McAllister v Toop
[2025] WASCA 94
•20 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McALLISTER -v- TOOP [2025] WASCA 94
CORAM: MAZZA JA
MITCHELL JA
HALL JA
HEARD: ON THE PAPERS
DELIVERED : 20 JUNE 2025
FILE NO/S: CACR 24 of 2025
BETWEEN: NEIL ALAN McALLISTER
Appellant
AND
DAVID TOOP
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: FORRESTER J
Citation: McALLISTER -v- WA POLICE [2024] WASC 503
File Number : SJA 1050 of 2024
Catchwords:
Criminal law - Appeal against conviction - Failure to comply with a requirement made by a police officer to provide a breath sample - Turns on own facts
Legislation:
Road Traffic Act 1974 (WA), s 66, s 67
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
McAllister v WA Police [2024] WASC 503
JUDGMENT OF THE COURT:
On 10 July 2024, the appellant was convicted after trial in the Magistrates Court of Western Australia of one count of failing to comply with a requirement made by a police officer pursuant to s 66 of the Road Traffic Act 1974 (WA) (RTA), contrary to s 67(2) of the RTA.
Under s 66(1) of the RTA, a police officer may relevantly require the driver of a motor vehicle to provide a sample of the person's breath for a preliminary test in accordance with the directions of the police officer. Relevantly, under s 66(2)(b) of the RTA, where a person, having been so required, refuses or fails to provide a sample of the person's breath for a preliminary test, a police officer may require that person to provide a sample of the person's breath for analysis, and for that purpose may require the person to accompany a police officer to a police station. Section 66(3) of the RTA provides that a person who is required to provide a sample of the person's breath for a preliminary test or for analysis must comply with the requirement by providing the sample of their breath into an approved apparatus in accordance with the directions of a police officer or an authorised person, as the case may be. Section 67 of the RTA relevantly provides that, subject to a presently immaterial exception, a person commits an offence if the person fails to comply with a requirement made by a police officer to a person under s 66 of the RTA to provide a sample of the person's breath for analysis.
The prosecution case comprised the evidence of Constable Heath and Constable Toop, which was to the following effect. On 20 January 2024, the police officers were conducting random breath and drug testing on Great Eastern Highway in Cunderdin. At 11.14 am, a grey Toyota Prado driven by the appellant was directed to pull into the testing bay. The appellant passed Constable Toop a document stating that random breath testing was illegal. After interactions which it is unnecessary to detail in these reasons, Constable Heath required the appellant to provide a sample of his breath for a preliminary test. The appellant refused to do so, or to comply with a requirement to accompany the officers to the Kellerberrin Police Station. He was arrested for failing to comply with those requirements and conveyed to the police station, where Constable Heath required him to provide a sample of his breath for analysis by an approved apparatus. After demonstrating the apparatus, Constable Heath held a straw towards the appellant who made no movement towards it and no attempt to blow into the straw. The appellant stated that the officers did not have lawful authority to require him to provide a sample of his breath for analysis. The appellant's refusal to provide a sample of his breath for analysis at the Kellerberrin Police Station was the subject of the charge.
The appellant elected not to call or adduce any evidence at trial.
After hearing submissions, the magistrate delivered oral reasons for convicting the appellant of the offence against s 67(2) of the RTA. The magistrate was satisfied that the apparatus used was approved and that Constable Heath was authorised to operate it. Her Honour accepted the evidence of the police officers as to the circumstances relevant to the charged offence against s 67(2) of the RTA. She was satisfied beyond reasonable doubt that the appellant was lawfully placed under a requirement to provide a sample of his breath for analysis by an approved apparatus and that the appellant failed to comply with that requirement. The magistrate fined the appellant $2,500, ordered him to pay $272.70 in court costs and disqualified him from driving for 15 months.
On 7 August 2024, the appellant appealed against his conviction to the General Division of this court under pt 2 div 2 of the Criminal Appeals Act 2004 (WA). The appellant relied on seven grounds of appeal which the primary appeal judge characterised as contending that the provision under which he was convicted was not a valid law and the police officers were not empowered by law to stop and ultimately detain the appellant. At a hearing on 11 December 2024, the primary appeal judge gave ex tempore reasons for refusing leave to appeal and dismissing the appellant's appeal to the General Division. Those ex tempore reasons were subsequently converted to written form and published as McAllister v WA Police [2024] WASC 503.
On 24 February 2025, the appellant appealed to this court against the primary appeal judge's orders. On 7 May 2025, the appellant filed an appellant's case which contains 11 grounds of appeal.
On 9 May 2025, Buss P and Mazza JA made an order pursuant to s 9(4) read with s 18 of the Criminal Appeals Act that whether or not leave to appeal should be given on any of the grounds of appeal in the appellant's case is to be decided on the basis of the written submissions in the appellant's case and without oral submissions.
All of the appellant's grounds of appeal to this court are misconceived. Leave to appeal should be refused on all grounds of appeal, and the appeal should be dismissed, on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
Ground 1 complains of an order made by the primary appeal judge substituting Constable Toop for 'WA Police' as the respondent to the single judge appeal. Constable Toop was the appropriate respondent, as the authorised officer who signed the prosecution notice. There was no arguable error in the order made by the primary appeal judge.
Grounds 2, 3, 5, 10 and 11 appear to assert the invalidity of the RTA. Ground 2 contends that the primary appeal judge did not address the fact that he was arrested and placed under a requirement on 'National Highway No 1', which he incorrectly asserts is a 'federal jurisdiction for federal police'. Ground 3 asserts a right to privacy and contends that the primary appeal judge erred by relying on 'statute law being more powerful or overriding the common law + constitution'. By ground 5, the appellant says that he has a right to travel 'freely + unlet or without hindrance'. He says that he has a certificate from the Queen showing he has this right, which he says is part of the Magna Carta and the Bill of Rights. Ground 10 refers to an 'FOI request for the lawful use and change of the seal by Rod Culleton' and asserts that '[n]o lawful authority means that the [RTA] is null and void'. Ground 11 states:
Magna Carta article 61 lawful rebellion. It is my duty under my oath to the Barons that I lawfully rebel and it is [everyone's] duty once they have been notified including magistrates and judges.
None of the matters raised in the above grounds provide any coherent basis for doubting the validity of s 66 and s 67 of the RTA, or that those sections provided lawful authority for Constable Heath to require the appellant to provide a sample of his breath for analysis at the Kellerberrin Police Station.
Ground 4 contends that the primary appeal judge administered 'civil court jurisdiction with no notification, warning or justification'. There is no proper basis for that contention. The primary appeal judge exercised powers conferred by the Criminal Appeals Act in refusing leave to appeal and dismissing the appeal to the General Division.
By ground 6, the appellant says that it was not demonstrated how s 66 or s 67 of the RTA applied to him 'personally', as he is not a citizen and does not even vote. However, those provisions relevantly apply to any person who is a driver of a motor vehicle,[1] and the operation of those provisions are not arguably confined to persons who are Australian citizens or who vote in elections.
[1] See Road Traffic (Administration) Act 2008 (WA), s 4 (definition of 'driver').
Ground 7 contends that the appellant has never admitted to being the person driving and this has not been proven. There is no merit to that ground. The police officers both gave evidence that the appellant was the driver of the grey Toyota Prado and that they identified him from his driving licence.[2] That evidence of the officers was neither challenged nor contradicted, and it was well open to the magistrate to find that the appellant was the driver based on that evidence.
[2] Magistrates Court ts 13, 30, 33.
Ground 8 asserts a right by the appellant not to incriminate himself. However, the primary appeal judge was plainly correct to hold that the provisions of the RTA abrogate the common law privilege against self-incrimination to any extent it may have otherwise entitled the appellant to refuse a requirement by a police officer to provide a sample of his breath for analysis.
Ground 9 states:
Justice Forrester has claimed that it is a criminal matter. I have requested to know what crime has been committed and who has been hurt or suffered loss. I have not been told what crime was committed or how it was in fact a crime an error in fact.
The offence of which the appellant was convicted is created by s 67(2) of the RTA.
For the above reasons, none of the appellant's grounds of appeal has any reasonable prospect of succeeding. We will therefore order that:
1.Leave to appeal is refused on all grounds of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Hon Justice Mitchell
19 JUNE 2025
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