Ibrahim v Herring
[2011] WASCA 266
•13 DECEMBER 2011
IBRAHIM -v- HERRING [2011] WASCA 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 266 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:133/2010 | 20 SEPTEMBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA J | 13/12/11 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused on all grounds Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MOHAMED TAREK IBRAHIM RAL HERRING |
Catchwords: | Criminal law Appeal against conviction Road Traffic Code 2000 (WA) offences Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 18, s 27 Road Traffic Code 2000 (WA), s 73, s 111, s 126 |
Case References: | Ibrahim v Herring [2008] WASC 91 Ibrahim v Herring [2010] WASC 190 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IBRAHIM -v- HERRING [2011] WASCA 266 CORAM : McLURE P
- BUSS JA
MAZZA J
- Appellant
AND
RAL HERRING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
Citation : IBRAHIM -v- HERRING [2010] WASC 190
File No : SJA 1091 of 2009
Catchwords:
Criminal law - Appeal against conviction - Road Traffic Code 2000 (WA) offences - Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 18, s 27
Road Traffic Code 2000 (WA), s 73, s 111, s 126
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ibrahim v Herring [2008] WASC 91
Ibrahim v Herring [2010] WASC 190
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
(Page 3)
1 JUDGMENT OF THE COURT: This is an application for leave to appeal from Hall J's refusal to grant leave to appeal against the appellant's conviction in the Magistrates Court of two offences under the Road Traffic Code 2000 (WA) (the Code).
2 The convictions arose out of an incident that occurred at the intersection of Wellington and Barrack Streets, Perth (the intersection) on 24 November 2006. The prosecution case was as follows. The appellant had driven east along Wellington Street and stopped at the intersection in the middle lane behind a truck. At the intersection there were three eastbound lanes on Wellington Street. The left-hand lane had an arrow indicating that traffic in that lane could only turn left; the middle lane had arrows indicating that traffic could turn left or proceed straight ahead; and the right-hand lane had an arrow indicating that traffic in that lane could only proceed straight ahead. The appellant's intention was to turn left into Barrack Street onto the bridge over the railway (the bridge). There were delays at the intersection. The appellant pulled out from behind the truck into the right-hand lane on Wellington Street, turned into the northbound right-hand lane on the bridge and then moved into the middle lane, cutting off the truck.
3 After a two-day trial on 16 and 30 July 2009 before Magistrate R Bayly, the appellant was convicted of failing to obey a traffic lane arrow contrary to s 73 of the Code and failing to give way to the truck contrary to s 126(2) of the Code. The appellant was fined $100 for each offence. Section 126(2) provides:
A driver who is moving laterally from any single marked lane or line of traffic shall give way to any vehicle travelling in the same direction as the driver in the marked lane or line of traffic into which the driver is moving.
4 A charge of entering a choked intersection (s 111(1) of the Code) was dismissed.
5 On 28 July 2010, Hall J dismissed the appellant's application for leave to appeal against the convictions: Ibrahim v Herring [2010] WASC 190 (the single judge appeal). The appellant now seeks leave to appeal from the decision of Hall J.
6 There had been an earlier trial in the Magistrates Court (the first trial) at which the appellant was convicted of the three charges. The appellant was successful in his single judge appeal against the convictions (Ibrahim v Herring [2008] WASC 91), which were set aside. The charges were remitted for retrial before a different magistrate.
(Page 4)
7 The appellant is a litigant in person.
The appeal to this court
8 The leave of the Court of Appeal is required for each ground of appeal: Criminal Appeals Act 2004 (WA) s 18(a), s 9(1). The Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 9(2). Further, unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed: Criminal Appeals Act s 9(3).
9 The appellant's application for leave to appeal was first listed for hearing by this coram on 20 May 2011. The appellant failed to appear. In a letter to the appellant dated 23 May 2011, the court referred to a notice sent to him by post on 11 April 2011 advising of the date of the hearing and informed him that as a result of his failure to attend the hearing, the court proposed to deal with his application on the papers.
10 The appellant said he did not receive notice of the hearing on 20 May 2011 and made assertions of impropriety against those who had suggested otherwise. The appellant's application for leave to appeal was relisted for hearing on 20 September 2011.
11 On 13 September 2011, the appellant filed an application for Mazza J to disqualify himself and other orders including that an interstate judge be appointed. Mazza J heard the application on 20 September 2011 and refused to disqualify himself. The hearing proceeded on 20 September 2011. The appellant complained that the application for leave was being considered by a coram of three judges rather than by a single judge whose decision could then be reviewed or appealed. The procedure adopted in this case is that which ordinarily applies in this court in relation to applications for leave to appeal in criminal matters.
12 There were seven grounds of appeal in the single judge appeal, two of which comprised multiple sub-grounds. Those two grounds claim a failure by the magistrate to consider specified matters. The scope and limitations of this ground were not appreciated by the appellant.
13 In order to succeed in his appeal to this court, the appellant must establish that Hall J made an express or implied material error of fact or law in concluding that the grounds of appeal against the decision of the magistrate did not have reasonable prospects of succeeding. An error by
(Page 5)
- Hall J will not be material unless it exposes an arguable error by the magistrate that is capable of affecting the outcome of the trial.
14 The appellant's grounds of appeal to this court contain 47 paragraphs which are an amalgam of grounds of appeal and submissions, many of which overlap. Of the 47 paragraphs, 32 identify express errors of detail said to have been made by Hall J in his reasons for decision. Broadly speaking, the appellant's primary contention is that for a variety of reasons, it was not open as a matter of law or fact for the magistrate to be satisfied beyond reasonable doubt of the appellant's guilt on the two charges of which he was convicted. Particular reliance is placed on inconsistencies in and between the evidence of the two prosecution witnesses, Senior Constable Ral Herring and Constable Lydia Windsor.
15 The appellant gave evidence in his defence and also called Mr Martin Woolley, a traffic systems operations officer from Main Roads Western Australia (Main Roads).
The evidence adduced at trial
16 Many of the appellant's grounds of appeal challenge Hall J's summary (at [9] - [21]) of the evidence. We propose to provide a general overview of the evidence adduced at trial without intruding unnecessarily into areas of controversy. The evidence of Senior Constable Herring was to the following effect. He and Constable Windsor were in an unmarked police car on Wellington Street at approximately 1.20 pm on 24 November 2006. He was driving the police car in an easterly direction on Wellington Street in the left-hand lane. The police car stopped behind another one or two cars at the intersection. The lights were red and the traffic was very heavy.
17 Senior Constable Herring observed the appellant in a white Nissan directly behind a truck in the middle lane on Wellington Street. There were a number of changes of lights before the police car was able to move around the corner onto the Barrack Street bridge. His evidence as to the number of changes of lights is at the centre of one of the controversies.
18 As Senior Constable Herring drove towards the baseline of the traffic lights he observed the appellant's vehicle change lanes from the middle lane of Wellington Street to the right-hand lane marked for travelling straight ahead only. The appellant turned left into the intersection, overtook the truck, went into the right-hand lane on the bridge and then drove into the middle lane in front of the truck. The truck sounded its horn. The appellant stopped his vehicle, got out and walked towards the
(Page 6)
- truck, shouting at the driver. The appellant then got back into his car and, as the traffic cleared, drove off towards Roe Street. Senior Constable Herring engaged the police car's emergency flashing lights and stopped the appellant on Beaufort Street, a short distance away.
19 Constable Windsor's evidence was to the following effect. On 24 November 2006, she was a passenger in the police car driven by Senior Constable Herring. She said the police car had travelled east on Wellington Street and stopped at the intersection in the left-hand lane behind two cars. There was a truck in the middle lane, which was forward of the police car. Behind the truck was a white vehicle. When the traffic lights turned green the police car was unable to move immediately because of the traffic. She noticed Senior Constable Herring looking over his right shoulder. When the police vehicle was able to turn left onto the bridge, she saw the white car pull out from the right-hand lane on the bridge in front of the truck which had turned into the middle lane on the bridge. She then saw the appellant get out of the white car and approach the truck, shouting at the driver.
20 As Hall J observed, the appellant's version of events was remarkably and irreconcilably different from that of the police officers. He said that as he approached the intersection he was originally in the middle lane of Wellington Street but moved into the left-hand lane because of the number of cars in the middle lane. The truck was immediately in front of him in the left-hand lane at the intersection. The truck was stopped behind a yellow car and a red car. When the traffic lights turned green, the yellow and red cars moved quickly around the corner. The truck also moved off very quickly but stopped suddenly after turning onto the bridge. The appellant said he turned behind the truck onto the bridge and had cleared the intersection but felt nervous and anxious about his position. He then indicated to move to the middle lane on the bridge. He moved slowly to the middle lane and as he was passing the truck, saw a gap between the truck and the red car that was in front of it. He said he pointed his finger to the truck driver. He then heard the truck sounding its horn. He said he continued to move forward in the middle lane, noticed the truck move into the middle lane behind him and it again sounded its horn. The truck stopped and its driver left the truck and started to walk towards the appellant. The appellant took his seatbelt off, put his car into neutral and stepped outside the car. He noticed the truck driver staring to his left and then return to the truck. The appellant looked to the left and saw a blue car in which the police officers were sitting. Their car was in front of the red and yellow cars in the left-hand lane on the bridge. He tried to draw the attention of the police officers to the truck driver.
(Page 7)
21 Mr Woolley gave evidence that metal detection wires under the bitumen at traffic lights record the volume of vehicles passing. He produced records relating to the traffic lights controlling the flow of traffic travelling east on Wellington Street at the intersection (exhibit 11). The records show activations in 15-minute intervals. Exhibit 11 showed that between 1.15 pm and 1.30 pm on 24 November 2006 there were 34 activations in the left-hand lane, 78 activations in the middle lane and 51 activations in the right-hand lane.
22 He also produced records relating to the intersection of Wellington Street and William Street. Travelling east along Wellington Street, the William Street intersection is before the Barrack Street intersection. Two lanes on Wellington Street proceeded straight ahead from the William Street intersection. The readings from one of those lanes showed 118 activations in the 1.15 pm - 1.30 pm period on 24 November 2006. The other lane showed zero activations. Mr Woolley testified that the most likely reason for this was that the detection device was damaged due to road works in that area. He did not accept that the total number of vehicles passing to the east along Wellington Street from the William Street intersection was only 118 vehicles.
23 There are three northbound lanes on the bridge. There is another set of traffic lights at the end of the bridge at the intersection with Roe Street. A car park close to, and to the left of, the Roe Street intersection can result in hold ups to traffic flow in the left-hand lanes on the bridge and in Wellington Street. Vehicles in the right-hand lane on the bridge must turn right at Roe Street.
The magistrate's reasons
24 The magistrate delivered his reasons for decision on 6 August 2009. They are recorded in the transcript. The magistrate rejected the appellant's version of the events in question. The magistrate was satisfied beyond reasonable doubt on the evidence of the police officers that (1) the police car in which they were travelling was in the left-hand lane on Wellington Street as it approached the intersection; (2) the appellant's vehicle was behind the truck in the middle lane at the intersection; (3) the appellant moved his car into the right-hand lane on Wellington Street and then executed a left-hand turn into the right-hand lane on the bridge; (4) the appellant moved his car from the right-hand lane to the middle lane on the bridge, cutting off the truck; (5) the truck driver blew his horn following which the appellant stopped his car on the bridge, got out and remonstrated with the truck driver.
(Page 8)
25 In relation to the traffic count figures (exhibit 11) the magistrate said:
Much has been made by the [appellant] of the traffic count on Wellington Street between 1.15 and 1.30. I don't accept such evidence means the evidence of the police officers is unreliable. All it means, putting the evidence at its highest, is that Constable Herring was wrong as to how long he waits at the Wellington Street lights before he turns left into Barrack Street. This is very much, in my view, a collateral issue (6/8/09, ts 15).
26 During the course of their evidence in the Magistrates Court, Senior Constable Herring and Constable Windsor did drawings on paper and on a whiteboard showing where things happened on and around the bridge. Digital photographs were taken of the drawings on the whiteboard but were not tendered in evidence. The appellant was unable to positively identify documents kept with the exhibits as being the digital photographs of the whiteboard. The paper drawings were also not tendered in evidence. For the purposes of this appeal, the court is solely reliant on the trial transcript and the exhibits tendered in evidence.
An overview of the issues and outcomes at trial
27 As a result of admissions made by the appellant, the unchallenged evidence established that around 1.20 pm on 24 November 2006, the appellant, driving east along Wellington Street, had stopped at the intersection directly behind a truck; at all material times the appellant's intention was to turn left onto the Barrack Street bridge; the appellant turned left at the intersection, came to a stop in the middle lane of the bridge and got out of his car; the appellant's car was now immediately in front of the truck it had been behind in Wellington Street at the intersection; the conduct of the driver of the truck was what caused the appellant to get out of his car on the bridge; after leaving Wellington Street and before stopping on the bridge, the appellant's car passed the truck on its right-hand side; Senior Constable Herring and Constable Windsor were in an unmarked police car in the left-hand lane on the bridge when the appellant's car stopped and he got out; the appellant stopped his car in Beaufort Street at the direction of the police officers and he was taken to the police station.
28 The magistrate was presented at the trial with two directly conflicting, irreconcilable versions of how it came to be that the appellant was directly behind the truck at the traffic lights on Wellington Street and shortly thereafter, directly in front of the truck in the middle lane on the bridge. Against the uncontested factual background, the pivotal factual issue was whether the appellant's car and the truck were in the left-hand
(Page 9)
- lane or the middle lane on Wellington Street at the intersection traffic lights and the closely linked question of whether the police car was in the left-hand lane on Wellington Street adjacent to or near the truck and the appellant's car in the middle lane.
29 The two versions were so markedly different on the essential issues that the rejected version could not possibly have resulted from an honest but mistaken recollection of events.
30 The magistrate rejected the appellant's version of events. In particular, he rejected the appellant's evidence that the truck and the appellant's car entered the intersection from the left-hand lane in Wellington Street; that the unmarked police car containing Officers Herring and Windsor was not on Wellington Street at the same time as the appellant's car and the truck; and that the truck driver got out of his vehicle on the bridge. The magistrate's rejection of the appellant's version of events was dependent in part on his assessment of the appellant's credibility together with the objective circumstances and probabilities. There is no arguable basis to challenge the magistrate's rejection of his version of events.
Change of lane on bridge - Inconsistency in police officers' evidence (grounds 1, 26 and 34)
31 The appellant contends that inconsistencies between the evidence of Senior Constable Herring and that of Constable Windsor on the change of lane charge were such as to undermine the honesty or at least the reliability of their evidence so that it was not open to the magistrate to be satisfied beyond reasonable doubt of the appellant's guilt.
32 The alleged inconsistency relates to the location on the bridge at which the appellant moved from the right-hand lane to the middle lane. This was the subject of ground 4 of the single judge appeal. Hall J erroneously focused his attention on the evidence relating to the location of the police car on the bridge when its occupants saw the appellant change lanes. The correct focus is on the evidence relating to the location of the appellant's car and the truck at the relevant time.
33 Senior Constable Herring's evidence was that the appellant's car was in the right-hand lane at the southern edge of the bridge when it moved to the middle lane of the bridge. His evidence-in-chief is as follows:
I was in Barrack Street, just around the corner [from Wellington Street].
(Page 10)
- Yes?---Then I saw the same white Nissan. He was in the right-most lane, travelling north on Barrack Street.
Well, how many lanes are there travelling north in Barrack Street?---There's three lanes travelling north on Barrack Street and one lane travelling south.
Yes?---The Nissan changed lanes abruptly in front of the truck, to take up the one car space that was available.
So [he] went into the middle lane?---Into the middle lane.
Yes?---Then I heard the truck sound his horn.
Yes?---And I looked over, to see the [appellant] step out of his car.
Yes?---He went back to the truck driver and shouted towards the driver and the truck was unable to clear the intersection. He was within it, halfway around the corner (16/7/09, ts 6).
- See also (16/7/09, ts 10, 22 - 23).
34 Constable Windsor gave evidence that as the police car and the truck turned left at the intersection, Senior Constable Herring kept looking over his right shoulder. As the police car turned left, it proceeded to approximately where the Blue Cat bus stop was (30/7/09, ts 4). She continued:
The truck turned in the centre lane and was going to pull in the intersection. It was quite a large truck … [As] we turned, Senior Constable Herring was looking over his right shoulder and then I saw a white car coming from this lane in front of the truck (30/7/09, ts 4).
35 Her evidence was that she saw the appellant's car come from the right-hand lane on the bridge to the middle lane in front of the truck (30/7/09, ts 4).
36 Much of the appellant's cross-examination of Constable Windsor on this subject relates to the location of the police car. It is also difficult to follow that part of the cross-examination relating to her evidence given at the first trial and drawings not in evidence. The cross-examination continued:
Now, where do you say approximately from the corner of Wellington
Street that - how far is the distance when I moved in front of that truck? Is it one or two or three car-lengths from the corner of Wellington Street with the bridge---I would say---
Well, four or five or - - - ?---I can't say the metres.
(Page 11)
- Was my car exactly about to the Blue Cat stop?---No, no. I said that it was (indistinct) Cat stop. So our car was there and there was the truck there and that was behind us, but it wasn't (indistinct) and your car---
Yeah---
You know, there (indistinct)
So my car was almost in front of the Blue Cat?---No, I think it was behind.
Behind the Blue Cat?---It was in the vicinity of the Blue Cat stop. It wasn't---
Was it right on the intersection or near the - was it near the intersection of Wellington and - was it near the intersection of Wellington Street and the bridge? When I moved to the lane, was it---?---Yes you were into - it was - you were not - you - we definitely moved up past the Blue Cat stop.
Okay?---It was---
It was not in the corner. It was not in the intersection or near the intersection of Wellington and---?---it was past the intersection, if that is the question.
…
So when you saw the truck, was he partially inside the intersection like you draw it?---Well, it was turning slowly, because I remember looking at the truck, because I was trying to see past the truck to see what was going on.
No, when he stopped and I came out to shout at the truck like he claim, was he partially in the intersection or was he---?---I can't recall if he was still in the intersection (30/7/09, ts 27 - 28).
37 The witness estimated that the bridge was about 40m - 50 m long (30/7/09, ts 12) and that the Blue Cat stop was possibly 18 m to 20 m from the Wellington Street intersection (30/7/09, ts 15).
38 It is difficult to identify with precision the actual inconsistency in the police officers' evidence relating to the location of the change of lanes on the bridge. At its highest, it is the distance between the southern end of the bridge and behind or near the Blue Cat stop. Inconsistencies on matters of detail are to be expected. On any view, the difference is not material. It falls well short of requiring or justifying a finding of dishonesty or unreliability preventing a finding beyond reasonable doubt of the material elements of the offences under s 126(2) or s 73 of the Code. These grounds have no reasonable prospect of success.
(Page 12)
Change of lanes - Herring's evidence (grounds 2 and 26)
39 The appellant claims that Senior Constable Herring's evidence of how the appellant changed lanes in front of the truck was logically impossible and that the magistrate and Hall J erred in failing to so conclude. This ground depends upon accepting the appellant's assertion that Senior Constable Herring's evidence was to the effect that the appellant's car remained in the same (north - south) position on the southern end of the bridge before and after moving from the right-hand lane to the centre lane.
40 Senior Constable Herring's evidence-in-chief was that the truck was trying to clear the intersection when the appellant's car pulled in front of it, the truck being on a 45-degree angle across the intersection (16/7/09, ts 9).
41 In cross-examination, Senior Constable Herring agreed that the appellant moved from the right-hand lane in front of the truck on the southern end of the bridge, not in the middle (16/7/09, ts 23). The cross-examination continued:
We established or agreed that there was a space vacant on the far right lane and that's the space that I took when I turned, according to your story. So when you stated now that my car was the last - you stated that my car was the last car in the middle lane. That was not true, is that correct, because I can't move sideways. The car can't move sideways. It has to go forward at an angle then go straight. Is that correct?---To change lanes?
Yeah---You're talking about when you were in Roe Street?
Yeah, when I was in the last space in the right hand lane over the bridge, to move to the middle lane, I need to move in an angle until I establish myself in that place?---Exactly.
Is that correct?---Yes.
So my position was not the last car in the middle lane anymore---No - - -
Was it the last one or one and a half space after that person's space---No, your car wasn't in the lane. It was and then you moved directly to the centre lane.
I moved to the centre lane. So that vacated about two spaces of cars?---No, no, no.
You can't just move one space of car. The cars don't do that. Your Honour, I don't know how I can explain (indistinct)
(Page 13)
- …
When the - my car was there. In order for me to move to that place, the car goes like this and goes like this?---Okay.
So for me to move from the last position in the far lane over the bridge into the centre lane, I need to move like this and get like that. So if that's the case, at least about one or two spaces, if not two and a half spaces, until I get myself straight?---No, I disagree. I don't think you were that far into the lane.
Well, that's what your story says, not me?---I remember the position of the car where you started was actually on the pedestrian walkway in the intersection, not actually in the lane (16/7/09, ts 59 - 60).
42 Senior Constable Herring said the police car was stopped one car length from the corner of the intersection when the appellant's car stopped next to it in the middle lane on the bridge and the appellant got out (16/7/09, ts 61). The cross-examination continued:
So I came here, not here?---Yeah, I said one car length from the corner.
Okay. By the time I get here from here, it takes about seven - eight metres. I take up one car (indistinct)?---I didn't say exactly. It might be six metres. I don't know. It's a car length difference.
Okay?---I can only put a car space in a car space.
Alright. So - - - ?---I can (indistinct).
---It's your story again here and I was here and I moved here and the truck was coming here?---As I turned around the corner, the truck was turning. So I could see that the truck had space to actually move into the lane. The truck was moving when I turned the corner.
I just can't deal with this amount of lies, your Honour. I just can't deal with it (16/7/09, ts 61 - 62).
43 One thing is clear from the cross-examination. Senior Constable Herring did not accept the appellant's proposition that his evidence was to the effect that the appellant's car moved sideways (without going forward) to change from the right-hand lane to the middle lane on the bridge. These grounds have no reasonable prospect of success.
Alleged inconsistencies in Constable Windsor's evidence (grounds 1, 3 and 19)
44 The appellant claims the magistrate erred in failing to find that Constable Windsor gave inconsistent evidence in the first and second
(Page 14)
- trials which demonstrated that her testimony was fabricated. He claims Hall J erred in failing to so find.
45 The appellant contends that Constable Windsor stated in the first trial that she did not see anything when asked about the change of lanes and in the second trial gave evidence that she did witness the change of lanes.
46 The appellant's cross-examination of Constable Windsor relating to her evidence at the first trial on the subject of the change of lanes is at ts 7 - 11, 25 - 26 (30/7/09). The most relevant cross-examination is at ts 10 and 11. That cross-examination was not completed because the appellant was unable to identify all relevant parts of the transcript of the first trial. He returned to the subject at ts 25 - 26. After referring to part of the transcript, the cross-examination continued:
Now, this - then in this statement, you said that you didn't see anything and you only spoke - after you spoke to Constable Herring about it - whether it's in the same day or later doesn't matter. You became aware of what's happened?---Yes; that's correct, yeah.
But you just now claimed that you saw me turning in the middle lane before the truck?---No, no. What I'm - what I said here was that I didn't see what happened between where we were here and when you kind of turned in front of the truck. So I didn't see your movement in between there and there. That's what I meant that I didn't see (30/7/09, ts 26).
47 The witness was saying that she did not see the appellant moving from the middle lane in Wellington Street (behind the truck) to the right-hand lane in Wellington Street. She was not addressing the appellant's change of lanes on the bridge.
48 The appellant has failed to demonstrate any arguable inconsistency. These grounds are without merit.
Number of traffic light changes/congestion (grounds 4, 5, 7, 8, 12, 15, 17, 22, 24, 25, 27, 28, 29, 30, 31, 32, 33)
49 Stripped to the essentials, the appellant's contentions are that the magistrate erred (and Hall J erred in refusing to accept the appellant's contentions that the magistrate erred): (1) in finding that Senior Constable Herring was wrong as to the number of traffic light changes while the police car was waiting to move into the intersection and onto the bridge; (2) in failing to find that Senior Constable Herring fabricated the evidence as to the number of traffic light changes; (3) in failing to find that the Main Roads data established that the traffic was not congested at or in the vicinity of the intersection at the relevant time; (4) in not accepting that
(Page 15)
- two eastbound lanes at the Wellington/William Street intersection were blocked for road works; and (5) in failing to find that, Senior Constable Herring's evidence concerning the congestion or slowness of traffic at the intersection having been 'invalidated', there was no other evidence to support a finding that the traffic was congested or very heavy.
50 The appellant also contends that Hall J erred in characterising the issue of congestion as a peripheral matter and in limiting its relevance. Hall J's approach to the issue is claimed to demonstrate actual bias. We deal with the bias claim below.
51 Senior Constable Herring's evidence-in-chief was that the traffic was very heavy and that the lights at the intersection changed twice (16/7/09, ts 8). This subject was addressed in cross-examination in which he said the police car pulled up at the intersection at a red light and the lights turned green, red, green, red and the police car turned the corner on the next green light (16/7/09, ts 24).
52 In her evidence-in-chief Constable Windsor said the traffic was reasonably heavy and when the traffic lights at the intersection turned green, the police car did not move straightaway (30/7/09, ts 3). She confirmed in cross-examination that there were a couple of cars in front of the police car on Wellington Street and they (the police car) did not move when the lights turned green (30/7/09, ts 26). The cross-examination continued:
So how - did you skip another set of light or that was the only one that you skipped to - you didn't move straight away? When you didn't move straight away, did you like move eventually in the same green light or it went red and you didn't move?---It was - I would say it's the one light.
One light?---Yes.
So you were the third car and you moved in the one green light, but you didn't move straight away. So you waited for a few seconds and then moved?---We didn't move straight away.
But you moved eventually?---Yes.
In the same green light?---Yes.
Okay?---I would say, yes, I believe it was the one light (30/7/09, ts 27).
53 It is logical to start with the Main Roads data (exhibit 11) concerning traffic flow at the intersection. The appellant contends that exhibit 11 positively establishes the impossibility of Senior Constable Herring's
(Page 16)
- evidence concerning the number of traffic light changes at the intersection. He also claims it establishes that there was no congestion at the intersection at the relevant time (when the police car and the appellant's car were waiting to turn left onto the bridge).
54 The evidence of Mr Woolley was that the traffic lights at the intersection would have taken between 100 seconds - 130 seconds per cycle (red, green and amber); that the lights would be green for around 25 seconds; and that in a 15-minute period there would be approximately seven cycles. When questioned by the appellant as to the average number of vehicles that would pass through the intersection when the light was green, he said he did not think the use of an average figure was appropriate (30/7/09, ts 65). That must be so.
55 Exhibit 11 shows that between 7.00 am and 7.00 pm on 24 November 2006, the number of cars passing in the eastbound left-hand lane at the intersection in any 15-minute period was a minimum of seven and a maximum of 55. In the same period in the eastbound middle lane, there is a minimum of 40 and a maximum of 94 and in the eastbound right-hand lane, a minimum of 30 and a maximum of 106. That compares with 34 (left-hand lane), 78 (middle lane) and 51 (right-hand lane) in the period between 1.15 pm - 1.30 pm on 24 November 2006. The amount of cars passing through the intersection in that period is significantly less than the maximum throughput. Indeed, in the 15 minutes from 1.30 pm on 24 November 2006 there was a significantly higher traffic flow in each of the three eastbound lanes on Wellington Street (50 in the left-hand lane, 90 in the middle lane and 67 in the right-hand lane). That could mean the traffic was flowing faster (that is, it was less congested) than in the previous 15 minutes or that the traffic was heavier. It is impossible to say. There was no evidence as to the maximum traffic flow at the intersection when there is no congestion. There was also no evidence as to the number of vehicles passing through the Barrack Street and Roe Street intersection between 1.15 pm and 1.30 pm on 24 November 2006 to show whether traffic in the middle (northbound) lane on the bridge was also fed from vehicles moving to the middle lane from the left and right-hand lanes.
56 The Main Roads statistics do not compel a conclusion that there was no congestion at the intersection at the relevant time or that Senior Constable Herring's evidence concerning the number of light changes must be wrong. Further, there was no evidence that the truck and the appellant's vehicle arrived at the intersection at the same time as the police car. In any event, Constable Windsor confirmed Senior Constable Herring's evidence that there were delays in the traffic moving through the
(Page 17)
- intersection when the lights turned green. She also confirmed that the truck was slower into the intersection from the middle lane than the police car in the left-hand lane (30/7/09, ts 28).
57 Moreover, even if the Main Roads statistics establish that Senior Constable Herring did not wait at least two full cycles at the traffic lights, that would fall well short of requiring the magistrate to conclude that he had deliberately given false evidence. There is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied. A finding that a person deliberately lied when giving evidence is in effect a finding of perjury and should not be made without confirmatory evidence: Smith v New South Wales Bar Association (1992) 176 CLR 256, 268. The magistrate clearly, positively and properly declined to make such a finding against Senior Constable Herring saying that, at its highest, Senior Constable Herring was wrong as to how long he waited at the intersection (6/8/09, ts 15).
58 Hall J identified Senior Constable Herring's evidence about the number of traffic light changes as relevant to the charge of entering a choked intersection and to the credibility of the witness. The appellant contends it is also relevant to a fact in issue, being the probability of the appellant moving into the right-hand lane from behind the truck and overtaking it into the intersection. That may be so. However, it does not advance the appellant's case in any material way because of the limited facts in issue and the unchallenged evidence of Constable Windsor that there was a hold up in the traffic and that the truck was behind the police car in the movement through the intersection. The issue relating to the number of traffic light changes is correctly characterised as peripheral.
59 These grounds have no reasonable prospect of succeeding.
Traffic from Wellington/William Street intersection (grounds 6, 23 and 27)
60 The appellant contends Hall J erred in not accepting that two lanes at the Wellington/William Street intersection were blocked. The magistrate did not make such a finding. There was no contention in the grounds of appeal in the single judge appeal that the evidence in the second trial required such a finding. Further, the evidence of Mr Woolley was that the detection devices at the Wellington/William Street intersection were not all operating and that the figures passing through that intersection did not reflect the total number of cars between the William Street intersection and the Barrack Street intersection. That explanation is consistent with exhibit 11. These grounds have no reasonable prospect of succeeding.
(Page 18)
Ground 9 - Bias
61 The appellant contends that Hall J was actually biased because he (1) purposely misstated, misinterpreted or twisted several grounds; (2) failed to report the contradictions in the evidence of and between the police officers; (3) made errors in his assessment of the grounds of appeal; (4) was biased against the appellant and in favour of the respondent; (5) 'pretended' to allow the appellant to change a ground of appeal; and (6) continuously interrupted and argued with the appellant in oral submissions.
62 We have read the transcript of the hearing of the single judge appeal and Hall J's reasons. Litigants in person pose particular challenges for the judicial system as a result of their lack of knowledge and understanding of relevant legal principles and rules, substantive and procedural, and their application in practice. Further, it is frequently necessary for judicial officers to question a litigant in person in order to try to secure an understanding of the substance and scope of their actual grievance. It can also be necessary to direct and confine them as they attempt to perform the unfamiliar role of counsel. Hall J (and the magistrate) met the challenges in an entirely proper and appropriate way. Moreover, judicial errors or misunderstandings do not provide an arguable factual foundation for an assertion of actual (or ostensible) bias or other improper conduct: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 [33], [67]. There is no arguable factual foundation for the appellant's claim that the judge was biased. The ground is frivolous and vexatious. It does not merit detailed rebuttal.
Grounds 10 and 45 - interruptions by magistrate
63 Hall J dismissed the appellant's claim that the magistrate unduly interfered with the appellant's presentation of his case. We agree with Hall J that the claim is entirely without merit for the reasons he gives (see [54] - [57]).
Miscellaneous grounds
64 None of the miscellaneous grounds, even if upheld, are arguably capable of affecting the result of the trial or the single judge appeal.
65 Grounds 11, 12, 13, 14, 44 and 47 are just general assertions based on the other grounds alleging specific error.
66 Whether the police car was two or three vehicles from the traffic lights at the intersection is immaterial (ground 16).
(Page 19)
67 The appellant challenges the correctness of Hall J's statement that Senior Constable Herring did not resile from any significant aspect of his evidence in regard to the events of 24 November 2006 (ground 18). We infer that observation relates to the evidence in respect of the charges on which the appellant was convicted. Hall J's assessment is borne out by the record.
68 The appellant contends Hall J erred in reporting in his summary of the evidence (at [15]) that the appellant said he pointed his finger to the truck driver to indicate that he wished to move into the gap (ground 20). That was a finding made by the magistrate and was not the subject of any ground of appeal in the single judge appeal.
69 Hall J states in his reasons (at [16]) that the appellant stepped outside his car on the bridge 'as he thought that the truck may have hit his car'. The appellant says he never said that (ground 21). However, Hall J's statement is consistent with the trial transcript (30/7/09, ts 34).
70 The appellant contends Hall J erred in not accepting that the magistrate should have rejected Senior Constable Herring's evidence that he could see a car on the westbound side of the Wellington/Barrack Street intersection that was indicating an intention to turn right onto the bridge (ground 35). The appellant produced a number of photographs to support the proposition that it would have been impossible for the witness to have seen that car from his position. The alleged error by Hall J does not reflect the ground in the single judge appeal which was that the magistrate erred by not giving adequate consideration to the issue. The appellant wrongly regarded that ground as being, in substance, a claim that the magistrate should have so found on the hypothesis that it would be the automatic outcome of any consideration of the subject. It was clearly open to the magistrate to decline to make a positive finding that it was impossible for the witness to see the car for the reasons given by the witness in his evidence summarised by Hall J in [36].
71 Grounds 36, 37 and 38 concern Senior Constable Herring's evidence relating to the 'marking' of infringement notices. The background is as follows. After the police officers had pulled the appellant over in Beaufort Street, he went with them to the police station. Senior Constable Herring said that he wrote out two infringements at the police station and tried to give them to the appellant who refused to take them, shouted and threw them on the ground. The appellant was then escorted out of the station. Ten days later Senior Constable Herring delivered to the appellant's address two infringement notices, being Infringement 225180
(Page 20)
- and 225183, both dated 4 December 2006. The numbers of the infringements are not sequential. The appellant contends Hall J erred by not referring to that part of the transcript of the first trial where Senior Constable Herring referred to the marking of the intervening infringement notices. There is one exhibit which consists of a few pages of the transcript of the evidence in the first trial. Although it relates to the infringement notices, Senior Constable Herring did not in that transcript expressly state that the intervening infringement notices had been marked. There is no arguable basis for the appellant's assertion that Senior Constable Herring 'was proven to lie in this issue'.
72 Ground 5C in the single judge appeal stated that the original infringement notices 'were no were [sic] to be found'. Hall J said that was a misstatement of the evidence, having regard to Senior Constable Herring's testimony on 16 July 2009 and to a ruling made by the magistrate that he would not require the police officer to undertake any more searches for the book [40] - [42]. According to the appellant's submissions in this appeal, he summonsed the Police Department for the infringement book after the hearing on 16 July 2009 and the police said words to the effect that the book was nowhere to be found. Accepting that the appellant did not misstate the position, the error leads nowhere.
73 The appellant complains of Hall J's use of the word 'pause' in his summary of Senior Constable Herring's evidence on the choked intersection charge (ground 39). This ground lacks merit. The judge was stating the effect of the relevant evidence (16/7/09, ts 28).
74 The appellant contends (ground 40) that Hall J erred in stating that the appellant misstated the evidence in contending that Senior Constable Herring never gave a reason for the non-sequential numbering of the infringement notices when Hall J himself said that the witness 'could not explain' why the infringement notices were not in sequence [45]. In fact the witness did give evidence on the subject (16/7/09, ts 53, 54, 55, 56, 63, 64).
75 Ground 41 is simply an assertion that if the magistrate had taken the credibility of Officers Herring and Windsor into account he would not believe their story. For the reasons given earlier, the claim is without merit.
76 Grounds 42 and 43 deal with the subject of the appellant's address on his licence as at the date of the offences. The gravamen of the complaint is that Hall J did not understand that the appellant's argument was that
(Page 21)
- Senior Constable Herring had lied about the address on the appellant's driver's licence. The appellant said his licence had a Jolimont address on that date but conceded it was not his actual address at the time (30/7/09, ts 38). Senior Constable Herring's evidence was that the appellant's licence on the day had a Kensington address (16/7/09, ts 14 - 16). A letter in evidence from the Department of Planning and Infrastructure produced by the appellant stated that the Licensing Services' computer system indicated the appellant's address was in Kensington as at the date of the offence. The rights or wrongs on this subject are entirely tangential. It is unreasonable to assert that any error made by the police officer should result in a finding that he gave his evidence dishonestly. These grounds are without merit.
77 Ground 46 is to the effect that Hall J erred in not providing reasons for why he found the magistrate did not err by finding him guilty. The appellant provided extensive written submissions in which he set out the evidence and his arguments as to why he should not have been convicted. Hall J rejected them with his conclusion that it was open to the magistrate to be satisfied beyond reasonable doubt of the charges of which the appellant was convicted [58]. Hall J's reasons as a whole provide an adequate background for that conclusion. Even if the reasons were inadequate, that does not necessarily give rise to an appealable error: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 [28], [29]. This court will only intervene if the inadequacy or insufficiency in the reasons is such as to give rise to a miscarriage of justice. There is no miscarriage of justice in this case.
78 The appellant's version of events having been rejected, the only positive evidence before the magistrate was that the truck and the appellant's car were in the middle lane of Wellington Street from which position the appellant's car passed the truck on its right-hand side to be in front of it on the middle lane on the bridge. There was nothing to contradict the evidence of Officers Herring and Windsor whose evidence relating to the elements of the offences was wholly consistent with the unchallenged facts and probabilities. Against that background, the case against the appellant was overwhelming. The matters raised by the appellant in the grounds of appeal are not capable of altering the outcome in the Magistrates Court.
79 Leave to appeal on all grounds should be refused.
3
7
2