Lynch v Day - [2001] WASCA 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LYNCH -v- DAY [2001] WASCA 150

CORAM: MILLER J

HEARD: 26 APRIL 2001

DELIVERED : 11 MAY 2001

FILE NO/S: SJA 1237 of 2000

BETWEEN: MARK THOMAS LYNCH
Appellant (Plaintiff)
AND
VANESSA NICHOLE DAY
Respondent (Defendant)

Catchwords:

Criminal law - Driving offence - Identification of driver from photoboard - Whether Magistrate addressed dangers of - Whether Weissensteiner direction appropriate - Whether conviction a miscarriage of justice

Legislation:

Nil

Result:

Appeal allowed
Retrial ordered

Representation:

Counsel:

Appellant (Plaintiff) : Mr S Melville
Respondent (Defendant) : Ms C L Bathurst

Solicitors:

Appellant (Plaintiff) : Gibson & Gibson
Respondent (Defendant) : State Crown Solicitor

Case(s) referred to in judgment(s):

Alexander v The Queen (1981) 145 CLR 395
Collard v The Queen [2000] WASCA 417
Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998
Pickett v Fuderer, unreported; SCt of WA; Library No 980014; 3 April 1998
R v Hugo (2000) 113 A Crim R 484
RPS v The Queen (2000) 199 CLR 620

Case(s) also cited:

Demarte v Fox, unreported; SCt of WA; Library No 980084, 26 February 1998
Draper v The Queen [2000] WASCA 160
Harvey v Robertson [1999] WASCA 120
House v The King (1936) 55 CLR 499
Nye v Lewis (1987) 4 MVR 511
Pallot v Harrison, unreported; SCt of WA; Library No 950261; 12 May 1995
Pettitt v Dunkley [1971] 1 NSWLR 376
Quin Schofield v Manado, unreported; SCt of WA; Library No 8543; 12 October 1990
R v Peterson [1984] WAR 329
R v Tait (1979) 46 FLR 386
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Weissensteiner v The Queen (1993) 178 CLR 217

MILLER J: The appellant was charged in the Fremantle Court of Petty Sessions that on 6 November 1999 at Rivervale he wilfully drove a motor vehicle registration No 7MD 728 on Great Eastern Highway in a manner that was, having regard to all the circumstances, dangerous to the public or to any person. This was the offence of reckless driving contrary to the provisions of s 60(1) of the Road Traffic Act 1974.
The appellant pleaded not guilty to the charge and on 1 December 2000 he was tried before Mr S Malley SM. The evidence against him consisted primarily of the testimony of a Mrs Egheit, who had been the driver of a motor vehicle on Great Eastern Highway, Rivervale and thereafter Belmont and South Perth in the early hours of the morning of 6 November 1999. She gave evidence about the driving of a vehicle which on any view of it constituted an incident of reckless driving. Her evidence was supported by the evidence of various police officers. The appellant declined to testify in his defence.
The appellant was convicted by the learned Magistrate. The primary issue was that of identification and as to this the learned Magistrate was satisfied that Mrs Egheit had accurately identified the appellant as the driver of the offending motor vehicle, that identification coming from a photoboard. The learned Magistrate considered the incident of reckless driving to have been at the highest end of the scale for that offence and imposed upon the appellant a fine of $750 with costs of $87.20 and disqualification of licence for a period of 18 months.
On 25 January 2001 the appellant was given leave to appeal the conviction and penalty. The grounds of appeal against conviction contend in essence that the learned Magistrate erred in law in failing to warn himself of the dangers of relying on photoboard identification; erred in law in concluding that it was open to draw an inference adverse to the appellant in consequence of his failure to give evidence; and the conviction was, given the circumstances of identification, a miscarriage of justice. The appeal against penalty relies upon the ground that the learned Magistrate failed to give weight to the fact that the appellant would lose his employment if disqualified from holding his motor driver's licence.

The case against the appellant

At the hearing Tanya Suzanne Egheit testified that at about 2.20am on 6 November 1999 she was driving in a westerly direction along Great Eastern Highway, Belmont and approaching traffic lights at the Epsom Avenue intersection. These lights were red and caused her to come to a stop. When they changed to green she began to drive through the intersection and suddenly became away of the headlights of a vehicle approaching from the north, which she reasoned was going to go straight through the intersection without stopping at the red light facing it. She accelerated to get out of the way and just managed to do so. The offending vehicle swerved around the back of her just missing the rear of her vehicle and then straightened up and proceeded as she was doing in a westerly direction. The vehicle came up close behind her. She was frightened and signalled to move into the right hand lane of the dual carriageway on which she was travelling so that the other vehicle could proceed through on her left. It did not do so. Instead, it swerved across and pulled in behind her in the right lane. The vehicle dropped behind her for a period but then accelerated and came up behind her again. At or about this time Mrs Egheit was able to get a look at the driver of the offending vehicle whom she described as Caucasian, about 20 years of age with a fair complexion and short hair that was "curly dreadlocked or noodle spiky matted". She said that he was wearing a cream coloured short‑sleeved t‑shirt and had a beer bottle in his hand which he was passing to the passenger. There were two other males in the vehicle and all three occupants of it were laughing.
At the intersection of Great Eastern Highway and Orrong Road, Mrs Egheit crossed to the far right lane which allows people to turn into Orrong Road. The lights were red and there was a vehicle parked in the kerbside lane. There was nothing in the middle lane, but another vehicle in the lane closest to where Mrs Egheit was. At this point the road appears to have three ongoing lanes of traffic and a turning lane. Mrs Egheit testified that the vehicle which had been causing her trouble approached at a fast speed in the lane next to the turning lane and at the last minute swerved out to the centre lane and went through the red lights. This incident so concerned Mrs Egheit that when the lights changed to green she decided to follow the vehicle and get its registration number. This she was able to do at an intersection on Canning Highway past the causeway. She identified the registration number as 7MD 728 and described the vehicle as a "little light brown sedan". She was looking for a police car but the vehicle turned off the highway into King Street. She then drove to Fremantle Police Station where she reported the incident.
On 11 February 2000 police officers attended at her place at work with a photoboard. She was asked to see if she could identify the driver of the offending vehicle. She said that she recognised the person in photograph No 6 on the board as the driver.
Although Mrs Egheit was cross‑examined in relation to the manner in which the other vehicle had been driven, it is obvious from her testimony in cross‑examination and from the lack of any other evidence on the subject, that whoever it was that was driving the other vehicle drove recklessly. Mrs Egheit was subjected to close cross‑examination on the question of identification. It was put to her that she did not get a good look at the driver and she agreed. She said she got a partial look. She had been looking in the rear vision mirror in an attempt to identify the driver. She described a "series of glances" in the rear vision mirror as the basis of her identification.
When cross‑examined in relation to the photoboard identification it was put to Mrs Egheit that the police officer or officers had indicated that the driver of the other vehicle was one of the persons depicted on the photoboard. This she clearly denied, saying that all she had been asked to do was to look at the photoboard to see if she could identify the driver. In answer to the specific question whether it had been indicated to her that the driver was contained in the pictures she answered in the negative. When asked whether she assumed that the driver was in the pictures she said she did not. It was just a case of "if I could remember I could; if I couldn't I couldn't". Mrs Egheit said she took 15 minutes or even longer to make the identification and there were two people who she thought might have been the driver. Her evidence in relation to this was as follows:
"MR MELVILLE: Yes; and that's because the person you've identified didn't simply leap out at you, to say, 'This is me. This is me.', did it? --- Two did. He and another person; and the only reason I stuck over it, was because he was smiling at the time in the car and his face was serious and then it was just the complexions that were different.
Can you just show us the other person you were concerned about? --- Number two."
Constable Vanessa Day testified that on 11 February 2000 she presented to Mrs Egheit a photoboard containing 12 photographs of males of similar age and description. She said she asked Mrs Egheit to look at each photograph and see if she recognised the driver of the vehicle in question. She deliberated over each photograph and after a very short period of time identified the photograph of Mark Lynch. Constable Day's evidence was as follows:
"(TO WITNESS): Can you just continue on from February the 11th? --- February the 11th, I presented the photoboard to Mrs Egheit and I asked her to look at each photograph to see whether she recognised the person that's the driver of the vehicle which she described in her statement of November the 6th 1999. Mrs Egheit deliberated over each photograph and after a very short time identified the photograph to -- that was the photograph of Mark Lynch. And said that that was him. She said, 'He looks a bit -- he's a bit more serious. He was smiling at the time, but that's him.
Are you able to indicate what photograph she indicated? --- I will be.
Just turn the other sheet over, thanks. She pointed to number 6."
Constable Day was cross‑examined about the photoboard identification. She said that she thought it would have been about eight minutes that it took Mrs Egheit to make the identification. She was asked whether she had indicated to Mrs Egheit that the driver of the vehicle had been identified. Her answer was as follows:
"Did you indicate to her that you thought you identified the driver of the vehicle? --- Well, I told her that I had a suspect in mind and that I would present her with a photoboard. If she could identify him from that photoboard, then we would have some evidence.
And when you got there, and you presented the board to her, did you indicate to her, we think it's that guy there? --- No."
Although counsel for the appellant in his written submissions contended that there was an issue at trial as to whether the police officers had indicated to Mrs Egheit that the photograph of the suspect was contained within the photoboard, a careful reading of the evidence shows that this was not made a distinct issue. What was put to Mrs Egheit was that the police had indicated (1) that the driver was contained in the pictures on the board and (2) that when the photoboard was placed in front of her it was indicated that a particular person was thought to be the driver. Mrs Egheit denied both propositions. Constable Day said only that Mrs Egheit had been informed that the police had a suspect in mind and that if Mrs Egheit was able to identify the driver from a photoboard there would be some evidence. Although it is said that the learned Magistrate was required to make a finding on this issue, I do not think that he was. The proposition that the police had actually suggested the identification of the offender from a particular photograph was firmly rejected by Mrs Egheit. All that Constable Day was saying was that Mrs Egheit had been told that the police had a suspect in mind and if she could identify that suspect from the photoboard there would be evidence. This implicitly meant that the suspect was on the photoboard. But I can see no problem with that. Obviously the suspect would be on the photoboard. The question was whether the witness could identify anybody on the photoboard as the person who was the driver on the night in question.
There was evidence that a police officer interviewed the appellant on 17 January 2000 and read Mrs Egheit's statement to him. When asked if he wished to make a statement he did so, denying all knowledge of the matter. At trial, apart from admissions made on his behalf by counsel that he was the owner of the vehicle bearing the registration number in question and the person shown in photograph No 6 on the photoboard, the appellant elected not to give evidence.

Decision of the Magistrate

After hearing submissions on behalf of the appellant and the respondent the learned Magistrate reserved his decision for a short period of time. When delivering that decision he gave brief reasons which were in essence:
(1)Mrs Egheit's version of events was clear, credible and reliable and she was an impressive witness.
(2)There was no challenge to the fact that the registration number of the motor vehicle was 7MD 728 and that the driver was Caucasian with a fair complexion, approximately 20 years of age and had a spiky dreadlock hairstyle.
(3)The evidence as to the manner of the vehicle's driving was largely unchallenged and there was an admission that the vehicle was registered in the name of the appellant.
(4)On the question of identity Mrs Egheit's description was "consistent with the [appellant]" and her photoboard identification resulted in an identification of the appellant.
(5)Although the appellant was not called upon to prove anything and did not have to give evidence it would be wrong "to suggest the court could infer that it might have been somebody else using his vehicle without evidence to that effect".
(6)The case "called out for an explanation" of the type referred to by Wheeler J in Pickett v Fuderer, unreported; SCt of WA; Library No 980014; 3 April 1998.
(7)The evidence established that Mrs Egheit had identified and correctly identified the driver of the vehicle.
(8)The manner of driving over the period in question was clearly dangerous and wilfully so, particularly as the only reasonable inference that could be drawn was the deliberate tailgating, changing of lanes and going through lights showed a reckless disregard for road users which could only be deliberate.
In relation to the question of penalty the learned Magistrate heard submissions from counsel for the appellant. He was told that the appellant was 23 years of age, grew up in Carnarvon and came to Perth at the age of 21. He shared accommodation with some friends and worked as a swimming pool installer. He had no savings but had a net income of about $400 per week which, after expenses, left him with $150 per week. He needed his licence for work and his employer had apparently told him that he would be unable to keep his job if he lost that licence. Counsel conceded that he clearly would lose his licence.
The learned Magistrate held that the incident of reckless driving was at the highest end of the scale and that Mrs Egheit would have been justifiably terrified by the manner in which the vehicle was driven behind her. He pointed out to the appellant that he might well have killed somebody and had shown a callous and reckless disregard for the lives of others on the road. He added that the loss of the appellant's job was "meaningless". It was on this basis that he imposed a fine of $750 with costs of $87.20 and a "substantial disqualification" of 18 months.

Grounds of appeal

The first ground of appeal challenges the learned Magistrate's conclusion that it was open to him to draw an inference adverse to the appellant as a result of his failure to give evidence. What the learned Magistrate said was that the appellant was not obliged to prove anything, but it would be wrong to suggest that the court could infer "that it might have been somebody else using his vehicle without evidence to that effect". His Worship added that the case was one which "called out for an explanation of the type in Pickett v Fuderer (supra).
The decision in Pickett v Fuderer went on appeal to the Full Court. In Pickett v Fuderer, unreported; FCt SCt of WA; Library No 980475; 27 August 1998 the Full Court comprising Kennedy, Ipp and Steytler JJ upheld the decision of Wheeler J. Ipp J (with whom Kennedy and Steytler JJ agreed) said (at 8) that there was no valid reason for the appellant's failure in that case to provide an explanation for the presence of his fingerprints on the stolen vehicle, it being a matter which was within his peculiar knowledge. His Honour added (at 8 ‑ 10):
"It has long been accepted that a failure by an accused person - when an explanation is called for - may be critical to the proof of guilt beyond reasonable doubt. A few examples from the authorities may not be out of place.
…
At the close of the Crown case, the two possible inferences were both entirely speculative and, hence 'tenuous' and were evenly balanced. However that was no longer so by the time the appellant closed his case. The circumstances cried out for an explanation by him as to how his fingerprints came to be on the window. Had an innocent explanation existed, it would have been very easy for him to have given it. No reasonable explanation existed for his omission to do so. That resulted in the further inference that there was no innocent explanation to give. That being so, the inference consistent with guilt was significantly reinforced. No longer was it based solely on speculation. The inference consistent with innocence remained, however, speculative - and tenuous."
Since the decision of the Full Court in Pickett v Fuderer there have been some important developments in this area. The decision of the High Court in RPS v The Queen (2000) 199 CLR 620 has greatly limited the circumstances in which a "Weissensteiner direction" will be given. Indeed, in R v Hugo (2000) 113 A Crim R 484 Sheller AJ (with whom Pidgeon and Anderson JJ agreed) (at [65]) expressed the view that what was said by Callinan J in RPS v The Queen "leaves little, if any life, in the Weissensteiner direction". The present state of the law in this area was summarised by Sheller AJ (at [65]) in the following way:
"In R v Fowler [2000] NSWCCA 142 Wood CJ at CL, with whom Barr J agreed, Hulme J expressing no opinion on this point, quoted from both Weissensteiner and RPS and said at pars [159] - [163]:
'It remains possibly open to argument that a Weissensteiner direction should only ever be contemplated in a "smoking gun" case, or to a circumstantial case dependent on inference from proved facts, the innocent explanation for which might only reasonably lie in the mouth of the appellant. Whether that be correct or not it is difficult to see how the joint judgment would authorise such a direction in relation to the failure of an accused to answer, on oath, the testimony of a prosecution witness as to the specific facts, from which an inference is drawn.
So far as the decision in RPS turned upon considerations other than those related to the prohibition in s 20(2) of the Evidence Act 1995 (NSW) [enabling the Judge or any party (other than the prosecutor) to comment on a failure of the defendant in a criminal proceeding to give evidence], Callinan J, said (at par 111) in a passage which leaves little, if any life, in the Weissensteiner direction:
"There is no doubt that a direction in accordance with Jones v Dunkel (1959) 101 CLR 298 may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown's responsibility to present its case in a way which is fair to an accused. (see R v Apostilides (1984) 154 CLR 563) However, such a direction may not be given in relation to an accused person or an accused person's witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s 20(2) but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation."
The conclusion of McHugh J concerning the permissibility of a jury being entitled, but not bound, to take into consideration that the accused has given no evidence denying or explaining a fact which is within his or her knowledge and which reasonably calls for an answer (at para 50), did not find favour with the other members of the Court, as a general proposition.
Similarly, his Honour's observations that the existence of tactical reasons for not denying or explaining facts, provided an insufficient basis for a direction negating the significance of silence (at para 57), or that the 'good reasons' for such a direction were likely to be few, were not ones which found favour with the remaining members of the Court.
In my view, it follows from the reasons of Gaudron ACJ, Gummow, Kirby and Hayne JJ and from the separate reasons of Callinan J, that his Honour was in error in regarding the case as appropriate for a Weissensteiner direction. The occasion for such a direction in my view must hereafter be confined to an exceptional case of the kind there involved, where the line of reasoning in question is compelling.' "

In my view, the present case was not a circumstantial case dependent upon inference from proved facts, the innocent explanation for which lay only in the mouth of the appellant. As Sheller AJ pointed out in R v Hugo (supra) (at [65]), it is no longer correct to say that the trier of fact should take into consideration that the accused has given no evidence, denying or explaining a fact which is within his or her knowledge and which reasonably calls for an answer. The present case contains nothing exceptional. The fact that the appellant was proven to have owned the vehicle in question did not call from him for an explanation as to who was driving it on the night in question. The prosecution was still left with the onus of proving that he was in fact the driver. To adopt the words of Callinan J in RPS v The Queen at [111] the accused laboured "under no … need, occasion or expectation" to give evidence in relation to the matter.
It follows in my view that the learned Magistrate erred in law in concluding that the registration of the motor vehicle in the name of the appellant called out for an explanation from him as to who was using the vehicle on the night in question. The first ground of appeal is thus made out.
The second and third grounds of appeal contend that the learned Magistrate erred in law in his approach to the question of identification. It is argued that his Worship failed to warn himself of the dangers of relying on photoboard identification and/or the finding he made that the appellant was the driver of the vehicle was inherently unsafe, having regard to the difficulties exposed in Mrs Egheit's identification process.
There is no doubt that the learned Magistrate made no reference to the difficulties inherent in identification evidence. Although counsel for the appellant had at the hearing pointed out a number of shortcomings in the identification made by Mrs Egheit, the learned Magistrate appears to have accepted her identification of the appellant from the photoboard as a credible and compelling identification. However, the question is whether this was enough. As was pointed out by Mason J in Alexander v The Queen (1981) 145 CLR 395 at 426:
"Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.
The use of photographs by police, especially photographs of known or suspected criminals, is an essential aid to the detection of persons who have committed crimes. Yet the use of such photographs before a jury may tend to suggest that the accused is known to the police as a criminal who has committed offences of the kind charged. And, as I have said, once a witness has seen a photograph which he links with the person seen, he tends to substitute the photographic image for his recollection.
Recognizing these dangers the English courts have tended to draw a distinction between an identification made in the course of investigating a crime, when the police may request a potential witness to make an identification from photographs, and an identification made after the accused has been taken into custody, when the use of photographs is frowned upon and the arrangement of an identification parade is urged as the course to be preferred. In the second situation the purpose of the identification is purely evidentiary; it is designed to produce evidence for use at the trial."
The learned Magistrate made no reference to any of these difficulties in relation to Mrs Egheit's identification of the appellant. Further, no reference was made by the learned Magistrate to the general undesirability of photoboard identification in lieu of an identification parade. This I adverted to in Collard v The Queen [2000] WASCA 417 at [73] where I said:
"In Draper v The Queen [2000] WASCA 160 both Kennedy J (at [2]) and Murray J (at [29]) stressed that evidence of identification of accused persons by means of a photograph should only be led where it is unavoidable and where another more preferable form of identification is not practicable. Other cases are referred to by Wallwork J in Penny v The Queen (1997) 91 A Crim R 288, where his Honour pointed out that in Western Australia the Detective Training School notes under Identification Parades refer to the formal identification parade as the most effective and fair means of obtaining identification evidence. For some reason the practice of conducting identification parades for the purpose of identifying suspects seems to have been abandoned in Western Australia. At the hearing of this appeal counsel for the Crown conceded this to be the case. Why it is so is totally unexplained and in my view inexcusable in terms of police investigatory procedures. The time has come for the court to make it quite clear that the continued use of photoboard identification in lieu of identification parades is unacceptable."
At [77] I added:
"I have pointed out that the learned trial Judge gave no direction to the jury on the inherent shortcomings of photoboard identification when compared to identification parades. It was, in my view, essential that the trial Judge inform the jury that the safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group of persons the person whom he claims to have seen on the occasion of the crime. Gibbs CJ made it abundantly clear in Alexander v The Queen (supra) (at 399 - 400) that this is so, and although his Honour did not state that a trial Judge was under a duty to direct a jury to this effect, it seems to me implicit in his Honour's judgment that the jury should be told that an identification parade is the preferred method for identification and the most reliable method. The fact that it is held in the presence of the accused who is unable to observe and later bring to light any unfairness in the way in which the parade was conducted or any weakness in the way in which the witness made the identification is an essential aspect of the identification parade process: See Alexander v The Queen (supra) per Gibbs CJ at 400."
Although in Collard v The Queen I was dealing with the appropriate directions to be given to a jury, the same principles apply equally to a Magistrate trying a case in petty sessions. There is an obligation upon the trier of fact to take into account the inherent shortcomings of identification evidence based upon the photoboard identification process.
In the present case it seems to me that there were a number of problems associated with the identification. They included the following:
(a)the identification made by the complainant was based upon what she saw in glances in her rear vision mirror at 2.30am and in circumstances where she was terrified by what she was happening around her;
(b)the time which the complainant had to observe the face of the driver of the offending vehicle was unspecified and reliant upon her glances in the rear vision mirror at a time when she was also required to concentrate on the road ahead;
(c)the description was simply that of a Caucasian person about 20 years of age with fair complexion and "curly dreadlocked or noodle spiked matted" hair. Although there was a description of clothing, this was of no significance;
(d)the photoboard identification took place some three months after the alleged incident. When the photoboard was presented to the complainant she took some 15 minutes to pick out the appellant as the offender. In so doing she had to choose between him and the person shown in photograph No 2 on the same board; and
(e)there was no attempt to organise an identification parade at which the appellant would himself have had the opportunity of observing how the complainant went about the identification process.
Although counsel for the respondent argued at the hearing of the appeal that the long period of time taken by the complainant to make the identification told in her favour, I am not at all sure that I can agree. The fact that it took her approximately 15 minutes (estimated at eight minutes by the police officer) and necessitated a choice between two persons can, I think, be taken to undermine the accuracy of the identification process. The question is whether there was a tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed (per Mason J in Alexander v The Queen (supra)).
I am of the view that the identification process was sufficiently fraught with danger to necessitate that the learned Magistrate should have given attention in his reasons to the shortcomings of identification made in this way. His Worship's failure to do so constituted in my view an error of law.
It follows that the second and third grounds of appeal are made out. There is no need to consider any further grounds of appeal. There have been sufficient errors of law to necessitate that the conviction of the appellant be set aside and a retrial ordered. Because I did not see the complainant give evidence (and notwithstanding the learned Magistrate's conclusion that she was clear, credible and reliable) it would be inappropriate for me to attempt to determine the case on the materials before me. In my view it is necessary that there be a rehearing before a different Magistrate in accordance with the principles of law which I have outlined.
I would therefore allow the appeal, set aside the conviction of the appellant, set aside the fine, costs order and disqualification of licence; and direct a retrial in the Court of Petty Sessions at Fremantle before a different Magistrate.