Frailing v Mackay
[2019] WASC 158
•15 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: FRAILING -v- MACKAY [2019] WASC 158
CORAM: ALLANSON J
HEARD: 21 FEBRUARY 2019
DELIVERED : 15 MAY 2019
FILE NO/S: SJA 1097 of 2018
BETWEEN: TATSIANA FRAILING
Appellant
AND
DEAN REECE MACKAY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HALL
File Number : PE 29459-29460/2016
Catchwords:
Criminal law - Appeal from magistrate - Where magistrate accepted evidence of prosecution witnesses and did not accept evidence of appellant - Whether error shown - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 8
Criminal Code (WA), s 172
Criminal Investigation (Identifying People) Act 2002 (WA), s 16
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | MM Yeung |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Stone v Braun [2015] WASCA 103
ALLANSON J:
On 16 July 2018, the appellant, Tatsiana Frailing, was convicted by Magistrate Hall of two offences, both committed on 20 May 2016:
(1)failing to comply with a request to give police personal details, contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA); and
(2)obstructing a public officer, contrary to s 172(2) of the Criminal Code (WA).
Ms Frailing was fined for each offence.
Ms Frailing applied for leave to appeal on 12 grounds, which allege:
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.[1]
[1] Slightly amended for clarity.
The question of leave to appeal was referred to the hearing of the appeal.
I ordered that another interpreter be used for the appeal because the accuracy of the interpretation at trial was raised in the grounds of appeal.
The Criminal Appeals Act 2004
An appeal lies to a single judge of the Supreme Court from the decision of the magistrate pursuant to pt 2 of the Criminal Appeals Act 2004 (WA). By s 8:
An appeal may be made under this Division on one or more of these grounds ‑
(a)that the court of summary jurisdiction ‑
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction ...
(b)that there has been a miscarriage of justice.
Leave of the court is required for each ground of appeal. The court must not give leave on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.[2]
[2] Criminal Appeals Act 2004 (WA), s 9.
Ms Frailing conducted the appeal herself with the aid of an interpreter. The difficulties facing a litigant in person were compounded by the limitations of her command of English. This was mitigated by the quality of the assistance provided by the interpreter, Mr Armstrong. But Ms Frailing's disadvantage could not be entirely overcome.
I have attempted to see whether, despite the form of the grounds, one or more of them raises for determination an error of law or fact or both, or a miscarriage of justice. In doing so, I have kept in mind the principles which guide a single judge on appeal as much as a trial judge when dealing with litigants who represent themselves.[3]
[3] See Stone v Braun [2015] WASCA 103 [62] - [69].
An added difficulty arose at the end of the case when Ms Frailing revealed that she was now living in her home country, Belarus. This resulted in her not receiving the respondent's submissions, which were sent to the email address recorded as the address for service on the Notice of Appeal. To enable her to respond, when a further oral hearing was both difficult and disproportionately expensive, Ms Frailing was given the opportunity to reply in writing to the respondent's submissions. She provided a lengthy written submission, much of it repeating what she had said at the hearing.
The relevant legislation
The first charge was brought under s 16(6) of the Criminal Investigation (Identifying People) Act. Under s 16(2), if a police officer reasonably suspects that a person whose personal details are unknown to the officer has committed or is committing or is about to commit an offence the officer may request the person to give the officer any or all of the person's personal details. Personal details are defined in s 16(1) to mean the person's full name; the person's date of birth; the address of where the person is living; the address of where the person usually lives. If an officer reasonably suspects that a personal detail given in response to a request is false, the officer may request the person to produce evidence of the correctness of the details.[4] A person who, without reasonable excuse, does not comply with a request commits an offence.[5]
[4] Criminal Investigation (Identifying People) Act 2006 (WA), s 16(3).
[5] Criminal Investigation (Identifying People) Act 2006 (WA), s 16(6).
The police powers in investigating offences are set out in detail in the Criminal Investigation Act 2006 (WA). An officer who believes a person has anything relevant to an offence in their possession or under their control may do a basic search or strip search of the person.[6] Relevantly, the searcher may search anything being carried by or under the immediate control of the person.[7] Before doing a search, the officer must, if reasonably practical:
(a)identify himself or herself to the 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.[8]
[6] Criminal Investigation (Identifying People) Act 2006 (WA), s 68.
[7] Criminal Investigation (Identifying People) Act 2006 (WA), s 65(2)(b).
[8] Criminal Investigation (Identifying People) Act 2006 (WA), s 70.
A person in custody after arrest may also be searched for security risk items.[9]
[9] Criminal Investigation (Identifying People) Act 2006 (WA), s 135.
Ms Frailing was also charged under s 172(2) of the Criminal Code, which provides that a person who obstructs a public officer in the performance of the officer's functions commits a crime.
The trial and the magistrate's findings of fact
The trial was conducted over three days - on 4 and 5 December 2017, and resumed on 16 July 2018 when Ms Frailing completed her evidence (the cross‑examination), Mr Frailing testified, the parties made closing submissions, and the magistrate gave his reasons for decision orally.
On the first day of trial, in a very minimalist opening, the prosecutor said
police were called to Centrelink for a matter and the accused has refused her details and, when escorted back to the van, there was a struggle and that is the obstruct, effectively.[10]
[10] Trial ts 3.
Ms Frailing was represented by senior counsel. In opening on behalf of the defence, counsel said that Ms Frailing had 'some basic English' and the issue of language and her understanding would probably be a central issue in the proceedings.[11] The defence would also submit that the attempt by the police to seize Ms Frailing's handbag was not authorised, and that 'anything that occurred following the unauthorised seizure of her bag was not justified and the police were acting beyond their authority'.[12]
[11] Trial ts 3 ‑ 4.
[12] Trial ts 6.
In support of the allegations in the charges, the prosecution called two officers of Centrelink, and the three police officers who attended. The prosecution also adduced physical evidence, including CCTV recordings from the Centrelink office, and recordings and transcript of Ms Frailing's interaction with the police after she was taken to the Mirrabooka police station and before her release on bail.
The evidence
Some matters were not in dispute. The charges arose from an incident on 20 May 2016 at a Centrelink office in Innaloo. Ms Frailing attended Centrelink to inquire about her husband's Centrelink payments. Ms Frailing was concerned about benefit payments being stopped when, although her husband had found employment, he would not be paid for about seven weeks.
Ms Frailing attended at a very busy time. She was spoken to by a Centrelink officer, Ms Taylor. Another Centrelink officer at another location had access to the Frailing file: that officer relayed information to Ms Taylor who attempted to pass it on to Ms Frailing.
Ms Taylor was the first witness. She said that she explained to Ms Frailing that she had no entitlement at that time to a Centrelink payment because her husband was now employed. She said Ms Frailing 'was very angry and started yelling that her ‑ that she needed money for her children and that her husband was lying to us'.[13] Ms Taylor described Ms Frailing as very loud and said her behaviour was disruptive in the office. The office manager then came over to see what was going on. Ms Taylor said that she told Ms Frailing that Centrelink could not assist her until they had spoken to her husband. Ms Taylor then terminated the interview.
[13] Trial ts 9.
The manger asked Ms Frailing to leave, and told her that if she did not leave the police would attend.
Ms Taylor said that Ms Frailing was still very angry and yelling. Someone pressed a duress alarm. Ms Frailing said she was not leaving, sat down on a chair and called someone on her mobile phone.[14] Ms Taylor recalled that Ms Frailing said 'I want information in my language', although by that time she had spoken to Ms Frailing for 20 to 30 minutes in English and did not believe there was an issue with Ms Frailing's understanding.[15] She said that Ms Frailing had not asked her for an interpreter.[16]
[14] Trial ts 13.
[15] Trial ts 13.
[16] Trial ts 29.
The primary area of dispute was about what happened when the police arrived.
The first police officer, and the one who dealt directly with Ms Frailing, was Sgt MacKay. Relevantly, Sgt MacKay said that when he approached Ms Frailing she was speaking on the phone. He described her as speaking 'clear and concise English', although with 'some European accent'.[17]
[17] Trial ts 50.
Sgt MacKay said he asked Ms Frailing to complete her call. Ms Frailing passed the phone to him and he tried to speak to the person on the other end of the call, but it was disconnected. He continued:
I then introduced myself to the accused and requested she provide her name so that at least I could address her by her name. The accused ignored that request and then just started explaining why she had attended the Centrelink office on that day. I explained to the accused that police had been called to the premises due to her being reported to be behaving in a disorderly manner by being abusive towards the staff at Centrelink, and that she had further refused to leave the premises. I said to the accused, 'What is your name?'
…
The accused ignored that request, and then she started talking about how she had been treated by the Centrelink staff … And then I said to the accused, 'What is your surname?' and she replied, 'Brown.' And, due to the manner in which she declared this name, I suspected it to be false. And I said to the accused that I have a lawful requirement to obtain her personal particulars.[18]
[18] Trial ts 50.
Sgt MacKay said that he asked Ms Frailing if she had any identification. She said she did not. He then asked her to come with him out of the Centrelink office. Outside, he again asked her name and she did not give it. Sgt MacKay said he told Ms Frailing that if she refused to provide her personal details, she would be arrested, and police would have a lawful right to search her handbag to confirm her identity. He again asked her name and she refused to give it. He asked if he could have her handbag. She said no. He then advised her that she was under arrest for failing to provide her personal particulars.[19]
[19] Trial ts 51.
Sgt MacKay said that Ms Frailing resisted her handbag being taken from her and struggled against being placed in the police van. Ms Frailing was handcuffed before entering the van.[20]
[20] Trial ts 51 ‑ 52.
At the police station, a Russian interpreter was engaged over the telephone, but Ms Frailing then said she did not require his services.[21]
[21] Trial ts 52 ‑ 53.
Sgt MacKay was cross‑examined at length. In particular (having regard to ground 4), he was asked whether he called Ms Frailing 'Natasha'. He denied that he did. Sgt MacKay also said, in cross‑examination, that before attempting to search Ms Frailing's handbag he was satisfied that she had committed the offence of failing to provide personal particulars, and that he believed she had some personal identification in the bag. He said his belief was based on experience and Ms Frailing's response when asked for identification. [22]
[22] Trial ts 60.
The second police witness, Constable Juckes, said that it appeared to him that Ms Frailing was initially ignoring the police presence. Constable Juckes said he heard Sgt MacKay ask Ms Frailing for her name, and 'she didn't say anything about her name. She just started to speak about why she was at Centrelink in the first place'.[23]
[23] Trial ts 99.
Constable Juckes said that Sgt MacKay explained to Ms Frailing why the police were there. He again asked for her name, and Ms Frailing said, 'brown'. Constable Juckes continued:
Then Sergeant MacKay explained to the accused that it would be an offence to not provide her identifying particulars, namely, her full name, and that if she did not, she could subsequently be arrested, conveyed to Mirrabooka Police Station and charged with failure to provide personal details.
And how did she respond to that?---Again, she refused to give her name.
So when you say 'refused', what do you mean by that?---When I say 'refused', I mean she basically ignored that request….She didn't reply.[24]
[24] Trial ts 99.
Constable Juckes said that he heard Sgt MacKay ask if Ms Frailing had identification, and Ms Frailing said, 'No'. She was then asked to accompany the police outside, where Sgt MacKay again asked Ms Frailing for her name and she did not give it. Constable Juckes continued:
And then once again, Sergeant MacKay explained in detail that she needed to provide her full name and that if she didn't she would be committing an offence and could ultimately be arrested, conveyed to Mirrabooka Police Station and charged with failure to provide personal details.[25]
[25] Trial ts 100.
He said Sgt MacKay then arrested Ms Frailing. A short time later, Sgt MacKay asked him to get Ms Frailing's handbag. Constable Juckes asked for it, but Ms Frailing said no. He attempted to take it and she maintained a tight grip on it and started screaming for help.[26] Ms Frailing struggled. She was handcuffed, and placed into the police vehicle.
[26] Trial ts 101.
Constable Juckes searched Ms Frailing's handbag, which contained her driver's licence.
In cross‑examination, Constable Juckes denied that he was given Ms Frailing's name and address by the Centrelink manager when the police arrived.[27]
[27] Trial ts 116.
Constable Juckes said that Ms Frailing was speaking in English, and had an accent. He was not concerned that she did not understand what Sgt McKay was talking about, but thought Ms Frailing was just emotional.[28]
[28] Trial ts 117.
Constable Juckes said that he heard Ms Frailing give the name Brown, and thought it was false.
Constable Juckes was cross‑examined in detail about his observation of Ms Frailing's ability to speak English. He said, 'Until we got to the station and she declared that she didn't speak English, I didn't think it was an issue'.[29] He did not hear Ms Frailing ask for an interpreter while in the Centrelink office.
[29] Trial ts 123.
Constable Juckes was asked whether he heard Sgt MacKay call Ms Frailing 'Natasha', and said he did not. He did not recall Ms Frailing hyperventilating and saying that she needed a doctor: he said that he thought he would remember that (if it had happened).[30]
[30] Trial ts 126.
The last of the police witnesses was Constable Bowling. Her evidence‑in‑chief was largely consistent with the evidence of the other police officers.
In cross‑examination, by reference to the recording from CCTV within the Centrelink office, it was established that the Centrelink manager gave a note of some kind to Constable Bowling, and she passed it on to Sgt MacKay.[31] Constable Bowling did not remember being given the note but accepted that was what the CCTV showed. She was asked whether the note contained Ms Frailing's personal details, but she could not remember the note or what it said.
[31] Trial ts 163.
The evidence also included both video and audio of Ms Frailing at the Mirrabooka police station. Reference was made in the course of the trial to transcript of the audio recording from the police station. Relevantly, Ms Frailing rang another parent from her children's school to ask for help in having her children picked up from school. Her side of that conversation was recorded and a transcript was in evidence.
The other Centrelink officer to testify, Ms Whiteaker, had not seen the events on 20 May 2016. She had been responsible for liaising with the police and Centrelink security about the release of the CCTV coverage from the cameras at the Centrelink office. Discs with coverage of the day were tendered and played through Ms Whiteaker.
None of the video footage showed events in the area outside the Centrelink office where Ms Frailing complains she was badly treated by the police. There was an external camera. Ms Whiteaker said that she was not aware that Sgt MacKay had asked the office manager for a copy of CCTV footage from the external camera.
Ms Frailing testified through an interpreter (not the same interpreter as for the appeal).
Ms Frailing said that she had taught herself some English, and her husband (who is English speaking) had taught her some. She first went to an English speaking country in 2009, when she and her husband came to Australia.
In Australia, she tried to attend English classes for migrants, but with young children missed out on so much that she gave up. She attended for one or two months, about two times a week for one or two hours. [32]
[32] Trial ts 178 - 179.
In 2013, Ms Frailing returned to Belarus and stayed there for a year.
Mr Frailing is an engineer, and worked on a fly-in fly-out basis at a mine in central Australia. Ms Frailing said that she worked on her English by talking to her husband on the phone while he was away at work.[33] Ms Frailing said that she had no Australian friends. She could communicate with her children's teachers at school, but it was difficult.[34]
[33] Trial ts 182.
[34] Trial ts 182 - 183.
Ms Frailing testified about the difficulties she and her husband had with Centrelink. She said that, on 17 May 2016, she received a phone call from Centrelink, asking for her husband. Her husband was at work. The Centrelink officer gave her some information about going online to fix the issue with Centrelink payments, but Ms Frailing was not sure what was required.[35]
[35] Trial ts 186 ‑ 187.
Ms Frailing also gave evidence about a letter from Centrelink which was sent to an address in Baldivis. She said that they did not receive the letter because at the time they were living sometimes in Baldivis and sometimes in Lancelin.[36]
[36] Trial ts 188.
Ms Frailing gave evidence about her conversation with Ms Taylor at the Centrelink office. She said Ms Taylor came out and asked for Gary Frailing. Ms Frailing said, in answer to questions from her counsel:
I got up and said 'I'm his wife.' And she said, 'No, I need to ‑ I need Gary Frailing.' And I told her that he's at work. So then I told her that I came in, in regards to the phone call I received, and you know, that my ‑ that my payment was stopped and from what I understood, that it might have been a mistake that it was stopped.
She started speaking to someone she had on - she ‑ through the microphone or through the headphones.
She was shaking her head. She was talking ‑ she was talking something but I didn't understand what she was saying.[37]…
[37] Trial ts 195.
Ms Frailing said that after a while, she asked Ms Taylor to write down whatever she was saying on a piece of paper because she wanted to email it to her husband. Ms Taylor did not agree and at that stage Ms Frailing asked for an interpreter. It was then that the Centrelink manager joined the conversation.[38]
And I asked him, you know, to write down everything he's telling me on the piece of paper, because like previously, you know, he said one thing but in the end something else happened, so I want him to write it down because he's saying one thing, but then in the end it happens different ‑ in a different way. Because one Centrelink ‑ well, staff member of Centrelink says one thing and another one says another thing.[39]
[38] Trial ts 196.
[39] Trial ts 197.
Ms Frailing said the manager then kept repeating, 'Leave the premises'. That is when Ms Frailing rang her husband. She testified that she also was then asking for a translator.
Ms Frailing said that when the police arrived, she was speaking to her husband on the phone (in English). She said that Sgt MacKay spoke to her, and she understood that he was asking what happened, and she started to tell him what had happened at Centrelink.[40] Sgt MacKay asked her to go outside. She said that he asked her for some identification that she understood that to mean her passport; she was not carrying her passport.[41]
[40] Trial ts 202.
[41] Trial ts 204.
Ms Frailing agreed that she answered, 'brown' to a question from Sgt MacKay but said she understood he was asking how she was feeling. She did not think that he would be asking for her name because he had it already.[42] Ms Frailing said she answered 'brown' because that described her mood. Ms Frailing denied that she deliberately was trying to give the police a false name, and believed that they would already have her details because she was at a government office.[43]
[42] Trial ts 205.
[43] Trial ts 206.
She said she did not give Sgt MacKay her driver's licence because she did not understand that he had asked for that sort of identification.[44]
[44] Trial ts 207 ‑ 208.
Ms Frailing continued:
he asked me twice for identification. And, then, from - from what I understood and I heard the word 'handbag', you know, that he was assuming that I was - I was reaching to my handbag or I - you know, I just heard the word 'handbag' and then he was screaming, 'You're arrested.' … after he had said 'you're arrested', said he was ‑ he got very angry. So he ‑ his eyes were red. I don't know ‑ I don't know why, but he was quite angry. And I just remember his hands or his arms over me. And he was screaming, 'Natasha. Natasha.' [45]
[45] Trail ts 208.
Ms Frailing said that three police officers then started pulling her handbag out of her hands. She felt unsafe and started calling for help.[46]
[46] Trial ts 209.
Ms Frailing denied resisting the police. She said that she started to get very upset and it was difficult for her to breathe. She asked for a doctor but the police officers ignored her. She said that they also ignored her when she complained that the handcuffs were too tight.[47]
[47] Trial ts 211-212.
In cross-examination, Ms Frailing agreed that she understood the words 'surname' and 'name', but said that she was not asked for her name.[48] She agreed that she was asked for identification, but said she did not understand what was meant by that request.
[48] Trial ts (16.07.18), 11. The numbering of the transcript on the final day of trial does not continue from the first two days.
Mr Frailing also gave evidence for the defence, including about the capacity of his wife to speak and understand English. His evidence was very limited.
The court, by consent, received a report prepared by a private investigator. The court also received some additional CCTV footage of the Centrelink office.
The decision of the magistrate
The magistrate delivered oral reasons immediately following closing addresses. He had heard most of the evidence, including Ms Frailing's evidence‑in‑chief, six months earlier.
His Honour summarised the evidence of the witnesses. He identified the central issue raised by the defence: because of her level of understanding of English, Ms Frailing did not understand what was required of her when the police requested her to provide her name and to provide identification.[49] She had not given a false name, but had misunderstood what was asked of her. Ms Frailing had also contended that she was confident that the police had her name, both because she was in a government office and because she saw the Centrelink manager pass a note to the police and thought her name would be on it.[50]
[49] Trial ts (16.07.18), 56.
[50] Trial ts (16.07.18), 56.
The magistrate identified facts that were not in dispute, none of which was central to the determination of the charges, and the matters that were in dispute. In particular, his Honour identified the following issues for decision:
(1)whether Ms Frailing's behaviour in Centrelink was disorderly and whether she refused to leave;
(2)whether Ms Frailing understood the questions when she was asked for her name and if she had identification;
(3)whether the police asked Ms Frailing to provide her personal details;
(4)whether the police were lawfully entitled to make that request;
(5)whether Ms Frailing gave a false name, or misunderstood the question;
(6)whether the police were lawfully empowered to arrest Ms Frailing and seize her handbag.
The magistrate found Ms Taylor to be a credible and reliable witness. He accepted her evidence that Ms Frailing became very loud and was yelling in the Centrelink office, leading Ms Taylor to terminate the interview.[51] His Honour also found that Ms Frailing was communicating sufficiently in English and that Ms Taylor did not have difficulty communicating with her.[52]
[51] Trial ts (16.07.18) 58 ‑ 59.
[52] Trial ts (16.07.18) 60 - 61.
His Honour observed that the recording from the CCTV cameras inside the Centrelink office (which did not have audio) showed the Centrelink manager gesturing a number of times towards the door, requesting Ms Frailing to leave.[53]
[53] Trial ts (16.07.18) 59 - 60.
The recording also showed Sgt McKay arrive and sit next to Ms Frailing. Ms Frailing could be seen talking animatedly, before she went outside with the police.
There was no visual recording of what occurred outside.
Critically, the magistrate accepted the evidence of the police witnesses, which he set out in some detail. He found Sgt MacKay to be both credible and reliable. His Honour also accepted the evidence of the other two police officers, which in material respects corroborated the evidence of Sgt MacKay. His Honour referred to differences in detail between the evidence of the witnesses - for example, whether Sgt MacKay used the word 'name' or 'surname' - but did not regard the differences as material.
The magistrate did not find Ms Frailing to be a credible witness. He gave detailed reasons for why he did not believe aspects of her evidence.[54]
[54] Trial ts (16.07.18) 68 ‑ 78.
In finding that the police asked Ms Frailing for her name, and that she did not give it, his Honour said:
I don't accept for one minute that she did not understand, 'What is your name?' in English. I accept that she is from Belarus. I accept that English is her second language. I accept that she doesn't understand or comprehend English as native English speakers do. I totally accept that. But she can speak English. She has been in Australia since 2009. She speaks English to her husband. She admits that she studied English for one to two months, two times a week for about one to two hours a day when she first arrived.[55]
[55] Trial ts (16.07.18) 69.
The magistrate referred to Mr Frailing's evidence that his wife's comprehension of English was 35%. He referred to Ms Frailing's evidence of her telephone call with Centrelink, and her apparent understanding of what was said. He accepted the evidence of Ms Taylor about being able to speak to Ms Frailing. He accepted the police officers' evidence about their interaction with her.
His Honour placed some importance on the recording (with audio) from the CCTV cameras at the police station at Mirrabooka, where Ms Frailing was able to speak to a friend by telephone to arrange for her children to be collected from school. His Honour said:
That, to me, shows she has got a clear understanding of English. It might not be perfect English. It might not be 100 per cent English. But it's English whereby she can carry on a conversation and it's English whereby she clearly understands what her name is and what the word 'surname' is.[56]
[56] Trial ts (16.07.18) 70.
The magistrate gave further examples of why he did not accept Ms Frailing's evidence.[57] In short, his Honour did not rely on his observations of the witness when she testified - something that would have been very difficult when the evidence was given through an interpreter - but gave detailed reasons for why he found Ms Frailing's evidence to be contradictory and unreliable.
[57] Trial ts (16.07.18) 68 ‑ 78.
Relevantly to the proposed grounds of appeal, his Honour found:
But the majority of her evidence in relation to the material aspects of these charges, I didn't find it to be credible. I don't accept her evidence that Detective MacKay acted like a killer. I don't accept her evidence that he called her Natasha. I don't accept her evidence that she was attacked.[58]
[58] Trial ts (16 07 18) 77.
The magistrate found the evidence of Mr Frailing to be of limited use, and in some respects inconsistent with Ms Frailing's evidence.
The magistrate referred to the investigator's report which had been tendered in the defence. His Honour described it as made up of photographs and CCTV footage from Centrelink. He said, correctly, that the CCTV footage did not show the incident in question.
The magistrate concluded his reasons by setting out the matters on which he was satisfied beyond reasonable doubt. Those findings were sufficient to support the conviction on each charge.
Analysis
The appeal to this court is on the ground of error of law or fact (or both), or miscarriage of justice. The power of the court on appeal is to correct error: 'the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal'.[59]
[59] Norbis v Norbis [1986] HCA 17;(1986) 161 CLR 513, 519. See also CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172, [111]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47;(2000) 203 CLR 194 [14].
The court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance', but it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record.[60] These limitations include the disadvantage that the appellate court has when compared with the magistrate in respect of the evaluation of a witnesses' credibility.
[60] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23].
Credibility was an important element in the trial. The magistrate heard evidence over three days. The prosecution witnesses faced extensive cross‑examination by experienced senior counsel. His Honour made important credibility findings, and gave detailed reasons for those findings. His Honour did not simply rely on the appearances of witnesses but proceeded on the whole of the evidence.
In her grounds of appeal, Ms Frailing asserted that the police evidence was deliberately false.
Critically, Ms Frailing did not directly challenge the finding that she had sufficient understanding of English to understand the questions asked of her. There can be no doubt from her submissions, both at the hearing of the appeal and those filed subsequently, that she does contest that finding. Ms Frailing has not, however, demonstrated that the magistrate was wrong. His Honour's conclusion was based on his positive findings about the credibility of Ms Taylor and the police witnesses, and his finding that he did not believe Ms Frailing on this issue. After reviewing the record of the trial, I am not satisfied that there is any reason to overturn those findings. None of his Honour's findings about the credibility of the witnesses has been shown to be improbable or contrary to the inferences which should properly be drawn from the evidence.
The grounds of appeal
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'.[61] Sgt MacKay said that Ms Frailing told him 'she was sitting there waiting for an interpreter'.[62]
[61] Trial ts 203.
[62] Trail ts 71.
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.[63]
[63] Trial ts 6.
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.[64]
[64] Trial ts 89.
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'.[65] I have examined the report. No error has been shown in his Honour's treatment of it.
Ground 9
[65] Trial ts (16.07.18) 78.
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.[66] 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.[67]
[66] Trial ts (16.07.18) 12.
[67] Trial ts (16.07.18) 74 - 75, 80.
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.[68] 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.
[68] Trial ts 183.
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.[69] There is nothing to show that her evidence was misunderstood in the way she has suggested.
[69] Trial ts 192 -193.
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.
Conclusion
None of the grounds of appeal has any merit. The appellant has not demonstrated any error of fact or law in the decision of the magistrate. Nor has she shown a miscarriage of justice.
Leave should be refused on all grounds and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson10 MAY 2019
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