Mann v Vinicombe
[2023] WASC 250
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MANN -v- VINICOMBE [2023] WASC 250
CORAM: STRK J
HEARD: 2 NOVEMBER 2021
DELIVERED : 17 JULY 2023
FILE NO/S: SJA 1082 of 2020
BETWEEN: VICTORIA LOUISE MANN
Appellant
AND
DAVID VINICOMBE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE D SCADDAN
File Number : MI 1816 of 2019
Catchwords:
Criminal law - Appeal against conviction - Application to adduce additional evidence pursuant to Criminal Appeals Act 2004 (WA) s 40(1)(e) - Whether there has been a miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Rules 2005 (WA)
Road Traffic Act 1974 (WA)
Road Traffic (Administration) Act 2008 (WA)
Result:
Applications to adduce additional evidence refused
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | S Pack |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tsang v Francis [2021] WASCA 131
Wells v The State of Western Australia [2017] WASCA 27
Table of Contents
Introduction
The trial
Evidence of Senior Constable Cross
Evidence of the appellant
Reasons for decision
Statutory framework
Grounds of appeal
Additional evidence
Applicable legal principles
Appellant's application
Respondent's application
Application to adduce additional evidence - disposition
Disposition
STRK J:
Introduction
These reasons concern the appellant's appeal against conviction recorded on 5 October 2020. It had been alleged that on 10 February 2019, the appellant drove a motor vehicle recklessly in the area of Mundaring by exceeding the applicable speed limit by 45 kilometres per hour or more, contrary to s 60A(2)(b) of the Road Traffic Act 1974 (WA) (being charge MI 1816/2019).
Following a trial, the appellant was found to have contravened s 60A(2)(b) of the Road Traffic Act, was ordered to pay a fine in the amount of $500, and was disqualified from holding a licence for the period of six months.[1]
[1] ts 17 - 20 (5 October 2020).
On 16 October 2020, the appellant filed an appeal against her conviction. She has also applied to adduce additional evidence for the purpose of the appeal. It was subsequently ordered that the application for leave to appeal and the application to adduce additional evidence be heard at the same time as the appeal, which was heard on 2 November 2021.
For the reasons which follow, the application to adduce additional evidence should be dismissed, leave to appeal should be granted, the appeal allowed, and a judgment of acquittal entered.
The trial
The prosecution case was that on Sunday 10 February 2019 at about 2.30 pm, the appellant was detected driving on Great Eastern Highway in Mundaring at a speed of 132 kilometres per hour in an 80 kilometres per hour zone. The prosecution called one witness, Senior Constable Kimberley Philip Cross.[2]
Evidence of Senior Constable Cross
[2] ts 5 - 12 (5 October 2020).
Senior Constable Cross gave evidence to the following effect.
On 10 February 2019, Senior Constable Cross was conducting a 'laser action' on Great Eastern Highway, Mundaring with another police officer, Constable Lew.[3]
[3] ts 6 (5 October 2020).
Senior Constable Cross was operating a TruSpeed Laser (Laser) in his role as a police officer pursuant to s 117 of the Road Traffic (Administration) Act 2008 (WA). The Laser had serial number 3963 and was an apparatus approved by the appropriate Minister. The Laser was tested prior to, and at the completion of, Senior Constable Cross' shift, and was in good working order.[4]
[4] ts 6 (5 October 2020).
At 2.30 pm Senior Constable Cross and Constable Lew were monitoring vehicles travelling in a westerly direction on Great Eastern Highway, Mundaring. Senior Constable Cross observed a Kia Sportage (Kia) which he estimated to be travelling in excess of the 80 kilometres per hour speed limit. He trained the Laser on the vehicle and 'obtained a reading of 134 kilometres an hour, an alleged speed of 132 kilometres an hour in the 80 kilometre an hour speed zone'.[5]
[5] ts 6 (5 October 2020).
Senior Constable Cross tried to stop the vehicle, but it changed lanes and overtook another vehicle and continued on. At that time, he observed that the driver was a female and saw part of the number plate, being the number and letters '1GN'.[6]
[6] ts 6 (5 October 2020).
Senior Constable Cross then returned to his vehicle to apprehend the Kia. As he approached the intersection of Great Eastern Highway and Mundaring Weir Road, a member of the public indicated the direction in which the vehicle had gone (that is, the vehicle had turned left onto Mundaring Road and then into Craig Street). Senior Constable Cross followed the directions and as he drove up Craig Street, he observed the vehicle coming towards him and observed the plate number to be 1GNV268. Senior Constable Cross proceeded to stop the vehicle, exit his own vehicle and approached the vehicle on foot. He saw the same female driver he had previously observed on Great Eastern Highway. Senior Constable Cross estimated that 'probably less than a minute' passed between him obtaining the Kia's speed on the Laser and stopping the vehicle.[7]
[7] ts 6 - 7 (5 October 2020).
Senior Constable Cross then recounted as follows:[8]
I then introduced myself to the driver. And I said, 'The reason I have stopped you is because I detected your speed travelling at 134 kilometres an hour on Great Eastern Highway.' I then showed the reading to the driver, which was still locked on. She said, 'I knew I was speeding, but I didn't think I was going that fast.' I said, 'Do you have your licence?' And she produced a licence in the name of Victoria Louise Mann, the name of the accused in court today. I said, 'Did you – did you see me trying to stop you?' She said, 'I saw a police car on the side of the road. I didn't see you. All I remember is I overtook a blue car.'
…
I says, 'Why have you driven down here?' She says, 'I'm lost. I'm looking for the pool.' I said, 'The pool is further down Great Eastern Highway in Glen Forrest', which is the Bilgoman swimming pool. I said, 'Where have you come from?' And she says, 'I've come from Acacia Prison.'
[8] ts 7 (5 October 2020).
Senior Constable Cross gave evidence that Acacia Prison is about 15 minutes from the Mundaring town site.[9] Further, he gave evidence that he had obtained visitor records from Acacia Prison which indicated that the accused had visited there at 1.00 pm until 2.00 pm.[10]
[9] ts 7 - 8 (5 October 2020).
[10] ts 8 (5 October 2020).
Senior Constable Cross gave evidence that:[11]
I then advised the accused that I would be impounding her vehicle under the hoon legislation. But because of circumstances, I decided to issue her with a surrender notice and advised her to surrender the car before 17 February at a AAAC yard. I then advised her that she would be summonsed in regards - regarding to this matter.
[11] ts 8 (5 October 2020).
Senior Constable Cross gave evidence to the effect that as the driver had a small child in the car, and having regard to the heat of the day, he issued a surrender notice requiring the vehicle to be surrendered before 17 February 2019, rather than immediately impounding the vehicle.[12]
[12] ts 9 - 10 (5 October 2020).
As to the issue the subject of the appeal, Senior Constable Cross was asked the following questions by the prosecutor and provided the following responses:[13]
Q. When the driver's licence was produced by the accused in this matter, did it have a photo on it?
A. Yes. It was a standard WA MDR (sic).
Q.And can you tell the court what that photo - or who that photo was of?
A. Of the accused in court today.
[Emphasis added]
[13] ts 10 (5 October 2020).
In the course of Senior Constable Cross' evidence in chief, four exhibits were tendered:
(1)a copy of the Western Australian Government Gazette dated 25 May 2010, establishing that apparatuses bearing the name LTI 20/20 TruSpeed are approved by the relevant Minister;[14]
(2)a copy of s 117 of the Road Traffic (Administration) Act;[15]
(3)a Department of Justice visitor log from Acacia Prison from 10 February 2019, showing that a visitor giving the appellant's name and date of birth visited a prisoner on 10 February 2019 at 1.00 pm;[16] and
(4)a copy of the surrender notice issued on 10 February 2019, issued pursuant to s 79BA of the Road Traffic Act, in relation to a Kia Sportage station sedan vehicle plate number 1GNV268.[17] The surrender notice named Victoria Louise Mann as the driver of the vehicle and included her date of birth, address and MDL number.
[14] Exhibit 1; ts 8 (5 October 2020).
[15] Exhibit 2; ts 8 (5 October 2020).
[16] Exhibit 3; ts 9 (5 October 2020).
[17] Exhibit 4; ts 10 (5 October 2020).
In cross-examination, Senior Constable Cross was unable to recall the driver's hair colour or the hair colour of the person whose photograph appeared on the driver's licence. He said that the fact that the Kia was registered to a rental company would have come up in the check of the Kia on the computer.[18]
Evidence of the appellant
[18] ts 11 (5 October 2020).
The appellant elected to give evidence.
The appellant gave her date of birth as 8 January 1993. She said she was not made aware of the offence date until that morning (5 October 2020) and that, upon being made aware, she looked at Google Maps on her phone, which she said placed her at the Indian Ocean Hotel, Scarborough at 2.30 pm on 10 February 2019. She was not able to say what she had been doing there, and said:[19]
… But given the timing, like, of that, you know, 10 February, I would dare say it was either my grandfather's birthday gathering or my partner at the time's - it's the anniversary of his dad's passing.
[19] ts 13 (5 October 2020).
In response to questions asked by the learned magistrate, the appellant agreed that it would be fair to say that she did not have a particularly good recollection of the day, and said 'I don't recall the day specifically, no'.[20]
[20] ts 13 (5 October 2020).
In the course of her evidence, the appellant said:[21]
[21] ts 13 - 14 (5 October 2020).
I'm saying it wasn't me. I haven't had a licence card in two and a half years.
…
I haven't had a card at all.
…
And I've never had a blue hire car. And you can ring Avis.
…
I've never had a blue hire car. I've had a gunmetal grey, a really bright orange and white. And they've all been provided for – except for one, sorry. Two of them have been given by my insurance company. And one, I got separately.
…
I've had quite a few identity issues. The police are aware of it. Wallet has been stolen. My house has been broken into many, many, many times; a couple dozen. Yes. I've got a passport in my name that's not even me, apparently. And yes, as I said, I haven't - - I haven't had a licence card in a very very long time. But that's - yes. I - - if - - I don't know if you've been able to pull up fine suspensions and whatnot, but there's - there's quite a few actually.
And they're not - they're not from me either. So I'm assuming that this is one of them, but I can't - I can't say otherwise.
In cross-examination, the appellant was asked about the information on the Acacia Prison visitor log (Exhibit 3) and she said that it was her name, date of birth and the name of the person being visited. She pointed out that no child was recorded on the form, when one had allegedly been in the car.[22]
[22] ts 15 (5 October 2020).
The appellant denied attending Acacia Prison on 10 February 2019 and the following exchange then took place:[23]
[23] ts 15 - 16 (5 October 2020).
Q.And when you were pulled over by the officer, you handed up a driver's licence?
A.I haven't had one in years.
Q.He says it was your photo on the driver's licence?
A.Okay. And he can't even remember what colour hair I have. And I know what colour was back then. Believe you me, he would have remembered.
Q.Well, I put it to you, you may have changed your hair colour since then?
A.Yes. But he would have remembered what my hair colour was then. Trust me. It was bright colours.
Q.Okay. And I will further put it to you, you weren't in Scarborough.
A.Pardon?
Q.You weren't in Scarborough?
A.Fair enough.
In re-examination, the appellant said that she had two children.[24]
Reasons for decision
[24] ts 16 (5 October 2020).
The learned magistrate delivered oral reasons at the conclusion of the trial.[25]
[25] ts 17 - 20 (5 October 2020).
Her Honour appropriately directed herself as to the relevant matters of law and observed that there was a single issue: whether it was the accused driving the vehicle at the relevant time.[26]
[26] ts 18 (5 October 2020).
Her Honour stated she was satisfied that the evidence of Senior Constable Cross was truthful and credible. Having found the technical elements of the offence to have been proved, the learned magistrate turned to the evidence of the appellant, and noted that the appellant did not have a particularly good recollection of the date. Her Honour said:[27]
Weighed against that is the police officer's evidence, which I found to be truthful and credible, is that he asked the driver of the vehicle to provide a driver's licence. The driver of the vehicle did provide a driver's licence. He satisfied himself that it was the person in the photograph who was driving the vehicle. He recorded that as Victoria Louise Mann.
He then determined he would issue a surrender notice rather than an impounding notice. And the driver of the vehicle on the surrender notice is recorded as Victoria Louise Mann, date of birth 8 January 1993. And that was the birth date given by Ms Mann in her evidence-in-chief.
Having regard to the accused's vague recollection of the date and that her even vaguer recollection of what it was that she was attending the Indian Ocean Hotel at Scarborough for, I'm not satisfied that her evidence was credible or reliable. Her recollection in my view was less than satisfactory. And in that sense I do not accept and reject her evidence about where she was on 10 February 2019.
I do, in preference to that evidence, accept the credible truthful evidence of the police officer, Senior Constable Cross who, in accordance with what would be a fairly ordinary occurrence for him, checked the drivers licence produced by the driver of the vehicle, established the identity of the driver of the vehicle by reference to the motor driver's licence and then recorded those details. Not just on a prosecution notice but also on the surrender notice given to the accused person. Accordingly, having rejected the accused's evidence as not being credible or reliable, I'm satisfied and I find beyond reasonable doubt on the basis of the evidence of Senior Constable Cross that the accused person was the person driving the vehicle on 10 February 2019 at Mundaring at 2.30pm.
[Emphasis added]
[27] ts 19 - 20 (5 October 2020).
Statutory framework
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA). A decision to convict an accused after a trial is a decision which may be appealed.[28]
[28] Criminal Appeals Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.[29] That means that the ground must have a rational and logical prospect of succeeding so that, in effect, it has a real prospect of success.[30] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[31]
[29] Criminal Appeals Act s 9(2).
[30] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[31] Criminal Appeals Act s 9(3).
The Criminal Appeals Act s 8(1)(a) permits an appeal against conviction or sentence in the Magistrates Court to be made on grounds which include that the court of summary jurisdiction made an error of law or fact, or of both law and fact; acted without or in excess of jurisdiction; or imposed a sentence that was inadequate or excessive. Further, an appeal can be brought pursuant to s 8(1)(b) on the ground that there has been a miscarriage of justice.
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[32]
[32] Criminal Appeals Act s 14(2).
As to the material to be considered on appeal, the court must decide the appeal on the evidence and material that were before the lower court,[33] with the court having the power to admit additional evidence pursuant to s 40(1) of the Criminal Appeals Act.
[33] Criminal Appeals Act s 39(1); see also Criminal Procedure Rules 2005 (WA) r 64.
Grounds of appeal
The original appeal notice filed on 16 October 2020 named the Western Australia Police Force as the respondent and the grounds of appeal were outlined as follows:[34]
I was incorrectly convicted of this charge originally over a year ago. Trial was reheard on 5/10/2020 and [I] was convicted of it incorrectly again. It was not myself on the day in question. Identity theft has been an issue for years.
[34] Appeal notice filed on 16 October 2020, page 2.
The reference to the appellant having been 'incorrectly convicted of this charge over a year ago' is to the fact that on 16 October 2019 the appellant failed to appear at her trial and was convicted in her absence. That conviction was set aside on 5 June 2020 and the matter thereafter proceeded to trial on 5 October 2020.
On 9 December 2020, an order was made in the appeal substituting David Vinicombe as the respondent.
In accordance with an order made on 18 December 2020, the appellant filed and served a minute of proposed amended grounds of appeal on 15 January 2021 in the following terms:
My grounds for appealing are as follows:
-There has been a miscarriage of justice where I have been and are being punished for a crime I did not commit, which has led to multiple suspensions, out of pocket expenses, license complications and fines.
My reasons for this appeal to go ahead:
- I was at The Indian Ocean Hotel at the time and date of the offense. That is where my Google Maps places me.
- I have had many identity issues, bank accounts opened in my name, stolen I.D used for fraudulent activities which led to Bankruptcy, license and fines being transferred to my name.
- There was no arrest, no photo, no fingerprints, no dna, no signature or anything that actually links me to this.
- I was not aware of the court appearances when I was sentenced in my absence.
- It was not myself that attended the very first court appearance. However I did notice the Magistrate on that day, is the same Magistrate that granted my Application for decision to be set aside. He stated himself that this error happens often.
On 19 February 2021, leave was granted for the minute of proposed amended grounds of appeal to stand as the appellant's amended grounds of appeal.
Additional evidence
I now turn to the appellant's application pursuant to s 40(1)(e) of the Criminal Appeals Act to admit additional evidence in this appeal.
On 29 March 2021, the appellant filed an application for leave to adduce additional evidence in the appeal together with an affidavit of evidence sworn the same day. However, due to some deficiencies in the affidavit, the appellant filed a further affidavit sworn on 24 August 2021. The appellant sought to rely on the affidavit filed in August, and not March, at the hearing of the appeal.[35]
[35] Exhibit 1 on the appeal, ts 25 - 26 (2 November 2021).
The respondent opposed the appellant's application to adduce additional evidence, and sought to adduce additional evidence in the form of the affidavit of Richard Charles Smith affirmed on 21 September 2021.[36]
Applicable legal principles
[36] Exhibit 2 on the appeal; ts 35 (2 November 2021).
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, this provision does not affect the power of an appeal court to admit evidence pursuant to s 40 of the Criminal Appeals Act.[37]
[37] Criminal Appeals Act s 39(3).
Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may 'admit any other evidence'.
As to the principles to be applied in relation to the court's power under s 40(1)(e) to admit 'any other evidence' in an appeal against conviction; and the distinction between fresh evidence and new evidence in an appeal against conviction, the Court of Appeal in Tsang v Francis observed as follows:[38]
[38] Tsang v Francis [2021] WASCA 131[79] ‑ [84].
In Clarke v The State of Western Australia, Buss P (Mazza JA agreeing) made these observations about s 40(1)(e) in the context of an appeal to this court under pt 3 of the Criminal Appeals Act:
The discretionary power conferred on this court by s 40(1)(e) to admit 'any other evidence', for the purposes of dealing with an appeal, is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions in the Criminal Appeals Act, and the issues to be resolved in each appeal, will indicate those considerations which are relevant or irrelevant to the exercise of the power. See, generally, CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [108] (McHugh, Gummow & Callinan JJ). The power in s 40(1)(e) must be exercised, in the context of an appeal against conviction pursuant to s 30, having regard to, amongst other things, the relevance of the evidence sought to be adduced in evaluating whether, within s 30(3), this court is of the opinion that the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported (s 30(3)(a)); or the conviction should be set aside because of a wrong decision on a question of law by the judge (s 30(3)(b)); or there was a miscarriage of justice (s 30(3)(c)).
Those observations apply, with necessary modifications, in the context of an appeal under div 2 of pt 2 of the Criminal Appeals Act.
There is, of course, a well-established distinction at common law between fresh evidence, on the one hand, and new evidence, on the other. Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. See Beamish v The Queen.
Traditionally, the courts have treated appeals (including appeals against criminal convictions) based on fresh evidence differently from appeals (including appeals against criminal convictions) based on new evidence. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen. At common law, where an accused has been convicted, an appellate court will not allow an appeal, on the basis of fresh as distinct from new evidence, unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant. See Gallagher v The Queen; Mickelberg v The Queen.
Ordinarily, there will be no miscarriage of justice at a criminal trial unless:
(a) in the case of an appeal against conviction based on new evidence, the traditional test for allowing an appeal against conviction, on the basis of new evidence, has been satisfied; and
(b) in the case of an appeal against conviction based on fresh evidence, the traditional test for allowing an appeal against conviction, on the basis of fresh evidence, has been satisfied.
In Clarke [246], Buss P said:
In my opinion, in the case of an appeal against conviction based on new or fresh evidence, the common law principles concerning new and fresh evidence are relevant to the exercise of the discretion under s 40(1)(e) and the determination of whether there was a miscarriage of justice at the trial within s 30(3)(c), but the exercise of the discretion and the determination of whether there was a miscarriage of justice do not involve the rigid application of those principles. As McHugh, Gummow and Callinan JJ noted in CDJ, in the context of civil proceedings, the common law courts have always reserved to themselves 'an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it' [105]. The power under s 40(1)(e) is to be exercised, and whether there was a miscarriage of justice within s 30(3)(c) is to be determined, having regard to, amongst other relevant considerations, the overarching principle of the proper functioning and the protection of the integrity of the criminal justice system in the particular case. The interests of justice in that context include not only the interests of an accused who has been convicted, but also the public interest as represented by the State.
[Footnotes omitted]
I adopted this approach to the applications made in this appeal.
Appellant's application
In her affidavit sworn on 24 August 2021, the appellant relevantly deposed:
1.ATT 1, ATT 2 and ATT 3 are screenshots from my Google map history, showing my whereabouts on the 10th February 2019.
2.As you can see, I was at multiple places. Some are labelled 'S Marcinek and VICTORIA MANN' which in 'ATT 4' shows the address to be '[redacted] Wanneroo Road, Tuart Hill, 6060'. At this time that was my residential address.
3.The Google map history has been recorded by the GPS on my mobile device at the time as I was logged into my Google account on my Samsung smartphone.
4.The screenshots have been captured on my mobile device which is logged into my Google account.
5.They are true, correct and unaltered screenshots.
6.The Google account in relation to this is in fact my Google account which is proven in 'ATT 5'.
The first three attachments to the appellant's affidavit appear to indicate that on 10 February 2019, the appellant's phone was at the Indian Ocean Hotel in Scarborough between 11.55 am and 4.50 pm.
In cross-examination, the appellant denied having edited the entries and disagreed with the proposition that they did not reflect her whereabouts on 10 February 2019.[39]
Respondent's application
[39] ts 31 (2 November 2021).
The respondent sought to admit the affidavit of Richard Charles Smith, Acting Sergeant of the Technology Crime Services, Online Operations within the Western Australia Police Force, affirmed on 21 September 2021. The respondent did not file an application to adduce this additional evidence. However, the appellant did not oppose its reception on that basis, and I considered the evidence as if an application had been formally made.
Acting Sergeant Smith deposed that he was tasked to prepare a 'report showing the manipulation of an existing Google Timeline entry and the creation of a new Google timeline entry', and did so. The report he prepared was annexed to his affidavit.
Acting Sergeant Smith attested to his qualifications and deposed that:
(a)multiple Google accounts can be maintained by one individual and a single Google account may be used or logged into by any number of people;[40]
(b)to the extent that a Google account's location history includes data obtained from empirical sources (eg GPS readings), that data is vulnerable to manipulation. As such, even location data from empirical sources does not conclusively prove the person or their device was physically at that location;[41]
(c)he does not know what non-empirical sources may be recorded in a Google location history (for example, a calendar entry for an event);[42]
(d)Google's website states the following:
Google Maps Timeline shows an estimate of places you may have been and routes you may have taken based on your Location History. You can edit your Timeline anytime.[43]
(e)no specialist software or knowledge is required to use Timeline editing;[44]
(f)a user can edit their existing Google Maps timeline without limitation, and with no apparent evidence of doing so;[45] and
(g)a user can create Google Map timeline entries, without limitation and with no apparent evidence of doing so.[46]
[40] Affidavit of Acting Sergeant Smith par 9.
[41] Affidavit of Acting Sergeant Smith pars 10 - 13.
[42] Affidavit of Acting Sergeant Smith par 14.
[43] Affidavit of Acting Sergeant Smith pars 19 - 21.
[44] Affidavit of Acting Sergeant Smith par 26.
[45] Affidavit of Acting Sergeant Smith pars 27 - 42.
[46] Affidavit of Acting Sergeant Smith pars 43 - 52.
The effect of Acting Sergeant Smith's evidence was that, at any time after the alleged offence, the appellant would have been able to create or manipulate her Google timeline to falsely show she was at the Indian Ocean Hotel, without leaving any evidence of having done so.
In cross-examination, Acting Sergeant Smith accepted that the annexures to the appellant's affidavit could be 'true and correct' but pointed out that there was nothing to suggest that the person logged into the account was the appellant.[47] He also stated as follows:[48]
From a digital forensics point of view this would not be proof that you were there. But it could, but also it could not.
Application to adduce additional evidence - disposition
[47] ts 36 (2 November 2021).
[48] ts 38 (2 November 2021).
The appellant's evidence was not fresh evidence, having been available to the appellant at the time of the trial. Indeed, the evidence sought to be adduced appeared to confirm the appellant's evidence at the trial as to what Google Maps showed of her whereabouts on 10 February 2019. For the purposes of the appeal I regarded it as 'new evidence'.
The respondent opposed the admission of the new evidence, submitting that:
(1)the learned magistrate had already rejected evidence of the same kind at first instance;[49]
(2)even if the evidence were to be considered 'new', it is incapable of establishing that the appellant should not have been convicted;[50] and
(3)in any event, the evidence was inadmissible under s 79C of the Evidence Act 1906 (WA).[51]
[49] Respondent's further submissions pars 9 - 15.
[50] Respondent's further submissions par 8(b).
[51] Respondent's further submissions par 14.
In the appeal, the respondent sought only to adduce its additional evidence in response to the appellant's new evidence.
It was unnecessary for me to determine the admissibility of the new evidence. That is because, even if I were to find the new evidence to be admissible, and accepted it as being truthful, I would not be satisfied that it established, either alone or in combination with other evidence, that the appellant is innocent or raises such a doubt that the court should be satisfied that the appellant should not have been convicted.
The new evidence is capable of establishing that the appellant's Google Maps timeline showed a particular location history, that that history related to her Google account and device, and that she had not manipulated it. However, in the absence of the appellant having any independent recollection of her movements on the date of the alleged offence, and in the absence of any technical evidence as to the source data used to generate the Google Maps timeline, or the reliability of the source data or the Google Maps timeline, the appellant is not in a position to confirm that her Google Maps timeline accurately reflected her movements.
I therefore refuse the application to admit the new evidence sought to be adduced by the appellant, or the additional evidence sought to be adduced by the respondent.
Having so found, I did not consider it either necessary or desirable to make findings as to the admissibility of Google Maps timeline evidence pursuant to s 79C of the Evidence Act. Contrary to the respondent's submissions, Acting Sergeant Smith's evidence did not positively establish that Google Maps timeline uses data other than location data; he was simply unable to say what data it used. His evidence in chief was adduced by affidavit, and his evidence as to technical matters was not tested or even explored. In light of those limitations, it is my view that this is not an appropriate case in which to deal generally with the admissibility of Google Maps timeline evidence.
Disposition
The appellant's ground of appeal can be simply stated as asserting that there has been a miscarriage of justice, in that the appellant was not proved beyond reasonable doubt to have been the driver of the Kia at the time of the alleged offence.
While one of the particulars of the appellant's ground is that she was at the Indian Ocean Hotel at the time of the offence, other particulars complain that there was no proof that she was the driver of the Kia. As the appellant submitted at the hearing of the appeal:[52]
… there was no arrest, there was no impoundment, there was no photo, there was no fingerprint, there was no DNA, there was nothing to suggest that this crime was actually committed by myself. And it's extremely difficult to provide proof of something that you didn't do, and I've done the best I can in that respect.
[52] ts 39 (2 November 2021).
The appellant was, of course, under no obligation to establish her whereabouts at the time of the alleged offence; at all times the prosecution bore the onus of establishing that the appellant was the driver of the Kia at the relevant time.
The appellant's position is that she has always denied being the driver of the Kia. In response, counsel for the respondent pointed to the transcript of a mention of the matter in the Magistrates Court on 6 March 2019, in which a person answered to the appellant's name and gave a brief account suggesting that they had been caught by the police in Mundaring about 5‑10 minutes after driving past them, and referenced 'multiple cars'.[53] The appellant denies that person was her. Whether she was or not, evidence of those statements was not adduced at the trial, and they cannot form part of the evidence which falls to be considered in this appeal.
[53] Respondent's submissions par 3.
The respondent's submissions were predicated on the understanding that the appellant's appeal relied entirely on the court's acceptance of the new evidence. However, that approach was misconceived. Properly understood, the appellant's appeal was to the effect that her conviction was unreasonable and unsupported by the evidence on the basis that there was nothing linking her to the offence; there was a possibility her identity had been misused; and the information she had suggested that she was elsewhere.
The general principles governing an appeal on the ground of unreasonable verdict are well established.[54] The general principles need not be restated here, except to note that I am required to undertake my own independent assessment of the sufficiency and quality of the evidence.
[54] Wells v The State of Western Australia [2017] WASCA 27 [13].
A review of the learned magistrate's reasons for decision reveals that, in her reasons for decision, her Honour misstated a fundamental part of the evidence given by Senior Constable Cross. As set out at [16] above, Senior Constable Cross gave evidence that the standard driver's licence he was shown had a photograph on it. That photograph, he said, was of 'the accused in court today'. That evidence is akin to a 'dock identification', and had little if any weight. However, that is of little moment. More fundamentally, at no point did Senior Constable Cross give evidence that he compared the photograph on the licence with the driver of the vehicle at the time of the traffic stop, nor did he give evidence by way of a dock identification that the driver he stopped was the same person appearing in court at the trial.
Despite this, in her reasons for decision, the learned magistrate found that Senior Constable Cross had satisfied himself that it was the person in the photograph who was driving the vehicle.[55]
[55] ts 19 - 20 (5 October 2020), as reproduced at [28] above.
Her Honour's decision relied entirely on being satisfied that the driver's licence photograph viewed by Senior Constable Cross was a photograph of the driver of the Kia. However, her conclusion to that effect was founded on evidence which had not been given.
It was not in dispute that the person driving the Kia handed Senior Constable Cross the appellant's driver's licence. Indeed, the substance of the appellant's defence was that the driver was fraudulently was using her licence. Once this fact was put in issue, the prosecution could not prove its case by establishing simply that the driver claimed to be the appellant. It had to prove that the driver was the appellant.
The prosecution relied upon the visitor's log from Acacia Prison, on the basis that the driver of the Kia told Senior Constable Cross she had visited a person in Acacia Prison earlier. However, the visitor's log proved nothing more than that a person claiming to be the appellant, and using identification in the appellant's name, had visited a person in Acacia Prison earlier that day. An inference was reasonably open on the evidence that the visitor was the same person driving the Kia shortly afterwards. However, that did not advance the prosecution case that that person was the appellant.
Further, contrary to the findings of the learned magistrate, the fact that the appellant's full name, date of birth and address, appeared not only on the prosecution notice but also the impound notice, was not, on the evidence adduced at trial, capable of constituting additional proof that the appellant was the driver. Once Senior Constable Cross had the appellant's driver's licence, all of those details were readily obtainable from that document, and he did not give evidence that he obtained that information from any source other than the licence. Even if the driver had verbally given some or all of that information, they could have obtained it from the licence.
In the determination of this appeal, I did not lose sight of the fact that the learned magistrate did not have the benefit of a transcript of the evidence of Senior Constable Cross, or that in a high volume court such as the Magistrates Court there will usually be little, if any, real opportunity to conduct a detailed review of evidence before making a decision. I was also cognisant of the fact that it was not until the appellant gave evidence that the real issue properly crystallised, and it would have been far harder to be alive to the defect in the evidence of Senior Constable Cross in the course of the trial.
However, accounting for these matters does not alter the fact that the only evidence adduced by the prosecution to prove that the appellant was the driver of the Kia was that the driver supplied Senior Constable Cross with the appellant's driver's licence. That evidence was incapable of establishing beyond reasonable doubt that the appellant was the person who supplied it.
There were ways the prosecution could have sought to establish that the appellant was the person who was the driver of the Kia on the date of the alleged offence. The prosecution could have obtained the hire car documents from the rental company to determine whether the appellant hired (and signed for) the Kia, or could have had access to it. The prosecution could have sought CCTV footage from Acacia Prison, or even asked the appellant if she knew the prisoner who was visited in her name or the age of her own child. The prosecution could have checked whether the appellant had indeed reported issues regarding her stolen documents in the past. Of course, WA Police now routinely wear body worn cameras which will likely prevent such an issue arising in the future.
However, in the absence of any such evidence, the prosecution case was incapable of excluding the reasonable inference that a person other than the appellant was driving the Kia on 10 February 2019 and the appellant could not, therefore, be convicted. It was not open to the learned magistrate to be satisfied beyond reasonable doubt of the appellant's guilt. Accordingly, there has been a miscarriage of justice.
Leave to appeal must be granted, the appeal must be allowed and a judgment of acquittal entered.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LP
Associate to the Honourable Justice Strk
17 JULY 2023
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