Cousins v Director of Public Prosecutions
[2025] WASC 188
•20 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: COUSINS -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 188
CORAM: WHITBY J
HEARD: 19 MAY 2025 AND ON THE PAPERS
DELIVERED : 20 MAY 2025
FILE NO/S: SJA 1060 of 2024
BETWEEN: CAROL MARIA COUSINS
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S MALLEY
File Number : RO 7875 of 2023
RO 7876 of 2023
RO 7877 of 2023
Catchwords:
Criminal law - Single judge appeal - Doing an indecent act in public - Failure to comply with request from police officer to provide personal details - Obstructing public officer - Appeal against conviction and sentence - Whether magistrate erred in fact - Bias - Whether prosecution election not to call a witness gave rise to a miscarriage of justice - Whether convictions cannot be supported having regard to evidence as a whole - Leave to appeal refused - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code Compilation Act 1913 (WA)
Criminal Investigation (Identifying People) Act 2002 (WA)
Criminal Procedure Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Police Act 1892 (WA)
Result:
Leave to appeal on grounds 1 - 63 refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | M L Wong |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
B v Coan [2021] WASC 127
Ebner v Official Trustee in Bankruptcy [2000] HCA 69
Fisher v O'Hehir [2023] WASCA 19
Hedley v Spivey [2012] WASCA 116
Hopes v Australian Securities and Investments Commission [2017] WASCA 108
Johnson v Johnson [2000] HCA 48
Kelly v Fiander [2023] WASC 187
M v The Queen [1994] HCA 63
R v Apostilides (1984) 154 CLR 563
Rayney v Western Australia [2020] WASCA 209
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12
Samuels v The State of Western Australia [2005] WASCA 193
Smart v Power [2019] WASCA 106
Tey v Plotz [2010] WASC 163
Y v X [2024] WASCA 104
WHITBY J:
Introduction
On 12 August 2024, the appellant was convicted in the Magistrates Court of three charges - a failure to comply with a request from the WA Police to provide personal details, obstructing a public officer and indecent acts in public. The appellant received spent convictions and a suspended fine of $1,000 for all three offences.
The appellant appeals her convictions and sentence. The appellant relies on several documents, including six documents headed 'Grounds of Appeal' - parts 1, 2, 3, 4, 5 and 6. Part 5 contains 63 grounds of appeal, a list of orders sought and a list of authorities.
For the reasons that follow, none of the grounds of appeal have any reasonable prospects of success and therefore, leave to appeal on each ground is refused. Accordingly, the appeal is dismissed.
Legal principles relating to an appeal
Section 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act) provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against that decision. A 'decision' of a court of summary jurisdiction includes a decision to convict an accused of a charge.[1]
[1] CA Act s 6(c).
The grounds of an appeal pursuant to s 7(1) of the CA Act may be that the court of summary jurisdiction made an error of law or fact, or of both law and fact, or that there has been a miscarriage of justice.
The appellant must obtain leave to appeal on each ground of appeal.[2] If leave to appeal is not granted on at least one ground, the appeal is taken to have been dismissed.[3] The court must not grant leave to appeal on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[4]
[2] CA Act s 9(1).
[3] CA Act s 9(3).
[4] Samuels v The State of Western Australia [2005] WASCA 193.
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.[5]
[5] CA Act s 14(2).
In accordance with s 39(1) of the CA Act the appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) of the CA Act to 'admit any other evidence' for the purposes of dealing with an appeal.[6]
[6] CA Act s 39 (3).
The trial
The trial took place on 9 July 2024 before Magistrate Malley.
The prosecution was required to prove the following in relation to each of the charges:
(1)failure to comply with request to give police personal details contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA) s 16(6) (CI Act):
(a)the person does not comply with a request under s 16(2) or s 16(3) of the CI Act; and
(b)the person does not have a reasonable excuse for not complying;
(2)obstructed a police officer in the performance of the officer's functions contrary to s 172(2) of the Criminal Code Compilation Act 1913 (WA) s 172(2) (Criminal Code):
(a)the person obstructs a police officer; and
(b)the police officer is acting in performance of their functions;
(3)doing an indecent act in a public place contrary to s 203(1)(a) of the Criminal Code:
(a)the person does an indecent act;
(b)in a public place or in sight of any person who is in a public place.
The appellant represented herself at the trial.
The prosecution adduced evidence from one witness, Constable Dane Crossland. Constable Crossland gave evidence that:
(1)at approximately 11:10 am, he and Senior Constable Borlase received a job via police radio that a male and female were acting indecently at the Rockingham foreshore next to a children's playground;[7]
[7] Transcript of hearing on 9 July 2024 (First ts) page 6.
(2)he and Senior Constable Borlase attended at the foreshore and were guided by members of the public to the children's playground. He activated his body worn camera;[8]
[8] First ts page 6.
(3)from about 30 metres away, he could see a man and the appellant lying on the ground hugging and kissing, with the male 'sort of on top of the [appellant]';[9]
[9] First ts page 7.
(4)on his approach, he could see the man had his hands down the appellant's top near her breast area and that the appellant was kissing the man;[10]
[10] First ts page 8.
(5)there were members of the public and children in the area around the man and appellant;[11]
[11] First ts pages 7 - 8.
(6)when he was about two metres away, he advised the man and the appellant that he and Senior Constable Borlase were from the Rockingham Police Station, identified themselves and asked the couple what they were doing;[12]
[12] First ts page 8.
(7)the man and the appellant stood up and he told the appellant that she had committed an offence and that he required her personal details;[13]
(8)the appellant was originally hesitant to provide her details, but eventually provided the name 'Karen O'Reilly';[14]
(9)he searched the police database from his police mobile phone but could not find anyone by that name with the date of birth also provided. He informed the appellant that his search did not reveal anyone by that name and date of birth. The appellant confirmed that was her name, the correct spelling and her date of birth;[15]
(10)after failing again to locate the name and details provided by the appellant, he informed the appellant that she would be detained until she could be identified and then issued with a move on order requiring her to leave the public area;[16]
(11)while Senior Constable Borlase went to the police car to get a move on order book, he asked the appellant for her name again. The appellant told him that she was not detained and was free to leave. He advised the appellant that she was detained and could not go anywhere until she confirmed her identity;[17]
(12)the appellant began to walk away. He told her to stop multiple times or she would be arrested;[18]
(13)the appellant continued to walk away. When she was approximately 10 metres away from Constable Crossland, the appellant began to run; [19]
(14)he chased the appellant and eventually caught the appellant and took her to the ground as softly as he could. The appellant resisted arrest and pulled away. Approximately 30 seconds later, he was assisted by Senior Constable Borlase in conveying the appellant to the police vehicle;[20]
(15)he handcuffed the appellant on the way back to the police car and Senior Constable Borlase advised the appellant she was under arrest for obstructing police, failure to give details or providing false details and an indecent act in public;[21] and
(16)the appellant was then conveyed to the Rockingham Police Station where she provided accurate personal details.[22]
[13] First ts page 9.
[14] First ts page 9.
[15] First ts page 9.
[16] First ts page 10.
[17] First ts page 11.
[18] First ts page 11.
[19] First ts page 11.
[20] First ts pages 11 - 12.
[21] First ts page 12.
[22] First ts page 13.
As part of the examination in chief of Constable Crossland, his body-worn camera footage was tendered, as well as two CCTV files from the Rockingham Police Station.[23]
[23] Exhibit A and Exhibit B.
The appellant cross-examined Constable Crossland. The appellant questioned Constable Crossland in relation to whether he was a public officer,[24] witnesses who were not called at trial,[25] whether the act he saw was 'indecent'[26], whether he was armed,[27] and the basis upon which she was arrested.[28] During cross-examination, the appellant put to Constable Crossland that she told him her name was Carol O'Reilly, not Karen O'Reilly. Constable Crossland's evidence was that the appellant said Karen O'Reilly.[29]
[24] First ts page 16.
[25] First ts page 18.
[26] First ts page 18.
[27] First ts page 35.
[28] First ts page 44.
[29] First ts page 25.
The appellant elected not to give evidence at the hearing. The appellant did give a closing address during which she purported to give evidence from the bar table. The appellant suggested that she was not a willing participant in the interaction.[30]
[30] First ts pages 57- 58.
The learned magistrate reserved his decision to 12 August 2024. On 12 August 2024, the learned magistrate entered judgments of conviction for each of the offences and gave his reasons for decision. The learned magistrate made the following findings of fact:
(1)the CCTV showed the police officers approaching the couple who were a few metres from a child's playground with numerous adults and children close by;[31]
[31] Transcript of hearing on 12 August 2024 (Second ts) page 3.
(2)the CCTV shows the appellant lying on her back with the male to her side, leaning over her slightly. The male's right hand travelled from the appellant's breast region down to her hip then back up onto the left breast, where he appears to be fondling her breast before again moving his hand towards the middle of her chest and under her clothing. The appellant was wearing a light dress loosely fitted on her top with a bikini underneath. The male's hand moves under the clothing, but the CCTV footage does not show his hand moving under the bikini top;[32]
[32] Second ts page 3.
(3)the CCTV and body worn camera footage established beyond reasonable doubt that the appellant was a willing participant who took no steps to try and disengage;[33]
[33] Second ts page 3.
(4)having observed the behaviour, the police spoke to the couple, they stood up, and Constable Crossland told the accused she had committed an offence and asked for her personal details;[34]
[34] Second ts page 3.
(5)it mattered not whether the appellant told Constable Crossland her name was Carol O'Reilly because the correct name for the accused was Carol Cousins as she eventually confirmed;[35]
[35] Second ts page 3 - 4.
(6)pursuant to section 23 of the CI Act, Constable Crossland asked the appellant for her name, date of birth and residential address and he was entitled to detain the appellant to verify those details;[36]
[36] Second ts page 4.
(7)the police officers intended to give the couple a move on order under s 26 of the CI Act, which obliges the appellant to remain as directed. The CCTV clearly showed the appellant was not prepared to comply with this direction and commenced walking away, was told not to leave or she would be arrested and then commenced to run;[37]
[37] Second ts page 4.
(8)Constable Crossland pursued the appellant and after a short chase, took the appellant to the ground where there was a brief struggle;[38]
(9)it was open to the Constable Crossland to request the appellant's personal details, either pursuant to s 16 or s 27 of the CI Act;[39]
(10)the appellant gave a false name when challenged on this and requested to remain until her identification was verified. The appellant ran and then resisted Constable Crossland, amounting to obstruction;[40]
(11)on the charge of indecent acts in public, the prosecution are required to prove the appellant was the offender or a party, as in this case, that the offender did an indecent act, that the act was in a public place;[41]
(12)in the appellant's case, the act occurred clearly in a public place, the foreshore, three metres from a child's play area where children were present, as well as other adults;[42]
(13)an indecent act is one that a right-minded person would consider contrary to the common standards of decency. It involves conduct that is unbecoming or offensive to common propriety and judged by ordinary contemporary standards of decency within the community;[43]
(14)the motive or purpose of the person doing the act and the circumstances in which the act is done may be relevant to the question of whether the act is indecent;[44]
(15)in common parlance, time, place and circumstances, what might be considered appropriate would be different if the fondling, for instance, has occurred in a darkened nightclub full of adults. However, this act occurred on a summer's day at 11 o'clock in the morning with lots of people around and close to a playground. The act of the male was clearly of a sexual nature and was an act in which the appellant was willing to participate;[45]
(16)the learned magistrate found, beyond reasonable doubt, the behaviour was indecent at the time, place and circumstances;[46] and
(17)none of the technical objections raised by the appellant in relation to the documentation, the particulars of claim and the absence of a signature on the complaint were of any merit.[47]
[38] Second ts page 4.
[39] Second ts page 4.
[40] Second ts page 4.
[41] Second ts page 4.
[42] Second ts page 4.
[43] Second ts page 4.
[44] Second ts page 4.
[45] Second ts pages 4 - 5.
[46] Second ts page 5.
[47] Second ts page 5.
The learned magistrate, having regard to the fact that the offences were out of character for the appellant and the circumstances of the offending, granted spent convictions for each of the three offences and imposed a global $1,000 suspended fine for 12 months.[48]
[48] Second ts page 7.
The appellant appeals the convictions and sentences for each of the three offences.
The appeal
By appeal notice dated 2 April 2024, the appellant seeks leave to appeal the convictions and the sentences imposed for each offence.
As I have already mentioned, on 13 November 2024, the appellant filed a document entitled 'Grounds of Appeal'. Part 5 of that documents contains 63 'Grounds of Appeal'.
On 27 November 2024, orders were made for:
(1)the application for leave to appeal to be heard together with the appeal;
(2)the appellant to file a written outline of submissions and an affidavit in support of an application for leave to appeal out of time by 17 January 2025;[49] and
(3)the respondent to file written responsive submissions by 7 February 2025.
[49] I note that the appellant does not require leave to appeal out of time as her appeal notice was filed within the 28 day time limit prescribed by s 10(3) of the CA Act.
On 12 February 2025, during a directions hearing before Forrester J, the appellant confirmed that the 'Grounds of Appeal' document was her written submissions.[50] Forrester J made orders refusing the appellant's verbal application made on 12 February 2025 for leave to adduce additional evidence in the form of rebuttal submissions.
[50] Transcript of the directions hearing before Forester J on 12 February 2025 pages 2 - 3.
The appeal hearing was initially listed on 5 May 2025. On 2 May 2025, the appellant informed the court by email that she had been injured in a bicycle accident and requested an adjournment of the hearing. The court relisted the appeal hearing on 19 May 2025.
On 6 May 2025, the appellant informed the court by email that she wished to have the appeal determined on the papers. At my direction, on 6 May 2025, the court advised the appellant by email that, in accordance with rule 61 of the Criminal Procedure Rules 2005 (WA) (Criminal Procedure Rules), the court may proceed to determine the appeal in her absence at the hearing and that, if she did not wish to attend the hearing on 19 May 2025, she should advise the court by email, copied to the respondent, that she do not intend to appear and that she relied upon her written submissions.
On 6 May 2025, the appellant confirmed, by email to the court and copied to the respondent, that she wished for the appeal to be heard on the papers pursuant to rule 61 of the Criminal Procedure Rules. The appellant referenced the following 'papers':
(1) 'Grounds of Appeal' parts 1 to 6 filed on 13 November 2024;
(2) written outline of contentions filed on 17 January 2025; and
(3)rebuttal to respondent's outline of submissions filed 16 April 2025.
I note the appellant was refused leave to file any additional material in the form of rebuttal submissions. In any event, I have considered those 'rebuttal submissions' and they do not raise any additional matters to those raised by the appellant in her 104 page 'Grounds of Appeal' document.
The hearing of the appeal proceeded on 19 May 2025. The appellant appeared in person and confirmed her request that the appeal be heard on the papers. The respondent consented to the appeal being determined on the papers.
The respondent relies upon its filed written submissions filed 7 February 2025.
Disposition
The appellant's 'Grounds of Appeal' part 5 set out 63 separate grounds of appeal. However, for reasons which I will outline, the grounds of appeal can be dealt with by reference to categories or 'themes' as opposed to individual grounds of appeal.
The matters raised in the appellant's grounds of appeal fall within one of the following 'themes':
(1)the Magistrates Court does not have jurisdiction;
(2)the WA Police are not an entity known at law;
(3)the prosecution notice was invalid;
(4)the learned magistrate was biased;
(5)the verdicts were unsupported by evidence; and
(6)the appellant's deprivation of an opportunity to cross-examine Senior Constable Borlase gives rise to a miscarriage of justice.
It is not entirely clear what the remainder of the grounds of appeal relate to - they appear to challenge the general jurisdiction of the courts and judicial officers. They are largely non-sensical. Such arguments have been repeatedly rejected by the Court of Appeal as being completely devoid of merit, frivolous and vexatious.[51]
[51] Hedley v Spivey [2012] WASCA 116 [7], [20]; Hopes v Australian Securities and Investments Commission [2017] WASCA 108.
Further, the appellant refers to herself in the 'Grounds of Appeal'[52] as 'Carol-Maria of the family Cousins'. It appears from this and a number of the grounds of appeal and 'points' in the outline of submissions, that the appellant attempts to deploy what has been referred to by Vandongen J (as his Honour then was) in Kelly v Fiander[53] as the 'strawman duality theory'. There is no merit in such a contention.
[52] 'Grounds of Appeal' [3] page 2.
[53] Kelly v Fiander [2023] WASC 187 [6].
The appellant, in the appeal notice, seeks leave to appeal the sentence imposed by the learned magistrate. Essentially, the appellant submits that the sentences are excessive and ought not to have been imposed because she should not have been convicted of the offences. The appellant's appeal against sentence is dependent upon being successful in her appeal against conviction.
For each of these reasons, I limit my consideration to each of the 'themes' of the grounds of appeal that I have identified.
The Magistrates Court is without jurisdiction
The appellant submits that the learned magistrate was acting without jurisdiction and authority.
The Magistrates Court Act 2004 (WA) s 11 sets out the criminal jurisdiction of the court. This jurisdiction includes the ability to hear and determine simple offences. The jurisdiction also includes the ability to hear indictable offences that can be dealt with summarily.
The three charges against the appellant relate to:
(1)a contravention of s 16(6) CI Act;
(2)a contravention of s 172(2) of the Criminal Code; and
(3)a contravention of s 203 (1)(a) of the Criminal Code.
The first charge, namely the failure to provide details, is a simple offence. The second two charges, namely the obstruction of a police officer and indecent act, are offences capable of being dealt with summarily.
The learned magistrate was acting within the jurisdiction contemplated and conferred by the Magistrates Court Act 2004 (WA). There is no reasonable prospect of success of any grounds of appeal that relate to the jurisdiction of the Magistrates Court.
The WA Police are not an entity known at law
In support of her submission that the WA Police are not an entity known at law, the appellant seeks to rely on Tey v Plotz [2010] WASC 163, in which Jenkins J states:[54]
Thus, the WA Police is not a person, a corporation, a statutory body, a public authority or corporation sole. In short, it is not a body known to the law other than as a 'sufficient' name of a prosecutor as provided for in the Criminal Procedure Act sch 1. Neither is WA Police a 'public authority' as that term is defined in the Criminal Procedure Act.
Generally speaking, a court does not have jurisdiction over a person or legal entity unless they are joined before the court as a party or unless they are treated by statute as if they were a party. Unless a person or other legal entity is joined as a party to a legal proceeding, they are not bound by a decision of the court in that proceeding: Templeton v Leviathan Pty Ltd (1921) 34 CLR 34, 70. A corollary to this principle is that a party which does not exist as a legal entity can not sue or be sued as such misnomer would give rise to a risk that any order made by a court in the proceedings would be unenforceable against that party.
[54] Tey v Plotz [2010] WASC 163 [15] - [16].
Contrary to the appellant's submissions, the reasons of Jenkins J in Tey v Plotz support the proposition that for a hearing at first instance, despite not being a legal entity, the WA Police is capable of being the prosecutor pursuant to sch 1 cl 3(2)(a) of the Criminal Procedure Act 2004 (WA) when a prosecution is commenced by a police officer.[55]
[55] Tey v Plotz [2010] WASC 163 [20] - [24].
A police officer is a person appointed under pt 1 of the Police Act 1982 (WA) as an officer or constable.
Senior Constable Borlase issued the prosecution notices and is an appointed constable under the Police Act 1892 (WA). No irregularity arises from the use of WA Police as the named prosecutor on the prosecution notices.
There is no reasonable prospect of success of any grounds of appeal associated with the contention that the WA Police are not an entity known at law.
The prosecution notice was invalid
The appellant submits that the prosecution notice is invalid as it is unsigned and issued to an 'unauthorised person', being the 'legal fiction owned by the "STATE" in all upper-case letters and underlined COUSINS'.[56]
[56] Appellant's submissions page 62.
Firstly, the requirement that a prosecution notice be signed is satisfied by the operation of statutory provisions which allow the electronic lodgement of documents.[57]
[57] Fisher v O'Hehir [2023] WASCA 19 [33] - [40].
Secondly, the capitalisation of an accused's name on the prosecution notice falls to be considered within the context of the 'strawman argument'. It is without merit at law.[58]
[58] Kelly v Fiander [2023] WASC 187 [6].
There is no reasonable prospect of success of any grounds of appeal associated with the contention that the prosecution notice was invalid.
The learned magistrate was biased
The appellant submits that the learned magistrate demonstrated bias by his demeanour during the trial.
The test for apprehended bias of a judicial officer is whether 'a fair, open-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that the officer is required to decide'.[59]
[59] Rayney v Western Australia [2020] WASCA 209 [39]; Johnson v Johnson [2000] HCA 48 [11].
The application of that test involves two steps. First, it requires the identification of the facts and circumstances alleged to give rise to the apprehension of bias. Second, it requires a logical connection between those facts and circumstances and the asserted conclusion that the judicial officer may not decide the case on its merits to be established.[60]
[60] Ebner v Official Trustee in Bankruptcy [2000] HCA 69; (2000) 205 CLR 337 [8].
The party who alleges an apprehension of bias bears the onus of proving the facts upon which that allegation is made.[61] In this case, the appellant bears the onus.
[61] Y v X [2024] WASCA 104 [123].
The test is an objective one. It is assumed that the lay observer will base their opinion on a fair assessment of the judicial officer's conduct in the context of the hearing as a whole. Apprehended bias must be firmly established. Suspicions of an ultra-sensitive, paranoid or cynical person do not determine the applicable legal standard of impartiality.[62]
[62] B v Coan [2021] WASC 127 [103] citing S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358, 374.
Having reviewed the transcript of the hearing before the learned magistrate, I am not satisfied that the learned magistrate's conduct would cause a fair-minded lay observer to apprehend that he might not bring an impartial and unprejudiced mind to the proceeding. The learned magistrate intervened during the trial only to the extent that it was necessary to do so to assist the self-represented appellant and ensure the efficiency of the trial.
There is no reasonable prospect of success of any grounds of appeal associated with the appellant's submission that the learned magistrate was biased.
The learned magistrate made erroneous findings of fact and the verdicts were unsupported by evidence
The appellant submits that the factual findings of the learned magistrate were erroneous and that the verdicts reached by the learned magistrate were unsupported by the evidence. I will consider each of these submissions in turn.
First, in relation to errors of fact made by the primary decision maker, the principles outlining appellate review of findings of fact were summarised by the Court of Appeal in Smart v Power.[63] I adopt these principles without restating them.
[63] Smart v Power [2019] WASCA 106 [101] - [106] (Murphy, Beech and Pritchard JJA).
The appellant submits in essence that the magistrate was in error in making findings of fact consistent with the evidence of Constable Crossland and in finding that the appellant was a willing participant in the indecent act.
I have conducted a real review of the trial transcript, the exhibits tendered and the learned magistrate's findings and reasons for decision.
The trial did not substantially rely upon evidence in the form of witness testimony, rather the trial before the learned magistrate was largely determined by objective camera footage from body camera from Constable Crossland and CCTV of the incident.
Having regard to the objective camera footage, I am satisfied that the learned magistrate did not make any erroneous findings of fact.
Secondly, turning to the appellant's contention that the verdicts of the learned magistrate were unsupported by the evidence, I am required to consider whether, upon the whole of the evidence, I could be satisfied beyond a reasonable doubt that the appellant was guilty of the offences.[64]
[64] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.
The CCTV footage of the incident clearly shows that the appellant was laying on her back with her knees bent and a man laying by her side. They are kissing. The man puts his left hand on the appellant's waist. The appellant's left hand appears to be on the back of the man's neck and the man's left hand is on the appellant's right breast and then slides to centre of the appellant's chest and then down the appellant's top. This is when the appellant appears to see the police approaching, pulls her dress down and stands up. This occurred in a playground in close proximity to children and their parents.
The incident is captured on Constable Crossland's body worn camera. The first 30 seconds of that footage, as is standard practice, has no audio. When the audio commences, Constable Crossland can be heard telling the appellant his camera is on and asking her for her full name and date of birth. Senior Constable Borlase can be seen talking to the man in the background. The appellant can be clearly heard to give her name as Karen O'Reilly and her date of birth as 1 July 1972. The appellant spells that name for Constable Crossland. Constable Crossland and Senior Constable Borlase tell the appellant and the man that they will be issued with a move on notice and that they need to provide their details for this purpose. The appellant can be seen and heard to argue with Constable Crossland before walking away. Constable Crossland can be seen to follow the appellant and say to her 'stop or you'll get arrested', and then the appellant begins to run.
The appellant's identity was not in issue at the trial. It was also not in issue that the act took place in a public place.
The learned magistrate correctly identified the legal principles governing when an indecent act would take place and that the circumstances in which the act took place are relevant to whether the act is indecent.
In my view, the act was indecent because the appellant and the man were engaging in overtly sexual behaviour in daylight and in a family environment, being a large and busy playground. It was open to the learned magistrate to find that the appellant was guilty of committing an indecent act in public.
I am also satisfied, on the basis of the evidence of Constable Crossland's body worn camera footage, that the appellant failed to comply with Constable Crossland's request for her personal details in circumstances where he was authorised by the CI Act s 16(2) to make such a request.
On the evidence before the learned magistrate, it was open for him to find that the appellant was guilty of the offence of failure to comply with a request to give personal details.
Finally, in relation to the offence of obstructing a public officer in the performance of their functions, I am satisfied that, in circumstances where the appellant ran from the police while they were attempting to give her a move on notice, she prevented, hindered and resisted them doing so and therefore, it was open for the learned magistrate to find the appellant guilty of this offence.
In summary, there is no reasonable prospect of success of any grounds of appeal associated with the appellant's submissions that the learned magistrate made erroneous findings of fact or that the verdicts are unsupported by evidence.
The lack of opportunity to cross-examine Senior Constable Borlase
The appellant submits that the prosecution's failure to call Senior Constable Borlase means that the offences have not been proved to the requisite standard because she was deprived of the opportunity to cross-examine him. The appellant submits that she has not been able to test any admissible evidence relied upon by the prosecution or to adduce any evidence in support of her defence.
The decision of a prosecutor not to call a witness only constitutes a ground for setting aside the decision if it is seen to give rise to a miscarriage of justice.[65] The prosecutor has the responsibility of deciding who to call as a witness.[66] When determining whether a miscarriage of justice has occurred, it is crucial to focus on the objective consequences of the decision not to call the witness.[67] The central question is whether the decision of the prosecutor not to call a witness constitutes misconduct, and whether in all the circumstances the verdict is unsafe or unsatisfactory.[68]
[65] R v Apostilides (1984) 154 CLR 563, 575.
[66] R v Apostilides, 575.
[67] R v Apostilides, 577.
[68] R v Apostilides, 578.
In my view, the prosecutor's decision not to call Senior Constable Borlase does not amount to misconduct, nor is does it result in unsatisfactory verdicts being reached by the learned magistrate. Constable Crossland gave uncontradicted evidence that he observed the appellant and the male engaging in the indecent act, that he asked the appellant for her details to which she gave false answers and that he chased after her and brought the appellant to the ground. The objective camera evidence tendered at trial is consistent with his evidence. I am satisfied that there are no adverse consequences to the appellant arising from the prosecutor's decision not to call Senior Constable Borlase to give evidence. There has been no miscarriage of justice.
There is no reasonable prospect of success of any grounds of appeal asserting a miscarriage of justice as a result of the prosecutor not calling Senior Constable Borlase to give evidence.
Conclusion
Given I have determined there is no reasonable prospect of success on any of the grounds of appeal, leave to appeal on all grounds of appeal is refused. The appeal against conviction and sentence is dismissed.
Given the appellant has been unsuccessful in her application for leave to appeal, the respondent is entitled to its costs. I consider, having regard to the materials filed by the parties, that it is appropriate to fix those costs in the amount of $3,000. Given the matter was heard on the papers, the costs awarded to the respondent do not include costs of attending the appeal hearing on 19 May 2025. The respondent has liberty to apply in relation to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
20 MAY 2025
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