Ejueyitsi v Di Gregorio
[2015] WASC 325
•25 AUGUST 2015
EJUEYITSI -v- DI GREGORIO [2015] WASC 325
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 325 | |
| Case No: | SJA:1041/2015 | 25 AUGUST 2015 | |
| Coram: | HALL J | 25/08/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | VINCENT EJUEYITSI GUISEPPE DI GREGORIO |
Catchwords: | Criminal law Application for leave to appeal against conviction Driving failing to wear seatbelt Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GUISEPPE DI GREGORIO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P HOGAN
File No : PE 112737 of 2014
Catchwords:
Criminal law - Application for leave to appeal against conviction - Driving failing to wear seatbelt - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr N J Damnjanovic
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
- HALL J:
(These reasons were delivered extemporaneously and have been edited from the transcript).
Introduction
1 This is an application for leave to appeal against the appellant's conviction in the Magistrates Court of an offence of failing to wear a seatbelt whilst being the driver of the vehicle contrary to reg 232(2) of the Road Traffic Code 2000 (WA). The appellant was convicted of that offence after a trial in the Magistrates Court and was sentenced to a fine of $500.
2 The appeal notice contains three grounds of appeal. They are as follows:
(1) The court erred not to detect that the prosecution did not comply to court order of full discovery of evidence.
(2) The court erred not to detect that the evidence adduced to the court is inconclusive.
(3) The court did not detect that the experience of prosecution officer did not support his evidence adduced before the court.
3 The appellant is self-represented and some allowance needs to be made for the lack of clarity and the wording of those grounds. The appellant has also filed written submissions and made oral submissions today, which provide more detail of his complaints.
The evidence
4 The prosecution case was that at about 1.20 pm on 21 September 2014, the appellant was driving his car on Graham Farmer Freeway without wearing a seatbelt. The evidence called by the prosecution consisted of the oral testimony of a traffic police officer, First Class Constable Eri Khazali, video footage from the officer's helmet camera and three still photographs from the video footage.
5 First Constable Khazali gave evidence that at about 1.20 pm on 21 September 2014 he was on a police motorcycle travelling east on Graham Farmer Freeway. He said that the traffic density was medium and visibility was good. He was in the right hand lane. He looked to his left and noticed a silver Hyundai Sonata in the left lane. He observed that the driver of that vehicle was not wearing a seatbelt. He said he then activated his helmet camera (ts 4). Though it would seem from the footage that it was already activated.
6 Constable Khazali then moved his motorcycle to the left. As he did so, the Hyundai moved into the East Parade exit lane and passed him. He said that as that happened, he confirmed that the driver was not wearing a seatbelt. He said that the driver was wearing a light blue long sleeved shirt and that the greyish-black coloured seatbelt was hanging from the B-pillar of the vehicle and he could see the buckle hanging from it (ts 7).
7 Constable Khazali said that he slowed down his motorcycle and activated his siren. As he followed the slowing Hyundai he saw the driver pulling his seatbelt and trying hard to put it on. After the car had stopped Constable Khazali walked up and spoke to the driver, who he identified as the appellant. He said he asked, 'Do you know why I pulled you over?' and that the appellant responded, 'No, sir.' He then said, 'It's the seatbelt' and the appellant responded, 'I didn't put it on.' The officer then said, 'No. When I pulled you over, you tried to put the seatbelt on, but it's too late.' The appellant then repeatedly said, 'I beg you, I beg you.' The officer then asked the appellant why he had not put his seatbelt on and the appellant said he did not notice it.
8 Constable Khazali said that he established that the appellant had no medical exemption from wearing a seatbelt and checked that the belt was working properly, which it was. He then issued the appellant with an infringement notice.
9 Constable Khazali produced a DVD which contained the video from his helmet camera. That video footage shows the Hyundai vehicle to the left of the motorcycle, passing by the motorcycle and then slowing down and being stopped. I have had an opportunity to look at that footage myself, including slowing it as the vehicle passes the motorcycle. It does appear to me from examination of that video that at that time the appellant was not wearing a seatbelt.
10 As the video reaches its conclusion the officer approaches the car and it can be seen that at that time the belt is across the appellant's chest, but not fitted into the mechanism. The officer said that at that stage the appellant attempted to get out of the car, but was told to stay in it.
11 Three still photographs were produced, which Constable Khazali said were stills from the video. They were numbered in the order in which they came from the video. In photograph 1 the driver's head can be seen through the rear of the vehicle and there does not appear to be a seatbelt from the B-pillar across to where the driver is sitting, whereas in photographs 2 and 3 that seatbelt does appear. That would appear to be consistent with the officer's evidence that as he was following the vehicle the driver, that is the appellant, was attempting to put the belt on.
12 In cross-examination Constable Khazali was questioned about his experience as a police officer. He said that he had been a police officer in Australia for six years and had been a traffic police officer for about four years. He was also cross-examined about his witness statement, apparently under the misapprehension on the part of the appellant that that statement formed part of the evidence against him, which of course it did not. He was also cross-examined about the video and it was put to him on a number of occasions that the video did not support his oral evidence that the appellant was not wearing a seatbelt. That cross-examination concludes at pages 15 and 16 of the transcript where the propositions are distilled by the magistrate. The officer is told that the question that is being put to him is that the video shows that, at all relevant times, the appellant was wearing a seatbelt. The officer does not agree with that proposition and says 'He wasn’t wearing a seatbelt, your Honour, on the video'. And then says: 'The video shows that the accused wasn’t wearing a seatbelt' (ts 16).
13 In re-examination Constable Khazali was asked whether his evidence was based entirely on the video recording and the officer confirmed, as he had said in chief, that he was also relying on his own observations at the time, independent of the video footage.
14 The appellant gave evidence in his defence. He suggested in his evidence that the video footage had been edited by the police officer. There was no evidence to support that allegation and it was not an allegation that had been put to the police officer. He suggested that the video evidence did not support what the police officer said, but that was a matter on which the magistrate could make her own conclusions. The appellant maintained that he was wearing a seatbelt at all times and that the officer's evidence to the contrary was incorrect.
The magistrate's reasons
15 The magistrate gave oral reasons for convicting the appellant. In those reasons she referred to the evidence that had been given and said, in regards to the video footage, that in her view it was not clear:
It can't be seen on the video whether or not the accused had a seatbelt when he was, when the car first appears over to the very left corner of the screen. It can’t be seen on the video as it was played in court whether he had a seatbelt on as he went past the officer on his motorcycle. And it can't be seen when the officer pulls up behind him, in fact, because of the windshield on the motor cycle – there's a bit of reflection there – and that makes it difficult to see when looking at the video into the vehicle (ts 38).
16 Her honour then refers to the photographs and says:
There does seem to be, however, on photograph 3 the appearance of a seatbelt or black line consistent with where a seatbelt would come from … The black line is of a size and direction consistent with a seatbelt (ts 38).
17 And then, her Honour refers to photograph 1, which she says:
[S]hows from the back of the car, before it goes over to the furthermost left lane, an image that shows no such black line. If we were just relying on these photographs, there may certainly be some room for doubt, given that the first photo is not particularly clear. Although one would have thought that you would expect to see the same black line if the seatbelt was on at that point (ts 39).
18 Her Honour then goes on to say:
However, of course, that is not the only evidence. The evidence given on behalf of the prosecution was the testimony of Officer Khazali. In terms of what he says he saw, his evidence was given very clearly. He’s an experienced motorcycle rider for the police force. Evidence was elicited to the extent of that experience. Having assessed the evidence of the two witnesses, I am persuaded that there was no seatbelt fixed when the officer first saw the accused and that the accused did attempt to put the seatbelt on between the time when the officer indicated he wanted him to pull over and when the officer got to the door and saw the seatbelt just over the accused’s shoulder. And I’m satisfied beyond reasonable doubt that that was the case, so I’m finding the charge proven (ts 39).
Merits of the appeal
19 In essence, the first ground complains that there was a material non-disclosure of evidence. That non-disclosure is said to be the three still photographs. This was an issue raised early in the evidence of Constable Khazali when those still shots were produced. As is evident, in reality this is a case of alleged late disclosure rather than non-disclosure. At page 5 of the transcript, the appellant said that he had not been provided with those photographs in accordance with a disclosure order that had been made earlier. He did, however, confirm that he had received the video. The witness said that the still photographs were in fact extracted from the video. In those circumstances the still photographs were not additional evidence, they were simply part of the video evidence presented in a different form. It is possible, as I have done with the video, to slow it down and step through it and produce still images.
20 Even accepting that it is correct that the still photographs were not disclosed to the appellant prior to the trial, it is difficult to see that he suffered any prejudice as a result. He did not seek an adjournment and there is no suggestion that the photographs were inadmissible. He claims that, had he had these photographs disclosed beforehand, he would have consulted an expert to determine whether they had been in any way altered. But he had the video beforehand and undertook no such enquiries. In any event, he has now had the still photographs prior to this appeal and there is nothing to indicate that any examination of those photographs would produce anything that would be of assistance to the appellant. He has not filed any affidavit evidence here that would in any way establish that he suffered prejudice as a result of not having earlier access to those still photographs. In those circumstances, it is not possible to see that any prejudice resulted from a late disclosure of those three photographs. Accordingly, even if there was late disclosure, it is not arguable that it constituted, or was productive of, a miscarriage of justice: s 8(1) Criminal Appeals Act 2004 (WA).
21 Turning then to the second ground of appeal; in essence, what the appellant complains of is that the evidence before the magistrate was not sufficient to establish beyond reasonable doubt the charge that he was not wearing a seatbelt. In this regard, the appellant says that there was evidence which should have caused the magistrate to harbour a doubt. He raises three aspects of the evidence. Firstly, he says that the police officer was unable to say in evidence which hand it was that the appellant had used to move the seatbelt and put it on. It does not seem to me that that is material evidence. It would be impossible on any view for the officer to be able to see from his position which hand was used. That does not detract from his evidence that the seatbelt moved from what he could see.
22 The second issue that is raised is that, when questioned in cross-examination, the officer did not identify which part of the video established that the appellant was not wearing a seatbelt. The questioning in that regard was really, in my view, quite unfair. The video footage was played several times during the course of the hearing. The officer said that he relied upon that video and that it did establish that the appellant was not wearing a seatbelt. It was a rather meaningless question to ask him to say which part of it established that. It was a very short video and his evidence in that respect was clear. In any event, the magistrate did not rely upon that video evidence. She was of the view that it did not clearly show that the appellant was not wearing a seatbelt. She relied upon the oral evidence of the officer concerned. So this ground of appeal, to that extent, focuses on an issue which was not in fact material to the outcome.
23 The third issue which the appellant raises is that the windscreen of the officer's motorcycle was such as could have interfered with his ability to observe the appellant in his vehicle and that this should have caused the magistrate to have some doubt about the reliability of his evidence. That was something that the magistrate specifically took into account, as is evident from the extracts of her reasons. She clearly accepted that the windscreen, at some points, did interfere with the clarity of the vision. She was able to form her own views about that. I must say however, having watched the video myself, it is apparent that it does not interfere with the vision at all times and to the extent that it does, it does not obscure the critical parts which the witness referred to. Furthermore, the evidence was not only what the video depicted but what the officer himself saw, his evidence did not suggest that all his observations were through the windscreen.
24 In those circumstances, in my view, it was clearly open to the magistrate on the evidence before her to come to a conclusion that the evidence established the charge beyond reasonable doubt.
25 The third ground of appeal relates to the experience of the police officer. The appellant says that the magistrate did not take into account the experience of the officer concerned. As I have noted, the officer concerned had at least six years' experience as a police officer, four as a motorcycle officer. It is difficult to understand exactly what the appellant is alleging in this regard. It would seem that he is suggesting that that experience was insufficient or was something that detracted from the witness' evidence. In my view, that is a submission without any reasonable basis. In any event, it is clear that the magistrate carefully considered the evidence of Officer Khazali and found it to be clear and cogent, as she was entitled to do.
26 In those circumstances, none of the grounds of appeal, in my view, has a reasonable prospect of success and, accordingly, leave in respect of them must be refused. The orders of the court are that leave in respect of each of the grounds is refused and the appeal is dismissed.
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