Lovell v Fullman
[2011] WASC 312
•18 NOVEMBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LOVELL -v- FULLMAN [2011] WASC 312
CORAM: HALL J
HEARD: 27 JUNE 2011
DELIVERED : 18 NOVEMBER 2011
FILE NO/S: SJA 1014 of 2011
BETWEEN: AVON FRANCIS LOVELL
Appellant
AND
AUBREY FULLMAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S P SHARRATT
File No :JO 11691 of 2007, JO 11694 of 2007
Catchwords:
Criminal law - Appeal against convictions - Failure to provide a breath sample contrary to s 67A(1) and s 67(1) of the Road Traffic Act 1974 (WA) - Refusal to submit to preliminary test on the basis that appellant wished to give blood sample unlawful - No substantial reason for failure to comply - Whether guilty verdict unreasonable or could not be supported on the evidence - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)
Criminal Investigation Act 2006 (WA), s 138
Magistrates Court Act 2004 (WA), s 31
Road Traffic Act 1974 (WA), s 66, s 67, s 67A
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms L A Eddy
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272
Coatz v Webb (1989) 9 MVR 21
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Edwardes v Oliver [1987] WAR 103
Fox v Percy (2003) 214 CLR 118
Harvey v Matthews [1999] WASCA 58
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Rasoolifard v Nicol [2001] WASCA 180
Smart v Albuquerque [2011] WASCA 231
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
HALL J:
Introduction
On 20 January 2011 the appellant was convicted of one charge of failing to provide a sample of his breath for a preliminary test contrary to s 67A(1) of the Road Traffic Act 1974 (WA) and one charge of failing to provide a sample of his breath for analysis contrary to s 67(2) of the same Act. Those convictions followed a trial that took place in the Magistrates Court over four days in 2010 and 2011. The appellant now seeks leave to appeal against those convictions.
The prosecution case
Both offences were alleged to have been committed on the evening of 12 September 2007. At about 6.54 pm, police officers conducting routine traffic patrol duties in Greenwood pulled over a car being driven by the appellant. One of the officers told the appellant that he was required to undergo a preliminary breath test. The appellant declined to do so. This failure is the basis for the charge under s 67A.
The appellant was then required by the police to accompany them to a police station for the purpose of undergoing a breath sample analysis. This is a different and separate requirement from a requirement to undertake a preliminary test. The appellant stated words to the effect that he wished to have a blood test rather than a breath analysis. The police officers then required the appellant to accompany them for the purpose of obtaining a sample of his blood.
The evidence of the police officers was that the appellant refused to go with the police and became agitated and aggressive. He was then restrained and placed into a police van that had been called for the purpose of transporting him. The van took the appellant to Sir Charles Gairdner Hospital. He was there asked to leave the van for the purpose of providing a sample of his blood. According to the evidence of the prosecution witnesses, this request was made by a Triage Nurse from the hospital. The appellant refused to comply. He was then transported to the East Perth Police Station. There he was taken to a room which contained an approved breath analysis apparatus. He was required to provide a sample of his breath for analysis. He declined to do so, saying that he wished to have a blood test. According to the police evidence, the appellant became agitated and accused them of acting against the law. One of the police officers said to the appellant that he had had a chance to provide a blood sample but did not avail himself of it. The failure to provide a sample of his breath for analysis is the basis of the charge under s 67(2).
The grounds of appeal
The appellant has filed lengthy grounds of appeal which were amended both before and during the hearing. In essence, the appellant contends that the magistrate should not have accepted the evidence of the prosecution witnesses. He submits that the credibility of the principal prosecution witnesses was so significantly impaired that it was not open to the magistrate to be satisfied beyond reasonable doubt that the offences were committed.
The appellant further submits that the magistrate failed to take into account that there were substantial reasons for his failure to undergo the preliminary test or provide a sample of his breath for analysis. In particular, he asserts that he was treated unlawfully in that he was not asked to nominate a doctor who he wished to take a sample of his blood, that he was not told of his rights on being arrested and that he was physically impaired by pain and medical conditions from giving a breath sample. The appellant submits that the magistrate failed to give 'due weight' to his evidence that he did not appreciate that the van had stopped at a hospital or his evidence that he was not offered the opportunity to provide a sample of his blood there.
To assert, as the appellant does, that the magistrate erred by accepting the evidence of the police witnesses rather than that of the appellant is not in itself a proper ground of appeal. The appellant's contention, in substance, is that the magistrate ought to have come to a different conclusion on the basis of the evidence before him. Such a contention can only be a proper ground of appeal if what is asserted is that the conclusion reached by the magistrate was contrary to the evidence. This is analogous to saying that the finding of guilt was unreasonable or could not be supported on the evidence.
Where a finding of guilt by a jury is challenged on this basis the question for the appeal court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]. See also M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495. It is not sufficient to show that there was evidence which, if accepted, would have precluded satisfaction of guilt beyond reasonable doubt. This is because it may well have been open to reject that evidence and accept that which led to a conclusion of guilt.
The principles applicable to whether the verdict of a jury is unreasonable or cannot be supported by the evidence apply by analogy to a trial before a magistrate: The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA) (with whom McLure P and Mazza J agreed). See also Harvey v Matthews [1999] WASCA 58 [11]; Rasoolifard v Nicol [2001] WASCA 180 [25]; Anderson v Davis [2009] WASC 38; (2009) 193 A Crim R 272 [79] and Smart v Albuquerque [2011] WASCA 231 [16].
Where the findings of the primary court depend to any substantial degree on the credibility of witnesses it must be borne in mind that the magistrate had the opportunity to both see and hear the witnesses give their evidence. However, findings may be disregarded by an appeal court if the primary court 'has failed to use or has palpably misused' its advantage or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable': Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ); Fox v Percy (2003) 214 CLR 118 [66] (McHugh J); CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 [21] (Kirby J).
The magistrate accepted the evidence of the police officers and the nurse from Sir Charles Gairdner Hospital. In doing so his Honour made findings as to their credibility. It was not necessary for the magistrate to canvas every part of the evidence in his reasons: s 31 Magistrates Court Act 2004 (WA). What was necessary was that he make those findings which were critical to a determination of the matter. There is no indication in the reasons that the magistrate failed to use or palpably misused his advantage in making his assessments of the witnesses.
The contention of the appellant is that the magistrate's findings were based upon evidence which he ought not to have accepted. However, it is not sufficient to assert that there was evidence to the contrary or reasons for rejecting the evidence of the prosecution witnesses. The assessment of the evidence was properly one for the magistrate to make. For the reasons that follow I am unable to conclude that the magistrate's findings were inconsistent with facts incontrovertibly established by the evidence or were glaringly improbable.
The Road Traffic Act 1974 (WA)
The actions of the appellant on the night his car was stopped appear to have been significantly influenced by his understanding of what it was lawful for the police to do. The appellant apparently believed that on being required to undergo a preliminary breath test it was open to him to elect to provide a sample of his blood instead. That belief was wrong.
Section 66(1) of the Road Traffic Act provides that a member of the police force may require the driver of a vehicle to provide a sample of his breath for a preliminary test. A failure to comply with any such requirement is an offence pursuant to s 67A(1). The Act provides no alternative to the driver at that point.
However, if the preliminary test is positive or a person refuses, fails or is unable to provide a sample of breath for a preliminary test, a police officer may make a further requirement under s 66(2) for a person to provide a sample of breath for analysis or to allow a medical practitioner or registered nurse to take a sample of blood and for those purposes may require that the person accompany the police officer to a police station or some other place.
At the relevant time s 66(7) provided that:
A person who might, under the preceding provisions of this section, be required to provide a sample of his breath for analysis or to allow a medical practitioner or registered nurse to take a sample of his blood for analysis may himself require that he be permitted to do either of those things; and a person who has been required to provide a sample of his breath for analysis may himself require that, instead of so doing, he be permitted to allow a medical practitioner or registered nurse nominated by him to take a sample of his blood for analysis.
That provision has since been repealed. However, it was in existence at the relevant time. The reference to 'a sample of breath for analysis' is clearly to be distinguished from the preliminary test. The phrase 'a sample of his breath for analysis' is that used in s 66(2). Accordingly, the opportunity of a person to provide a blood sample rather than a sample of their breath for analysis does not arise at the preliminary test stage.
It should also be noted that s 66(7) is framed such that it is open to a person to require that they be given the opportunity to provide a blood sample to a doctor or nurse of their choice but it does not impose any obligation on the police to proactively seek out a medical practitioner of the person's preference. Where a person does express a wish to give a blood sample instead of a breath sample, s 66(7) allowed for that course to be taken in satisfaction of the requirement of the police that the person provide a sample of their breath for analysis. If, however, the opportunity to provide a blood sample is afforded but then refused, then there has been a failure to comply with the requirement first made: Edwardes v Oliver [1987] WAR 103.
In the present case, the appellant could not lawfully refuse the preliminary test on the basis that he wished to give a sample of his blood. His belief to the contrary provided no substantial reason for failing to comply with the requirement to undergo the preliminary test. Once he had made that refusal he was then required to provide a sample of his breath for analysis and it was open to him under the then existing s 66(7) to require at that stage that he be permitted to give a sample of his blood. Whether that sample was to be provided to a medical practitioner of the appellant's choice depended upon him making a nomination.
There was no suggestion in this case that any nomination was ever made. In those circumstances, the proper course was for the police to take the appellant to a medical practitioner or registered nurse who was authorised to take the sample. That is what occurred. The suggestion by the appellant that the police were obliged to ask him to nominate a doctor was not accepted by the magistrate and is not borne out by the words of the relevant provision.
There was also an issue at the trial as to whether the appellant's failures to submit to a preliminary test or supply a sample of his breath for analysis were justified because he had a substantial reason for failing to comply. In this regard s 67A(5) provides:
It shall be a defence to a prosecution for an offence against this section if the accused satisfies the court that there was some substantial reason for his failure to comply other than a desire to avoid providing information that might be used as evidence.
Section 76(5) is in identical terms.
The burden of proving these defences was on the appellant and the standard of proof was on the balance of probabilities: Coatz v Webb (1989) 9 MVR 21.
Prosecution evidence
In order to assess the merit of a contention that the verdict was unreasonable or could not be supported on the evidence it is necessary to consider the whole of the evidence adduced at the hearing.
Senior Constable Aubrey Fullman
Constable Fullman gave evidence that he was conducting routine traffic patrol duties with Senior Constable Thomason in Greenwood on the evening of 12 September 2007. Constable Fullman observed a vehicle that was swerving within its lane and he activated the emergency lights and siren. The driver turned a corner and came to a stop on a driveway. There was no dispute that the driver was the appellant.
Constable Fullman said that he approached the driver's door and that he could smell some form of alcohol emanating from the vehicle. He asked the appellant if he had had anything to drink that night but there was no reply. Constable Fullman then told the appellant that he was required to undergo a preliminary breath test and explained how this should be conducted. The appellant replied that he did not have to participate as he had done nothing wrong. Constable Fullman said that the appellant talked over him and was not very coherent. The appellant did not blow into the tube as asked nor did he give any reason for failing to do so.
Constable Fullman then asked the appellant to exit the vehicle and accompany the police officers back to the station for a breath test. The appellant replied that he was not going anywhere and that he wanted to provide a sample of his blood. Constable Fullman said that the appellant did not nominate any person that he wanted to take a sample of his blood.
Constable Fullman made arrangements for a second police vehicle to attend at the location. Constables Murphy and Vivarelli arrived a short time later with a police van. Constable Fullman said that the appellant was placed in handcuffs prior to being placed in the van. The van then left, taking the appellant to Sir Charles Gairdner Hospital.
Constables Fullman and Thomason returned to the East Perth Police Station to collect blood kits and then made their way to the hospital. On arrival at the hospital Constable Fullman asked a nurse, Rowena McSkimming, to assist with a blood test. Nurse McSkimming then accompanied him to the van. Constable Fullman said that Nurse McSkimming asked the appellant if he would let the doctors take some blood from him and that the appellant replied 'No way. Get stuffed. You're not taking my blood.' (ts 18) Constable Fullman then informed the appellant that if he did not give blood at that time he would not be able to request it at a later time. The appellant did not respond and turned his head away. Constable Fullman then requested Constables Murphy and Vivarelli to take the appellant to the Perth Police Station.
Constable Fullman arrived at the Perth Police Station at 8.25 pm. The appellant was taken to the breath room at the station for the purpose of providing a sample of his breath for analysis. The room contained an approved apparatus under the Road Traffic Act. The handcuffs were removed from the appellant in the breath room and Constable Fullman observed marks on the appellant's wrists and noted this in his notebook (ts 75).
Constable Fullman then required the appellant to provide a sample of his breath and demonstrated how this was to be done. Constable Vivarelli was also present. At this point the appellant said 'I told you I wanted blood.' (ts 22) Constable Fullman noted this as a refusal and then reset the machine, repeated the demonstration and asked the appellant to provide a sample of his breath. The appellant again refused and demanded to see someone in charge. Constable Fullman then advised the appellant that by refusing and failing to comply with his request, the appellant could be charged (ts 25). The appellant responded by saying that the officer was doing something against the law. Constable Fullman made a note of this response.
Constable Fullman said that he reset the machine again and then made a third request for the appellant to provide a sample of his breath. When the appellant refused, Constable Fullman told him that he was under arrest for failing to comply with the breath test (ts 26). The appellant then became very upset and again said that he 'wanted blood' (ts 26). Constable Fullman advised the appellant that he had had his chance but he did not take the blood test.
First Class Constable Helena Murphy
Constable Murphy gave evidence that she and Constable Vivarelli had been on duty when they were called to attend to another police vehicle that was seeking assistance in Greenwood. Constable Murphy assisted in placing the appellant into the secure police van. She described the appellant's behaviour when he was put into the back of the van as aggressive and angry (ts 107). She said that the appellant continued to kick, yell and swear while he was in the back of the van.
Constable Murphy said that on arrival at the hospital she and Constable Vivarelli checked on the appellant's welfare. She said that the appellant responded by swearing at them (ts 109). When the appellant was advised that if he calmed down the officers would remove the handcuffs, he again swore at them (ts 111). Constable Murphy did not observe any signs of the appellant having difficulty breathing or being in pain (ts 142).
Constable Murphy observed the nurse come to the police van, introduce herself to the appellant and advise him about the option of providing a blood sample (ts 112). While she could not recall the exact words that the nurse had used or that the appellant had said in response, she said that the appellant was not taken into the hospital for a blood test because he had refused the test (ts 112). She and Constable Vivarelli then took the appellant in the van to the Perth Police Station. She said that the appellant continued to behave in an aggressive manner at the station (ts 115).
Rowena McSkimming
Ms McSkimming was a registered nurse working in the Triage Department at Sir Charles Gairdner Hospital on the night of 12 September 2007. She was an authorised person to obtain blood from a person under the Road Traffic Act.
Ms McSkimming gave evidence that at about 8.00 pm on 12 September 2007 Constable Fullman had spoken to her and requested assistance to take blood from a person who he thought to be under the influence of alcohol. She said that as she approached the police van she could hear banging and yelling and could see the police van swaying (ts 148). She said that the rear door of the van was open and that Constable Fullman told the appellant that there was a nurse who wanted to ask him a question. Ms McSkimming then stepped forward and introduced herself to the appellant and asked if he would allow her to take some blood from him. She said he quite frankly and explicitly said something to the effect that there was no way he was having his blood taken and that she should 'get stuffed' (ts 149). Constable Fullman then told the appellant that this was his only chance to have blood taken, but he still refused.
Senior Constable Christopher Thomason
Constable Thomason was on duty with Constable Fullman on the evening of 12 September 2007. Constable Thomason said that after the appellant's car was stopped and when he opened the driver's door he could smell liquor and could see that the appellant was red in the face (ts 163). He said that the appellant was restrained after he grabbed his wallet back from Constable Fullman. He confirmed that the appellant had been taken to the hospital and whilst there had refused to give blood to the nurse. The appellant was then taken to the Perth Police Station and that was effectively the end of Constable Thomason's involvement with the appellant.
First Class Constable Dean Vivarelli
Constable Vivarelli was on duty with Constable Murphy on the evening of 12 September 2007. He confirmed that when the appellant was put in the back of the police van he was very agitated. He said that there was a lot of yelling and screaming and thrashing. He said that the appellant kicked at the rear door of the van as the police were attempting to close it (ts 198).
Constable Vivarelli said that on arrival at the hospital he asked the appellant if he wanted him to remove the handcuffs and that the appellant told him to 'get fucked' (ts 236). He said that a nurse had come to take the appellant's blood but that the appellant had refused (ts 201). The appellant was then conveyed to the Perth Police Station and taken to the breath room. Once in the breath room Constable Vivarelli removed the appellant's handcuffs (ts 202). At that point the appellant again became agitated and started yelling but calmed down when he was asked to sit next to the breath machine.
Constable Vivarelli did a formal introduction to the breath operator who was Constable Fullman. Constable Fullman asked the appellant to blow into the machine three times (ts 204). The appellant sat back on his chair and said nothing. Constable Vivarelli said that the appellant gave no explanation as to why he was not able to blow into the machine. He said something about wanting a blood test (ts 239).
Sergeant Wayne Godwin
Sergeant Godwin was on duty at the Perth Police Station when the appellant arrived from the hospital. He said that the appellant was yelling abuse towards the police officers (ts 243). He said he asked the appellant to get out of the van and that the appellant said that he could not stand and that the handcuffs were too tight (ts 244). He said that the appellant did not cooperate and he and another officer took hold of the appellant and carried him into the police station. He said the appellant smelt strongly of liquor.
Sergeant Godwin said that in the breath room the handcuffs were removed by Constable Vivarelli. He said that he did not hear the appellant say he wanted a blood test (ts 256 ‑ 258).
Defence evidence
The appellant
The appellant gave evidence that on the evening of 12 September 2007 he had stopped at the Greenwood Hotel and had two glasses of wine. He agreed that he was later stopped by the police when driving his car. He said that one of the officers said that he could smell alcohol on his breath and that this caused him to believe that he would not be dealt with fairly. This appeared to be based on doubt in the appellant's mind that the officer could possibly have detected any such odour.
The appellant said that one of the police officers had required him to take a preliminary breath test and that in response he had said 'I'm not refusing the breath test. I'm opting for the blood test.' (ts 63) He said that he wanted a blood test because he wanted a test undertaken by an independent person given his concerns that he would not be dealt with fairly. He said that the police officer repeated the request and he responded in the same terms. He said that the police officer then said that he wanted the appellant to get out of the car and he did so. He said that there was then a third request to which he responded in the same way.
The appellant said that he then asked what he was being charged with and that the officers then grabbed him, turned him around to face his vehicle and put handcuffs on his wrists. He said he was not asked to nominate any doctor or hospital or anywhere to have the blood test done (ts 64). He said that he complained that the handcuffs were too tight and that his wrists were hurting, but that his demeanour was controlled (ts 66).
The appellant said that he was very apprehensive because there were four police officers present after the van arrived, that he believed he had done nothing wrong and that he did not know where he was being taken. He said that in this context he gave the door of the van 'a couple of thumps' with his foot (ts 66).
The appellant said that after a short time the van pulled up in the car park of the Warwick Police Station and that the two officers in the van got out and went to speak to four or five other officers. He said that this made him fear that he was in danger.
The appellant said that after a short time the van was then driven away and that when it came to a stop the female police officer said words to the effect 'We're at Charlie Gairdners. We want you to come in for a psychiatric examination.' In response to this he said 'Well you can get roundly stuffed.' He made this response because he did not know where he was. He said there was a weak light coming from behind the police officer and that he could not see anything and this made him doubt that he was at the hospital. He said 'I could have been right next to the Swan River. I could have been next to a hole in the ground in Armadale.' (ts 70) He denied seeing Nurse McSkimming or hearing anyone say anything about being at the hospital for a blood test.
The appellant said that the vehicle then started driving again and arrived after a short time at another location. He said that a police officer asked him to get out of the vehicle and he said that he could not because he could not move his wrists. He said that he was angry and in a lot of pain due to the way he had been restrained and at times was yelling abuse (ts 72). He said that his anger was based on his belief that the way in which the police were behaving was against the law and he was very upset that he had been restrained.
The appellant said that he fell to his knees on getting out of the vehicle and was then dragged into a room containing a breathalyser. He said that at this time he was surrounded by five or six armed police and was 'in real agony and I was sticking up for myself' (ts 73). He said that he was 'being a bit of a smart alec' and told the police 'There's too many of you people to hold a conspiracy down. You should stick to two instead of five or six.' (ts 73) He said he demanded to see a senior officer and that the restraints be removed and this occurred shortly thereafter.
The appellant agreed that Constable Fullman had requested him to provide a sample of his breath. In response he said that he was not refusing the breath test but was opting for a blood test. He said that a second request was made before he was told that he was being placed under arrest.
The appellant gave evidence as to his medical condition in 2007 and said that at that time he was overweight, had high blood pressure and suffered a heart condition that he was being medicated for. He agreed that at the time he was requested to provide a sample of his breath for analysis he was also asked whether there was any physical reason he could not do so. In response he had told the police 'because I can't feel my wrists because of the blood being cut off'. However, the appellant said he was not certain which question he had said this in response to (ts 76).
Lisa Grey
Ms Grey was the Coordinator of Nursing at the Emergency Department at Sir Charles Gairdner Hospital. She gave evidence that there were guidelines that were operative at the relevant time to the effect that when police brought a difficult patient to the hospital the appropriate procedure was for orderlies to be called who would then attempt to remove that person from the van. In cross‑examination, Ms Grey accepted that there was some discretion in regard to whether this procedure was always followed.
The suggested relevance of this evidence was that the appellant argued that had this procedure been followed, he would have realised he was at a hospital and would have provided a blood sample.
Dr Howard Yip
Dr Yip gave evidence that on 12 September 2007 he was practising as a general practitioner at a medical centre in Greenwood. He said that the medical centre was open until 7.00 pm at night. He said that the appellant was a patient of his from 15 September 2007 (that is, from a date three days after the offences were alleged to have been committed).
Dr Yip said that at the relevant time the appellant was severely obese and suffered an irregularity of the heart. He said that the effect of the latter condition was that it could lead to reduced exercise tolerance and could, in some people, lead to shortness of breath. He said that the appellant also suffered osteoarthritis and hypertension. In 2007 the appellant was taking two medications, one of which had the effect of reducing heart rate and exercise tolerance.
Dr Yip agreed that someone with the appellant's medical conditions would be caused significant discomfort if they were lying for a lengthy period in a van with their hands secured behind their back. Dr Yip said that this could result in some difficulty with breathing due to the appellant's weight and poor fitness level.
It should be noted that this evidence did not establish that the appellant could not have provided a sample of his breath. In any event the appellant had not claimed at the relevant time that he was unable to provide a breath sample, rather he was making a deliberate and considered decision not to do so. In these circumstances the basis for a defence of a substantial reason for non‑compliance under s 67(5) was not made out.
Magistrate's reasons
The magistrate gave detailed reasons. He summarised the evidence of the prosecution and defence witnesses and noted the conflicts between them. In respect of those conflicts, the magistrate accepted the evidence of the prosecution witnesses.
As to the appellant's claim that he did not cooperate with the police at the hospital because he did not know where he was, the magistrate said:
The accused's claims that for all he knew he was parked next to the Swan River or a hole in Armadale show either delusional thinking or a penchant for hyperbole that damages confidence in his truth telling. His claims that he didn't cry out, that he did not notice the nurse, that he did not respond to her, that he was asked to come out for a psychiatric evaluation, I reject. I accept the evidence of Constables Fullman, Murphy, Thomason and Vivarelli on those points (ts 9).
His Honour noted that it had been submitted that on the strength of Ms Grey's evidence, there was a protocol that orderlies should have been called to remove the appellant from the van. It was argued that had Nurse McSkimming done this the appellant may have realised where he was and consented to his blood being taken. In this regard, his Honour accepted Nurse McSkimming's reasoning that there seemed little point in dealing further with the appellant once he had refused her offer and indicated firmly he would not allow her to take a sample of his blood for analysis.
As regards the events at the Perth Police Station, his Honour noted that there were some inconsistencies between the evidence of Sergeant Godwin and that of the other police officers. In particular, Sergeant Godwin described the appellant as being handcuffed with his hands at the front whilst all of the other witnesses had said he was handcuffed at the back. Sergeant Godwin also said that the appellant was sitting up in the back of the van whereas other witnesses said that he was lying down. His Honour said that due to these inconsistencies he could not accept Sergeant Godwin's evidence on these issues as he was concerned as to the reliability of Sergeant Godwin's memory.
As regards the requests by Constable Fullman in the breath room for the appellant to provide a sample of his breath for analysis, his Honour accepted that such requests were made and refused by the appellant. His Honour also found that the appellant said at this time that he 'wanted blood' meaning that he wished to provide a sample of his blood instead of a sample of his breath. In this regard, his Honour said:
It is for an accused person, of course, to satisfy the court that there was some substantial reason for the failure to comply. I found that at the entrance of the Charles Gairdner Hospital the accused heard and responded to Nurse McSkimming's request to allow her to obtain a sample of breath (sic) for analysis and emphatically refused. The police had attempted to give effect to the accused's election under s 66(7). By rejecting the nurse's offer the accused waived his right to an election and the police correctly then took him to the police station for him to supply a sample of his breath for analysis.
The police are under no duty to take him back again to the hospital after his prior refusal. He has not satisfied the court that there was a substantial reason for the failure under that ground. Nor am I satisfied that he has demonstrated that he was unable to comply with the request through any medical condition. I accept he may have had a pain in his wrists and a loss of sensation in his hands, but it has not been demonstrated by him that those things or any other medical complaint mentioned by Dr Yip in his evidence prevented him from at least attempting to provide a sample of his breath for analysis (ts 13).
His Honour also made a finding that the appellant had refused to accompany the police officers when stopped in Greenwood and that he was then arrested. He was not told that he was under arrest and was not informed of his rights as required by s 138 of the Criminal Investigation Act 2006 (WA). However, his Honour noted that the appellant's behaviour after being arrested worsened and that he began kicking the van and swearing at the police officers. His Honour concluded that the failure of the police to advise the accused of his rights 'in the circumstances of his unreceptive behaviour is forgivable'. His Honour said that, in any event, there was no suggestion of improperly obtained evidence for him to consider.
On the basis of these findings his Honour concluded that the appellant was guilty of both charges.
Appellant's contentions
The appellant raises a number of matters which he contends significantly undermined the credibility of the prosecution witnesses to such an extent that the magistrate should have rejected that evidence. I will deal with those contentions below.
Exhibit 5 - The breath analysis form
The appellant submits that Constable Fullman made a handwritten change to the breath analysis form completed at the Perth Police Station following the refusals by the appellant to provide a sample of his breath. The evidence of Constable Fullman was that this form had been initially completed at the time the questions were asked. He said that he subsequently examined the form and realised that the times that he had recorded were incorrect and changed them.
The appellant submits that the breath analysis form is also false in that it records that three requests were made. He says that only two requests were made and that this is confirmed by the printout from the breath analysis machine which became Exhibit 6. This printout records that the machine was activated on two occasions but no sample was provided. The times of those two activations accord with two of the times recorded by Constable Fullman on the breath analysis form. The appellant contends that the printout is inconsistent with the evidence of Constable Fullman that three requests were made.
As would be evident, the breath analysis machine does not record requests but activations. Accordingly, it does not necessarily follow that the printout from the machine is inconsistent with the evidence that three requests were made. In any event, the appellant did not dispute that at least two requests were made and that he had refused to comply each time. The suggestion that the evidence established that Constable Fullman had falsified the breath analysis form by including the time of a third request is not established on the evidence. There is no obvious reason why the officer would do so.
The failure to advise the appellant of his rights on being arrested
The appellant submits that, given the magistrate's finding that he must have been arrested after his refusal of a preliminary test in Greenwood, that it was reasonable for the appellant to fear that he would not be dealt with fairly. He also suggests that the credit of the police witnesses was diminished by their failure to advise him of his rights.
In this context, the appellant also asserts that it was unlikely that the arresting police officers did not identify him as a person with a long time involvement in a well‑known case involving allegations of police misconduct. The appellant submits that his evidence that he was in fear is explained by this context and provides a substantial reason why he did not comply with the requests made by the police.
As regards the appellant's rights, there was no evidence that the police officers had deliberately neglected any duty in this regard. Constable Fullman gave evidence that he formally arrested the appellant at the Perth Police Station following his refusal to give a sample of his breath for analysis in the breath room. Constable Thomason gave evidence that he did not believe the appellant had been arrested at the roadside in Greenwood and that the police had been relying upon powers under the Road Traffic Act to require the appellant to accompany them for the purpose of obtaining either a breath or blood sample. Accordingly, the evidence does not support a conclusion that the police were deliberately acting in an unfair manner towards the appellant.
In any event, if, as the magistrate found, the effect of the actions of the police at the roadside was to arrest the appellant and that there was a failure to advise him of his rights, no consequences in terms of admissibility of evidence flowed from that failure. Nor could it be suggested that any such failure, not being deliberate, could have any impact on the credibility of the police officers. In any event, the evidence of Constables Fullman and Thomason was substantially corroborated by Constables Murphy and Vivarelli and Ms McSkimming.
As regards the appellant's claimed fear of the police, any such fear needs to be seen in the context of the findings made by the magistrate. The magistrate accepted, as it was clearly open for him to do, the evidence of Ms McSkimming. In those circumstances, there was simply no basis for the appellant to claim that he failed to provide a blood sample at the hospital because he feared he was at some other location. Furthermore, the magistrate did not accept the appellant's evidence and stated that he did not have confidence that the appellant had told the truth.
Injuries to the wrists
The appellant submits that the magistrate erred by failing to have regard to evidence that the appellant suffered injuries to his wrists as a result of having been restrained. He says that these injuries are consistent with his evidence that he was in pain.
It cannot be concluded that because the magistrate did not specifically refer to an item of evidence that he failed to have regard to it. It must be noted that even if the appellant did suffer some injury to his wrists that does not provide any explanation for his failure to provide the sample of breath at the Perth Police Station. In any event, it is not contested that by the time the requests at the station were made the restraints had been removed.
Waiver of right to provide a blood sample
The appellant submits that the magistrate was in error in finding that the appellant had waived his right to provide a sample of his blood as an alternative to a breath sample when he refused to cooperate at the hospital. This argument relies upon an assumption that the appellant did not, in substance, refuse to provide a blood sample because he did not believe he was at the hospital.
The evidence of Constables Fullman, Thomason, Murphy and Vivarelli and Ms McSkimming was all to the effect that a clear request to provide a blood sample was made and refused. That evidence was accepted by the magistrate. It is clearly inconsistent with any claim by the appellant that he had not been afforded an opportunity to provide blood.
Timing of the request for a blood test
The appellant submits that the magistrate erred in finding that the appellant did not ask for a blood test until Constable Fullman required him to accompany them to take a breath test. He says that this is inconsistent with the evidence of Constables Fullman and Thomason that he was in his car when he requested a blood test. The appellant also said that he was in his car when he made the request.
The alleged inconsistency is based upon an assumption that the magistrate was also concluding that Constable Fullman made the requirement to accompany the police after the appellant had got out of his car. In any event, if there is any discrepancy, it is a matter of little significance. It cannot be seriously contested that the outcome would have been different if the magistrate had concluded that the appellant had made the request whilst sitting in his car rather than after he was required to accompany the police. As I have pointed out earlier, it was not an option for the appellant to elect a blood test as an alternative to the preliminary breath test thus, even if he had made a request for a blood test whilst still sitting in his car, and in response to the requirement to undergo a preliminary test, it would have provided no lawful explanation for his failure to comply.
Whether the appellant was asked to nominate a doctor
The appellant asserts that the magistrate erred by making a finding that Constable Fullman had asked the appellant to nominate a doctor at the roadside in Greenwood. It should be noted that it was never contested that the appellant had in fact nominated a doctor, nor can it be suggested that the police officers were under some obligation to seek such a nomination. Whether Constable Fullman asked the appellant to nominate a doctor or there was simply no reference to it therefore makes no practical difference to the outcome.
Conclusion
The matters raised by the appellant are said by him to be relevant in an assessment of the credibility of the prosecution witnesses. These are all matters that were canvassed at the trial. There is no basis for suggesting that the magistrate was unaware of the matters or that his Honour failed to take them into account in his assessment of the credibility of the witnesses.
It is not sufficient for the appellant to assert that the magistrate could have reached a different conclusion. An appeal does not afford an appellant the opportunity to simply reargue their case and seek a different outcome on the evidence. Rather, it is necessary for the appellant to establish that there was error on the part of the magistrate. In my view, it was clearly open to the magistrate to make the findings that he did, including those regarding the credibility of the witnesses.
On my own assessment of the evidence I am not satisfied that this is a case where the magistrate should have entertained a doubt about the appellant's guilt. Accordingly, it cannot be said that the finding of guilt was unreasonable or could not be supported on the evidence.
Leave is required in respect of each ground of appeal: s 9(1) Criminal Appeals Act 2004 (WA) and leave can only be granted where a ground has a reasonable prospect of succeeding: s 9(2) Criminal Appeals Act. In my view, none of the grounds has such a prospect. Accordingly, leave in respect of each of the grounds must be refused and the appeal dismissed.
5
11
4