Frailing v Mackay
[2020] WASCA 73
•6 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FRAILING -v- MACKAY [2020] WASCA 73
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 5 SEPTEMBER 2019
DELIVERED : 6 MAY 2020
FILE NO/S: CACR 83 of 2019
BETWEEN: TATSIANA FRAILING
Appellant
AND
DEAN REECE MACKAY
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: [2019] WASC 158
File Number : SJA 1097 of 2018
Catchwords:
Criminal law - Application for leave to appeal against order in single judge appeal - Failure to comply with request to give police personal details - Obstruction of a police officer in performance of duty - Whether findings of guilt were unreasonable or could not be supported by the evidence before the magistrate - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 16(2), s 18, s 39, s 40(1)(e)
Criminal Code (WA), s 74A, s 172(2)
Criminal Investigation (Identifying People) Act 2002 (WA), s 16(3), s 16(6), s 135
Criminal Investigation Act 2006 (WA), s 10, s 65(2)(b), s 68, s 70(2), s 70(2)(d), s 128(1), s 128(3), s 137, s 139, s 139(2)(b)
Criminal Procedure Act 2004 (WA), s 78
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CRC v Taylor [2019] WASC 187
Frailing v Mackay [2019] WASC 158
Heanes v Herangi [2007] WASC 175
Melser v Police [1967] NZLR 437
Tey v Plotz [No 2] [2011] WASC 34
The State of Western Australia v Olive [2011] WASCA 25
Wells v The State of Western Australia [2017] WASCA 27
JUDGMENT OF THE COURT:
The appellant stood trial before his Honour Magistrate Hall in the Perth Magistrates Court on 4 and 5 December 2017 and 16 July 2018 on two counts contained in a prosecution notice dated 25 May 2016, that alleged:[1]
(1)On 20 May 2016 at Innaloo [the appellant] failed to comply with a request by a police officer to provide her personal details, namely her full name, date of birth and address where she was living, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002; and
(2)That on the same date and at the same place [the appellant] obstructed a public officer in the performance of the officer's duty, contrary to s 172(2) of the Criminal Code (WA).
She was represented at trial by senior counsel.
[1] Trial ts 35, 16 July 2018.
On 16 July 2018, the appellant was found guilty as charged and was duly convicted of the offences. After delivering his oral reasons for decision, his Honour immediately proceeded to sentence the appellant. The appellant was fined $400 for each offence and a spent conviction order was made.
Pursuant to pt 2 div 2 of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant appealed against her convictions, on 12 grounds, to a single judge sitting in the general division. On 15 May 2019, Allanson J refused leave to appeal on all grounds and dismissed the appeal: Frailing v Mackay.[2]
[2] Frailing v Mackay [2019] WASC 158.
Pursuant to pt 2 div 3 of the CA Act, the appellant seeks leave to appeal to this court against Allanson J's decision on 14 grounds. Grounds 1 to 12, in substance, replicated the grounds of appeal in the court below. Ground 13, as will be explained, is not a valid ground of appeal. Ground 14, which the appellant said was her 'most important ground', alleges that the findings of guilt were unreasonable and cannot be supported on the evidence. For the reasons that follow, leave to appeal should be refused on all grounds and the appeal dismissed.
In both her appeal to Allanson J and to this court the appellant was self‑represented.
Some relevant legislation
Section 16 of the Criminal Investigation (Identifying People) Act 2002 (WA) provides:
16. Name, address etc., duty to give to police etc.
(1)In this section -
…
personal details, in relation to a person, means -
(a)the person's full name;
(b)the person's date of birth;
(c)the address of where the person is living;
(d)the address of where the person usually lives.
(2)If an officer reasonably suspects that a person whose personal details are unknown to the officer -
(a)has committed or is committing or is about to commit an offence; or
(b)may be able to assist in the investigation of an offence or a suspected offence,
the officer may request the person to give the officer any or all of the person's personal details.
(3)If an officer reasonably suspects that a personal detail given by a person in response to a request is false, the officer may request the person to produce evidence of the correctness of the detail.
…
(4)A person to whom a request is made under subsection (2), (3) or (4A) may request the officer making the request to identify himself or herself.
(5)An officer who is requested by a person to identify himself or herself must do so.
(6)A person who, without reasonable excuse, does not comply with a request made under subsection (2), (3) or (4A) commits an offence.
Penalty: Imprisonment for 12 months.
(7)For the purposes of subsection (6), the fact that an officer did not comply with subsection (5) as soon as practicable is a reasonable excuse.
Section 172 of the Criminal Code (WA) (the Code) provides:
172. Obstructing public officer
(1)In this section -
obstruct includes to prevent, to hinder and to resist.
(2)A person who obstructs a public officer, or a person lawfully assisting a public officer, in the performance of the officer's functions is guilty of a crime and is liable to imprisonment for 3 years.
The prosecution and defence cases
In his reasons for decision, the magistrate detailed the prosecution and defence cases at trial. The cases are summarised below.
The prosecution case
On 20 May 2016, the appellant attended a Centrelink office in Innaloo. There she was seen by Ms Samantha Taylor. The appellant inquired as to why her husband's Newstart payment had been cancelled. Ms Taylor told her that it was because her husband had notified Centrelink that he was now employed. Ms Taylor advised the appellant that her husband would have to contact Centrelink. At this point, the appellant became angry and started yelling that she needed money for her children. Ms Taylor terminated the interview.[3]
[3] Trial ts 54, 16 July 2018.
The manager of the Centrelink office, Mr John Pengelly, came over and spoke to the appellant. Mr Pengelly made numerous requests for her to leave the premises, which she refused to do. A Centrelink officer activated the duress alarm. Mr Pengelly told the appellant that if she did not leave, the police would attend. The appellant did not leave the Centrelink office. Instead, she sat down and began a conversation on her mobile telephone.[4]
[4] Trial ts 54, 16 July 2018.
Eventually, three police officers - Sergeant Mackay, Constable Juckes and Constable Bowling - attended the Centrelink office.[5]
[5] Trial ts 54, 16 July 2018.
Upon arrival, Sergeant Mackay, who was the most senior officer on the scene, spoke to Mr Pengelly, who informed him of the appellant's behaviour. Sergeant Mackay went over to the appellant who was speaking on her mobile telephone. Sergeant Mackay waited a short time, then requested her to end the call. Sergeant Mackay introduced himself to the appellant and asked for her name, which the appellant refused to provide. Sergeant Mackay explained that the police were there because a complaint had been made that she had been behaving in a disorderly manner and had refused to leave the premises. When Sergeant Mackay again asked the appellant for her name, she ignored his question and proceeded to tell him about the issue she had with Centrelink.[6]
[6] Trial ts 54 - 55, 16 July 2018.
Sergeant Mackay then asked the appellant for her surname, to which she responded, 'Brown'. Sergeant Mackay suspected this to be a false name. He explained to her that she would commit an offence if she failed to provide her personal details. Sergeant Mackay asked her if she had any identification, to which she answered, 'No'. Sergeant Mackay asked her to accompany the police outside, which she did.
Once outside, she was again requested to provide her name. Again, she refused to do so. Sergeant Mackay informed her that if she failed to provide her personal details she would be arrested and the police would have a lawful right to search her handbag for some personal identification. Sergeant Mackay asked the appellant if he could have her handbag. The appellant failed to provide the handbag. Sergeant Mackay then placed her under arrest, informing her that he had done so due to her failure to provide him with her personal details.[7]
[7] Trial ts 55, 16 July 2018.
Sergeant Mackay then instructed Constable Juckes to take her handbag. The appellant maintained her grip on her handbag. A struggle to take the bag from the appellant ensued.
The appellant was advised that she would be taken to the Mirrabooka police station. She resisted the efforts of Constable Juckes and Constable Bowling to place her in the police van. Eventually, she was placed on the ground and handcuffed. The appellant continued to resist being placed in the van.[8]
[8] Trial ts 55, 16 July 2018.
In due course, the appellant was taken to the Mirrabooka police station. There she requested the services of a Russian interpreter. This request was complied with and a Russian telephone interpreter was provided. She was questioned by police and, later, after police obtained a sample of her DNA, she was charged and released on bail.[9]
[9] Trial ts 55, 16 July 2018.
In essence, the prosecution case was that the police attended at the Centrelink office and reasonably suspected that the appellant had committed an offence of disorderly conduct. When Sergeant Mackay spoke to the appellant, he was unaware of her name. When Sergeant Mackay requested the appellant to provide him with her name, she, without reasonable excuse, failed to comply with his request. Thus, it was alleged that the appellant was guilty of count 1 on the prosecution notice.
On the second count in the prosecution notice, the prosecution case was that, after Sergeant Mackay informed the appellant that she was under arrest for failing to provide her details and that she would be taken to the Mirrabooka police station, she obstructed the efforts of the police officers to place her in the police vehicle.
The defence case
The appellant and her husband, Mr Garry Frailing, testified in her defence.
The appellant is Belarusian and her first language is Russian. Her case was that English is her second language and that she does not have a very good level of understanding of English. In essence, her defence was that she did not understand that Sergeant Mackay had asked her to provide her personal details. When Sergeant Mackay purportedly asked for her surname, she replied, 'brown', but did so because she thought that Sergeant Mackay had asked her how she was feeling. The appellant explained that it is common in Russian to describe someone's day as being 'black', if it is bad, and 'white', if it is good. The defence case was that she used the word 'brown' as a variation or indication that she was having a bad day.[10]
[10] Trial ts 56, 16 July 2018.
Further, the defence case was that it was unnecessary for the police to ask the appellant for her name because she was confident that Centrelink knew it and she believed that Mr Pengelly had passed a note to Constable Bowling on which her name was written.
The appellant accepted that she had been asked to provide identification. However, based on her experience in Belarus, she believed that a police request for identification amounted to a request for her to present her passport. At the time, she was not carrying her passport. It was for this reason that she told the police officer that she did not have any identification. The appellant accepted that, at the time, she was carrying her driver's licence.[11]
[11] Trial ts 56, 16 July 2018.
It was contended on behalf of the appellant that the police had no lawful right to ask the appellant for her name because there was no reasonable suspicion that she had committed any offence or was about to commit any offence. Moreover, the police already knew her name because it had been provided by a Centrelink officer. As the police had no right to ask the appellant for her personal particulars, her arrest for contravening s 16(6) of the Criminal Investigation (Identifying People) Act was unlawful. With respect to the charge of obstructing a police officer, the defence case was that any resistance she offered was justified, having regard to her unlawful arrest, but, in any event, she did not resist the police officers, as they alleged.[12]
[12] Trial ts 56 - 57, 16 July 2018.
The evidence adduced at trial
The following is a detailed summary of the evidence that was adduced at trial.
Samantha Lee Taylor
Ms Taylor was the Centrelink officer who met with the appellant at the Innaloo office on 20 May 2016. Ms Taylor said:
(1)The appellant attended at the Centrelink office by herself and without an appointment.[13]
[13] Trial ts 9, 11, 4 December 2017.
(2)Ms Taylor ascertained the appellant's name and spoke with her in English for between 20 to 30 minutes. She said there was no issue 'with any language barriers'.[14]
(3)The appellant's inquiry was with respect to her husband's Newstart allowance. Centrelink's records revealed that the appellant was permitted to make inquiries on her husband's behalf.[15]
(4)The appellant wished to know why her husband's Newstart allowance had been stopped. Ms Taylor explained that her husband had advised Centrelink that he was working and had a business and therefore he was no longer qualified to receive a Newstart allowance.[16]
(5)The appellant responded by yelling, 'No, he's not working. He's lying. I need money for my payment to pay the - I need to save money for the children'.[17]
(6)Because of the appellant's behaviour, which Ms Taylor described as 'very loud' and 'disruptive', her manager, Mr John Pengelly, came over to see what was going on.[18]
(7)Both Ms Taylor and Mr Pengelly reiterated to the appellant what she had already been told. The appellant continued yelling and Ms Taylor told her that the interview was over.[19]
(8)Eventually, someone hit the duress button in the office and Mr Pengelly asked the appellant to leave.[20] The appellant said that she was not leaving and sat down. After she was asked to leave, she said to Ms Taylor, 'I want information in my language'.[21]
(9)Mr Pengelly told the appellant that if she did not leave the office, the police would attend. The appellant repeated that she was not leaving the office.[22]
(10)Ms Taylor said that, within about 10 minutes of the duress alarm being activated, the police attended the Centrelink office. She and Mr Pengelly showed the police where the appellant was sitting. The police went to the appellant where they had a conversation, after which the appellant left the office without incident.[23]
(11)A short time after the appellant left the Centrelink office, Ms Taylor heard a female voice yelling, which she recognised as the same voice that had been yelling in the office previously.[24]
[14] Trial ts 8, 13, 4 December 2017.
[15] Trial ts 8 - 9, 4 December 2017.
[16] Trial ts 9 - 10, 4 December 2017.
[17] Trial ts 10, 4 December 2017.
[18] Trial ts 10, 4 December 2017.
[19] Trial ts 13, 4 December 2017.
[20] Trial ts 13, 4 December 2017.
[21] Trial ts 13, 4 December 2017.
[22] Trial ts 14, 4 December 2017.
[23] Trial ts 14, 4 December 2017.
[24] Trial ts 17, 4 December 2017.
In cross‑examination, Ms Taylor said:
(1)That she knew the appellant's name.[25]
(2)The appellant told her that, contrary to the advice that he had apparently given Centrelink, her husband was not working. This was despite the appellant having earlier advised her that he was working in a mine.[26]
(3)Ms Taylor said that she did not have any difficulty communicating with the appellant and that the appellant spoke sufficient English to articulate what she wanted. Ms Taylor was aware that, if necessary, she could obtain the services of a telephone interpreter, but she did not see the need to do that.[27] Ms Taylor considered that the appellant spoke with an accent, but there was nothing to indicate during their conversation that she needed an interpreter.[28]
(4)Ms Taylor reiterated that the appellant was asked to leave the Centrelink office after the alarm had been activated, although she could not remember how many times she was asked to leave.[29]
(5)Ms Taylor did not see all of what occurred after the police arrived at the Centrelink office. She recalled them walking over to the desk at which the appellant was seated; that the police briefly spoke to her and they walked out.[30] She did not hear the police ask the appellant for her name, nor did she hear any request for identification.[31]
[25] Trial ts 21, 4 December 2017.
[26] Trial ts 22, 4 December 2017.
[27] Trial ts 27, 4 December 2017.
[28] Trial ts 30, 4 December 2017.
[29] Trial ts 31, 4 December 2017.
[30] Trial ts 34 - 35, 4 December 2017.
[31] Trial ts 35, 37, 4 December 2017.
On 5 December 2017, Ms Taylor was recalled for further cross‑examination. Through Ms Taylor, defence counsel tendered a Centrelink incident report.[32] The contents of the report largely reflect Ms Taylor's account of what occurred outside the Centrelink office on 20 May 2016.
Charon Lee Whiteaker
[32] Exhibit 7.
Ms Whiteaker testified that, on 7 July 2016, she handed to a police officer three discs containing CCTV footage of the incident which occurred inside the Centrelink office at Innaloo on 20 May 2016.[33] Two of those discs were played as part of the prosecution case.[34]
Sergeant Dean Mackay
[33] Trial ts 41, 4 December 2017.
[34] Exhibits 2 and 3, trial ts 42 - 43, 4 December 2017.
In examination‑in‑chief, Sergeant Mackay said:
(1)At about 11.49 am on 20 May 2016, he was advised by the police communications centre to attend the Centrelink office at Innaloo.[35]
[35] Trial ts 49, 4 December 2017.
(2)He and the other police officers arrived at the Centrelink office at around 11.53 am. There he met Mr Pengelly who directed him to the appellant and Mr Pengelly described her 'as being verbally abusive towards his staff and refusing to leave the premises despite repeated requests'.[36]
[36] Trial ts 49, 4 December 2017.
(3)Sergeant Mackay then approached the appellant and sat next to her at a desk. At the time, the appellant was speaking on a mobile telephone. Sergeant Mackay described her as 'speaking in clear and concise English'.[37]
[37] Trial ts 50, 4 December 2017.
(4)Sergeant Mackay introduced himself to the appellant and asked her to provide him with her name. According to Sergeant Mackay, the appellant ignored that request and began explaining why she had attended the Centrelink office that day. He explained to her that the police had been called because of a report that she had behaved in a disorderly manner by being abusive towards Centrelink staff and refusing to leave the premises. Once again, he asked the appellant for her name and, once again, she ignored the request and spoke to him about how she had been treated by the Centrelink staff.[38]
(5)At this point, Sergeant Mackay asked the appellant, 'What is your surname?', to which she replied, 'Brown'. Sergeant Mackay said that he suspected the surname was false. He advised her that he was authorised by law to obtain her personal details and, if she failed to provide them, she would be committing an offence.[39]
(6)Sergeant Mackay asked the appellant, 'Do you have any identification on you?' According to Sergeant Mackay, the appellant 'looked straight at me and declared she didn't have any identification'.[40]
(7)The appellant then accompanied Sergeant Mackay out of the Centrelink office and onto the footpath approximately 4 m from the front door. There, he asked her once again for her name. Sergeant Mackay testified that she ignored that request and went on to discuss how she needed money to buy food for her children. He informed her that if she refused to provide her personal details she would be arrested and the police would have a lawful right to search her handbag to confirm her identity. Sergeant Mackay also told her that if she was arrested she would be conveyed to the Mirrabooka police station and charged. Sergeant Mackay said that there was no need for this if she provided him her full name, date of birth and address. Once again, Sergeant Mackay asked the appellant for her name, but the appellant 'just stood there in silence'.[41]
(8)When the appellant refused to provide her handbag, Sergeant Mackay grabbed the appellant's right wrist and advised her that she was under arrest for failing to provide her personal particulars. He then asked the appellant again if he could have her handbag. The appellant refused this request. Sergeant Mackay then instructed Constable Juckes to take the appellant's handbag from her. The appellant kept a tight grip on the handles of her handbag. Despite being repeatedly requested to let go, she refused. A short struggle ensued and eventually Constable Juckes was able to wrest the handbag from her. As this occurred, the appellant screamed, 'Help me'.[42]
(9)Sergeant Mackay advised the appellant that she was going to be taken to the Mirrabooka police station. As he and Constable Juckes escorted the appellant to the police vehicle, she twisted in an attempt to free her arms from the hold the police had on her. As they got close, the appellant used her feet to push away from the vehicle while trying to twist her hands free from the police officers' hold. At one point, she freed her left arm and hand from Constable Juckes' grip and grabbed the door handle of the vehicle and refused to let it go. Sergeant Mackay instructed her to release her hand from the vehicle. The appellant responded by yelling, 'Help', and by saying, 'No. No. No'. The appellant then placed her foot on either side of the door of the police vehicle and used her legs to push away from the vehicle so as to prevent the police officers from securing her inside. Sergeant Mackay then instructed Constable Juckes to secure her in handcuffs, which she resisted. Eventually, the appellant was placed on the ground, handcuffed and lifted, with the intention of placing her in the police vehicle. Again, she tried to use her feet to prevent her entry into the vehicle. Eventually, she was secured within it.[43]
(10)Sergeant Mackay instructed Constable Juckes to open the appellant's handbag and remove her driver's licence, which he did.[44]
(11)Sergeant Mackay testified that when the appellant got to Mirrabooka police station she said that she could not speak or understand English. He then arranged a telephone interpreter who spoke Russian to translate the appellant's rights in accordance with s 137 and s 139 of the Criminal Investigation Act 2006 (WA) (CIA). Via the interpreter, Sergeant Mackay explained to the appellant the police caution. The appellant confirmed that she understood her rights under the CIA and the police caution. The appellant declined to participate in an electronic record of interview. She was then processed and bailed. Again, Sergeant Mackay said he used the services of a telephone interpreter who spoke Russian to assist. However, the appellant advised the interpreter that she did not require his services and that she understood the bail form. Sergeant Mackay said that the appellant was then released on conditional bail and conveyed back to her vehicle.[45]
(12)On 26 May 2016, Sergeant Mackay said that he formally requested that he be provided with CCTV footage of the incident which occurred on 20 May 2016. On 30 June 2016, he obtained a copy of the CCTV footage taken of the appellant while at the Mirrabooka police station. On 7 July 2016, Sergeant Mackay said that he attended at the Centrelink office at Innaloo where Charon Whiteaker provided him with three compact discs containing the CCTV footage from the Centrelink office.[46]
(13)As part of the evidence‑in‑chief of Sergeant Mackay, excerpts of the CCTV footage taken at the Mirrabooka police station were played.[47]
[38] Trial ts 50, 4 December 2017.
[39] Trial ts 50, 4 December 2017.
[40] Trial ts 50 - 51, 4 December 2017.
[41] Trial ts 51, 4 December 2017.
[42] Trial ts 51, 4 December 2017.
[43] Trial ts 52, 4 December 2017.
[44] Trial ts 52, 4 December 2017.
[45] Trial ts 52 - 53, 4 December 2017.
[46] Trial ts 53, 4 December 2017.
[47] Trial ts 55, 56, 4 December 2017. The footage taken at the Mirrabooka police station is exhibit 5 and a transcript of the audio of that footage is exhibit 6.
Sergeant Mackay was cross‑examined at some length by senior counsel for the appellant.[48] The salient features of the cross‑examination are:
[48] Trial ts 57 - 95, 4 December 2017.
(1)When he first had contact with the appellant in the Centrelink office, all that he knew about her was that she had allegedly caused some sort of commotion and had refused to leave the premises. At this point, he had no information as to her name.[49]
(2)Sergeant Mackay said that when he approached her in the Centrelink office she was speaking over the phone in accented, but clear and concise, English.[50]
(3)In his conversation with her she spoke with a strong accent, but he believed that the appellant understood him when he asked her for her name and her surname.[51] He confirmed that when he asked the appellant for her surname she replied, 'Brown', which he regarded as a false response.[52] Sergeant Mackay said that at that point he could have arrested her, but did not because he wanted to give her the benefit of the doubt and he was trying his utmost to ensure that the police did not have to arrest the appellant.[53]
(4)Sergeant Mackay denied ever referring to the appellant as 'Natasha'.[54]
(5)Sergeant Mackay agreed that, in order for him to lawfully search the appellant's bag, he needed to be satisfied that she had committed an offence or was about to commit an offence. He told defence counsel that he suspected that the appellant had failed to provide him with her personal particulars. Sergeant Mackay said that, in his experience, women carry identification in their handbag, whether that be a credit card, driver's licence 'or anything else'.[55] When asked if he could have gone back into the Centrelink office and discovered her name and address, Sergeant Mackay responded that, in his previous experience, some people provide false information to Centrelink and he believed that it was more likely that her true identification would be found in her handbag.[56]
(6)According to Sergeant Mackay, the first time the appellant expressed any difficulty with understanding or speaking English was when she arrived at the Mirrabooka police station. Sergeant Mackay said that the English that had been spoken at Centrelink was very simple and very basic and that she appeared to have sufficient English to understand exactly what was happening.[57] When she asked for an interpreter at the police station, he made arrangements to obtain the services of an interpreter out of fairness to the appellant, but he believed that the appellant clearly understood the requests that were made of her to provide her name and some identification.[58]
(7)Sergeant Mackay denied that he was angry with the appellant.[59]
(8)Sergeant Mackay agreed that once the appellant was at the Mirrabooka police station, he believed that she feigned 'a level of incomprehension'.[60]
(9)Sergeant Mackay was asked about the availability of CCTV footage from outside the Centrelink office. He said that the information Centrelink provided him was to the effect that there was 'only one camera' which covered the entrance door, but there were no other cameras beyond that position.[61] Sergeant Mackay said that Centrelink provided him with footage of the camera which covered the entrance door.[62] Sergeant Mackay said that, based on previous advice he had been given by the shopping centre, their cameras did not cover the entrance to the Centrelink office.[63]
(10)Sergeant Mackay denied that he knew the appellant's name prior to formally asking for it.[64]
[49] Trial ts 57, 4 December 2017.
[50] Trial ts 58, 4 December 2017.
[51] Trial ts 59, 4 December 2017.
[52] Trial ts 59 - 60, 4 December 2017.
[53] Trial ts 61, 4 December 2017.
[54] Trial ts 65, 4 December 2017.
[55] Trial ts 68, 4 December 2017.
[56] Trial ts 68, 4 December 2017.
[57] Trial ts 73, 4 December 2017.
[58] Trial ts 75, 4 December 2017.
[59] Trial ts 77, 4 December 2017.
[60] Trial ts 79, 4 December 2017.
[61] Trial ts 89, 4 December 2017.
[62] Trial ts 89, 4 December 2017.
[63] Trial ts 91, 4 December 2017.
[64] Trial ts 94, 4 December 2017.
CCTV footage taken at the Mirrabooka police station
We have viewed the CCTV footage taken at the Mirrabooka police station on 20 May 2016,[65] with the aid of a transcript of what was said on that occasion.[66]
[65] Exhibit 5.
[66] Exhibit 6.
There were conversations conducted in English between Sergeant Mackay and the appellant. At one point in the interview, the appellant informed Sergeant Mackay that she needed to pick her children up from school.[67] The appellant requested to telephone a friend to make the necessary arrangements. Sergeant Mackay gave the appellant permission to do so.[68] The appellant then telephoned her friend and spoke to her in English. There was no recording of the voice of the appellant's friend, but the appellant's voice may be clearly heard. She spoke as follows:[69]
Hello? Hello Linda. Listen, I ask - I ask you for help, please help me. Can you pick up my kids from school? Katrina and Daniel. Say - say again please? Thank you. No I don't need help but I need help with pick up the kids, I have little bit problem. Katrina and Daniel, Katrina and Daniel, because - yes, Katrina but - Daniel - Daniel in year 2. Year 2, room - room 6. Yes, the room 6, yes, hold on. Daniel Frailing, you understand? You understand my surname, surname. Frailing, Daniel. Listen, ask Katrina, ask Katrina, she will show to you Daniel. Could you - could you bring to house? Say again? You're going to wait for them come. Are - are you going to drive from (indistinct)? Okay, (indistinct) that's okay, very good. I think maybe a bit late after school 15 minutes, after (indistinct) 15 minutes to home. It's okay? Okay, and (indistinct) wait, what's this one you go? They're late, yes. Daniel, Daniel, Daniel, ask Katrina, she will show you. Okay, okay, thank you so much.
[67] Exhibit 6, page 40.
[68] Exhibit 6, page 45.
[69] Exhibit 6, page 46.
The audio recording of the conversation was of reasonable quality. The appellant spoke with an accent, but may, nevertheless, be understood. The appellant spoke the word 'surname' twice. It is evident that she understood the meaning of the word 'surname'.
A short time later, Sergeant Mackay requested the appellant to sign the forms necessary for her to be released on bail. The conversation which follows was in English. It began with Sergeant Mackay confirming the appellant's name. He asked, 'Tatsiana Frailing is your full name? Correct? Yes?' To which the appellant replied, 'Yes'.[70]
[70] Exhibit 6, page 47.
Sergeant Mackay then confirmed with the appellant her date of birth and address. Next, he confirmed with the appellant that she had been charged with failing to provide her personal details and obstructing police officers. When asked if she understood the charges she answered in the affirmative, but went on to say, 'I don't know whether that's right or …'.[71]
[71] Exhibit 6, page 47.
Sergeant Mackay and the appellant then embarked upon a fairly lengthy conversation about bail. In English, Sergeant Mackay informed the appellant that she was being bailed to appear at the Perth Magistrates Court on 28 June 2016 at 8.30 am. The appellant indicated that she understood what she had been told. Sergeant Mackay asked her to sign a bail document, but she refused because she did not agree with the charges. Sergeant Mackay then explained that, by signing the bail document, she was not agreeing that she was guilty of the charges, but only that she was agreeing to appear at the Perth Magistrates Court on 28 June 2016. Sergeant Mackay explained to the appellant that if she did not sign the bail papers she would be taken to the Perth watch‑house where she would remain overnight until she appeared before a magistrate the following morning.
At this point, the appellant asked to speak to her husband. Sergeant Mackay agreed to make arrangements for her to do so. The appellant responded:[72]
I don't know sign it because I'm not guilty.
Sergeant Mackay persisted in explaining to the appellant that the bail undertaking did not constitute an agreement on her part that she was guilty. Sergeant Mackay then asked the appellant if she wanted to speak to a translator. The appellant answered, 'No'.[73] Sergeant Mackay then attempted to telephone the appellant's husband on his mobile telephone. The appellant's husband was unavailable and Sergeant Mackay left a message on the appellant's husband's answering service to urgently contact him.
[72] Exhibit 6, page 50.
[73] Exhibit 6, page 51.
Sergeant Mackay then unsuccessfully sought to speak to the appellant's husband via his employer.
Eventually, the appellant agreed to sign the bail undertaking. She said:[74]
Okay, will sign but want you [Sergeant Mackay] to go to court (indistinct).
A short time later she added that she was signing because she did not have the time to go to court the following day.[75]
[74] Exhibit 6, page 60.
[75] Exhibit 6, page 61.
Eventually, when a telephone interpreter became available and Sergeant Mackay asked the interpreter to read the bail undertaking so that the appellant understood its contents, the appellant said, through the interpreter:[76]
I don't need an interpreter because I understand what is going on.
[76] Exhibit 6, page 61.
Constable Shane Juckes
In his examination‑in‑chief, Constable Juckes, in large measure, corroborated the evidence of Sergeant Mackay. However, in one respect, his evidence differed from that of Sergeant Mackay. Where Sergeant Mackay testified that while in the Centrelink office he asked the appellant for her surname to which, according to Sergeant Mackay, the appellant answered, 'Brown', Constable Juckes recalled Sergeant Mackay requesting the appellant's name (not surname). Constable Juckes' evidence was that, in response to one such request, the appellant answered, 'Brown'.[77] The difference in the evidence of Sergeant Mackay and Constable Juckes was highlighted by defence counsel in cross‑examination.[78]
[77] Trial ts 99, 4 December 2017.
[78] Trial ts 117, 5 December 2017.
In cross‑examination:
(1)Constable Juckes said that, at the time of her arrest, he thought the appellant's English was 'good'.[79]
[79] Trial ts 123, 5 December 2017.
(2)The appellant did not ask for an interpreter while she was at the Centrelink office.[80]
(3)Prior to her declaration at the police station that she did not speak English, Constable Juckes did not think the appellant's English 'was an issue'.[81]
(4)Constable Juckes did not recall Sergeant Mackay referring to the appellant as 'Natasha'.[82]
(5)Constable Juckes did not notice at the Centrelink office that the appellant was struggling to breathe and he denied that she said that she needed a doctor.[83]
(6)Constable Juckes disagreed with the proposition put to him by defence counsel that at no stage did the appellant attempt to avoid being placed in the police van.[84]
(7)Constable Juckes denied that, whilst the appellant was being driven to the Mirrabooka police station, she lost consciousness.[85]
(8)Constable Juckes also denied that, while at the Centrelink office, the manager (Mr Pengelly) gave him or one of the other officers a piece of paper. Constable Juckes said that, to the best of his recollection, neither he nor the other police officers were aware of the appellant's identity before she was placed under arrest.[86]
(9)Constable Juckes' impression at the Mirrabooka police station was that, although she declared that she did not understand English, the appellant understood what she was being told.[87]
(10)Constable Juckes initially said that, at the Mirrabooka police station, the appellant was not placed in an observation cell known as 'the fishbowl'. However, when CCTV footage taken at the Mirrabooka police station was shown to him he agreed that she had been placed in the fishbowl. He agreed that his recollection of this was 'imperfect'.[88]
(11)As to the appellant's request for an interpreter at the Mirrabooka police station, Constable Juckes said that, as he understood it, if an arrested suspect asks for an interpreter, he was required to obtain one.[89]
[80] Trial ts 123, 5 December 2017.
[81] Trial ts 123, 5 December 2017.
[82] Trial ts 125, 5 December 2017.
[83] Trial ts 126, 5 December 2017.
[84] Trial ts 128, 5 December 2017.
[85] Trial ts 129, 5 December 2017.
[86] Trial ts 131, 5 December 2017.
[87] Trial ts 132, 5 December 2017.
[88] Trial ts 135 - 136, 5 December 2017.
[89] Trial ts 140, 5 December 2017.
Constable Laura Bowling
In examination‑in‑chief, Constable Bowling said:
(1)She, Sergeant Mackay and Constable Juckes attended at the Centrelink office at around 11.50 am on 20 May 2016. When they entered the office they were stopped by the manager who stated that a female had been abusive towards staff members and had refused to leave the premises when requested to do so.[90]
(2)The manager pointed out the female and the three police officers walked over to speak to her. Sergeant Mackay sat beside her. At this point the person, whom she identified as the appellant, was speaking in clear English on her mobile telephone.[91]
(3)While in the Centrelink office, Sergeant Mackay asked the appellant for her name or personal details on three occasions. Each time, the appellant failed to comply with Sergeant Mackay's request.[92]
(4)Sergeant Mackay asked the appellant to accompany the police officers outside, which she did. There, Sergeant Mackay once again asked the appellant for her name. Again, she failed to comply with the request. Sergeant Mackay explained that it was an offence for a person to fail to provide their name or personal details if requested. At this point, the appellant was 'becoming quite aggressive and hostile towards us'.[93]
(5)The appellant was asked if the police officers could check her handbag to see if she had any identification. She refused and stated that she did not have any identification. She was also told that if she failed to provide her personal details to police she would be arrested and conveyed to a police station. Again she refused. Constable Bowling described the appellant at this point as 'quite erratic, highly hostile, aggressive'. She was then placed under arrest.[94]
(6)When the attempt was made to arrest her, the appellant became 'highly erratic in her movements'. Constable Bowling described the appellant as 'throwing her body all over the place trying to get away from us. She was absolutely screaming blue murder at this point'.[95]
(7)Constable Bowling described the unsuccessful attempts of police to handcuff the appellant due to her 'body movements of thrusting her body around'.[96] Constable Bowling also described how the appellant resisted being placed in the police vehicle. Her description is consistent with the evidence of Sergeant Mackay and Constable Juckes.
(8)After the appellant arrived at the Mirrabooka police station, she informed police that she did not speak English and requested a translator. The services of a telephone interpreter were obtained.[97]
(9)Constable Bowling noted that, either before speaking to the interpreter or directly after, the appellant continued to speak English with the police officers, asking for personal identification numbers and saying that she was going to take what was happening to her to the media.[98]
(10)Constable Bowling was present when the appellant refused to sign her bail papers, but finished her shift prior to the appellant being released on bail.[99]
[90] Trial ts 152, 5 December 2017.
[91] Trial ts 152 - 153, 5 December 2017.
[92] Trial ts 153 - 154, 5 December 2017.
[93] Trial ts 154, 5 December 2017.
[94] Trial ts 154, 5 December 2017.
[95] Trial ts 154, 5 December 2017.
[96] Trial ts 155, 5 December 2017.
[97] Trial ts 155, 5 December 2017.
[98] Trial ts 155, 5 December 2017.
[99] Trial ts 156, 5 December 2017.
Constable Bowling gave the following evidence under cross‑examination:
(1)Upon being shown excerpts from CCTV footage taken from within the Centrelink office (exhibit 1), Constable Bowling agreed that Mr Pengelly had handed to her a note which she gave to Sergeant Mackay. Constable Bowling had no memory of this occurring, but accepted that it did, having viewed the CCTV footage. She said she did not know what was written on the note. She was unable to say whether the note had Mr Pengelly's personal details on it or that of the appellant.[100]
(2)Constable Bowling denied the suggestions of defence counsel that:[101]
(a)the appellant was short of breath at some stage;
(b)the appellant was hyperventilating; or
(c)the appellant said that she needed a doctor.
(3)Constable Bowling agreed with defence counsel's suggestion that the impression she had was that the appellant was very distressed about her treatment by 'the Centrelink people'.[102]
(4)When the appellant first arrived at the Mirrabooka police station she was placed in 'the fishbowl' as part of standard procedure.[103]
(5)Constable Bowling described the conversation the appellant had while at the Mirrabooka police station with her friend to arrange for her children to be picked up from school as being in fluent English.[104]
[100] Trial ts 163, 5 December 2017.
[101] Trial ts 165 - 166, 5 December 2017.
[102] Trial ts 167, 5 December 2017.
[103] Trial ts 169, 5 December 2017.
[104] Trial ts 171 - 174, 5 December 2017.
The appellant
The appellant gave evidence via an interpreter. Her examination‑in‑chief was as follows. The appellant said she had no formal training in English. At the age of 26, she met her now husband in Belarus. Before meeting him, she only knew 'a little bit' of English. After she met him she read an English language book and her husband taught her the language.[105]
[105] Trial ts 176, 5 December 2017.
In 2007, she married and in 2009 she came to Australia to live with her husband, Garry Frailing. Mr Frailing is an Australian citizen.[106] In 2016, the appellant became an Australian citizen.[107]
[106] Trial ts 177, 5 December 2017.
[107] Trial ts 178, 5 December 2017.
The appellant described her English competency when she arrived in Australia as 'very bad and I didn't understand anyone'. She said that she tried to attend English language classes for migrants, but gave up because of her responsibilities to her two small children.[108]
[108] Trial ts 178 - 179, 5 December 2017.
In 2013, she spent the whole year in Belarus with her family.
Since her arrival in Australia she has learned English, mainly through speaking with her husband. She does not have any Australian friends who have been able to assist her with her English.[109] At home she speaks mainly English.[110] The appellant said she found it difficult to communicate with her children's teachers and she was unable to read English newspapers.[111]
[109] Trial ts 182, 5 December 2017.
[110] Trial ts 182, 5 December 2017.
[111] Trial ts 183, 5 December 2017.
Defence counsel referred her to the conversation she had in English with her friend Linda while at the Mirrabooka police station. The appellant said that she used simple phrases.[112]
[112] Trial ts 183, 184, 5 December 2017.
In September 2015, the appellant's husband applied for Centrelink benefits because he was unemployed. In April 2016, the appellant's husband found employment. When he did so, her husband informed Centrelink. Because her husband would not be paid for around seven weeks before he started his new job, he asked Centrelink whether it was possible for his benefit to continue until he received his first pay.[113]
[113] Trial ts 186, 5 December 2017.
On 17 May 2016, a Centrelink officer telephoned the appellant. In English, the appellant explained that her husband was at work. The appellant requested that his benefit be continued for seven weeks until he was paid. The Centrelink officer told her to provide that information to Centrelink online.[114] The appellant told the Centrelink officer that she did not know how to provide the information online.[115] The appellant acknowledged that she received a letter from Centrelink dated 19 May 2016 which provided her with the relevant form and which was headed, in English, 'Suspension of Your Pay'.[116] The appellant said that she did not understand what the letter said.[117]
[114] Trial ts 187, 5 December 2017.
[115] Trial ts 188, 5 December 2017.
[116] Trial ts 188, 5 December 2017.
[117] Trial ts 188, 5 December 2017.
On 19 May 2016, her husband asked her to go to the Centrelink office on his behalf.[118]
[118] Trial ts 193, 5 December 2017.
On 20 May 2016, the appellant drove to the Centrelink office after dropping her children at school. She arrived there at around 10.00 am. After informing an officer (John Pengelly) of the reason for her visit, she sat down and waited for about two hours for assistance.[119]
[119] Trial ts 194 - 195, 5 December 2017.
The appellant said that eventually she spoke to Ms Taylor. The appellant explained her situation to Ms Taylor. The appellant recalled telling Ms Taylor that her husband had gone to the Centrelink office in Rockingham and asked someone there not to stop his payments until he received his first pay. Upon hearing this, Ms Taylor told the appellant to 'go to Rockingham'. The appellant said she queried why she should go to Rockingham, adding that she had small children and that it was too far to go.[120]
[120] Trial ts 196, 5 December 2017.
The appellant said that eventually Mr Pengelly joined the conversation. The appellant said she asked him to write everything down on a piece of paper. The appellant testified that Mr Pengelly started getting angry and repeatedly asked her to leave the premises. She then tried to telephone her husband, but she was unable to get through to him. The appellant said that she then 'accidentally pressed the record button [in her mobile telephone] and I recorded the conversation with John [Pengelly]'.[121] She said that she kept asking Mr Pengelly for a 'translator', but he said that Centrelink did not have a Russian interpreter.[122]
[121] Trial ts 197, 5 December 2017.
[122] Trial ts 197 - 198, 5 December 2017.
The appellant said that she did not understand the word 'premises' and she did not understand that she was being asked to leave the Centrelink building. When she did not do so, Mr Pengelly told her to sit down.[123] She was unaware that the police had been called.[124]
[123] Trial ts 198, 5 December 2017.
[124] Trial ts 199, 5 December 2017.
The appellant said that she telephoned her husband and was speaking to him when the police arrived. The appellant said that she asked her husband to speak to the police when they approached. The appellant agreed that she gave her mobile phone to Sergeant Mackay.[125]
[125] Trial ts 201, 5 December 2017.
As the appellant understood it, Sergeant Mackay asked her what had happened at the Centrelink office. She started telling him what had occurred.[126] The appellant testified that she asked Sergeant Mackay for an interpreter. She said that Sergeant Mackay then asked her to go outside. It was the appellant's testimony that while she was inside the Centrelink office Sergeant Mackay did not ask her for her name and at no stage while she was in the Centrelink office did she answer one of his questions with the word 'Brown'.[127] The appellant denied that Sergeant Mackay asked her for identification inside the Centrelink office.[128]
[126] Trial ts 202, 5 December 2017.
[127] Trial ts 202 - 203, 5 December 2017.
[128] Trial ts 204, 5 December 2017.
The appellant explained that, when Sergeant Mackay used the word 'identification', she understood it to be the equivalent of the Russian word 'identifikatsiya' which, to her, meant a passport. As she did not have her passport with her, she answered Sergeant Mackay's request in the negative. Based on her experience in Belarus she did not think a driver's licence was sufficient identification.[129]
[129] Trial ts 204, 5 December 2017.
The appellant testified that at one point she understood Sergeant Mackay as asking her how she was feeling. Based on this understanding she answered 'Brown', to signify that her mood was not very good. When asked to explain her answer, the appellant said:[130]
Because I used the just phrasing, you know, out the Russian language, because you do have in the phrasing like that in the Russian language. Like if, you know, I left some money or I'm saving money for black day, so you use the word black, you know? And - so I used that phrasing in that context. So it's just that when you - you know, talking in Russian when you say black day, you know it's - you know it's means, you know, just bad day.
PERCY, MR: Why use the word 'brown'?
INTERPRETER: Because at that moment it wasn't - it wasn't too bad. It wasn't - so I wasn't in that - in that bad condition at that moment.
PERCY, MR: If she was having a good day, how would she describe that?
INTERPRETER: White day.
[130] Trial ts 205, 5 December 2017.
The appellant denied that by answering the police officer's question with the word 'Brown', she was trying to give the police a false name.[131]
[131] Trial ts 206, 5 December 2017.
The appellant said that she believed that she was 'confident' that the Centrelink officers knew her name. She also saw Mr Pengelly pass a note to Constable Bowling which she assumed revealed her name.[132]
[132] Trial ts 206 - 207, 5 December 2017.
The appellant said that she heard Sergeant Mackay use the word 'handbag', and when she reached for her handbag he screamed 'You're arrested'. The appellant described Sergeant Mackay as 'very angry' and that his eyes were 'red'. She said that he had his hands or arms 'over me' and 'was screaming "Natasha. Natasha"'.[133]
[133] Trial ts 208, 5 December 2017.
The appellant testified that all three police officers were around her and one of them was pulling her handbag. According to the appellant she asked the police, 'What are you doing? … I will show you my handbag. Stop it'.[134]
[134] Trial ts 208, 5 December 2017.
The appellant said that she felt that Sergeant Mackay was 'a killer' and that she had the feeling 'he might kill'.[135]
[135] Trial ts 209, 5 December 2017.
The appellant said that when the police were trying to take her handbag from her, she was very upset and found it very difficult to breathe. The appellant said she told the police officers that she was not feeling very well and that she requested a doctor. The appellant said that the police officers ignored her requests.[136]
[136] Trial ts 212, 5 December 2017.
The appellant denied resisting the police as they attempted to place her in the police vehicle, saying, 'That didn't happen'.[137]
[137] Trial ts 211, 5 December 2017.
The appellant testified that on the way to the police station she felt that she 'was blacking out'.[138] She also said that the handcuffs were too tight and left red marks on her wrists.[139] With the consent of the prosecution, defence counsel read and then tendered a brief report written by Dr Myo Maung, dated 21 May 2015, in which Dr Maung noted bruising on the appellant's arms and forearms with tenderness.[140]
[138] Trial ts 212, 5 December 2017.
[139] Trial ts 213, 5 December 2017.
[140] Trial ts 214, exhibit 13, 5 December 2017.
The appellant testified that when she arrived at the Mirrabooka police station, she asked for an interpreter.[141]
[141] Trial ts 215, 5 December 2017.
The appellant agreed that the police called an interpreter to assist her with the bail papers the police had prepared, but she did not need the interpreter's services because she 'saw and understood the information on that - on the piece of paper. It had my name, my address and, you know, that I had to go to court. So it was - you know - that information was clear to me'.[142]
[142] Trial ts 216, 5 December 2017.
On 16 July 2018, the appellant resumed her testimony. Under cross‑examination, she testified as follows:
1.The appellant could not remember whether she gave her name to Ms Taylor.[143]
[143] Trial ts 4 - 5, 16 July 2018.
2.The appellant did not understand what she was being told by Ms Taylor.[144]
[144] Trial ts 6, 16 July 2018.
3.While in the Centrelink office, the appellant denied:[145]
[145] Trial ts 6, 16 July 2018.
(a)telling Ms Taylor that she needed money for her children;
(b)getting angry and starting to yell;
(c)saying that her husband was lying; and
(d)being told to leave.
4.When the police arrived at the Centrelink office and approached the appellant, she was talking to her husband via her mobile telephone, in English.[146]
[146] Trial ts 7, 16 July 2018.
5.Between 2006 and 2016, all the appellant's communications with her husband were in English.[147]
[147] Trial ts 10, 16 July 2018.
6.The appellant denied that Sergeant Mackay asked her for her name while they were in the Centrelink office. The appellant said that she understood the English word 'name', and that she thought she would have understood the word 'surname' if they had been used by Sergeant Mackay.[148]
[148] Trial ts 11, 16 July 2018.
7.The appellant denied that when she gave the answer 'brown' it was in response to a question by Sergeant Mackay for her to provide her surname. She reiterated that she thought Sergeant Mackay had asked her, 'How are you?' or 'How are you feeling?'.[149]
[149] Trial ts 12, 16 July 2018.
8.The appellant said that she assumed Sergeant Mackay already knew her name because they were in a Centrelink office and she saw 'them pass a note as well'.[150]
9.The appellant denied that there were numerous attempts by the police to obtain her name.[151]
10.The appellant said that when she was outside, the police officers attacked her.[152]
11.The appellant said that she understood the meaning of the English word 'arrest'.[153]
12.Sergeant Mackay did not ask the appellant for her handbag.[154]
13.The appellant again denied that she resisted the actions of the police officers. To the contrary, the appellant said that she told the police, 'I will show you everything, what are you doing, I will show you whatever you asking for'.[155]
14.The appellant asserted that Ms Taylor made up her evidence that the appellant had told her that she had no money for her children. Further, she did not tell Sergeant Mackay, at the Centrelink office, that she needed money to buy food for her children.[156]
15.The appellant agreed that at the time she attended the Centrelink office, she was carrying $AUD151.65, $US2,259 and €904.[157] She said that she could not spend the US dollars or the euros because they belonged to her parents.[158]
16.The appellant denied that she was desperate for money on the day she visited the Centrelink office.[159]
17.The appellant maintained that her level of English 'is very low'.[160]
[150] Trial ts 12 - 13, 16 July 2018.
[151] Trial ts 14, 16 July 2018.
[152] Trial ts 14, 16 July 2018.
[153] Trial ts 15, 16 July 2018.
[154] Trial ts 16, 16 July 2018.
[155] Trial ts 20, 16 July 2018.
[156] Trial ts 23, 16 July 2018.
[157] Trial ts 22, 16 July 2018.
[158] Trial ts 23, 16 July 2018.
[159] Trial ts 23 - 24, 16 July 2018.
[160] Trial ts 26, 16 July 2018.
Garry Frailing
Mr Frailing testified that when he first met the appellant, her level of English was 'very limited' or 'almost zero'.[161] He said that since the appellant has been in Australia, her English language competency was 'maybe 35%'.[162]
[161] Trial ts 28, 16 July 2018.
[162] Trial ts 29, 16 July 2018.
Mr Frailing said that he asked the appellant to go to the Centrelink office to find out if it was possible to reinstate his Centrelink benefit until such time as his employer paid him for his services.[163]
[163] Trial ts 32, 16 July 2018.
Mr Frailing said that on 20 May 2016, while the appellant was at the Centrelink office, he received a telephone call from her. He said she sounded distressed and concerned. Mr Frailing said that he spoke to Sergeant Mackay for a very short period of time. Mr Frailing said that he recalled that Sergeant Mackay tried to ask him his name, but the mobile telephone signal dropped out.[164]
[164] Trial ts 34, 16 July 2018.
Mr Frailing described the appellant's command of English as at May 2016, in these terms:[165]
[She] would only go to the shop and be able to get by with just generic purchasing and understanding gestures of 'thank you' and 'hello' and - and just basic - very basic functional level of just being able to do something to - to the effect of just going to the supermarket and getting what she wants and being able to - get through the cash register and get out, and that would be what she could get by with. That would be about it. Anything else I would manage when I got back.
[165] Trial ts 36, 16 July 2018.
In cross‑examination, Mr Frailing said that in the seven or eight weeks he had to wait until receiving payment for his services, he and his wife utilised credit cards to survive.[166] However, by 20 May 2016, money 'was getting very tight'.[167]
[166] Trial ts 37, 16 July 2018.
[167] Trial ts 39, 16 July 2018.
In cross‑examination, Mr Frailing agreed that the appellant would understand the question, 'What is your name?', but he did not think she would understand the word 'surname'.[168]
[168] Trial ts 40, 16 July 2018.
Exhibits
A number of exhibits were tendered in the course of the hearing before the magistrate. The most significant of these were recordings of the CCTV footage taken within the Centrelink office. We have viewed the recordings. They show the interactions the appellant had with Ms Taylor and other Centrelink staff members, and, to some extent, the police. There is no sound recording of these interactions.
The investigator's report
By consent, a report prepared by a firm of private investigators who were commissioned on behalf of the appellant, was tendered in evidence. The report mostly comprises photographs and surveillance footage of the Centrelink office in Innaloo. It does not show the incident in question.
The magistrate's reasons
The magistrate gave careful and comprehensive reasons.
His Honour summarised the evidence that had been presented in considerable detail.
His Honour identified a number of factual matters that were in dispute, being:
(a)whether the appellant's behaviour inside the Centrelink office was disorderly and whether she refused to leave;
(b)the appellant's level of understanding of English and, in particular, whether she understood the questions put to her by Sergeant Mackay, 'What is your name?' and 'Do you have identification?';
(c)whether the police asked the appellant to provide her personal details at all;
(d)whether the police were lawfully entitled to request her personal details;
(e)whether the appellant misunderstood Sergeant Mackay's request to provide him with her surname;
(f)whether she misunderstood the police's request to provide them with identification;
(g)whether the appellant's arrest for failing to provide her personal details was lawful; and
(h)whether she resisted arrest and, if so, was her resistance justified.[169]
[169] Trial ts 57 - 58, 16 July 2018.
The magistrate's findings
The learned magistrate made favourable findings as to the honesty and reliability of all of the prosecution witnesses. He described Ms Taylor as 'a credible witness' and 'a generally reliable witness'.[170] He found Sergeant Mackay to be an impressive, honest and reliable witness. The magistrate noted that Sergeant Mackay was 'thoroughly cross‑examined' by senior counsel, which did not diminish his testimony.[171] The magistrate concluded, based on the CCTV recording of events at the Mirrabooka police station, that Sergeant Mackay conducted his dealings with the appellant there in a professional, polite and patient manner.[172]
[170] Trial ts 58, 16 July 2018.
[171] Trial ts 62, 16 July 2018.
[172] Trial ts 64, 16 July 2018.
The magistrate said that Constable Juckes 'gave his evidence well' and, in his opinion, the officer 'told it as it happened'. His Honour noted that Constable Juckes' evidence was not identical to that of Sergeant Mackay, which indicated that they had not collaborated. He concluded that Constable Juckes was a credible and reliable witness.[173]
[173] Trial ts 64 - 65, 16 July 2018.
His Honour described Constable Bowling as 'a very impressive witness' who was both honest and reliable.[174]
[174] Trial ts 66, 16 July 2018.
The magistrate did not find the appellant to be a credible witness. He said that he did not find her to be truthful 'in many aspects'.[175] The magistrate then proceeded to explain why he had come to these conclusions.
[175] Trial ts 68, 16 July 2018.
The magistrate did not accept that the appellant's level of English was so poor that she was unable to understand Sergeant Mackay's question, 'What is your name?'. While English is the appellant's second language, the magistrate found that it was not believable that the appellant did not understand such a basic question as 'what is your name?'. Further, he noted parts of the appellant's testimony which were inconsistent with the appellant not understanding the words 'name' and 'surname'. For example, he noted that, in her testimony, the appellant gave an account of telephoning Centrelink and asking, in English, the person to whom she was speaking to provide her name and telephone number so that the appellant could pass it on to her husband. The magistrate also noted the conversation the appellant had with her friend at the Mirrabooka police station, in English, in which she told her friend that her children had the surname of Frailing. Moreover, she asked her friend, 'You understand my surname?'.[176]
[176] Trial ts 68 - 70, 16 July 2018.
The magistrate observed that in her conversation with Sergeant Mackay at the Mirrabooka police station which was conducted, in part, in English, the appellant, when asked if she understood the word 'surname', initially answered to the effect that she understood the word to mean 'last name', but then said that she did not understand the word. The magistrate said that this was 'an example of why I don't find [the appellant] to be a credible witness'.[177]
[177] Trial ts 71, 16 July 2018.
The magistrate also noted that in her evidence before him, the appellant said that she kept asking the Centrelink officers for 'a translator' because she did not know the word 'interpreter'. Yet, later that day at the Mirrabooka police station, she said, when speaking to Sergeant Mackay:[178]
I asked you only for interpreter. I asked you interpreter name. I waited for interpreter. I waited for police.
[178] Trial ts 73, 16 July 2018.
The magistrate found the appellant's explanation to the effect that she used the word 'brown' to explain her mood as 'not credible at all'.[179] He did not find it credible that the colour brown was used to describe a bad day. The magistrate noted that when the appellant was interviewed at the Mirrabooka police station, she was asked by Sergeant Mackay for her surname. She denied answering 'brown' and said that she did not understand Sergeant Mackay's question. She did not explain at that point that the word 'brown' in Russian can be used to describe a bad mood.[180]
[179] Trial ts 74, 16 July 2018.
[180] Trial ts 75, 16 July 2018.
The magistrate did not accept the appellant's evidence that when she was asked to produce identification, she did not consider that an Australian driver's licence could be used as identification, rather, she believed that she was, in effect, being asked to produce her passport. In this respect, the magistrate noted that the appellant had been living in Australia since 2009, and that she would have been required in the past to produce other forms of identification apart from her passport.[181]
[181] Trial ts 76, 16 July 2018.
The magistrate did not accept the appellant's evidence that Sergeant Mackay acted like a killer, or called her Natasha. He did not accept her evidence that she was attacked by police, or that she was rendered unconscious, or almost unconscious. He noted that a medical report was tendered as part of the defence case and nothing in it supported that her state of consciousness had been in any way compromised.[182]
[182] Trial ts 77, 16 July 2018.
The magistrate found that the police were polite while the appellant was, on the other hand, 'being difficult'.[183]
[183] Trial ts 77, 16 July 2018.
The magistrate made findings of fact consistent with the evidence given by the prosecution witnesses, including:
(a)The appellant was loud and angry in the Centrelink office, and she refused to leave the office despite being told by Mr Pengelly on numerous occasions to leave.[184]
(b)After the police arrived at the Centrelink office, Sergeant Mackay requested the appellant to provide her name, which she refused to do.[185]
(c)Sergeant Mackay asked the appellant for her surname, to which she replied, 'Brown'.[186]
(d)Sergeant Mackay asked the appellant if she had identification, in answer to which she said, 'No'.[187]
(e)The appellant had sufficient English to understand the questions concerning her name and surname, but refused to answer Sergeant Mackay's questions.[188]
(f)While outside the Centrelink office, Sergeant Mackay, once again, asked the appellant for her name and, once again, she refused to provide it. Sergeant Mackay then informed the appellant that if she did not give her name she would be arrested and that if that occurred, the police would have the right to search her handbag to confirm her identification. Once again, the appellant refused to provide her name. At this point, Sergeant Mackay placed her under arrest.[189]
(g)After she was arrested, she resisted being placed into the police vehicle and being handcuffed.[190]
[184] Trial ts 78, 16 July 2018.
[185] Trial ts 78, 16 July 2018.
[186] Trial ts 78, 16 July 2018.
[187] Trial ts 78, 16 July 2018.
[188] Trial ts 78 - 79, 16 July 2018.
[189] Trial ts 79, 16 July 2018.
[190] Trial ts 79, 16 July 2018.
With respect to the allegation that the appellant contravened s 16(6) of the Criminal Investigation (Identifying People) Act, the magistrate said that he was satisfied, having regard to the statements made to Sergeant Mackay by Mr Pengelly, that he (Sergeant Mackay) reasonably suspected that the appellant had committed an offence of disorderly conduct.[191] He was also satisfied beyond reasonable doubt that on numerous occasions, the appellant failed to provide Sergeant Mackay with her personal details, and insofar as she gave the surname 'Brown', Sergeant Mackay had reasonable grounds to suspect that the name was false. Having regard to s 16(3) of the Criminal Investigation (Identifying People) Act, Sergeant Mackay was entitled to request the appellant to produce evidence of her true identity.[192]
[191] Trial ts 79 - 80, 16 July 2018.
[192] Trial ts 80, 16 July 2018.
The magistrate was satisfied that Sergeant Mackay requested the appellant to provide him with identification, which she refused to do.[193]
[193] Trial ts 80, 16 July 2018.
Although the magistrate did not explicitly address the element of the offence in s 16(6) of the Criminal Investigation (Identifying People) Act, it appears clear that he was satisfied beyond reasonable doubt that no such reasonable excuse existed.[194] This implication may be drawn from his finding that Sergeant Mackay did not know the appellant's name prior to his questioning of her. Further, there was no evidence that any note Mr Pengelly passed to Constable Bowling had the appellant's name written on it.[195]
[194] Trial ts 80, 16 July 2018.
[195] Trial ts 76, 16 July 2018.
It is evident that the magistrate found all of the elements of the alleged offence contrary to s 16(6) of the Criminal Investigation (Identifying People) Act were proved beyond reasonable doubt, and he found the appellant guilty of this offence.[196]
[196] Trial ts 80, 16 July 2018.
The magistrate then turned to the offence of obstructing police contrary to s 172 of the Code. The learned magistrate found that all of the elements of that offence had been established beyond reasonable doubt, and that the appellant was guilty of the offence.
The magistrate found, in effect, that the appellant had been lawfully arrested, and that she obstructed the police by struggling or resisting being placed in the police vehicle and handcuffed.[197]
[197] Trial ts 80 - 81, 16 July 2018.
In the proceedings before the magistrate, it was submitted on behalf of the appellant that insofar as the appellant may have resisted the search of her handbag, she was entitled to do so because Sergeant Mackay had not informed her that it was an offence to obstruct the search. The magistrate appeared to accept that he had not done so.[198] However, the magistrate found that while Sergeant Mackay did not expressly inform her that it was an offence to obstruct the search, he had effectively done so. Further, once she was arrested, the police were entitled to search her pursuant to s 135 of the Criminal Investigation (Identifying People) Act. No issue was taken with this finding before Allanson J or this court.
[198] Trial ts 81, 16 July 2018.
Appeal to Allanson J
As we have said, the appellant appealed against her conviction by the magistrate to a single judge of the Supreme Court on 12 grounds. Those grounds are as follows:
1.The police refused (ignored) to assist with a translator request inside Centrelink before the arrest took place.
2.The police did not provide a translator at the place of arrest as they understood that English is her second language.
3.The police provoked the arrest and an arbitrary arrest took place.
4.The police calling her 'Natasha' was cruel, inhuman and degrading treatment toward her outside of Centrelink and as a result of this, she was injured. In the police station the police forcibly tore out her hair for a DNA sample without her consent and also in violation of the declaration of human rights.
5.The police withheld evidence of video record outside Centrelink.
6.The police hid critical evidence which shows sudden assault, cruel, inhuman and degrading treatment of her outside of Centrelink.
7.Three police officers conspired with themselves and gave false evidence against her.
8.The magistrate did not take into account the factor of professional investigation and detection of seven video cameras outside of Centrelink.
9.The magistrate did not take into account the factor of the recorded conversation with the manager of Centrelink where she asked for an interpreter service inside Centrelink.
10.The magistrate court did not take into account her story about what had happened and she only answered questions.
11.Her translator in court was wrong in translating for her the contradictions of her answers to the questions. For example, she said 'yes' when Ms Frailing said 'no' and vice versa.
12.She was discriminated by nationality and by sex, and experienced cruel, inhuman and degrading treatment by WA police and arbitrary arrest that caused her distress and anguish.[199]
[199] Slightly amended for clarity.
His Honour noted, correctly, in our view, that credibility was an important element of the trial before the magistrate. His Honour noted that the magistrate's credibility findings were not simply based on the appearances of a witness, but proceeded on a detailed analysis of the whole of the evidence.[200]
[200] Frailing v Mackay [83].
Allanson J also noted, again correctly, that although none of the grounds directly challenged the magistrate's finding that she had sufficient understanding of English to understand the questions asked of her, her submissions, in effect, made that challenge. Allanson J was not satisfied that there was any reason to overturn the magistrate's conclusion, based as it was on his Honour's positive findings about the credibility of Ms Taylor and the three police officers, and his finding that he did not believe the appellant on this issue. After reviewing the record of the trial, Allanson J was not satisfied that there was any reason to overturn those findings.[201]
[201] Frailing v Mackay [85].
Allanson J then dealt with the appellant's grounds of appeal. For the sake of convenience, we will reproduce his Honour's analysis of those grounds:[202]
[202] Frailing v Mackay [86] - [111].
Grounds 1 and 2
Ms Frailing said in her evidence that she told Sgt MacKay that she needed an interpreter because she 'wanted to resolve the issue with Centrelink'. Sgt MacKay said that Ms Frailing told him 'she was sitting there waiting for an interpreter'.
In her written submissions in the appeal, Ms Frailing said that Centrelink was violating her rights in not providing a translator, and that the police had to help her find a translation service. But it was not suggested to Sgt MacKay at trial that Ms Frailing asked the police to assist with her request for an interpreter at Centrelink and they ignored or refused her request.
Further, I am not satisfied that the issues raised in these grounds are material to the charges against Ms Frailing or to the appeal. The question that had been identified was whether Ms Frailing's understanding of English was only basic, or was sufficient for her to understand when the police asked her for her name and for evidence of identification. The magistrate found Ms Frailing's English was good enough for her to carry on a conversation, and that she could (and did) understand when she was asked for her name and to provide identification.
Grounds 3 and 4
I will deal with these grounds together. Each of them is based on assertions of fact about the conduct of the police which were not accepted by the magistrate.
His Honour accepted the evidence of Sgt MacKay, supported by the other officers, that he did not scream 'Natasha' at Ms Frailing. The appellant has advanced no reason why his Honour's conclusion should be disturbed. Nor has error been shown in his Honour's rejection of Ms Frailing's evidence that Sgt MacKay was very angry, his eyes were red and she felt he was like 'a killer'.
If, as the magistrate found, Ms Frailing refused to provide her name (and gave a false name) when asked, it was not an arbitrary arrest.
There was no challenge at trial to the police taking a hair sample at the Mirrabooka police station, pursuant to the Criminal Investigation (Identifying People) Act 2002. The assertions now made regarding the taking of a DNA sample are not material to the conviction.
Grounds 5 to 7
The evidence at trial does not support the allegation that police withheld or hid critical evidence.
It was accepted by the defence at trial that there was no CCTV coverage of the area outside the Centrelink offices where these events took place. Senior counsel for Ms Frailing at trial suggested in his opening that there was a camera outside the building, but the police attempts to obtain that coverage came too late and it could not be recovered.
The evidence from Sgt MacKay at trial was that the police had passed on all of the CCTV footage that they had received from Centrelink to Ms Frailing's solicitors. That evidence was not challenged.
Ms Frailing has not shown that the magistrate erred in his findings about the evidence of the police officers. The allegations in ground 6 of conspiracy and false evidence have no foundation.
Ground 8
Ground 8 asserted that the magistrate did not take into account the factor of professional investigation 'and detection of seven video cameras outside of Centrelink'.
The ground is factually incorrect. In his report, the investigator described seeing seven cameras inside the office, showing the foyer (2 cameras), the doors to the foyer (2 cameras), and the waiting room and counter (3 cameras). Only one external Centrelink camera was seen, although the investigator also reported a camera outside a store about 30 metres from the entrance to Centrelink and another camera further away under the portico to the shopping centre.
The magistrate referred to the report in his reasons. He said, 'It just really was made up of photographs of Centrelink and the attached surveillance footage was really just footage of Centrelink. It didn't show the incident in question'. I have examined the report. No error has been shown in his Honour's treatment of it.
Ground 9
The recording referred to in this ground was not tendered at trial. Ms Frailing was represented by experienced senior counsel. There is no explanation for why the evidence was not led at trial, other than that it was not material.
I am not satisfied that the recording is material or has any bearing on the factual findings that should be made on the evidence. In particular, I am not satisfied that it affects the magistrate's findings about why he did not accept Ms Frailing's evidence.
Ground 10
If this ground is a challenge to the manner in which the magistrate conducted the trial, it is completely without foundation. Ms Frailing was represented. Her counsel was not in any way restricted in his questioning of the prosecution witnesses, and any evidence the defence wished to tender was received. Ms Frailing gave evidence‑in‑chief at length.
It may be that Ms Frailing felt constrained by the ordinary court process of testifying in answer to questions from her legal representative, and then in response to questions in cross‑examination. But having read the whole of her evidence, I am satisfied that she was not limited in any way in presenting evidence that was relevant to the charges.
Ground 11
In her written statement in response, following the hearing of the appeal, Ms Frailing identified some passages of transcript which she said disclosed errors in translation by the interpreter at trial.
In one passage, the translator used the expression 'you know', when Ms Frailing said she does not use that expression in conversation. Even if true, that is of no relevance to the decision.
The other examples given by Ms Frailing disclose some ambiguity or uncertainty only if read out of context. For example, Ms Frailing complains of the following question and answer:
PERCY, MR: So outside - you followed them outside. Is that right Would you accept that outside that they - they did ask you a question and you gave the name - gave the response Brown
INTERPRETER: Yes.
Ms Frailing submitted that the answer 'yes' is incorrect if it is taken to be in answer to whether she gave the police the name 'brown'. But there is no question of it being understood that way. In cross‑examination, Ms Frailing confirmed she thought the question was about how she was feeling. There is no doubt that is how his Honour understood Ms Frailing's evidence on this point. He discussed in detail why he rejected Ms Frailing's evidence that she said 'brown' as a description of her mood.
Ms Frailing referred to another passage in the trial transcript where she was asked about returning from Belarus in 2014 and communicating with her husband. She referred to one question and answer. That question and answer were in the course of Ms Frailing's counsel examining her at length about speaking English with her husband, attending English language classes, how she communicated when shopping and speaking to teachers at her children's school, and whether her children spoke English. If there was an error in the question and answer identified (and I do not believe there was), it was immaterial in the context of the whole of the evidence.
Ms Frailing complained about another passage which, she submitted, wrongly suggested she said that she lived separately from her husband. Again, when regard is had to all of her evidence, it is clear that she was saying that she and her husband had two homes and lived sometimes in one sometimes in the other. There is nothing to show that her evidence was misunderstood in the way she has suggested.
In summary, Ms Frailing showed no 'error' in translation that could affect the fairness of the trial process or the correctness of the magistrate's decision. None of the errors she alleged, even if established, were material to the findings made at trial.
Ground 12
There is no evidence to support the allegations in ground 12 of discrimination, cruel, inhuman and degrading treatment, or arbitrary arrest.
The appeal to this court
As we have said, the appellant has appealed to this court from the decision of Allanson J on 14 grounds. The grounds are as follows:[203]
[203] Appellant's case, 20 August 2019.
(1)The police refused, (ignored), to assist with a translator request made inside the Centrelink building before the arrest took place. Ms Frailing did ask the police to assist with her request for an interpreter (inside) the Centrelink building.
(2)Police did not provide a translator at the place of arrest after understanding English is Tatsiana's second language. Mrs Frailing did ask the Police to assist with her request for an interpreter (outside) the Centrelink building.
(3)The police officers never identified himself or herself to Tatsiana and never requested Tatsiana to consent to the search or the reason for the search. Police [provoked] the arrest and an arbitrary arrest took place. Mrs Frailing was never asked for her name and stated she did not have identification.
(4)Tatsiana did not resist the police and, on the contrary, she wanted to help the police, but police repeatedly called Tatsiana 'Natasha, Natasha', were cruel, inhuman and degrading treatment of her outside of the Centrelink building, as a result of this she was injured and witnessed by the doctor. In the police station, the police forcibly tore out her hair for a DNA sample without her consent.
(5)Police withheld evidence (video recording outside of Centrelink building). John Pengelly (Centrelink manager) sent emails to Sergeant Mackay stating the external video was available for collection. Sharon Whiteaker informed John Pengelly and Centrelink security about all of the videos, including the external video.
(6)Police deliberately conspired to hide critical evidence which shows a sudden assault, cruel, inhuman and degrading treatment on Tatsiana outside of the Centrelink building. Sergeant Mackay and his subordinates deliberately conspired to avoid the retrieval of the external video due to fear of disciplinary action and mass media exposure.
(7)The three police conspired amongst themselves to give (25 May 2016) false evidence against Tatsiana. The three police did not ask Tatsiana for her name, her full name, her last name or her surname, date of birth or her home address before arrest or during arrest. Tatsiana never gave a false name or false full name to police officers.
(8)The Supreme Court did not take into account the factor of the professional investigation and detection (30 January 2017) of the video cameras inside and outside the Centrelink building and also black 1/4 square on modified CCTV footage from Centrelink from video cameras in the foyer of Centrelink (exhibit 2, 14).
(9)The Supreme Court did not take into account the factor of Tatsiana's recorded (20 May 2016) conversation with the manager of Centrelink where she asked for an interpreter service inside the Centrelink building.
(10)The Supreme Court did not take into account to listen to Tatsiana's version of events as to what happened and she only answered questions. Version of events from the three police as to what happened on 20 May 2016 have not been printed in a transcript, but in court each police officer gave their own inconsistent version and also answered questions.
(11)The Supreme Court was wrong in interpreting what Tatsiana had previously said in the three previous transcripts. There were multiple occasions of stating 'Yes' when Tatsiana's answer was 'No' and vice versa.
(12)Tatsiana understands that on 20 May 2016 she was discriminated by nationality, by sex, experienced cruel, inhuman and degrading treatment on her by the WA Police and an arbitrary arrest took place that cost her distress and anguish.
(13)Tatsiana understands the entirety of these events were a premeditated attack on immigrated permanent residents or anyone not from Australia and would suggest this is not the first assault on innocent people.
(14)At last, the Supreme Court have supported a conviction on the basis of assumptions in guilt of the defendant based on the probability theory that contradicts the principle of a presumption of innocence. Mrs Tatsiana Frailing understands she was and still is undeniably innocent of all allegations and charges.
The appellant's written submissions in support of these grounds amounted to little more than a repetition of the grounds themselves.
At the hearing before this court on 5 September 2019, the appellant, who currently resides in Belarus, made oral submissions by telephone link through a Russian‑speaking interpreter.
The appellant asked the court to consider the 34 pages of written submissions she provided Allanson J in the proceedings below. She also submitted to this court that Allanson J did not pay sufficient attention to her submissions before him. The appellant asserted that ground 14 was 'the most important [ground]'.[204]
[204] Trial ts 4, 5 September 2019.
Before dealing with the grounds of appeal to this court, it is necessary to reiterate some basic principles concerning the role of this court and its appellate jurisdiction. It is convenient to make these observations because, having regard to the submissions put to Allanson J and to this court, it is apparent that the appellant does not appreciate this court's role and function.
This appeal is governed by pt 2 div 3 of the CA Act. Division 3 comprises s 16 ‑ s 19.
By s 16(2), a party to an appeal under pt 2 div 2 of the CA Act who is aggrieved by a decision made in the appeal by a single judge that:
(a)refuses leave to appeal; or
(b)dismisses or decides an appeal,
may appeal to the Court of Appeal against the decision.
By s 18, read with s 9, of the CA Act:
(a)the leave of this court is required for each ground of appeal in an appeal under div 3;
(b)after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding; and
(c)unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
An appeal to this court is not an appeal de novo. The fundamental task of this court is to correct an error or a miscarriage of justice. Subject to s 39 and s 40(1)(e) of the CA Act, the court carries out this task by reference to the record of the court below, bearing in mind that Allanson J did not have the advantage that the magistrate had in seeing and hearing the witnesses at trial.
The appellant's written and oral submissions proceed on the basis that the evidence given by the appellant at trial and her view of the facts is true and correct. As understandable as that might be in a person who, like the appellant, is not a lawyer, that is not the approach taken by an appellate court. This court cannot ignore or overlook the magistrate's credibility findings which were very much adverse to the appellant. These findings cannot be overcome merely by the appellant asserting that they are incorrect.
Disposition of the grounds of appeal
As we observed earlier, grounds 1 ‑ 12 in this court are, in substance, the same as the 12 grounds dealt with by Allanson J. For the reasons his Honour gave, which are reproduced in [107] of these reasons, those grounds must fail. This leaves grounds 13 and 14.
Ground 13
Ground 13 is not a valid ground of appeal. Although clothed with the assertion that the allegation contained in it is an error of fact, the grounds is, in truth, no more than an unfounded allegation of bad faith on the part of the arresting officers. Further and in any event, the allegation is inconsistent with the magistrate's credibility findings and his Honour's findings of fact. Ground 13 has no reasonable prospect of succeeding.
Ground 14
In her oral submissions to this court, the appellant said that this was her most important ground. While the appellant's submissions in respect of the ground were not altogether clear, it is apparent that the appellant, by ground 14, alleges that the findings of guilt by the learned magistrate were unreasonable and cannot be support on the evidence, and that Allanson J erred in failing to so conclude. It may immediately be noted that there was no ground of appeal before Allanson J to this effect. Nevertheless, we will consider its merits.
As we have already observed, this appeal is governed by pt 2 div 3 of the CA Act. The principles applicable to whether a verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate.[205] Those principles are well understood and were recently explained by this court in Wells v The State of Western Australia,[206] as follows:
[205] The State of Western Australia v Olive [2011] WASCA 25 [44].
[206] Wells v The State of Western Australia [2017] WASCA 27 [13].
The principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence are well known. They may be summarised as follows.
(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 jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury 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 jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial. (citations omitted)
An overarching theme of the appellant's defence at trial was that, by reason of her lack of understanding of the English language, she did not comprehend, or she misunderstood, Sergeant Mackay's request to provide her name and identification.
The appellant's understanding of English was, without question, an important issue. If the appellant was unable to understand or communicate in spoken English sufficiently, then the police officers who attended at the Centrelink office were required to comply with the terms of s 10 of the CIA, which provides:
Informing people who do not understand English
If under this Act an officer is required to inform a person about any matter and the person is for any reason unable to understand or communicate in spoken English sufficiently, the officer must, if it is practicable to do so in the circumstances, use an interpreter or other qualified person or other means to inform the person about the matter.
It was well open for the magistrate to reject the appellant's evidence that she did not understand Sergeant Mackay's requests to provide him with her name and identification.
It was common ground that English was not the appellant's first language. It may be accepted that the appellant's understanding and ability to communicate in English is, to some extent, limited. However, the evidence established to the magistrate's satisfaction that the appellant had sufficient English to understand Sergeant Mackay's requests for her to provide her name (or surname) and identification. His Honour's findings were reasonably open on the evidence. The appellant's understanding of the relevant requests is compellingly illustrated by the following:
(a)Ms Taylor, Sergeant Mackay, Constable Juckes and Constable Bowling all gave evidence to the effect that the dealings they had with the appellant, or observed, showed that the appellant was reasonably proficient in English.
(b)The telephone conversation the appellant had with her friend while at the Mirrabooka police station, set out at [33] of these reasons, very clearly shows that the appellant understood the meaning of the word 'surname'.
(c)The conversation that Sergeant Mackay had with the appellant, which is recorded at [35] of these reasons, shows that the appellant understood the meaning of the word 'name'.
(d)The conversation that Sergeant Mackay had with the appellant, recorded at [36] ‑ [41] of these reasons, shows that the appellant was sufficiently proficient in English to engage in a discussion about bail. In particular, despite having a telephone interpreter available to her, the appellant informed Sergeant Mackay that she did not need an interpreter to read the bail undertaking she was required to sign and that she '[understood] what [was] going on'.
We now turn to the question of the appellant's guilt of the offence contrary to s 16(6) of the Criminal Investigation (Identifying People) Act. We have already set out, at [6] of these reasons, the statutory provision.
There are four elements of this offence:[207]
(1)the accused's personal details are unknown to a police officer;
(2)that police officer reasonably suspects that the accused has committed or is committing or is about to commit an offence;
(3)that police officer requests the accused to give the officer any or all of his or her personal details; and
(4)the accused does not comply with the request.
[207] Tey v Plotz [No 2] [2011] WASC 34 [42].
However, even if these elements are established by the prosecution beyond reasonable doubt, an accused will be not guilty of the offence if there was a reasonable excuse for not complying with the request. The onus of establishing this exception is upon the accused person on the balance of probabilities: s 78, Criminal Procedure Act 2004 (WA).
In our opinion, having regard to the magistrate's credibility findings and his Honour's findings of fact (all of which were reasonably open to him), there was ample evidence to establish, beyond reasonable doubt, each of the elements of the offence. Further, having regard to the magistrate's credibility findings and his Honour's findings of fact (all of which were reasonably open to him), the evidence was incapable of establishing, on the balance of probabilities, that the appellant had a reasonable excuse for not complying with Sergeant Mackay's request to provide her name.
As to the first element, Sergeant Mackay testified to the effect that he did not know the appellant's personal details and, in particular, her name. It was for this reason that he asked the appellant to provide her name. It was well open to the magistrate to accept Sergeant Mackay's evidence.
The appellant points to evidence given by Ms Taylor to the effect that she had been provided with the appellant's name. The appellant also points to Constable Bowling's evidence in which she agreed that Mr Pengelly had handed to her (Constable Bowling) a note which she gave to Sergeant Mackay. The appellant claims that her name was written on the note and therefore Sergeant Mackay was aware of her name. There is no evidence of what was written on the note. The appellant's claim is no more than speculation. Given that the note was passed from Mr Pengelly to Sergeant Mackay via Constable Bowling, the appellant could not herself have been aware of its contents.
Moreover, as Jenkins J pointed out in Tey v Plotz [No 2],[208] when a police officer suspects that a person has committed an offence, it is important for the officer to correctly identify that person. Ordinarily, such information is required immediately and the best and most convenient source of that information is the suspect. A police officer is not obliged, when confronted with a person who has committed, or is committing or is about to commit an offence, to make inquiries from others who may be thought to know the suspect's personal details.
[208] Tey v Plotz [No 2] [57].
As to the second element, it was open to the magistrate to be satisfied beyond reasonable doubt that Sergeant Mackay reasonably suspected that the appellant had committed the offence commonly referred to as disorderly conduct.
The offence known as disorderly conduct was, in the past, contained in s 54 of the Police Act 1982 (WA). On 31 May 2005, s 54 was repealed and replaced by s 74A of the Code, which relevantly provides:
74A. Disorderly behaviour in public
(1)In this section -
behave in a disorderly manner includes -
(a)to use insulting, offensive or threatening language; and
(b)to behave in an insulting, offensive or threatening manner.
(2)A person who behaves in a disorderly manner -
(a)in a public place or in the sight or hearing of any person who is in a public place; or
(b)in a police station or lock‑up,
is guilty of an offence and is liable to a fine of $6 000.
It may readily be accepted that the Centrelink office was a place to which the public have access and, as such, was a public place.
Ms Taylor testified as to the appellant's behavior at the Centrelink office. Her evidence was, to some extent, supported by the images captured on CCTV. It appears from the evidence of Ms Taylor that Mr Pengelly was aware of and had, himself, witnessed the appellant's behaviour. Given Ms Taylor's description of that behaviour, there was at least a reasonable suspicion that it constituted disorderly behaviour in that it disturbed the order of the public place at the particular time in question.[209]
[209] CRC v Taylor [2019] WASC 187 [42] - [48]; Heanes v Herangi [2007] WASC 175 [176]; Melser v Police [1967] NZLR 437, 443 - 444.
Sergeant Mackay testified that Mr Pengelly had informed him of the nature of the appellant's behaviour in the Centrelink office. Based on this information, Sergeant Mackay reasonably suspected, on reasonable grounds, that the appellant had committed the offence which he described as 'disorderly conduct'. While the appellant denied behaving in the manner described by Ms Taylor, it was well open to the magistrate to accept the evidence of Ms Taylor on this point and reject the appellant's version.
As to the third and fourth elements, the evidence of Sergeant Mackay, Constable Juckes and Constable Bowling was all to the effect that, prior to the appellant's arrest, Sergeant Mackay requested the appellant to provide him with her name on multiple occasions and she failed to do so, either by ignoring or refusing to answer the request or by, at one point, providing a false surname, 'Brown'. It was well open to the magistrate to accept the evidence of the police officers.
With respect to the appellant's explanation for using the word 'brown', it was well open to the magistrate to reject the explanation the appellant gave for using the word 'brown' as implausible. With respect to the question of whether there was a reasonable excuse for the appellant's failure to comply with Sergeant Mackay's request, and insofar as the appellant claimed that she did not understand Sergeant Mackay's request to provide her name or that she believed that Sergeant Mackay was aware of her name, it was well open for those explanations to be rejected by his Honour.
Bearing in mind the advantage the magistrate had over this court of seeing and hearing the witnesses, it was well open for him to find the appellant guilty of the offence contrary to s 16(6) of the Criminal Investigation Act (Identifying People) Act. Having examined and weighed the evidence that was presented to the magistrate, we are satisfied that there is no significant possibility that an innocent person has been convicted. The verdict of guilty in respect of this count was not unreasonable or unsupported by the evidence. The verdict of guilty must stand.
We now turn to the conviction for the offence contrary to s 172 of the Code.
The elements of this offence are:
(1)a public officer is performing a function of the public officer's office; and
(2)the accused obstructs the public officer or a person lawfully assisting the public officer in the performance of the public officer's function.
A police officer is a public officer.
The prosecution case was that the appellant obstructed Constable Juckes and Constable Bowling by preventing, hindering or resisting their efforts to place her in a police vehicle for the purpose of transporting her to Mirrabooka police station.
The powers of a police officer to arrest a person are set out in the CIA.
The power to arrest is different according to whether or not the person to be arrested has committed a serious offence as defined in s 128(1) of the CIA. An offence contrary to s 16(6) of the Criminal Investigation (Identifying People) Act is not a serious offence as defined.
A police officer's power to arrest in respect of an offence which is not a serious offence is found in s 128(3) of the CIA. Relevantly, a police officer may arrest a person for an offence that is not a serious offence if the officer reasonably suspects that the person has committed, is committing, or is just about to commit the offence and that if the person is not arrested it will not be possible, in accordance with law, to obtain and verify the person's name and other personal details.
We have already found that the evidence was capable of establishing beyond reasonable doubt that Sergeant Mackay reasonably suspected that the appellant had committed the offence he described as disorderly conduct. In our opinion, based on the evidence of Sergeant Mackay as to the circumstances of the appellant's failure to provide her name, which was in large part supported by Constable Juckes and Constable Bowling, it was well open to conclude, on the evidence which the magistrate accepted, that, unless the appellant was arrested, it would not be possible, in accordance with the law, to obtain and verify the appellant's name and other personal details.
Section 68 of the CIA empowers a police officer who reasonably suspects that a person has, in his or her possession or under his or her control, anything relevant to an offence, to do a basic search (or a strip search) of a person. In the case of a basic search (or a strip search), the searcher may search anything being carried by, or under the immediate control of, the person.[210] Section 70(2) of the CIA requires a searcher doing a basic search (or a strip search), if reasonably practicable, to:
(a)identify himself or herself to a person; and
(b)inform the person of the reason for the search; and
(c)request the person to consent to the search; and
(d)if the person does not consent to the search or withdraws his or her consent, inform the person that it is an offence to obstruct the searcher doing the search.
[210] Section 65(2)(b).
The evidence of Sergeant Mackay was to the effect that, while in the Centrelink office, he asked the appellant to provide him with identification which she refused to do. The appellant did not dispute that Sergeant Mackay asked her for identification, but said that she understood the request as being, in effect, a request for her to provide her passport, which she did not have. The appellant's testimony on this point was rejected by the magistrate. It was plainly open for him to do so. Whatever the position in Belarus, the appellant had been living in Australia for long enough to be aware that a request for identification in this country is not understood as a request for a person to provide their passport.
Once outside the Centrelink office, Sergeant Mackay asked the appellant again for her name, and again she refused. Sergeant Mackay said that he informed the appellant that if she refused to provide her personal details she would be arrested and that the police would have the right to search her handbag to confirm her identity. She was also told that she would be conveyed to the Mirrabooka police station and charged. Sergeant Mackay said that there would be no need for these measures if she provided him with her full name, date of birth and address. Again, the appellant declined to provide her personal details. Sergeant Mackay then asked the appellant if he could have her handbag. The appellant refused. At this point, she was placed under arrest and detained for the purpose of investigating any offence she may be suspected of committing, pursuant to s 139(2)(b) of the CIA. The appellant resisted the endeavours of Constable Juckes to seize her handbag. She refused to release the handbag despite repeated requests. Constable Juckes eventually succeeded in loosening the appellant's grip of the handbag and obtaining possession of it.
In our opinion, the evidence established that the preconditions for Sergeant Mackay to arrest the appellant for an offence that is not a serious offence were enlivened. So too was the power to conduct a basic search for the purpose of examining the appellant's handbag to see if she carried any form of identification. The evidence before the magistrate established that the police officers complied with the substance of pars (a), (b) and (c) of s 70(2) of the CIA in relation to the basic search of the appellant's handbag. There was no evidence that the police officers had informed the appellant that it was an offence to obstruct the searcher carrying out the basic search of her handbag, as required by s 70(2)(d) of the CIA, but non‑compliance with that provision did not render her arrest unlawful. Also, the appellant's obstruction of the basic search of her handbag did not constitute a defence to the charged offence against s 16(6) of the Criminal Investigation (Identifying People) Act. Further, the appellant's obstruction of the basic search of her handbag was not the sole particular of the charged offence against s 172(2) of the Code. Other particulars included twisting in an attempt to free her arms while the police were escorting her to the police vehicle; using her feet to push away from the police vehicle; grabbing the door handle of the police vehicle and refusing to let it go; placing her foot on either side of the door of the police vehicle and using her legs to push away from the vehicle so as to prevent the police officers from securing her inside; resisting the endeavours of the police officers to secure her in handcuffs; and using her feet to endeavour to prevent her entry into the police vehicle.
It is clear from the evidence of Sergeant Mackay, Constable Juckes and Constable Bowling that the appellant resisted Constable Juckes' efforts to wrest the handbag from her. It is also clear from their evidence that she attempted to free herself as she was being escorted to the police vehicle by Sergeant Mackay and Constable Juckes, and that she resisted being placed into the vehicle, closing her legs to push herself away from the vehicle so as to prevent the police officers from securing her inside. Finally, when Sergeant Mackay instructed Constable Juckes to secure her with handcuffs, she resisted.
While it may be accepted that a suspect may use reasonable force to resist an unlawful arrest, it was well open on the evidence for the magistrate to conclude, as he did, that the appellant's arrest was lawful and that her conduct amounted to an obstruction of the police in the performance of their functions as police officers.
In our opinion, based on the evidence of the police officers and, again, bearing in mind the advantage that the magistrate had in seeing and hearing the witnesses, it was well open for his Honour to accept the evidence of the police officers, to reject the evidence of the appellant and to conclude that the elements of the offence contrary to s 172 of the Code had been proved by the prosecution beyond reasonable doubt. Having examined and weighed the evidence that was presented to the magistrate, we are satisfied that there is no significant possibility that an innocent person has been convicted. The verdict of guilty on this count was not unreasonable or unsupported by the evidence. The verdict of guilty must stand.
For the above reasons, ground 14 has not been made out. We would refuse leave to appeal.
Conclusion and orders
None of the 14 grounds of appeal have been made out. None of them have a reasonable prospect of succeeding. Leave to appeal should be refused on each ground.
The orders that we would make are as follows:
(1)Leave to appeal is refused on all grounds.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza6 MAY 2020
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