McAllister v WA Police
[2024] WASC 503
•11 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MCALLISTER -v- WA POLICE [2024] WASC 503
CORAM: FORRESTER J
HEARD: 11 DECEMBER 2024
DELIVERED : 11 DECEMBER 2024
FILE NO/S: SJA 1050 of 2024
BETWEEN: NEIL ALAN MCALLISTER
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1050 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE OLIVER
File Number : MD 22/2024
Catchwords:
Criminal Law - Single judge appeal - Appeal against conviction - Whether s 66 of the Road Traffic Act 1974 (WA) is invalid - Whether police had power to require appellant to accompany them in order to supply sample of breath for analysis
Legislation:
Commonwealth Constitution
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
International Covenant on Civil and Political Rights
Interpretation Act 1984 (WA)
Magistrates Court Act 2004 (WA)
Road Traffic (Administration) Act 2008 (WA)
Road Traffic Act 1974 (WA)
Result:
Application to adduce additional evidence refused
Leave to appeal refused on all grounds
Appeal dismissed
Appellant to pay the respondent's costs fixed in the sum of $3422
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr C Payne |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office (WA) |
Case(s) referred to in decision(s):
DPP v Hamilton [2011] VSC 598
Krysiak v Carruthers [2012] WASC 472
Krysiak v McDonagh [2013] WASCA 100
Lee v New South Wales Crime Commission (2013) 251 CLR 196
New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
R v Banner [1970] VR 240
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
(This judgment was delivered extemporaneously on 11 December 2024 and has been edited from the transcript).
Introduction
On 10 July 2024 in the Merredin Magistrates Court the appellant was convicted after trial of a charge that on 20 January 2024 he, being a person who was not a driving instructor, failed to comply with a requirement made by a police officer, pursuant to s 66 of the Road Traffic Act 1974 (WA) (RTA).
The appellant was fined $2,500 and ordered to pay costs in the sum of $272.70. His driver's licence was disqualified for 15 months, reduced by any period during which the appellant was disqualified by a disqualification notice given to the appellant under s 71C of the RTA in relation to the offence.
The appellant has appealed his conviction.
Trial
The prosecution alleged that at about 11.25 am on 20 January 2024, the appellant was driving his car on Great Eastern Highway in Cunderdin. He was stopped for a random breath test and drug test. He refused to provide a sample for a preliminary breath test. When requested to provide his personal details, he refused and said he was going to move his car. One of the officers then reached into the car to remove the keys. The appellant grabbed the officer's arm. The officer broke the appellant's grip and removed the keys. The respondent failed to comply with a requirement to provide a sample of his breath, a sample of his oral fluid, and his personal details. He was then placed under requirement to accompany the officers to Kellerberrin Police Station to undergo an evidentiary breath analysis test. He refused and was arrested. At Kellerberrin Police Station, he refused to supply his breath for analysis, claiming the police did not have the legal authority to require it. That refusal was the basis of the offence charged.
The above facts were largely undisputed, subject to one matter which I will deal with shortly. However, the appellant argued that the police had no power to stop him, require a sample of his breath for a preliminary test or oral fluid for a preliminary test, to request his personal details, to require him to go with them to the police station, to arrest him or to require a sample of his breath for evidentiary analysis.
The appellant was originally charged with obstructing police (for grabbing the officer's arm) as well as the charge under s 67(2) of the RTA. The learned magistrate acquitted the appellant of the obstructing police charge on the basis that she was not satisfied that the police officer was exercising a lawful power at the time the appellant grabbed the officer's arm.
However, as to the charge pursuant to s 67(2) of the RTA, the learned magistrate rejected the appellant's arguments and convicted him.
Grounds of Appeal
The grounds of appeal are not readily distilled. As stated, they are:
1.The charge was in breach of:
(a)the 'common law right to travel';
(b)s 92 of the Commonwealth Constitution; and
(c)articles 12 and 13 of the International Covenant on Civil and Political Rights.
2.The government does not have the power to issue or cancel driving licences as per the punishment imposed by the learned magistrate.
3.The power of police to stop and detail an individual and require them to prove their innocence by a blood alcohol test or DNA swab test is contrary to the presumption of innocence.
4.It was not lawful for the police to request a blood alcohol test or DNA swab or arrest or punish the appellant for failing to provide those things because it infringed the appellant's right against self‑incrimination.
5.The Western Australian Police Force is not a representative of the Crown (although this ground was subsequently abandoned by the appellant).
6.The police officers did not have the power to arrest or detain the appellant for the purpose of questioning him or facilitating their investigations.
7.The appellant was not under arrest, or under suspicion of having committed a crime at the time he was pulled over and detained and he was not obliged to stop for police or answer their questions.
In essence, the appellant's contentions are that:
1.the provision under which he was convicted is not a valid law; and
2.the police officers who stopped and ultimately detained him were not empowered by the law to do so.
The appellant has also applied to lead additional evidence. The additional evidence the appellant seeks to lead includes a document headed 'RBT is Unlawful.' That document is a submission, not evidence. The other document purports to be a certificate granting the holder travel free of let or hindrance which the appellant claimed to have been given personally by the 'United Kingdom Secretary of State'.
For the reasons which follow none of the grounds of appeal have any reasonable prospect of success. Leave to appeal must be refused and the appeal dismissed.
Statutory framework
Appeals against conviction
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[1]
[1] CA 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,[2] meaning that the ground is required to have a rational and logical prospect of succeeding.[3] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[4]
[2] CA Act s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] CA Act s 9(3).
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.[5]
Application to adduce additional evidence
[5] CA Act s 14(2).
An appeal court must decide an appeal on the evidence and material that were before the lower court.[6] However, the court has broad powers to admit other evidence, pursuant to s 40(1) of the CA Act.
[6] CA Act s 39(1).
Ground 1
Was the law under which the appellant was convicted inconsistent with the right to freedom of movement?
The appellant argues that the Constitution is binding at a State level as well as at a Federal level, and further contends that s 108 of the Constitution renders the State subject to that Constitution. He also points to s 109 of the Constitution, and argues that:
[T]he decision reached by Judge Oliver (sic) on the grounds of each State acting independently of the Commonwealth Constitution are at odds with the law.[7]
[7] Appeal notice filed 7 August 2024, Attachment C.
The appellant was not able to point to any inconsistency between a law of the Commonwealth and s 66C of the RTA. Accordingly, s 109 has no application in this case.
The respondent also relies upon s 92 of the Constitution and argued that it guarantees the rights of all Commonwealth subjects to 'travel freely without let or hindrance and to also afford such protection and assistance as required', thus making his 'detainment and subsequent arrest unlawful and all charges null and void'.[8]
[8] Appellant's written submissions filed 11 November 2024, 3 (Appellant's submissions).
It is well established that s 92 is directed to legislation or conduct which impedes intercourse between the States, not that which incurs intrastate. Further, and in any event, s 92 does not absolutely prohibit an impediment to interstate intercourse; rather it prevents restriction which is greater than is reasonably required to achieve the object of the law.[9]
Was the offence committed on Commonwealth land?
[9] Krysiak v Carruthers [2012] WASC 472 [20] ‑ [23], Krysiak v McDonagh [2013] WASCA 100 [10].
There is no evidence that any of the actions the subject of this trial occurred on Commonwealth land. The offence with which the appellant was charged was committed at Kellerberrin Police Station. That is not a Commonwealth place.
Ground 1 is without merit. Leave to appeal should be refused.
Ground 2
Did the police have the power to detain or arrest the appellant?
The appellant cited R v Banner[10] and DPP v Hamilton[11] for the proposition that the police had no power to arrest or detain him.
[10] R v Banner [1970] VR 240.
[11] DPP v Hamilton [2011] VSC 598.
Those cases are authority for the proposition that, absent a statutory power, there is no common law right to detain a person or arrest them for the purpose of facilitating investigations. However, in this case the RTA clearly provides the statutory power for all of the requirements the police placed on the appellant, namely:
(a)the power to require the driver to provide a sample of their breath for a preliminary test: s 66(1)(b);
(b)the power to call upon the driver to stop the vehicle in order to make a requirement under s 66(1): s 66(1aa)(a);
(c)the power to direct the driver to wait at a place indicated by the police officer in order to make a requirement under s 66(1): s 66(1aa)(b); and
(d)where the person, having been so required, refuses or fails to provide a sample of the person's breath for a preliminary test, power to require that person to provide a sample of breath for analysis and power to require that person to accompany them to a police station for that purpose: s 66(2).
Similar powers in relation to requiring a driver to stop their car, wait at a place indicated by a police officer, provide a sample of oral fluid for a preliminary test, and, in the event of refusal, to accompany the police officer to a place for drug testing are to be found in s 66C and s 66D of the RTA.
Accordingly, Banner and Hamilton have no application in this case.
The appellant also relied on the case of New South Wales v Ibbett.[12] However, that was a civil case involving the wrongful encroachment of police onto private property in an unlawful arrest, and has no relevance to this case.
[12] New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638.
Accordingly, I find the police had the power to detain and arrest the appellant.
Was the appellant unlawfully arrested?
The appellant contended his arrest was unlawful. He submitted:
The charge that placed me in the Kellerberrin Police Station was dismissed therefore my arrest was not lawful as there was no offence, I could not have been at the station. All acts and charges stemming from an unlawful arrest are null and void.[13]
[13] Appellant's submissions, 3.
Constable Heath gave evidence that, as the appellant refused to accompany them, their intention was to arrest him to take him to Kellerberrin Police Station to identify him and to conduct a breath analysis.[14] Constable Toop also gave evidence that the appellant was only arrested after he was required to accompany them to the police station and there was a 'short backwards and forwards argument'.[15]
[14] Transcript, Western Australia Police v Neil Alan McAllister, Magistrates Court of Western Australia, 10 July 2024, 27 (ts 10 July 2024).
[15] ts 10 July 2024, 30.
On the evidence, the appellant was not arrested for obstructing police. He was arrested after he refused to provide a sample of his breath, a sample of his oral fluid or his personal details and then declined to comply with the requirement to accompany police to the police station for an evidentiary breath test.
A person who fails to comply with a requirement under s 66 to accompany a police officer to a police station commits an offence: s 67(2). A person who commits an offence against subsection (2) may be arrested without warrant: s 67(3A).
Ultimately, the appellant was not charged with any offence relating to that conduct. However, that did not make the arrest unlawful.
The arrest in those circumstances was not unlawful.
Did the court have jurisdiction?
The appellant submitted that the court did not establish its jurisdiction to deal with the offence and thus could not convict the appellant.
The learned magistrate informed the appellant that the court was exercising criminal jurisdiction under the Magistrates Court Act 2004 (WA), and referred to s 4, s 7, s 9 and s 11.
The appellant argued before me that, because the offence was a traffic offence and thus a simple offence, it was not a criminal offence capable of being dealt with in a criminal court. The appellant's submission is misconceived. Offences are simple offences or indictable offences. Both are criminal offences.[16]
[16] Interpretation Act 1984 (WA) s 67.
The learned magistrate had jurisdiction to deal with the appellant in relation to the charge.
Did WA Police Force members have 'jurisdiction'?
The appellant contended that police are public officers and are not authorised to dictate to the public but to serve them. However, police officers have a duty to keep the peace and are authorised to enforce the laws of the State.
I have already found that the RTA empowered the officers to act as they did and they had the authority to detain the appellant.
Was the appellant's identity established?
The appellant denies being the driver of the vehicle. It became clear in argument that he meant he had not been established to be the driver as that term is defined, claiming he is not a 'person' and thus cannot be a 'driver'. However, the appellant has misunderstood the meaning of 'person' in the Interpretation Act as meaning a corporation or body corporate, rather than including such entities. He also did not engage with the definition of that term in the Road Traffic (Administration) Act 2008 (WA) that a 'driver' means any person driving a vehicle or animal.
As to the broader issue of whether he was proved to be the driver, the respondent answered to his name at the trial.[17] There was unchallenged evidence given at trial that the person who was driving the car was arrested and searched and his driver's licence in the name of Neil McAllister was located and that he was the accused.[18]
[17] ts 10 July 2024, 2.
[18] ts 10 July 2024, 13.
The appellant has not sought to adduce any additional evidence on this appeal which constitutes evidence to the contrary.
I am satisfied the evidence established that the appellant was the driver.
Right to refuse self-incrimination
The appellant submitted that he had the right to refuse to incriminate himself under common law, and thus to refuse to provide a breath sample which, if positive, would incriminate him.
Subject to constitutional limits, parliament is entitled to enact a law which by clear words or necessary implication abrogates a common law right or freedom.[19]
[19] Lee v New South Wales Crime Commission (2013) 251 CLR 196 [3], [84], [125].
To the extent that the law in this case abrogates the common law right of self-incrimination and/or the presumption of innocence, it has done so by clear words and necessary implication. The appellant cannot claim that his conviction should be overturned by asserting those common law rights in this case.
Did the learned magistrate have a conflict of interest?
The appellant alleged that he maintained his innocence in the court and, even after it was established that he was of sound mind, her Honour:
[T]ook it upon herself to be appointed as my legal counsel speak and enter a plea on my behalf. This is a total conflict of interest as the magistrate must remain neutral and impartial therefore the decision has no legal standing.
When asked if he maintained his plea of not guilty, the appellant first asked what the jurisdiction of the court was.[20] After being informed of the court's jurisdiction, he then asked what language was being spoken and, when told it was English, contested the kind of English. When asked again if he maintained his not guilty pleas, he said:
I don't come to this court to beg your Honour, so I won't plead. I will maintain that I am innocent of any crime.[21]
[20] ts 10 July 2024, 2, 3.
[21] ts 10 July 2024, 4.
Her Honour asked the appellant if he thought the court did not have jurisdiction, and he said that was not correct. He was asked again to enter a plea and he declined. Accordingly, the learned magistrate entered a plea of not guilty.
At trial, the appellant was obliged to enter one of the pleas set out in s 126(1) of the Criminal Procedure Act 2004 (WA) (CPA). A plea of innocence is not one of those pleas.
Once the appellant refused to enter a plea permitted by s 126(1), the learned magistrate was obliged to enter a plea of not guilty, unless an alternative plea was to be entered under s 99(4) or s 99(5) of the CPA or the appellant was unfit to stand trial. As neither of those exceptions applied, the plea of not guilty was properly entered.
Her Honour did no more than comply with the statutory requirements of criminal procedure. No conflict of interest has been made out.
Additional evidence
The certificate produced by the appellant has no legal force. It does not establish that the appellant was not guilty, either on its own or in combination with the other evidence. Accordingly, I refuse the application to adduce additional evidence.
Conclusion
The grounds of appeal are not reasonably arguable. Leave to appeal must be refused on all bases. The appeal is therefore taken to have been dismissed.
Orders
(1)Application to adduce additional evidence refused.
(2)Leave to appeal refused.
(3)Appeal dismissed.
(4)The appellant is to pay the respondent's costs fixed in the sum of $3422.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
23 DECEMBER 2024
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