Evans v WA Police
[2023] WASC 495
•7 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: EVANS -v- WA POLICE [2023] WASC 495
CORAM: DERRICK J
HEARD: 22 JANUARY 2024
DELIVERED : 7 FEBRUARY 2024
FILE NO/S: SJA 1069 of 2023
BETWEEN: HAYDEN CARL EVANS
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1069 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L KEANE
File Number : RO 2000 of 2023
Catchwords:
Appeals - Application for leave for appeal against conviction - Application for extension of time - Appellant convicted after trial of using a mobile phone while driving a vehicle contrary to regulation 265(2) of the Road Traffic Code 2000 (WA) - Whether magistrate's conduct gave rise to a reasonable apprehension of bias - Whether magistrate's verdict was unreasonable or was not supported by the evidence
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Code 2000 (WA)
Result:
Application for an extension of time to appeal allowed
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Z R Clifford |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
Duckworth v The State of Western Australia [2018] WASCA 2
Eastough v The State of Western Australia [No 2] [2010] WASCA 88
Galea v Galea (1990) 19 NSWLR 263
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael v The State of Western Australia [2007] WASCA 100
Nafranec v Nicol [2012] WASC 436
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Sturniolo v The State of Western Australia [2023] WASCA 147
DERRICK J:
Introduction
On 4 April 2023 the appellant was charged with one offence of using a mobile phone while driving a vehicle contrary to regulation 265(2) of the Road Traffic Code 2000 (WA) (Code).
The appellant pleaded not guilty to the charge.
The appellant's short trial took place before Magistrate Keane on 17 July 2023. The appellant represented himself at the trial.
Immediately following closing addresses the magistrate delivered her oral reasons for decision. Her Honour found the appellant guilty of the charged offence. Her Honour fined the appellant $500 for the offence.
The appellant, who is not legally represented, applies for an extension of time within which to appeal and for leave to appeal against the decision of the magistrate convicting him of the offence.[1]
[1] The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). The decision of the magistrate to convict the appellant of the offence is a decision that may be appealed by the appellant: CAA, s 6(c) and s 7(1).
On 18 October 2023 a registrar of this court made an order that the applications for an extension of time within which to appeal and for leave to appeal be heard together with the appeal.
Application for extension of time
The last day for the appellant to apply for leave to appeal against his conviction was 14 August 2023.[2] The appellant filed his appeal notice on 15 August 2023, that is, one day out of time.
[2] CAA, s 10(3).
The appellant has filed in support of his application for an extension of time within which to appeal an affidavit sworn by him on 2 October 2023. In his affidavit the appellant deposes that he is not a lawyer and had mistakenly understood that the last day for filing his appeal notice was 15 August 2023.
The question in determining the application for an extension of time is whether it is in the interests of justice to grant the required extension.[3] In considering whether it is in the interests of justice to grant an extension of time the factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[4]
[3] Eastough v The State of Western Australia[No 2] [2010] WASCA 88 [12] ‑ [14].
[4] Duckworth v The State of Western Australia [2018] WASCA 2 [24] ‑ [25].
The delay in the appellant's filing of the appeal notice is as short as it could be. It can be inferred from the appellant's affidavit that he intended to comply with the time limit for the filing of his appeal notice and that his failure to do so was the result of an error in calculating the date on which the time limit expired. The respondent is not prejudiced by the brief delay and does not oppose the extension being granted. In these circumstances it is in the interest of justice to grant the requested extension of time. I therefore allow the application for an extension of time.
Grounds of appeal
The single ground of appeal as expressed in the appellant's appeal notice is 'apprehended bias'. However, it was apparent from the appellant's brief written submissions filed in advance of the appeal hearing that in addition to alleging 'apprehended bias' he also sought to allege that the evidence adduced at his trial was not sufficient to establish his guilt. Accordingly, at the commencement of the appeal hearing and in the absence of any objection from the respondent I gave the appellant leave to add a ground of appeal alleging that the magistrate's verdict was unreasonable or cannot be supported by the evidence.
Leave to appeal - principles
The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[5] A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[6] If leave to appeal is refused on a ground of appeal the ground is taken to be dismissed.[7]
[5] CAA, s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] CAA, s 9(3).
The trial and the cases of the parties - summary
The prosecution case at trial was that on 27 January 2023 the appellant, while driving his vehicle (a four door utility) and while stationary at a red traffic light at the intersection of Dixon Road and Ennis Avenue in Rockingham, used his mobile phone by looking at its screen while it was situated in his lap area and by taking hold of the phone for a brief period of time.
The prosecution called two witnesses at trial, Constable Ethan Cook and First Class Constable Rebecca Arnold, both of whom were attached to the Kwinana Police Station.[8] Further, during the prosecution case body worn camera footage obtained from the body worn camera that was being worn by Constable Cook at the time that he and Constable Arnold pulled the appellant over and spoke to him about the use of the phone and other matters also was played and tendered.[9]
[8] I will from this point onwards refer to First Class Constable Arnold as Constable Arnold for ease of reference.
[9] Exhibit 1: ts 29.
The appellant elected to give evidence in his defence. He did not call any other witnesses. In the course of his evidence the appellant tendered four photographs of the vehicle he was driving at the time of the alleged offence.[10] The photographs were taken on 16 July 2023, that is, the day before his trial while his vehicle was situated on the front verge outside his house.
[10] Exhibits 2.1 - 2.4; ts 34.
The first of the four photographs shows the vehicle and is taken from the passenger side of the vehicle (photograph 1).[11]
[11] Exhibit 2.1.
The second of the four photographs[12] shows a close up view of the outside of the front driver's side door and closed window of the vehicle and is taken from a position somewhere towards the left front side of the vehicle (that is, shows the window from an angle as opposed to from front on) (photograph 2).
[12] Exhibit 2.2.
The third of the photographs[13] shows the appellant sitting in the front driver's seat of the vehicle with the front door window down while wearing earphones and holding a mobile phone in a position that enables approximately the top half of the phone to be seen above the bottom windowsill (photograph 3). Photograph 3 also shows a steel rod resting on the top of the driver's seat head rest and on the centre portion of the steering wheel. Photograph 3 purports to show the angle of the appellant's eyes while sitting in the driver's seat looking at the vehicle's dashboard.
[13] Exhibit 2.3.
The fourth of the photographs[14] is substantially the same as photograph 3 save that the steel rod is not shown (photograph 4).
[14] Exhibit 2.4.
It was not in dispute at trial that at the relevant time the appellant was driving his vehicle. The sole issue at trial was whether the appellant used his mobile phone while stopped at the traffic lights by engaging with the phone in some way; that is by looking at the screen of the phone and/or by holding the phone.[15]
[15] ts 55 and 65.
The trial
In order to properly deal with the appellant's contentions the subject of his grounds of appeal it is necessary at this point to set out in some detail the evidence adduced at the trial, and also to make some further reference to the magistrate's findings.
Prosecution evidence
Constable Cook[16]
[16] ts 7- 22.
Constable Cook's material evidence-in-chief was as follows:
1.On 27 January 2023 he was on duty in a police vehicle with Constable Arnold. He was in the front passenger seat and Constable Arnold was driving the vehicle. The vehicle was a Ranger four-wheel drive;[17]
[17] ts 8.
2.He and Constable Arnold were stationary at the set of traffic lights at the intersection of Dixon Road and Ennis Avenue. Their police vehicle was in the right lane, that is, lane two;[18]
[18] ts 8.
3.While they were stationary at the red light he saw a black utility vehicle (utility) pull up in the left lane or first lane and stop 'thereabouts' adjacent to the police vehicle.[19] The utility was 'offset maybe a little bit, but it wasn't much'; [20]
[19] ts 8 and 9.
[20] ts 9.
4.The distance between where he was seated and the driver of the utility was approximately 1.5 metres;[21]
[21] ts 9.
5.There were vehicles in front of the police vehicle and the utility stopped at the red light. The police vehicle and the utility were not the first in the line of vehicles stopped at the red light;[22]
[22] ts 9.
6.He noticed the driver's head continuously, on multiple times, look towards the direction of the traffic lights and then down towards the bottom of the steering wheel;[23]
7.He could only see a little bit more than the top half of the steering wheel, meaning that he could see from the bottom of the horn up.[24] He could not see the driver's hands;[25]
8.While he was watching the driver he saw 'about the top third of a phone' pop up just in front of the steering wheel, around the horn section of the steering wheel.[26] He saw that the phone was a blueish grey colour. He also saw 'a bit of reflection from the screen', that is, 'a bit of a glint from the sun or a reflection of something'.[27] At the time of seeing the phone he could see the top of the driver's thumb but not his entire hand;[28]
9.He stopped watching the driver and looked up so that he could push the button to activate the police vehicle's siren. He said to Constable Arnold words to the effect of, 'He's on his phone'. The action of looking away, activating the vehicle's siren and speaking to Constable Arnold took place within two seconds; that is, the time for which he was not looking at the driver of the utility was within two seconds;[29]
10.When he looked back at the driver his hands were on the steering wheel in the 'usual position' and he was facing straight forward towards the lights;[30]
11.The lights turned green and once the utility had pulled away from the lights and was a bit further in front of them they initiated a traffic stop. He got out of the police vehicle, activated his body-worn camera and went to the left side, which was the passenger side, of the utility; [31]
12.He spoke to the driver through the open front passenger side window. He informed the driver that he had seen him using his mobile phone. The driver responded that he was not using his mobile phone and informed him that he was going to be recording.[32] At this point the driver pulled out a mobile phone from around his lap area on his right side.[33] He told the driver that he was also recording on his body worn camera;[34]
13.The mobile phone which the driver produced was an iPhone. It was a bluey greyish type colour and had cameras on the back of it. He did not see the screen;[35]
14.Constable Arnold came over and he 'went around' and performed a breath test on the driver;[36] and
15.He subsequently issued an infringement notice to the driver in relation to his use of the mobile phone.[37]
[23] ts 8 and 9.
[24] ts 9.
[25] ts 10.
[26] ts 11.
[27] ts 10.
[28] ts 11.
[29] ts 10.
[30] ts 10 and 21.
[31] ts 11.
[32] ts 12.
[33] ts 12 and 14.
[34] ts 12.
[35] ts 12.
[36] ts 12.
[37] ts 13.
In cross-examination Constable Cook agreed that he and the appellant were in vehicles of roughly the same height.[38]
[38] ts 13.
In cross-examination Constable Cook's body worn camera footage[39] was played.[40] The appellant put to Constable Cook that the footage showed him, that is, the appellant, picking up his phone from his left side rather than his right side. Constable Cook did not accept this proposition. He stated that that his hand was obscuring what the appellant did and that he could not 'quite clearly see it'.[41]
[39] Exhibit 1.
[40] ts 14.
[41] ts 14.
In cross-examination Constable Cook, when asked if he had seen a lunchbox sitting on the front passenger seat of the utility, stated that he was not 'paying attention to the lunchbox at that time, no'.[42] He stated that he was looking at setting up the 'line algometer' (that is, the breathalyser machine).[43]
[42] ts 15.
[43] ts 15.
In cross-examination Constable Cook was asked some questions about the four photographs. In the course of this questioning Constable Cook made the point that photograph 2 did not show the angle from which he was looking into the appellant's vehicle at the time that the police vehicle and the appellant's vehicle were stationary at the lights.[44]
[44] ts 16.
In cross-examination Constable Cook accepted that in his witness statement he had stated that the appellant was looking down towards his crotch.[45]
[45] ts 16. The transcript records that the word ‘crouch’ was used but this is clearly a typographical error.
In cross-examination Constable Cook also accepted that the body worn camera footage showed that the appellant was wearing headphones.[46]
[46] ts 21.
In cross-examination Constable Cook stated that a few seconds elapsed after he had seen the appellant on his phone before the traffic lights turned green.[47]
Constable Arnold[48]
[47] ts 22.
[48] ts 22 - 29.
Constable Arnold's material evidence-in-chief was as follows:
1.At about 9.45 am on 27 January 2023 she was on duty with Constable Cook. She was driving a marked four-wheel drive police vehicle with Constable Cook in the passenger seat. They were stationary at an intersection in the right hand lane, also known as the number 2 lane;[49]
2.While they were stationary at the intersection she noticed that Constable Cook's behaviour changed and that something to his left had caught his attention. She saw him turn and stare at something for several seconds. She asked what had caught his attention and he said, 'That guy is on his phone';[50]
3.She turned and saw a car in lane 1 that was adjacent to the police vehicle.[51] The police vehicle and the other vehicle were in line with each other. The 'edge' of the vehicles was not very far apart, maybe one metre but under two metres apart;[52]
4.The tinting on the windows of the other vehicle looked to her as though it was within legal specifications. It was easy to see through the tinting on the windows of the other vehicle and to see the driver. It was a bright sunny day;[53]
5.She could see a male driver in the other vehicle. Constable Cook's head was covering half of the driver. She could see the top half of the steering wheel through the window;[54]
6.The driver's hands were not on the steering wheel. He was glancing down. She could tell this by his 'eyesight' and the way that the tilt of his head was 'not [crotch] level but lower than the dash';[55]
7.She 'maintained eyesight' on the driver after Constable Cook activated the siren. The driver did not respond to the siren, in that he did not look around to find out why the siren had been activated. After the siren was activated the driver looked up and placed his 'hand' on the steering wheel and stared forward;[56] and
8.A couple of seconds later the light went green, traffic moved forward and they executed a traffic stop.[57]
[49] ts 22.
[50] ts 23.
[51] ts 23.
[52] ts 25.
[53] ts 25.
[54] ts 23.
[55] ts 23 - 24.
[56] ts 24.
[57] ts 24.
In cross-examination Constable Arnold agreed that she did not refer to seeing the appellant's hands in her witness statement.[58] She agreed that in addition to the approximate two metre gap between the police vehicle and the appellant's vehicle, there was probably another two metre gap 'inside the vehicle when…looking through [the police vehicle] glass into [the appellant's] glass'.[59] However, she did not agree that there was a four metre gap.[60]
[58] ts 26.
[59] ts 26.
[60] ts 26.
When Constable Arnold was asked in cross-examination if the condition of the appellant's vehicle as shown in the four photographs looked in a similar condition to the day on which she saw the vehicle, she responded, 'I assume so'.[61]
[61] ts 28.
In cross-examination the appellant suggested to Constable Arnold (with the assistance of the magistrate) that the appellant's conduct in glancing down was consistent with him holding a coffee cup somewhere between his lap and the steering wheel. Constable Arnold, while confirming that she had not seen anything in the appellant's hands, accepted that this was 'possible'.[62]
Appellant's evidence[63]
[62] ts 28.
[63] ts 31 - 51.
The appellant gave the following material evidence-in-chief:
1.He was sitting in his vehicle at a set of lights. His vehicle was the first in the set of lights and was right next to a police vehicle. His vehicle and the police vehicle were the front vehicles at the lights;[64]
2.He was having a cup of coffee which he had just purchased from the Dixon Road 7-Eleven. He heard the police siren but did not think it had anything to do with him.[65] He did not react to the siren because he did not think he had done anything wrong;[66]
3.He waited for the lights to turn green, drove ahead, and the police vehicle put flashing lights on and came up behind him. He pulled over to the kerb;[67]
4.He was told by the police officer that he had been on his phone. He denied to the police officer that he had been on the phone and told the officer that he had headphones in and that this was how he operated his phone;[68]
5.The tint on the windows of his vehicle is the 'maximum tint'. The tint makes it very hard for anyone to see into his vehicle. The fact that the tint makes it very hard for anyone to see into his vehicle is demonstrated by photograph 2;[69]
6.At the time that he was pulled over and 'as can clearly [be seen] in the [body worn camera] footage' he was sipping a cup of coffee. He thought that this was probably what the police officer had seen at the lights;[70]
7.As can also be seen from the body worn camera footage, at the time he was pulled over he picked up his phone from the left side of his vehicle 'where it was inside his lunchbox'. The phone was not in his lap or on his right side;[71] and
8.At the time of the relevant incident the condition of his vehicle was similar to the condition of his vehicle as shown in the four photographs that he had taken of the vehicle on 16 July 2023 (that is, the previous day) at approximately 9.30 am.[72]
[64] ts 31.
[65] ts 31.
[66] ts 31.
[67] ts 31.
[68] ts 31.
[69] ts 34.
[70] ts 35.
[71] ts 35.
[72] Exhibits 2.1 - 2.4; ts 35.
In cross-examination the appellant did not accept that if he had been holding his phone while he was stopped at the traffic lights he would have had plenty of time between commencing to drive forward and being pulled over to place the phone in his lunchbox.[73] He asserted that did not have time to do this, that both of his hands were on the steering wheel, that the vehicle was a manual vehicle and that the officers would have seen the phone being moved.[74]
[73] ts 36.
[74] ts 36.
In cross-examination the appellant also testified as follows:
1.He had to unzip the lunchbox to take out his phone;[75]
[75] ts 37.
2.He unzipped the lunchbox using only one hand. He believes he used his left hand to do this;[76]
[76] ts 37.
3.He has a coffee cup holder in the centre console of his vehicle, down by his crotch;[77]
[77] ts 37.
4.He does not have a mobile phone holder in his car. He does not need one because he has headphones;[78]
5.His headphones are AirPod Pros and he can use Siri to make or answer a phone call by command through his headphones;[79]
6.When he heard the siren he may have looked to his right, although he cannot remember.[80] He was looking straight ahead most of the time.[81] He was stuck at the front of a set of lights and could not do anything anyway and therefore he did not look around. He did not need to look around because he had not done anything wrong;[82]
7.It was not the position that he did not look at the police car when he heard the siren because he knew he was using his phone and therefore doing something wrong. [83] It is not the position that on hearing the siren he immediately dropped his phone and looked straight ahead because he knew he had done something wrong and was trying to make it look as though he had not done anything wrong;[84]
8.He did not deliberately park his vehicle under the shade of a tree before taking the four photographs of his vehicle and at the time of taking the photographs there was no shadow on his vehicle;[85]
9.The reason why when viewing the body worn camera footage it is possible to see through the driver's door window into the vehicle is that at that time the front passenger door window was down which let light into the vehicle;[86]
10.He would say that when his vehicle and the police vehicle were stationary at the traffic lights they were 'exactly side by side';[87]
11.He was able to remove his phone from his lunchbox in a very short period of time. He would not have been able to do 'that process in reverse' after driving away from the lights and before being stopped because it is 'more difficult to zip [his lunchbox] up than to unzip it';[88]
12.Although he was holding the coffee cup while he was stationary at the traffic lights, he does not believe that he drank from the coffee cup at this time;[89] and
13.At the time that he pulled up at the traffic lights the police vehicle was already there; he pulled up alongside the police vehicle.[90]
[78] ts 37.
[79] ts 37.
[80] ts 38, 39 and 40.
[81] ts 39.
[82] ts 39 and 48.
[83] ts 40.
[84] ts 40, 43 and 49.
[85] ts 40 - 41.
[86] ts 41 - 42.
[87] ts 43.
[88] ts 46 - 47.
[89] ts 47.
[90] ts 48.
In the course of cross-examination the magistrate referred the appellant to the fact that Constable Cook's body worn camera footage revealed that when Constable Cook told him that he had seen him using his phone he responded, 'At a set of lights. Come on mate'. The magistrate asked the appellant what he had meant by this statement and whether he had made the statement because he did not consider that it was dangerous for him to use his phone while stopped at a set of traffic lights.[91] In response to the magistrate's question the appellant asserted that he had made this statement because 'it wasn't happening', he was not on the phone and he had been 'sitting there having a cup of coffee'.[92] The appellant denied that he had made this statement because his belief was that it was not dangerous for him to be making use of his phone while stationary at traffic lights.[93]
[91] ts 45.
[92] ts 45.
[93] ts 45.
After questioning the appellant about his above response to Constable Cook, the magistrate indicated to the appellant that on her viewing of the body worn camera footage there did not 'seem to be a movement' consistent with him unzipping his lunchbox.[94] In providing this indication her Honour, at the appellant's request, played a portion of the footage.[95] Immediately following the playing of the footage the appellant testified as follows:[96]
So when his arm goes up [indistinct] goes down, see - yes (indistinct) up to down. So you (indistinct) I will reach down - there it goes. The hand had gone down (indistinct) cup of coffee (indistinct) my hand goes down. I'm unzipping. And there's the phone coming out.
[94] ts 46.
[95] ts 46.
[96] ts 46.
In response to the appellant's evidence the magistrate asked the appellant, 'So that moment was enough to unzip the lunchbox'.[97] The appellant answered:[98]
'Yes. It's a - it's a large chunky zip on a blue lunchbox.
[97] ts 46.
[98] ts 46.
At the end of cross-examination the magistrate further questioned the appellant. The relevant exchange was as follows:[99]
[99] ts 49 - 50.
HER HONOUR: Mr Evans, this - that vehicle is a manual vehicle?‑‑‑Manual vehicle, yes.
Right. And when you come to traffic lights, do you leave the car in first with your foot on the clutch? Or do you put it in neutral or‑‑‑?‑‑‑Normally put it in neutral. I have my foot‑‑‑
You put it in neutral?‑‑‑I have one foot on the brake and the other poised over the clutch.
So - right. So to get moving, you need to apply the clutch, move the car into first gear and then‑‑‑?‑‑‑Correct.
‑‑‑start. And you say you were the first vehicle in line at the lights?‑‑‑We were - there was the - I think the intersection at south is three lanes wide, I believe.
No, but in terms of positioning at the line for the lights at this‑‑‑?‑‑‑We were both - both vehicles were in the front.
You were - there were no vehicles in front of you?‑‑‑No.
You were the first?‑‑‑I was.
So if you're waiting for a light to go green and it's going to involve you having to depress the clutch, put the vehicle into first gear, that's going to be delayed if you're holding a coffee cup on your lap, isn't it? So why were you holding your coffee cup on your lap?‑‑‑I was going to have a sip on the coffee cup.
But if you're waiting for the lights to change?‑‑‑I‑‑‑
And you've got a cup holder right there on your left, wouldn't it make sense to have a drink, put it in your cup holder so you're ready to put the car into first gear as soon as those lights change? Why hold onto the cup?‑‑‑Well, I - I haven't given evidence that I was completely holding onto the cup the entire time. No one has given evidence to that effect.
Well, then what were you doing with the cup? Was it on your lap the whole time? Or did you put it‑‑‑?‑‑‑It wasn't on my lap.
‑‑‑in the cup holder?‑‑‑It was in my - it was more - more likely in my left hand.
In‑‑‑?‑‑‑which is right next to the gear shift, the cup holder, and‑‑‑
But would that - why would that require you to look down if it - sort of directly down‑‑‑?‑‑‑I was‑‑‑
‑‑‑as opposed to the left?‑‑‑I wasn't looking directly down at any point.
At the end of the above exchange the magistrate asked the appellant if there was anything he wanted to say as a result of cross‑examination.[100] In response to the magistrate's invitation the appellant said the following:[101]
Yes, your Honour. With regards to what you just stated about looking directly down, if I was looking directly down, then they wouldn't have seen my phone, if I had a phone in my hand, because he said he would've seen the top third, I think he said, of my phone. And as you can clearly see in the footage I provided - I think it's photos 3 and 4 - I wouldn't need to be looking down to see the phone if I had it in my hand like he states I have had it in my hand. So it goes contradictory to what they've said.
[100] ts 51.
[101] ts 51.
The appellant did not give any further evidence.
Body worn camera footage
A summary of the material portions of the body worn camera footage is as follows.
The footage commences while Constable Cook and Constable Arnold are still in their police vehicle following the appellant's vehicle prior to pulling the appellant's vehicle over. The police vehicle's lights are flashing. Approximately 15 seconds elapses between the time the footage starts and the point at which both the police vehicle and the appellant's vehicle come to a stop.
The footage does not reveal the positioning of the two vehicles at the traffic lights. The footage commences after both vehicles have pulled away from the lights.
Both vehicles pull over in the left‑hand emergency/cycling lane on the road. The appellant's vehicle is towing a trailer.
As Constable Cook approaches the passenger side of the appellant's vehicle, the front passenger side door window of the appellant's vehicle is already down.
At approximately 45 seconds into the footage and once Constable Cook arrives at the front passenger side door of the appellant's vehicle, the following exchange occurs between Constable Cook and the appellant:
COOK: Know why I pulled you over?
APPELLANT: No, I have no idea.
COOK: Yeah, well I saw you on your phone, saw the top of your phone, looking down.
APPELLANT: Sorry mate, I don't need to do it. I've got headphones on.
COOK: Yeah, but it's a dangerous thing.
APPELLANT: At a set of lights? C'mon mate. That's alright, carry on. I'm going to film you.
From approximately one minute into the footage the appellant can be seen picking a coffee cup up from the centre console area of the vehicle, then returning the coffee cup to the centre console area, and then picking up his phone from his left side.
At approximately one minute and six seconds into the footage the appellant can be seen with his phone in his hand. At this time Constable Cook is pressing buttons on the breathalyser machine in preparation for asking the appellant to take a breath test.
At approximately one minute and 30 seconds into the footage the appellant can be seen holding his phone.
At approximately one minute and 52 seconds into the footage the coffee cup can be seen in the centre console area of the vehicle.
At approximately one minute and 55 seconds into the footage the following exchange occurs between Constable Cook and the appellant:
COOK: That's all good. Well, seen you on phone at stopped traffic light.
APPELLANT: Well, I wasn't on my phone. I don't need to be because have headphones.
COOK: That's fine, but I've seen your phone pop up.
At approximately two minutes and 10 seconds into the footage Constable Cook walks around the front of the appellant's vehicle to the front driver's side door in order to administer the breath test to the appellant. At the time that he walks around to the front driver's side door the door window is approximately one quarter down. It is possible to see through the window into the car. The appellant eventually lowers the window fully.
At approximately three minutes and five seconds into the footage the following exchange between Constable Cook and the appellant occurs:
COOK: I've seen you on your phone.
APPELLANT: Well you say you have. I have heard this story before.
At various points in the footage it is possible to see what looks like plastic bags and paperwork on the front passenger seat of the appellant's vehicle. It is not possible to see a lunchbox on the seat.
Magistrate's reasons
In delivering her reasons the magistrate stated a number of applicable general principles. In particular, her Honour said the following:
1.The prosecution bore the burden of proving the charge beyond reasonable doubt and the appellant did not have to prove anything;[102]
2.The evidence consisted of what the witnesses had said and the exhibits;[103]
3.She was entitled to accept or reject a witness's evidence in whole or in part;[104]
4.She was required to decide the case only on the evidence. While she could take 'judicial notice of some matters' she was not to speculate about other matters that were not in evidence that may have some relevance or significance to her determination of the evidence in dispute;[105]
5.She was not permitted to apply any reasoning based on bias, prejudice or sympathy;[106]
6.The credibility of a witness's evidence can be broken down into two key parts, honesty and reliability;[107]
7.In assessing the credibility of a witness's evidence she could take into account what the witness said, the way in which the witness presented and whether there were any inconsistencies in the evidence;[108]
8.If she accepted the appellant's version of events, or if she found that the appellant's version of events might be true, the appellant must be found not guilty;[109]
9.Even if she formed the view that the appellant's version of events was not true or might not be true, it would not follow that she would find the appellant guilty of the offence. In those circumstances she would need to put the appellant's account to one side and decide if the prosecution evidence proved his guilt beyond reasonable doubt.[110]
[102] ts 54.
[103] ts 54.
[104] ts 54.
[105] ts 55.
[106] ts 55.
[107] ts 56.
[108] ts 57.
[109] ts 59.
[110] ts 59.
The magistrate found that the four photographs taken by the appellant of his vehicle 'really have no relevance and no weight'.[111] Her Honour made this finding given her assessment that the photographs revealed 'really very little if anything' about the appellant's vehicle at the time of the alleged offence or about what the police officers could or could not see from their position.[112] Her Honour considered that this was particularly so given that 'the relative positions of the vehicles [was] not entirely clear or definitive' and that it was not clear if the appellant 'was slightly forward [and] whether they were at the same height or roughly the same height'.[113]
[111] ts 56.
[112] ts 56.
[113] ts 56.
The magistrate found that the body worn camera footage provided 'some assistance in showing the conditions on the day, the vehicle condition roughly at the time,…the level of the tinting, what else was in the vehicle and what [the appellant] would have had access to within the vehicle or not had access to in the vehicle'.[114] Her Honour found that other than the body worn camera footage, 'the evidence really comes down to what the witnesses have said'.[115]
[114] ts 56.
[115] ts 56.
The magistrate said the following in relation to the appellant's evidence concerning his use of earphones to operate his phone:[116]
…I turn to [the appellant's] account. It's quite clear that [the appellant] had AirPods or earphones, some sort of earphone device, in his ears. I haven't heard any evidence to this, but I think it's common sense and life experience that you can do a lot with mobile phones via voice commands these days, and you don't necessarily need to have any physical contact with your phone to be able to make and receive calls, send and receive messages, do all sorts of things through a mobile telephone, particularly if that phone is connected not only via Bluetooth but to apps such as Apple CarPlay and Android Auto and all those sorts of things that modern cars can have.
But the reverse is also true, that simply because you were using headphones and you can do those things, it doesn't automatically follow that you wouldn't necessarily make contact with your phone for whatever reason: to check something that may have popped up that isn't otherwise accessible or by voice commands, that the voice commands aren't working - whatever it may be. There can still be actions on the part of a user of a phone that involve them physically making contact with the phone to look at the phone even though they're using headphones.
So while I accept [the appellant's] argument that, by and large, he doesn't need to touch the phone to use it because of the headphones, it doesn't automatically follow that because he had headphones in, that he would not have touched the phone. It is a matter of weight there and consideration whether or not [the appellant] was using the phone at the time …
[116] ts 59 - 60.
The magistrate identified one aspect of the evidence of Constable Cook that she considered was relevant to the assessment of his credibility and which did him a 'disservice'.[117] The aspect of Constable Cook's evidence identified by her Honour was his 'reluctance to accept' and failure to concede that his body worn camera footage showed the appellant retrieving his phone 'from [his] left area, consistent with the centre console, with it either being kept in the centre console or somewhere perhaps on the passenger seat'.[118]
[117] ts 57 - 58 and 63.
[118] ts 58.
The magistrate identified aspects of the appellant's evidence that in her assessment reflected adversely on his credibility. The aspects of the appellant's evidence identified by the magistrate in this context and her Honour's findings in relation thereto were as follows:[119]
1.The appellant's evidence that there was not sufficient time between him driving away from the traffic lights and being pulled over by the police to move his mobile phone from his lap area to his left side, whether the centre console or the front passenger seat - The magistrate found that there was clearly sufficient time for the appellant to do this and that his refusal to make this concession was unreasonable and impacted on his credibility; [120]
2.The appellant's evidence as to whether he looked around at the time that Constable Cook activated the police vehicle's siren ‑ The magistrate found that the appellant's evidence on this point changed when he was challenged and that his 'starting position' that he did not look was 'entirely unreasonable' because it would not be what the 'average reasonable person' would do;[121]
3.The appellant's evidence in relation to the coffee cup - The magistrate found that the appellant's evidence as to the coffee cup 'only came in very late in the piece' and that it 'did not ring true' that the appellant would be 'sitting at the front of the line…at some traffic lights, driving a manual vehicle, and holding a coffee cup in his left hand…when [he had] a cup holder immediately to [his] left'.[122] The magistrate found that given that the appellant, while sitting at the traffic lights, needed to prepare to change from neutral into first gear, it did not ring true that the appellant would be sitting cradling a cup of coffee that even on his evidence he was not drinking from.[123] The magistrate found that the appellant's evidence that he was holding a coffee cup while stationary at the traffic lights was a lie;[124] and
4.The appellant's evidence that once he was pulled over by the police there was sufficient time to remove his mobile phone from a lunchbox - The magistrate found that the appellant would not 'in that nanosecond of footage when he put down the cup and retrieved the phone' have had sufficient time to unzip a lunchbox and remove his phone from the lunchbox.[125]
[119] ts 58 - 63.
[120] ts 58 - 59 and 61.
[121] ts 60 and 62.
[122] ts 60 and 63.
[123] ts 63.
[124] ts 63.
[125] ts 61.
The magistrate stated that there were other aspects of the appellant's evidence that she was 'not even going through' which did not ring true or which raised concerns as to the appellant's credibility.[126]
[126] ts 63.
Ultimately, the magistrate, taking into account the above identified aspects of the appellant's evidence and her findings in relation thereto, and having 'not only heard…but seen' the appellant's evidence, found that the appellant was not an honest witness and consequently also not a reliable witness.[127] Her Honour found that 'overall' she was satisfied that she was able to reject the appellant's account as being untruthful.[128]
[127] ts 63.
[128] ts 63.
Having rejected the appellant's evidence the magistrate turned to decide if the prosecution evidence proved the charge beyond reasonable doubt.[129]
[129] ts 63.
The magistrate found that despite the one aspect of Constable Cook's evidence which she considered did him a 'disservice', he was 'by and large' a credible witness.[130] In arriving at this conclusion the magistrate placed weight on the evidence of Constable Arnold. Her Honour found that Constable Arnold did make appropriate concessions, specifically that Constable Cook was to some extent blocking her view, but that she was 'clear on what she could and couldn't see'.[131] Her Honour found that there was nothing in Constable Arnold's evidence that 'seemed to be embellishment'.[132] Her Honour also found that Constable Arnold's evidence as to what she saw the appellant do, specifically looking at something below the steering wheel, was 'consistent with what was described by Constable Cook, who said that he then saw a mobile phone in [the appellant's] hands'.[133]
[130] ts 63.
[131] ts 63.
[132] ts 63 - 64.
[133] ts 64.
The magistrate dismissed any suggestion that either of the police officers was motivated to lie.[134]
[134] ts 64.
The magistrate found that although the tint on the windows of the appellant's vehicle might have been the darkest possible legal tint, such tint still enables people to see inside a vehicle because this is what the law requires.[135] Her Honour referred to Constable Arnold's evidence that despite the appellant's vehicle's dark tint she could still see inside the vehicle 'on what was a bright, sunny summer's morning'.[136]
[135] ts 64.
[136] ts 64 - 65.
The magistrate concluded her reasons in the following terms:[137]
…So ultimately, as I've said, I've rejected [the appellant's] account. I also do not accept that it might be true, noting that [the appellant] is not required to establish anything.
But putting his account then to one side, I am satisfied beyond reasonable doubt that [the appellant] did drive that vehicle on Dixon Road in Rockingham on that day, and that he was using his mobile phone while he was stopped at the lights. So, the vehicle is not parked. It was still being driven. And that he used it in some way. That is, he engaged with it physically, either by simply just looking at the screen.
There is no suggestion he's doing anything - they're not required to prove that he was doing anything more than using it. Holding it. Physically making contact with it and using it in some way. And I am satisfied beyond reasonable doubt that that is what [the appellant] was doing, and I consequently find him guilty of this offence and I enter a judgment of conviction.
[137] ts 64 - 65.
I think it is fair to say that the magistrate's ultimate conclusion was not expressed as clearly as it might have been. Nonetheless, I am satisfied from reading her Honour's conclusion in the context of her reasons as a whole (in particular her statements relating to the appellant's evidence concerning his use of earphones and her finding that Constable Cook was 'by and large' a credible witness) that her finding was that the appellant had used his phone by looking at the phone and by briefly holding the phone.
Ground 1 - apprehended bias
The appellant alleges, in substance, that the magistrate's conduct of his trial gives rise to a reasonable apprehension of bias.
It is important to note that the appellant does not allege that his trial was rendered unfair by reason of the conduct of the magistrate; that is, does not allege that the conduct of the magistrate amounted to an undue departure from the due and orderly processes of a fair trial such as to create a real danger that the trial was unfair.[138]
Applicable legal principles
[138] Michael v The State of Western Australia [2007] WASCA 100 [63]; Nafranec v Nicol [2012] WASC 436 [10] - [11].
The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-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 they are required to decide.[139] The principle concerning apprehended bias gives effect to the requirement that justice should be both done and be seen to be done.[140]
[139] Michael v The State of Western Australia [56]; Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [24].
[140] Michael v The State of Western Australia [57].
In applying the principle concerning apprehended bias, it is necessary to identify the factor which it is said might lead the judicial officer to decide a case other than on its legal or factual merits, and to articulate a logical connection between that factor and the apprehended deviation from the course of deciding the case on its merits.[141] The reasonableness of the apprehension may then be assessed.[142]
[141] Prichard v M 6:8 Legal Pty Ltd [24].
[142] Prichard v M 6:8 Legal Pty Ltd [24].
The test for whether there is a reasonable apprehension of bias is objective and the fair-minded observer is someone who is aware that the person who is being observed is a professional judicial officer whose training, tradition and oath or affirmation require them to discard the irrelevant, the immaterial and the prejudicial.[143] However, the fair-minded observer is also someone who is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision makers.[144]
[143] Michael v The State of Western Australia [59]; Prichard v M 6:8 Legal Pty Ltd [24].
[144] Prichard v M 6:8 Legal Pty Ltd [24].
The reasonableness of the apprehension of bias should be considered in the context of ordinary judicial practice.[145]
[145] Michael v The State of Western Australia [59].
In judging whether the apprehension of bias principle applies it should be assumed that the lay observer would base their opinion on a fair assessment of the judicial officer's conduct in the context of the whole of the trial.[146]
[146] Michael v The State of Western Australia [61].
Judicial officers are human and as such they show a range of emotions. However, a short emotional exchange taken out of context and viewed in isolation does not lead to the conclusion that the officer has lost impartiality and neutrality.[147]
[147] Galea v Galea (1990) 19 NSWLR 263, 279; Michael v The State of Western Australia [61].
It will often be necessary, particularly with self-represented litigants, for a judicial officer to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions.[148]
[148] Michael v The State of Western Australia [65].
A judicial officer is entitled to ask questions of a witness not only for the purpose of clarifying evidence but also to test the evidence.[149] However, they should do no more than is absolutely necessary in that respect and should be careful not to take on the role of counsel.[150] There is a distinction in this context between a trial by jury and a trial by judicial officer alone. There is greater latitude for questioning by a judicial officer who is acting as the finder of fact.[151]
[149] Michael v The State of Western Australia [66].
[150] Michael v The State of Western Australia [66].
[151] Michael v The State of Western Australia [78]; Nafranec v Nicol [12].
A judicial officer who at trial, during exchanges with counsel or a self-represented litigant, expresses tentative views that reflect a certain tendency of mind are not on that account alone taken to have engaged in prejudgment.[152] Judicial officers are not expected to wait until the end of a case before they start thinking about the issues.[153] Nor are they expected to sit mute while evidence is advanced and arguments are presented.[154] To the contrary, judicial officers will often form tentative opinions on matters in issue and counsel and self-represented litigants will usually be assisted by hearing those opinions and being given an opportunity to deal with them.[155]
Analysis
[152] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [13].
[153] Johnson v Johnson [13].
[154] Johnson v Johnson [13].
[155] Johnson v Johnson [13].
The appellant makes a number of complaints about the conduct of the magistrate during the trial in support of his allegation of apprehended bias. I will deal with each of the complaints in turn.
Exchange relating to the four photographs
The first of the appellant's complaints arises out of an exchange that he had with the magistrate while he was in the course of cross-examining Constable Cook by reference to the four photographs that he had arranged to be taken on the day before his trial. After the appellant had asked Constable Cook some questions about photograph 1 and photograph 2 the following exchange took place between the appellant and the magistrate:[156]
[156] ts 16 - 19.
ACCUSED: Yes. And as you can see, the steel rod you saw previously was lying on the headrest and roughly in line and my dash. Can we go back to [photograph 3]. Okay. So that's - you can see its sitting in the steering wheel - on top of the steering wheel, just above that the horn or the halfway mark, as you can see there, and the dash. So the reason I've got that photo there is quite clear, if I was looking in my phone, as you've described, firstly, through the tint there's no way you would have seen but diddly-squat, could you?
HER HONOUR: Well, there's a question - no one has asked whether the window was up or down.
ACCUSED: Yes, and the window was down - sorry, up at the lights, and the - and the passenger window was down - - -
HER HONOUR: Can I just say this, Mr Evans, I appreciate what you're trying to do here, but you trying to recreate the scene and there is authority - legal authority - that talks about the dangers of trying to recreate a scene. You may very well be giving evidence about this shortly, but there's no - it's unclear when these photographs were taken relative to the alleged offence. How dirty or clean the window was at the time of the alleged offence as opposed to what's shown in those photographs.
ACCUSED: Okay.
HER HONOUR: The angle, you're taking photographs at a certain angle, there's nothing that confirms - you haven't asked and it hasn't been confirmed whether or not that was the angle at which this officer would have been looking at your vehicle, looking at you, looking at the steering wheel, looking at the hands. So I'm really just trying to emphasise to you that what your showing is of limited utility because the variables are significant.
ACCUSED: Yes, your Honour, the variables are significant, but if we go back to the footage shown by the police on the day, you will see that that vehicle's in basically the same condition as what you see - - -.
HER HONOUR: Well, no, I can't see that from the footage. It's the other side of the car.
ACCUSED: Well - - -
HER HONOUR: And also, I mean, I don't know these photographs were taken - - -
ACCUSED: Taken yesterday.
HER HONOUR: No, well, taken yesterday, at what time? Relative to an offence that occurred on 27 January at what time? What was lighting like? What does that mean in terms of the ability to see through the window, a window that might be clean or that might be dirty? Photographs taken yesterday of a dirty window, who's to say whether it was that dirty in January? Mr Evan's - - -
ACCUSED: Well, your Honour - your Honour - - -
HER HONOUR: --- it's of a very limited utility. You can ask him and say it was too dark, the tinting was too dark, etcetera, but the weight that can be put on those photographs is really very limited.
ACCUSED: Your Honour, if we go back to the footage shown on the day which Sergeant did show, it shows the vehicle in the exact same condition as what it is today.
HER HONOUR: No, it doesn't, Mr Evans. It cannot be seen. Because what your saying is about looking through a windows [sic], and unless that footage is going to show the window at that same angle, I cannot say whether it's as clean, dusty, whatever it is.
ACCUSED: I will show that in a second, your Honour. I will show that in a second.
HER HONOUR: Well you haven't from what has been put before the court at the moment.
ACCUSED: Well yes, I haven't had a chance to complete my cross-examination yet, and the - and the - - -
HER HONOUR: Well, I'm telling you, Mr Evans, these photographs are of very limited, if any, use to the court.
ACCUSED: Well, they - I would disagree, your Honour, and so would the Court of Appeal, of which I have experience and have been extremely successful at.
HER HONOUR: Well, you're not going to the Court of Appeal, Mr Evans. If this matter is appealed, it goes to a single judge before it goes to the Court of Appeal.
ACCUSED: It actually goes to the - it actually goes to the Supreme Court where they handle this court - - -
HER HONOUR: Yes, a single judge decision.
ACCUSED: Yes.
HER HONOUR: I know how the courts work, Mr Evans.
ACCUSED: So do I, your Honour. I've been doing it for over 15 years.
HER HONOUR: Stop speaking over the top of me, Mr Evans. You are doing yourself a disservice. I'm explaining to you that these photographs are of limited utility without you explaining, I mean, this - this rod, I can even see - you're saying that this shows your line of sight. From this angle, that rod does not match up with your eyes.
ACCUSED: It's slightly - it's slightly - slightly below.
HER HONOUR: Because of the angle, which only proves the point that the angle at which you're viewing things can impact on what can and can't be seen. You say that rod is lining up with your eyes down to the dash, from this angle, it doesn't, Mr Evans. It doesn't.
ACCUSED: It is - it is approximately 2 mills - if I tilt my head forward slightly instead of having it on - on - hard up against the headrest it would be bang on in line.
HER HONOUR: And if their vehicle was slightly ahead of you, it would be even less in line. If it was behind you, it might be more in line.
ACCUSED: But, no it's what we're looking at here.
HER HONOUR: I'm not arguing with you any further, Mr Evans. Move on with your cross-examination.
ACCUSED: Right. Where was I?
The appellant submits that during the above exchange the magistrate engaged in a discrediting of the evidence comprised of the photographs instead of letting him proceed to cross-examine Constable Cook. He also disputes that he spoke over the magistrate and that the magistrate, by making the statement that he was speaking over her was using 'the oldest trick in the book'.
It is clear from the above cited exchange that the magistrate's intention was to alert the appellant to the difficulties that he would likely face, regardless of whether or not he elected to give evidence, in persuading her to place any significant weight on the photographs. Unfortunately the magistrate's intervention, however well-intentioned and as her Honour in effect ultimately recognised, descended into an argument with the appellant during which her Honour appears to have become a little frustrated with the appellant.
The prosecutor did not raise any objection to the appellant questioning Constable Cook by reference to the four photographs notwithstanding that it was obvious that they had not been taken on the day of the offence or at the location at which the offence was committed. Accordingly, unless the magistrate was contemplating ruling that the photographs were irrelevant and inadmissible in my view the preferable course, at this stage in the proceedings, would have been for her Honour to limit herself to ensuring that the appellant conducted his cross-examination by reference to the photographs properly and fairly rather than proceeding, in the middle of the appellant's cross‑examination, to attempt to point out to the appellant what she considered to be potential deficiencies in the photographic evidence and to express her view that the photographs were of 'limited utility'. Her Honour, if she was so minded, could have engaged in this process at other points in the trial prior to the appellant being required to make his election in relation to giving evidence (for example, at the conclusion of Constable Cook's evidence or at the close of the prosecution case).
Despite the view I have expressed in the preceding paragraph, I do not consider that the relevant exchange gets close to demonstrating apprehended bias. The reality of the situation has to be taken into account. The appellant was unrepresented. It was apparent that he was intending to place significant weight on the photographs in support of his case. In these circumstances and taking into account the obvious well-intentioned purpose behind the magistrate's intervention, I am not satisfied that a fair-minded lay observer might reasonably apprehend from the exchange, viewed in the context of the trial as a whole, that the magistrate would not bring an impartial and unprejudiced mind to the resolution of the question that she had to decide, specifically whether the appellant had made use of his phone while stopped at the traffic lights.
As to the appellant's 'oldest trick in the book' assertion, I do not know what 'trick' the appellant is referring to. He did not identify the 'trick' in the course of his oral submissions. However, if by his assertion the appellant is intending to suggest that the magistrate's statement to him that he was talking over her was an attempt by her Honour to stop him from making further submissions or to incorrectly or unfairly convey that he was talking over her, the suggestion is devoid of merit.
The transcript does indicate that the appellant interrupted the magistrate on at least one occasion earlier in the exchange prior to her Honour telling him not to speak over the top of her. However, it is not possible to discern from the transcript if the appellant did, or behaved in a way that indicated he was about to, speak over the top of the magistrate at the time that her Honour told him not to do so. In any event, even it is assumed in the appellant's favour that he did not, and was not about to, interrupt the magistrate at the time that her Honour told him not to speak over the top of her, there is simply no sound basis for inferring that her Honour made the statement with the intention of stopping the appellant from making further submissions, or in the knowledge that the appellant was not interrupting her and was not about to interrupt her and with the intention of incorrectly or unfairly conveying that the appellant was talking over her. This is particularly so given that the appellant had previously interrupted the magistrate.
Exchange relating to condition of vehicle
The second of the appellant's complaints relates to a further exchange that occurred between him and the magistrate during his cross-examination of Constable Cook. The exchange occurred very shortly after the exchange quoted in par 83 above and followed the appellant playing portions of the body worn camera footage to Constable Cook. The exchange was as follows:[157]
[157] ts 20.
ACCUSED: Stop it there. As you can see, the vehicle is of exactly the same condition. It's a sunny day - was it a sunny day on the day you pulled me over?
HER HONOUR: I don't accept that it's in exactly the same condition, Mr Evans. The photograph you showed was of a really dirty window. That doesn't - I'm just letting you know, that doesn't look dirty to me.
ACCUSED: Well, you can - you can - - -
HER HONOUR: It certainly doesn't look anywhere near as dirty as the photograph.
ACCUSED: Well, you can see the - you can see the window to the left is - is so dirty it has got splatter marks all over it. You can also see at the bottom of the door frame that there - that there is a large amount of dirt and grime on the bottom of the door.
HER HONOUR: All right. Well, just so you know for your benefit, Mr Evans, I don't agree.
ACCUSED: Okay.
HER HONOUR: So continue with your questioning.
ACCUSED: Well, I'm just going from - that actual evidence that you can see in front of him, I know they were both similar conditions because I don't clean the vehicle; it's a work ute.
HER HONOUR: Mr Evans, stop making submissions and just ask questions.
It is clear that the magistrate's intervention on this occasion, specifically her statements to the effect that she did not accept that the condition of the vehicle and the driver's door window as shown in the body worn camera footage was the same as the condition of the vehicle and the driver's door window as shown in the photographs, was prompted by, and made in response to, the appellant's impermissible assertion from the bar table that it could be seen that the vehicle 'is of exactly the same condition'. In my opinion it was understandable that the magistrate's immediate response to the appellant's bald assertion from the bar table was to tell him 'for his benefit' that she did not agree with the assertion. In any event, in my opinion there is nothing in this exchange that justifies the conclusion that a fair-minded lay observer might reasonably apprehend from the exchange, viewed in the context of the trial as a whole, that the magistrate would not bring an impartial and unprejudiced mind to the resolution of the question that she had to decide.
Magistrate's questioning of the appellant
The appellant also complains about the magistrate's questioning of him while he was being cross-examined. In particular, the appellant complains about the magistrate's questioning of him in relation to the following matters:
1.His response to Constable Cook after being pulled over, 'At a set of lights. Come on mate'; [158]
2.Whether the body worn camera footage depicted him unzipping his lunch box and removing his phone;[159] and
3. His use of the coffee cup.[160]
Questioning about appellant's response to Constable Cook
[158] See par 37 above.
[159] See par 38 - 39 above.
[160] See par 40 above.
Immediately before questioning the appellant about his statement to Constable Cook, 'At a set of lights. Come on mate', the magistrate said to the appellant:[161]
Out of fairness to you, Mr Evans, this is something that I noticed, so I want to ask you about it.
[161] ts 44.
It was entirely permissible for the magistrate 'out of fairness' to the appellant to question him about, and thereby give him the opportunity to address the issue of, the meaning of the statement that he had made to Constable Cook, this being a matter that her Honour obviously and justifiably considered to be of potential relevance to her assessment of the credibility of his version of events. There is nothing in the subject matter of the magistrate's questioning or the manner of questioning that provides any basis for concluding that a fair-minded lay observer might reasonably apprehend from the questioning, viewed in the context of the trial as a whole, that the magistrate would not bring an impartial and unprejudiced mind to the resolution of the question that she had to decide.
Questioning about whether footage showed appellant unzipping lunchbox
It is clear from reading the transcript of the magistrate's short questioning of the appellant about whether the body worn camera footage showed him removing his phone from his lunch box that her Honour was, once again, as a matter of fairness to the appellant, attempting to give him the opportunity to expressly address an issue that she considered could potentially impact upon her assessment of the credibility of his version of events. Indeed, immediately before proceeding to question the appellant in relation to whether the footage showed him unzipping the lunch box, the magistrate told the appellant that 'these are things I'm noticing', that they were 'things that I might take into account' and that they were 'things' that she considered 'out of fairness' she should ask him about.[162]
[162] ts 45.
Again, it was entirely permissible and appropriate for the magistrate out of fairness to the appellant to question him about an issue that had not to that point been raised by the police prosecutor and that her Honour obviously and justifiably considered to be of potential relevance to her assessment of the credibility of his version of events. Indeed, for her Honour to have failed to adopt such a course would have been unfair to the appellant. There is nothing in the subject matter of the magistrate's questioning or the manner of questioning that provides any basis for concluding that a fair-minded lay observer might reasonably apprehend from the questioning, viewed in the context of the trial as a whole, that the magistrate would not bring an impartial and unprejudiced mind to the resolution of the question that she had to decide.
Questioning about the coffee cup
The credibility, that is, honesty and reliability, of the appellant's evidence in relation to his use of the coffee cup while he was stationary at the traffic lights was clearly material to the magistrate's resolution of the question that she had to decide, specifically whether the appellant had used his phone as alleged. However, the evidence was not, with respect to the police prosecutor, subjected to any real scrutiny during cross-examination of the appellant.
I think it is fair to say that the magistrate's relatively short questioning of the appellant about his use of the coffee cup while stationary at the traffic lights, which as I have already pointed out occurred after the police prosecutor had completed his cross‑examination of the appellant, had the general tenor of a cross‑examination. However, I do not consider that it can be reasonably suggested that the questioning 'crossed the line' and went beyond an appropriate and justifiable testing of the appellant's evidence in relation to the issue. I note in this context that the majority of the questions that were ultimately asked by the magistrate were, even if they were preceded by assertions, framed in an open ended non-leading way.
In summary, in my opinion there is once again nothing in the subject matter of the magistrate's questioning or the manner of questioning that provides any basis for concluding that a fair-minded lay observer might reasonably apprehend from the questioning, viewed in the context of the trial as a whole, that the magistrate would not bring an impartial and unprejudiced mind to the resolution of the question that she had to decide.
Decision
The ground of appeal has no reasonable prospects of success. I refuse leave to appeal on the ground.
I add for the sake of completeness and to avoid any doubt on the issue, that even if the appellant had contended as part of his appeal that the magistrate's above referred to interventions in the trial process rendered the trial unfair I would, for reasons that are apparent from what I have said in dealing with his allegation of apprehended bias, have rejected the contention. None of the magistrate's interventions, considered individually or collectively, provide any basis for concluding that there was a departure from the due and orderly process of a fair trial such as to create a real danger that the trial was unfair.
Ground 2 - verdict unreasonable or not supported by the evidence
The essence of the appellant's submission in support of the ground of appeal that the magistrate's verdict was unreasonable or was not supported by the evidence is that the magistrate ought to have rejected the evidence of Constable Cook and Constable Arnold and therefore found him not guilty.
Applicable legal principles
The principles to be applied in determining the appellant's ground of appeal are well established and are as follows:[163]
[163] Sturniolo v The State of Western Australia [2023] WASCA 147 [70]. In Sturniolo v The State of Western Australia the court was concerned with the verdict of a jury. However, the principles as stated by the court are equally applicable to the verdict of a magistrate.
1.The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether, as a matter of law, there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
2.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;
3.That question requires consideration of whether the magistrate must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
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. The appeal court should not seek to duplicate the function of the magistrate in its assessment of the credibility of the witnesses where that assessment is dependent on the evaluation of the witnesses in the witness box. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the magistrate and not of the appellate court;
5.The question for the appeal court is whether, upon its examination of the record - by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence ‑ the court is satisfied that the magistrate, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt;
6.A doubt experienced by an appeal court will be a doubt that a magistrate ought also to have experienced, unless the magistrate's advantage of seeing or hearing the evidence is capable of resolving that doubt;
7.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 appeal 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 appeal court must set aside the verdict; and
8.The setting aside of a magistrate's verdict on the ground that it is unreasonable or not supported by the evidence is a serious step not to be undertaken without regard to the advantage enjoyed by the magistrate over an appeal court that has not seen or heard the witnesses called at trial.
Appellant's contentions - analysis
In support of his primary submission that the magistrate's verdict was unreasonable or not supported by the evidence because her Honour ought to have rejected the evidence of Constable Cook and Constable Arnold, the appellant advances the following contentions:
1.The tinting on his vehicle windows was so dark that Constable Cook could not have seen into the appellant's vehicle and therefore could not have seen the appellant looking down towards his lap or taking hold of his phone or the colour of his phone while stationary at the traffic lights;
2.Although the magistrate found that Constable Cook's refusal to concede that the body worn camera footage showed the appellant picking up his phone from his left-hand side did him a 'disservice', her Honour nonetheless accepted Constable Cook's evidence about what he saw the appellant doing while stationary at the traffic lights;
3.It was clear from the cross-examination of Constable Cook and Constable Arnold that they had 'been coached in what to say';
4.Constable Arnold gave 'a sworn statement that she had not seen anything of any substance';
5.It was clear from the body worn camera footage that the appellant did not need to touch his phone because he had headphones on that he could use to make calls and control the phone without touching it; and
6.The prosecution was a 'clear attempt by the Kwinana Police Station to try and get payback for losing in a court case only days before'.
I will deal with each of the appellant's contentions in turn.
Darkness of tint
Constable Cook and Constable Arnold both gave evidence that they could see into the appellant's vehicle while he was stopped at the traffic lights. Indeed, Constable Arnold's evidence was that it was a bright sunny day and was easy to see through the tinting on the windows of the appellant's vehicle.
Contrary to the appellant's contention and essentially for the reasons stated by the magistrate in her decision, the four photographs do not establish that Constable Cook and Constable Arnold could not have seen through the driver's side window of the appellant's vehicle while the appellant was stopped at the traffic lights. The photographs were taken more than six months after the relevant incident in a totally different location and in different conditions. Further, and most specifically, photograph 2, which depicts the driver's door and window of the appellant's vehicle in the up position, is not taken from the same or even a similar position to the position that Constable Cook and Constable Arnold were in at the time that their police vehicle was stopped next to the appellant's vehicle at the traffic lights.
Further, Constable Cook's and Constable Arnold's evidence that they could see into the appellant's vehicle was to some extent supported by the body worn camera footage. As I have already indicated, the footage reveals that at the time that Constable Cook walked around to the driver's side of the appellant's vehicle, the appellant's hands were clearly visible through the driver's door tinted window. It is the position that at the time that Constable Cook walked around to the driver's side of the appellant's vehicle the front passenger door window of the vehicle was open or down which allowed light into the vehicle. Further, it may well be, as the appellant in effect asserted in his evidence, that the fact that there was light shining into the vehicle through the open front passenger door window made it easier to see through the tint on the driver's door window. However, the appellant did not give evidence that the front passenger door window was up or closed at the time that he was stationary at the traffic lights. Indeed, and as I have already indicated,[164] when during the appellant's cross‑examination of Constable Cook about the four photographs the magistrate pointed out that no one had asked 'whether the window was up or down', this being a clear reference to the driver's door window, the appellant responded, 'Yes, and the window was down - sorry, up at the lights…and the passenger window was down' (emphasis added).[165]
[164] See par 83 above.
[165] ts 16 - 17.
In summary, in the absence of objective evidence that was capable of giving rise to a reasonable doubt about the credibility of the evidence of Constable Cook and Constable Arnold that they were, while stationary at the traffic lights, able to see into the appellant's vehicle through the driver's door tinted window, it was entirely open for the magistrate to find on the basis of their evidence considered together with the evidence comprised of the body worn camera footage that they were, while stationary at the traffic lights, able to see into the appellant's vehicle through the driver's door tinted window. Indeed, it was open for the magistrate to make this finding on the basis of the evidence of Constable Cook and Constable Arnold alone; that is, without having any regard to the body camera footage.
The appellant's contention is without merit.
Magistrate's adverse finding about Constable Cook's evidence
It is, as I have pointed out, the position that the magistrate found that Constable Cook's refusal to concede that the body worn camera footage showed the appellant retrieving his phone from his left side did him 'a disservice'. However, the appellant's contention fails to recognise that it was, as the magistrate expressly stated in her reasons, open to her Honour to accept part of Constable Cook's evidence and to reject other parts. The fact that the magistrate took a less than favourable view of Constable Cook's refusal to concede that the body worn camera footage showed the appellant retrieving his mobile phone from his left side was not such as to require the magistrate to reject Constable Cook's evidence as to what he saw the appellant doing while the appellant was stopped at the traffic lights. This is particularly so given that a material aspect of Constable Cook's evidence, specifically that he saw the appellant, on multiple occasions, look towards the traffic lights and then down towards the bottom of the steering wheel was supported by Constable Arnold's evidence that the appellant was glancing down so that his 'eyesight' was 'not [crotch] level but lower than the dash'.[166]
[166] ts 24.
The appellant's contention is without merit.
Cross-examination revealed that the police officers had been coached
The appellant's bold assertion that it was 'clear' from his cross-examinations of Constable Cook and Constable Arnold that they 'had been coached in what to say' is totally without foundation. It was never suggested to either officer in cross-examination that they had been 'coached'. The fact that Constable Arnold gave evidence that was in some respects substantially similar to the evidence of Constable Cook does not provide a rational basis for concluding that either officer had been 'coached'.
The appellant's contention is without merit.
Constable Arnold's admission as to inconsistency
There was no evidence adduced at trial that provides any basis for the appellant's assertion that Constable Arnold had given 'a sworn statement that she had not seen anything of substance'. The only evidence given in relation to the contents of any statement made by Constable Arnold was evidence given by Constable Arnold herself in cross-examination when she accepted that she had not in her signed witness statement described seeing the appellant's hands at any time while the appellant's vehicle and the police vehicle were stopped at the traffic lights. In other words, Constable Arnold accepted that in her signed written statement she had not said that after the police siren was activated the driver looked up and placed his 'hand' on the steering wheel.
The magistrate did not make any express reference in her reasons for decision to the inconsistency between this one aspect of Constable Arnold's evidence and the content of her witness statement. It can be inferred from the absence of any reference by the magistrate in her reasons to the inconsistency that her Honour did not view the inconsistency as affecting the credibility of Constable Arnold's evidence. It was entirely open for the magistrate to arrive at this conclusion. The magistrate was not, by reason of the inconsistency, required to reject all or even part of Constable Arnold's evidence.
The appellant's contention is without merit.
Use of headphones to operate phone
There was no dispute at trial that the appellant was wearing headphones at the time he was pulled over by Constable Cook and Constable Arnold. Indeed, the magistrate found that the appellant had 'AirPods or…some sort of earphone device in his ears'.[167] Further, the magistrate accepted on the basis of 'common sense and life experience' that it is possible by the use of earphones 'to do a lot with mobile phones' without making physical contact with their phone.[168] However, and as the magistrate also recognised, it does not automatically follow from the fact that a person is using earphones to perform certain functions on their mobile phone that they will not, for a variety of reasons, make contact with their phone or look at the phone.[169] To put it another way, the fact that the magistrate accepted that the appellant was wearing headphones and was by reason thereof able to perform various functions on his phone without making physical contact with his phone, did not preclude her Honour from finding on the basis of the evidence of Constable Cook and Constable Arnold that he did use his phone by looking at his phone and briefly holding it. The magistrate's finding was not inconsistent with her Honour's acceptance of the appellant's argument that he did not need to hold his phone to perform certain functions on the phone.
[167] ts 59.
[168] ts 59.
[169] ts 60.
The appellant's contention is without merit.
Attempt to get 'payback'
The appellant did not in his submissions clearly articulate how his allegation of an attempt by Kwinana Police Station to 'get payback' could be linked to his primary submission that the magistrate's verdict was unreasonable or was not supported by the evidence. Nonetheless, I infer that the thrust of the appellant's contention is that the prosecution of him for the offence was instituted because Kwinana Police Station wanted revenge for the fact that he had successfully defended a court case a few days previously and that therefore the evidence of Constable Cook and Constable Arnold ought not to have been relied upon by the magistrate. I will deal with the 'payback' contention on this basis.
In the course of giving his evidence the appellant testified that two days prior to the incident the subject of the offence he 'had been in a court case with the prosecution' that had been dismissed.[170] Before the appellant proceeded to elaborate on this assertion the magistrate interrupted him and asked him what the relevance of the evidence was.[171] The appellant responded by asserting, in substance, that the relevance was 'of a series of events between the Kwinana Police Station and myself where they have continued to harass me'.[172] The magistrate then pointed out to the appellant that he had not cross-examined either Constable Cook or Constable Arnold in relation to any allegation of harassment by Kwinana Police Station. The appellant's answer to this point was that Constable Cook and Constable Arnold were 'not the officers involved…until this day'.[173]
[170] ts 31 - 32.
[171] ts 32.
[172] ts 32.
[173] ts 32.
What followed was a further exchange between the magistrate and the appellant about the relevance of the evidence. During the exchange the appellant asserted that he 'found it extremely interesting' that he had won a case on 25 January 2023 and that on the next working day, being 27 January 2023, he had been pulled over by Constable Cook and Constable Arnold.[174] He asserted that the connection between Constable Cook and Constable Arnold and the alleged harassment of him by Kwinana Police Station was that both officers were attached to Kwinana Police Station.[175] He also asserted that he did not know if Constable Cook or Constable Arnold were connected with the alleged harassment of him by Kwinana Police Station.[176]
[174] ts 32.
[175] ts 32.
[176] ts 33.
At the end of the exchange between the magistrate and the appellant, the magistrate told the appellant that she was not going to permit him to continue to give evidence about 'the 25 January result and then what happened two days later'.[177] In other words her Honour ruled, in substance, that evidence about what had occurred on 25 January 2023, and by implication evidence of any alleged harassment of the appellant by Kwinana Police Station, was irrelevant and inadmissible and therefore could not be given by the appellant. In making this ruling her Honour noted that the appellant was not 'pointing to anything about' Constable Cook and Constable Arnold.[178] Her Honour also noted that there was nothing to suggest that there had been an opportunity for Constable Cook and Constable Arnold to communicate with Kwinana Police Station prior to pulling the appellant over and for Kwinana Police Station to tell them, 'That's that guy. Go get him'.[179]
[177] ts 33.
[178] ts 33.
[179] ts 33.
The appellant did not, through his cross-examinations of Constable Cook and Constable Arnold, adduce, or even attempt to adduce, evidence relating to the court case on 25 January 2023 or evidence of 'a series of events' between himself and Kwinana Police Station. The appellant did not question Constable Cook or Constable Arnold about these matters. Nor did he suggest to Constable Cook or Constable Arnold that they were in any way connected with the alleged harassment of him by Kwinana Police Station. Further and in any event, it is clear from the appellant's responses to the magistrate's questioning of him about the relevance of the evidence that he was seeking to give, that he was unable to give any evidence of any connection between Constable Cook and Constable Arnold on the one hand and the alleged 'series of events' amounting to harassment of him by Kwinana Police Station on the other, beyond asserting that both officers were attached to Kwinana Police Station. Finally, evidence that the appellant had on 25 January 2023 successfully defended a prosecution that was presumably instituted against him by police officers connected with Kwinana Police Station, not Constable Cook or Constable Arnold, did not of itself provide an evidentiary basis for an allegation of harassment by Kwinana Police Station, let alone an allegation that Constable Cook and Constable Arnold were involved in the harassment.
For the reasons stated in the preceding paragraph, the magistrate was correct to rule that evidence of the court case involving the appellant that had taken place on 25 January 2023 and evidence of any alleged harassment by Kwinana Police Station was irrelevant and inadmissible and could therefore not be given by the appellant.
It is apparent from what I have said that there was no evidence adduced at trial capable of establishing that the appellant's prosecution for the offence of which he was ultimately convicted by the magistrate was an attempt by Kwinana Police Station 'to get payback'. It therefore follows that there is no sound basis for the appellant's contention that the magistrate ought not to have relied on the evidence of Constable Cook and Constable Arnold because the prosecution was a 'clear attempt by the Kwinana Police Station to try and get payback for losing in a court case only days before'. The appellant's contention to this effect is without foundation and devoid of merit.
I note for purposes of completeness that despite ruling that evidence relating to the 25 January 2023 court case and the alleged harassment of the appellant by Kwinana Police Station was irrelevant and inadmissible, the magistrate stated in her reasons for decision that she dismissed any suggestion that either Constable Cook or Constable Arnold had 'a motive to lie' and 'put to one side any suggestion that the officers were, in effect, acting in pursuit of some sort of vendetta'.[180]
Decision
[180] ts 64.
The magistrate had the benefit of observing Constable Cook, Constable Arnold and the appellant give their evidence.
The magistrate had before her direct evidence of Constable Cook that, if accepted, established that the appellant had used his mobile phone by looking at his phone and briefly holding the phone. Constable Cook's evidence was in material respects supported by the evidence of Constable Arnold.
The body worn camera footage recorded at the time that Constable Cook made his way around to the driver's side door of the appellant's vehicle provided some limited support to the evidence of both police officers that they were able to see into the appellant's vehicle while the appellant was stopped at the traffic lights.
The photographic evidence adduced by the appellant did not establish that Constable Cook would not have been able to observe the appellant engaging in the behaviour that he described. Nor did the photographic evidence establish that Constable Arnold could not have observed the behaviour of the appellant that she described.
The magistrate, having observed the appellant give evidence and having expressly identified four aspects of the appellant's evidence that she found reflected adversely on his credibility, found that he was neither an honest nor reliable witness. She therefore rejected the appellant's evidence.
It was rationally open to the magistrate to view the four identified aspects of the appellant's evidence as reflecting adversely on his credibility. It was rationally open to the magistrate, having observed the appellant give evidence and in light of the four aspects of his evidence that reflected adversely on his credibility, to reject his evidence.
None of the appellant's above dealt with contentions, considered individually and collectively, provide a basis for concluding that it was not, upon the whole of the evidence, open to the magistrate to have been satisfied beyond reasonable doubt of the honesty and reliability of Constable Cook's evidence.
It follows from what I have said in the preceding seven paragraphs that there is no basis for concluding that the magistrate must have had a reasonable doubt about the honesty and reliability of the material aspects of Constable Cook's evidence and consequently must also have had a reasonable doubt about the appellant's guilt. There is no basis for concluding that the magistrate, acting rationally, ought to have entertained a reasonable doubt about the appellant's guilt.
The ground of appeal is without merit. I refuse leave to appeal on the ground.
Orders
I make the following orders:
1.The application for the extension of time within which to appeal is allowed.
2.The application for leave to appeal is dismissed.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
7 FEBRUARY 2024
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