.Notwithstanding his finding that the appellant was not responding to an emergency (or a belief that there was an emergency), the learned magistrate went on to consider the issue of whether the appellant's driving was a necessary response to such an emergency, and in determining that it was not, the learned Magistrate failed to consider (or refer to) the evidence:
a)of the appellant that when he called the police for assistance when Mrs Counsel was missing on the preceding Friday 'they said they wouldn't help because ... she hadn't been missing' for the requisite period of time before the police would do anything prompting the appellant to believe that the police were not going to help him and that he had to 'do it [himself]';
and
b)in Exhibit 2 … which demonstrated that the first emergency operator refused to assist the appellant.
9.The learned Magistrate erred in finding that there were any number of other options available to Mr Counsel including the option to call the police from home much earlier rather than waiting for the journey along Albany Highway.
10.In the alternative to ground 1, the verdict of guilty on which the conviction is based should be seat aside because, having regard to the evidence, it is unreasonable or cannot be supported. The appellant relies on the same particulars as in ground 1 in support of this ground.
Dealing with the proposed grounds in these reasons
There is considerable repetition or overlap in some of the proposed grounds and particulars. I will group the grounds to reflect the real contentions on the part of the appellant. Grounds 2, 3, 4, 5 and 7 allege errors that are interrelated but more particularly are relevant to the subjective belief of Mr Counsel on Sunday, 7 June 2015, as to whether his wife was intending to commit suicide (that is, the first limb of s 25(3) of the Criminal Code).
Grounds 8 and 9 deal more specifically with the emergency defence, and in particular the second, third and fourth limbs. As s 25, if made out, provides a complete defence, it makes sense to deal with it before turning to ground 1. Ground 1 alleges error in law on the part of the magistrate in drawing inferences as to Mr Counsel's intention to escape pursuit. Ground 6 overlaps with ground 1.[73]
[73] Accepted by the appellant - appeal ts 31. Some of the appellant's written submissions as to intent were included under the heading for ground 3 but as they properly relate to grounds 1 and 6, and they are dealt with in that context.
Ground 10 as expressed suggests a separate ground of appeal that is not recognised under s 8 of the Criminal Appeals Act but is more properly to be considered as an allegation of miscarriage of justice under s 8(b) of the Criminal Appeals Act.[74] Its determination rests upon the outcome of the other grounds.
[74] The State of Western Australia v Olive [2011] WASCA 25 [40] (Buss JA, McLure P &Mazza JA agreeing).
Grounds 2, 3, 4, 5 and 7
On the basis of his reasons,[75] the magistrate appears to have misapprehended the evidence and the significance of the evidence as to the call or text message received by Mr Counsel from his mother‑in‑law on Sunday, 7 June 2015 relaying information from a sister‑in‑law, which on the defence case, precipitated his driving back to the childcare centre. Mr Counsel's evidence as to the communication with his mother‑in‑law was not seriously challenged under cross-examination. Further, Mrs Counsel's evidence that she sent text messages to her sister‑in‑law that day about how she felt was consistent with Mr Counsel's evidence. The fact that Mr Counsel could not clearly recall whether the communication was by telephone or text message does not, in my view, undermine his evidence.
[75] ts 96, 108.
The respondent accepted at the hearing before me that the combined effect of the evidence of Mr and Mrs Counsel was that there had been some communication between Mrs Counsel and her sister‑in‑law on the Sunday and that those had been conveyed to Mr Counsel and that such evidence is relevant to the defence of emergency.[76]
[76] Appeal ts 51.
In assessing Mr Counsel's belief as to his wife's intentions on the Sunday, such evidence was relevant and material.
As to ground 5, the respondent accepted at the hearing before me that the evidence established that Mr Counsel 'believed that his wife was likely to be about to attempt suicide'.[77]
[77] Appeal ts 52.
Taking into account the evidence as to the information conveyed to him by his mother‑in‑law, the calls seeking assistance from friends, the absence of Mrs Counsel's car from the childcare centre, the evidence that Mrs Counsel had previously said that she was intending to commit suicide in Albany and the nature and intensity of the triple 0 phone calls on the Sunday, I agree with the respondent's position and the concession was properly made.
Had the magistrate properly apprehended the appellant's case and the importance of the communication Mr Counsel received about his wife's statements to her sister‑in‑law as at early Sunday afternoon, then it may have influenced his view as to whether Mr Counsel believed, as he raced down the highway, that circumstances of sudden or extraordinary emergency existed. In my view, it was open for the magistrate to find that Mr Counsel did hold such a belief. Mr Counsel had received information that his wife was seemingly making plans about what should happen in her absence. There was only a short period of time between receipt of that information and Mr Counsel setting off in his car to attempt to locate her. Her car was missing from the childcare centre. She had made what, from all accounts, was a genuine suicide attempt less than 48 hours beforehand and she had told her husband she intended to bring about that result by driving to Albany.
All of that information informed Mr Counsel's actions as he set off at speed down Albany Highway attempting to catch up with his wife, who he believed was ahead of him on the road. The triple 0 calls are evidence of his belief at the time. He volunteered the information to the police about the suicide attempt on the Friday and what his wife told him she planned to do and his plan to try and stop her. In my view, had the magistrate properly apprehended the evidence, it was not open to him to find that the prosecution proved beyond reasonable doubt that Mr Counsel did not genuinely believe that he was facing an extraordinary emergency, an abnormal situation and one of some gravity.
It follows that I grant leave with respect to grounds 2, 3 and 5. But even if the magistrate had found that Mr Counsel held the relevant belief, the prosecution need only prove beyond reasonable doubt that one of the relevant limbs of s 25 is negatived. Accordingly, whether there has been any miscarriage of justice for the purpose of s 14(2) of the Criminal Appeals Act depends upon whether the other limbs of s 25 are negatived. The other limbs are addressed by grounds 8 and 9 below.
The error sought to be addressed by ground 4 is in any event addressed by the grant of leave with respect to grounds 3 and 5. The question of Mr Counsel's reasons for driving as he did is also addressed further with respect to ground 6. However, I note that it is implicit in the magistrate's consideration and rejection of the defence of emergency that he considered whether or not Mr Counsel was driving for the reason asserted by the defence. It is also apparent that the magistrate considered that, for whatever motive, Mr Counsel was driving to escape police pursuit, as is dealt with in grounds 1 and 6. Although there was no express finding as to his motive for doing so, the magistrate made findings as to the elements of the offences and considered the purpose of the driving carefully. In light of its overlap with other grounds where leave is granted I would also grant leave with respect to ground 4.
By ground 7 the appellant asserts (in effect) that because the magistrate made various errors, he wrongly discounted the weight of the evidence given by Mr and Mrs Counsel. The complaint is to be viewed against the magistrate's rejection of Mr Counsel's contention that on the Sunday afternoon he believed there were circumstances of emergency. Ground 7 largely falls away in light of the position with respect to grounds 3 and 5. However, for completion I will deal with each particular.
As to particular 7(a), in his written outline, the appellant referred to the matters that had troubled the magistrate.[78]
[78] Appellant's outline [69] ‑ [76].
The first was the alleged inconsistency as to evidence of the communications with Mr Counsel's mother‑in‑law on the Sunday and as to the location of the son. Viewed properly, there was no real inconsistency as to the communications with Mr Counsel's mother‑in‑law, and the issue is addressed by grounds 2 and 3.
The second was the alleged inconsistency as to whether Mrs Counsel's son was dropped at home after football on the Sunday morning or taken to the childcare centre. It is true that there was a lack of clarity and some inconsistency as to whether the son was dropped at the childcare centre before or after football or even at some later stage. However, the particular evidence was not material, other than reflecting in some manner on the accuracy of the witnesses' general recollection of events. The magistrate did not err in identifying the inconsistency. Ultimately, in light of the outcome with respect to grounds 2 and 3, nothing turns on the weight given to the inconsistency as to evidence about the whereabouts of the son.
As to particular 7(b), the magistrate erred in finding that there had been no direct contact between Mrs Counsel and her mother on the Sunday. The evidence was equivocal at best, and the respondent concedes the point. Even if there had been no direct contact between Mrs Counsel and her mother on that date, that is not to the point. The defence case proceeded upon the basis of information given by the sister‑in‑law to the mother, rather than given directly to the mother.
Particular 7(c) does not advance matters. The magistrate observed the witnesses and expressed concern about particular aspects and noted more generally that some evidence was 'vague'. However, he did not state that he disbelieved Mr and Mrs Counsel as to the entirety of their evidence. He was also evidently aware of the burden of proof being on the prosecution, a matter he commented upon several times.[79]
[79] ts 97, 106.
As to particular 7(d), the respondent concedes that the magistrate erred in doubting, on the basis that she had discharged herself from hospital, that Mrs Counsel was in a precarious emotional state. The only medical evidence was to the effect that she had attempted self‑harm on the Friday night and again attempted it on the Sunday.[80] There was no evidential basis upon which the magistrate could properly infer that simply because she discharged herself from hospital, she was not at that time in a precarious emotional state. The rationale for self‑discharge was simply not addressed.
[80] Exhibit 10, exhibit 11.
I grant leave to appeal with respect to ground 7, whilst noting the overlap with grounds 2, 3 and 5 in this regard.
As with grounds 2, 3 and 5, whether there has been any miscarriage of justice with respect to ground 4 (insofar as it relates to the emergency defence) and ground 7 depends upon the outcome with respect to grounds 8 and 9.
Grounds 8 and 9 - emergency defence
Ground 8 is directed to the second limb of s 25(3). Mr Counsel contends that he believed he had to drive in the manner that he did because he believed the police would not assist him to locate his wife.
As the magistrate had formed the view that Mr Counsel did not believe there were circumstances of sudden or extraordinary emergency, it is not surprising that he dealt with the issue only briefly. The magistrate focussed on the reckless driving. He did not consider it was necessary for Mr Counsel to drive in the reckless manner that he did, even if he perceived there to be an emergency. Mr Counsel contends that the magistrate failed to take into account his belief that the police would not help him and so, to paraphrase, he was forced to a position of self‑help.
Mr Counsel's evidence as to the Friday evening telephone call to the police was general in its nature. The transcript was not in evidence. The request for help was allegedly made not in the context of a suicide attempt but in the context of Mrs Counsel being 'missing'.
The evidence that Mr Counsel rang triple 0 twice on the Sunday and asked for help suggests he in fact considered the police could assist him, as there had been an actual suicide attempt on the Friday evening and a further attempt was apparently threatened.
Nor do I consider the transcript of the first triple 0 call on the Sunday supports Mr Counsel's contention that the police were unwilling to assist him. To the contrary, the operator asked questions in an attempt to illicit information that would assist the police in locating Mrs Counsel. The request that Mr Counsel pull over rather than search for phone numbers whilst driving at speed was entirely reasonable. It would have taken him only a few minutes to pull over. Regardless of who terminated that phone call, it was terminated in circumstances where Mr Counsel was refusing to pull over and assist the operator who in turn was attempting to assist him.
Further, Mr Counsel again called triple 0 after that first call terminated. He asked for help in that second call: 'you're going to have to get [to Albany] before and stop it'. It can be said based on the phone calls that rather than assuming the police would refuse to help him, Mr Counsel assumed and hoped they could assist him.
Had the magistrate expressly taken into account the Friday phone call and the first triple 0 call, it would have been reasonable to conclude that Mr Counsel did not believe the police would refuse to assist him. Accordingly, clearly it was open to find that Mr Counsel's reckless driving was not justified even taking into account those matters. I do not consider there would have been a different result had the two matters particularised been expressly referred to by the magistrate.
Ground 9 concerns the third and fourth limbs of s 25. The particulars relied upon with respect to ground 8 were also relied upon with respect to ground 9.[81] For the same reasons, I do not consider those particulars assist the appellant as to reasonableness for the purpose of ground 9.
[81] Appellant's outline [103].
Further as to ground 9, the appellant says that the magistrate erred in finding that there were alternatives available to him. Mr Counsel denies that any of the options suggested by the magistrate were real options because of the asserted lack of assistance provided by the police. I do not consider the magistrate erred in this regard. The matters relied upon by Mr Counsel as evidencing his belief as to a lack of police assistance do not support that conclusion and so do not support his contention that it was therefore necessary to drive recklessly.
Accepting for the purpose of the third limb that Mr Counsel had a subjective belief as to circumstances of extraordinary emergency, in that he believed his wife was intending to commit suicide, there were clearly reasonable options open to the appellant. Assuming Mrs Counsel was in the course of driving to Albany, she would not arrive there for some hours. The magistrate correctly identified certain options.[82] Options included stopping, providing information to the police and asking them to take over any pursuit of Mrs Counsel, asking the police to ascertain her whereabouts and asking the police to arrange for police in Albany (or towns on the way) to assist. It also remained open to ascertain whether the friend in Albany to whom Mr Counsel referred was driving to The Gap, preparing to do so or finding others to do so. There were other options other than to take the serious risk of continuing to drive whilst being pursued at excessive speeds and endangering the lives of others.
[82] ts 108, 110.
In my view, it was not open to the magistrate to find as a reasonable possibility that there were reasonable grounds to believe that driving in the reckless manner he did on a highway and through towns to attempt to locate his wife before she reached Albany was a reasonable response. Insofar as it was raised, it was reasonably open to the magistrate to find that the defence was negatived beyond reasonable doubt by the prosecution.
In light of my conclusion as to the third limb, consideration of the fourth limb is not determinative. However, for completion I note that the magistrate found there were no reasonable grounds for Mr Counsel's beliefs.[83] Mr Counsel contended that there were reasonable grounds for his belief as to his wife's intended suicide comprising an emergency and his belief that his reckless driving was necessary because the police refused to assist him.[84]
[83] ts 111.
[84] Appellant's outline [110], [112].
It follows from my conclusion with respect to the second limb that I do not consider there were reasonable grounds for Mr Counsel's asserted belief as to a lack of police assistance.
Despite my conclusion with respect to the first limb and Mr Counsel's subjective belief as to emergency, it does not follow that there were reasonable grounds for that belief as required by the fourth limb. In my view a reasonable response would have taken into account the time and distance involved and the potential for investigations and assistance at any point between Armadale and The Gap at Albany and consideration of those factors would tell against a belief as to a sudden or extraordinary emergency. Had the magistrate come to a different conclusion as to the first limb, it remained reasonably open to find that the fourth limb was not satisfied.
Finally, the appellant's counsel referred to two other matters said to assist as to the emergency defence. First, it was said that Mr Counsel was hoping to intercept his wife before she reached Albany and so would be chasing her for a considerably less period than four hours by travelling at speed.[85] That amounts to no more than a submission that he would drive recklessly but for a lesser period of time. Second, it was said that the fact that emergency personnel drive in a manner similar to that of Mr Counsel in order to respond to emergencies is indicative of the fact that such driving is a reasonable response to an emergency.[86] That submission ignores both the protection accorded to emergency personnel who respond in such a manner,[87] their experience and, in many cases, their pursuit training. Neither submission assists Mr Counsel.
[85] Appellant's outline [105].
[86] Appellant's outline [115].
[87] Eg, Road Traffic Act 1974 (WA), s 60(1c).
Leave to appeal with respect to grounds 8 and 9 is granted. However, in light of my conclusions as to the third and fourth limbs of s 25, I do not consider there has been any miscarriage of justice and I would dismiss the appeal on these grounds of appeal.
Further, it follows that I dismiss the appeal with respect to grounds 2, 3, 4 (insofar as it relates to the emergency defence), 5 and 7. For the reasons discussed, it was reasonably open to find that the emergency defence was negatived in any event. I do not consider there has been a miscarriage of justice.
Grounds 1 and 6 - to escape police pursuit
Mr Counsel contends that his only, or at least dominant, purpose at the time of driving was to intercept his wife before she reached The Gap in Albany and attempted suicide, and that there was no evidence that he drove with a purpose to escape police pursuit.[88]
[88] Appeal ts 17.
At the hearing of the appeal, reliance was placed on four particulars which it was submitted were made out[89] and are to the following effect:
(a)that there was direct evidence from Mr Counsel as to his purpose and supporting evidence from his wife;
(b)Mr Counsel made no admissions that he drove as he did in order to escape pursuit by the police;
(c)the evidence was not capable of sustaining the conclusion beyond reasonable doubt that the appellant was driving recklessly to escape police;
(d)the magistrate erred in determining purpose on the basis of inference when there was direct evidence as to inference.
[89] Appellant's outline [91].
It is important here to recall the discussion in Zaburoni and in particular that there may be more than one purpose for conduct.
During the appeal, counsel for the appellant described his purpose in various ways:
(a)what he was doing was to avoid stopping;[90]
(b)he was not trying to get away from police - he was just trying not to stop;[91]
(c)he was happy for the pursuit to continue so he was not trying to escape it;[92]
(d)he allowed himself to be pursued and he was not trying to stop the pursuit;[93] and
(e)it was only a consequence of his purpose that a pursuit was provoked.[94]
[90] Appeal ts 19.
[91] Appeal ts 19.
[92] Appeal ts 19.
[93] Appeal ts 18, 19.
[94] Appeal ts 17.
It is important to recall the evidence relevant to Mr Counsel's purpose or intention:
(a)Mr Counsel was aware he was being chased by police;[95]
(b)he knew that a police car with lights and siren activated was following him;[96]
(c)he was aware that it meant he had to stop;[97]
(d)he turned his mind as to whether or not to stop and chose not to;[98]
(e)the manner of driving continued for at least 20 minutes and possibly more;[99]
(f)he said he would not stop until he got to Albany;[100]
(g)he said he did not stop because the focus would be on him rather than locating his wife;[101] and
(h)during the time the police were in pursuit, he was driving recklessly, at speeds greatly exceeding the speed limit and crossing over white lines and on traffic islands.[102]
[95] ts 54 ‑ 55, transcript second triple 0 call.
[96] ts 54.
[97] ts 40, 54.
[98] ts 40.
[99] Uncontested finding ts 112.
[100] Second triple 0 call, exhibit 2.
[101] ts 40.
[102] Uncontested findings ts 112; exhibits 1, 3, 4 & 5; ts 6.
In my view, there was inferential evidence sufficient to establish the elements of driving to escape police pursuit and refusing to stop to escape police pursuit. Mr Counsel deliberately drove to avoid stopping and being stopped. He was seeking to elude the police. He was trying to 'get clear away from them'. Such conduct falls within the ordinary meaning of 'to escape'. It was reasonably open to the magistrate to draw the inference that Mr Counsel drove recklessly and failed to stop to escape police pursuit. No error is disclosed.
The distinctions in the descriptions of Mr Counsel's purpose sought to be relied upon by his counsel were, in my view, too fine. I do not accept that permitting a pursuit to continue without stopping despite a request to stop differs in any real manner from escaping a pursuit. Such a purported distinction also ignores the purpose of the legislation to protect the public from harm. The public (and the driver and police personnel) are at risk for as long as a pursuit continues.
Further, I do not accept that the legislation requires that there be only one purpose or that escaping pursuit must be the dominant purpose. During the hearing, counsel for the appellant accepted that there may be more than one purpose[103] but maintained the submission that to comprise an aggravating factor the purpose of escaping pursuit must be the dominant purpose.[104] The legislation does not require that construction. As the respondent submitted, it is immaterial that prior to being intercepted by the police he may have held only one or a different intention. Once he drove recklessly whilst knowingly being pursued so that he would not be stopped, he drove with the purpose of escaping police pursuit.[105]
[103] ts 17, 28.
[104] ts 17, 27.
[105] Respondent's outline [20].
Accepting his alleged subjective belief (as per grounds 3 and 5), I prefer the view that Mr Counsel's motive was to intercept his wife before she committed or attempted suicide. His purpose in driving as he did whilst being pursued by the police was to avoid being stopped as that would interfere with him achieving his goal.[106] But in any event, it is accepted that a person may engage in conduct involving more than one purpose.[107] Even if one accepts that Mr Counsel drove as he did and refused to stop because it was his purpose to intercept his wife before she reached The Gap, such a finding does not prevent a finding that in driving as he did Mr Counsel also had the purpose of escaping pursuit. Indeed, he saw the 'avoiding of stopping' despite the police pursuit as facilitating his stated goal of intercepting his wife. The manner by which he sought to achieve that goal included deliberately and intentionally driving recklessly whilst being pursued to escape being stopped. The magistrate made a positive finding that Mr Counsel drove to escape pursuit by the police. That is the element that the prosecution must make out in order to establish the aggravating circumstance.
[106] Adopting the distinction identified in Zaburoni [17] and noting s 23 of the Criminal Code (WA) as to motive and intention.
[107] Zaburoni [19].
Counsel for the appellant also placed significant weight on what he submitted was a failure by the prosecution to ask Mr Counsel what his intention actually was, and the alleged absence of any evidence as to his intention in driving in the manner he did. This amounts to a submission about procedural fairness.
This is not a case where the appellant was not informed that it was alleged he had a particular purpose. The charges and the aggravating factor relevant to both charges expressly brought into play Mr Counsel's intention.
Mr Counsel gave evidence and had ample opportunity to explain why he was driving in the manner he did. He was asked in both examination‑in‑chief and cross examination why he did not stop for the police.[108] He gave evidence as to why he drove in the manner he did and, because of the emergency defence, the factual and legal questions as to his purpose were aired.
[108] ts 39, 45.
The hearing proceeded on the basis that Mr Counsel asserted the purpose in his driving was to locate his wife in an attempt to prevent a threatened suicide attempt. His counsel opened on that basis.[109] That purpose stood in contrast to the aggravating circumstance of a purpose of escaping police. It was always apparent that Mr Counsel denied he held a purpose to escape police.
[109] ts 5: 'the defence case will be that essentially Mr Counsel was not, at the time the direction was given to stop, driving the vehicle so as to escape the pursuit by a police officer, and that will be highlighted … by way of the recordings of the telephone calls…'.
There was also evidence of Mr Counsel's intention by way of the triple 0 transcripts and other evidence from which the magistrate could properly draw an inference, as already addressed.
Against that backdrop, I do not consider the failure by the prosecution to directly put to Mr Counsel that his purpose was to escape police pursuit comprised procedural unfairness.
I would grant leave with respect to grounds 1 and 6 but dismiss the appeal on those grounds. To the extent ground 4 overlaps with ground 6, the appeal on ground 4 is also therefore dismissed.
Ground 10
The principles governing the ground of appeal are well known but were summarised recently by Beech J in Bentley v Greaney as follows:[110]
(1)the question for the appeal court is whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty;
(2)that question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(3)the appeal court must undertake its own independent assessment of all the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict;
(4)in answering that question, the appeal court must pay full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the magistrate had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a magistrate ought also to have experienced unless the magistrate's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the magistrate, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
[110] Bentley v Greaney [2016] WASC 227 [31], citing M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495; Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [13]; The State of Western Australia v Olive [39] ‑ [44]; Dean v Legal Practice Board [2016] WASCA 63 [130]. See also JJS v The State of Western Australia [2014] WASCA 136 [8].
Mr Counsel relies on the same arguments addressed above as to the nature of his intention and the reasonableness of his response to the perceived emergency in support of this ground.
Evidence as to Mr Counsel's wish to locate his wife, his rationale for driving as he did and his communications with the police did not mean that the magistrate must have entertained a reasonable doubt about Mr Counsel's guilt of the offences of which he was charged.
In my view, the evidence was not inconsistent with the magistrate being satisfied beyond reasonable doubt that:
(a)at the relevant time Mr Counsel was driving recklessly in a manner that was inherently dangerous;
(b)Mr Counsel was given a direction to stop by a police officer and did not do so;
(c)at the time that Mr Counsel drove recklessly and failed to stop, he did so knowingly with the purpose of escaping police pursuit; and
(d)his conduct was not excused by virtue of an emergency defence under s 25 of the Criminal Code, as (in particular) it was not a reasonable response to the perceived emergency.
For these reasons I grant leave to appeal with respect to ground 10 but dismiss the appeal.
Outcome
Whilst I would grant leave to appeal on all grounds, for the reasons given I would dismiss the appeal.
[102], [125]; Burns v Minister for Health [2012] WASCA 267; (2012) 45 WAR 276 [27] ‑ [33].
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