McGuinness v Heffernan - [2017] WASCA 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McGUINNESS -v- HEFFERNAN [2017] WASCA 194

CORAM: BUSS P
MAZZA JA
HALL J

HEARD: 15 AUGUST 2017

DELIVERED : 24 OCTOBER 2017

FILE NO/S: CACR 71 of 2017

BETWEEN: KENNETH GERARD McGUINNESS
Appellant
AND
CIARA HEFFERNAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
File No  :SJA 1060 of 2016

Catchwords:

Criminal law - Appeal against conviction - Appeal from a single judge decision on an appeal from the Magistrates Court - Failure to comply with a requirement to supply a sample of breath - s 67 Road Traffic Act 1974 (WA) - Whether appellant had a substantial reason for non-compliance - Whether appellant denied opportunity to adduce expert evidence on this issue - Whether additional evidence provided on appeal is admissible - Whether any miscarriage of justice established

Legislation:

Road Traffic Act 1974 (WA), s 66, s 67
Criminal Appeals Act 2004 (WA), s 14

Result:

Application for leave to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr T C Russell

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

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

Leary v The Queen (1975) WAR 133
McGuinness v Heffernan [2017] WASC 40
O'Connell v The State of Western Australia [2012] WASCA 96
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JUDGMENT OF THE COURT: The appellant was convicted of two charges following a trial in the Magistrates Court. The first charge was that on 30 January 2016 at North Perth he behaved in a disorderly manner in a public place contrary to s 74A(2)(a) of the Criminal Code (WA). The second charge was that he failed to comply with the requirement to provide a sample of breath for analysis contrary to s 67(2)(a) of the Road Traffic Act 1974 (WA). He was fined $1,000 on the first charge and $900 on the second charge. His driver's licence was disqualified on the second charge for 10 months. He was ordered to pay the prosecution costs.
The appellant sought leave to appeal against his conviction on the second charge only to a single judge of the General Division. The basis of that appeal was that there had been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment. It was asserted that an adjournment would have given the appellant the opportunity to lead expert medical evidence in support of his claim that he was unable to comply with the requirement to provide a breath sample. The appeal was heard by Le Miere J, who concluded that the ground of appeal had no reasonable prospect of success. Leave to appeal was refused and the appeal was dismissed: McGuinness v Heffernan [2017] WASC 40. The appellant was ordered to pay the respondent's costs.
The appellant now seeks leave to appeal to this court. The appellant's ground of appeal to this court is that the lawyer who represented him before Le Miere J failed to make arrangements for the appellant to provide additional medical evidence in support of his appeal. The appellant asserts that if he had been given such an opportunity he could have established that his conviction for the failure to comply with a requirement to provide a breath sample was a miscarriage of justice. The appellant also complains that he was not informed that if his appeal was rejected he would be liable to pay the respondent's costs. He also raises what he suggests are inconsistencies in the evidence of the police witnesses and in the summary of facts given by Le Miere J. For the reasons that follow, none of the grounds of appeal have any reasonable prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473. Accordingly, leave to appeal should be refused with the consequence that the appeal is dismissed.

The Magistrates Court proceedings

The events that led to the charges were alleged to have occurred on the evening of 30 January 2016 and the early hours of 31 January 2016. The appellant appeared in the Magistrates Court on 19 February 2016 and again on 17 March 2016. On each of these occasions he was represented by counsel. On 17 March 2016 he entered pleas of not guilty to both charges and the matter was set down for trial on 1 August 2016.
The appellant was self‑represented at the trial on 1 August 2016. At the beginning of the trial the magistrate explained the procedure. In particular the following exchange occurred:
HIS HONOUR: When the prosecution have called the witnesses that they intend to call, I will turn to you at that stage and ask you if you want to give evidence.
ACCUSED: Sure.
HIS HONOUR: Or call any witnesses. You don't have to. I will explain that to you in …
ACCUSED: I don't have any witnesses, your Honour (ts 6).
The appellant was invited to make an opening address. He denied that he had been disorderly as alleged. In regard to the failure to provide a breath sample the appellant said:
ACCUSED: The failure to comply, your Honour, I was bleeding. I had head injuries. There was blood behind my throat. I have a doctor's certificate and a few other things to show what had happened to me. And so that's why I couldn't - I didn't have the strength, your Honour. Every time the officers came back I told them I'm - I was literally falling. I didn't have the strength. I was saying, 'Please take me'. I was like this.
HIS HONOUR: So you're saying that you had a reason not to comply.
ACCUSED: A reason, yes.
HIS HONOUR: Okay.
ACCUSED: And the first test that they took, it was with duress that they took it, your Honour, because I told them 'My medical condition is quite serious and you could be putting me at risk by giving me this test'.
HIS HONOUR: Okay, so I understand that. So you say - you will say that your position is that you had a reason not to comply with that request.
ACCUSED: Yes, your Honour, yes (ts 13).

The evidence

The first witness called by the prosecution was Mr Nicholas Cox. Mr Cox has two sons who were then aged 12 and 14. On the evening of Saturday 30 January 2016, Mr Cox was at a friend's house when he received a telephone call from one of his sons. The son said that there was a man who was abusing and threatening them. Mr Cox told his sons to go to a neighbour's place and he would come and pick them up. On arrival Mr Cox's older son pointed out the man who had been abusing them. Mr Cox identified the man as the appellant (ts 15 ‑ 16).
Mr Cox said that he approached the appellant and asked him what had happened with the boys. He said that the appellant was slurring his words and was pretty agitated. Mr Cox said, 'Look, you'd better go off inside' and then proceeded to return to his car. At that point the appellant started to come towards Mr Cox and picked up a scooter. Mr Cox described the appellant as being aggressive and swinging the scooter, which he wrapped around his own head at one stage before hitting Mr Cox's car with it. Mr Cox said that he then grabbed the appellant and marched him across the road. He said he pushed the appellant onto the verge and said, 'That's enough' and left it at that (ts 17). At this time Mr Cox's two sons and a friend were seated in the car.
Mr Cox then drove the friend home before returning a short time later. As Mr Cox drove into his own driveway a car drove up behind him. Mr Cox told his children to return to the neighbour's house. He then got out of the car and saw that the person who had driven up behind him was the appellant. The appellant went to the boot of his car and began throwing items and screaming that 'everyone was going to die' (ts 19). Mr Cox then asked another friend to call the police.
Mr Cox said that the police arrived within five minutes. One of the first officers to arrive was from the Dog Squad. Two more police arrived shortly after. By this time the appellant had settled down a bit and was sitting on the verge. The appellant then became aggressive again and started abusing and wrestling with the police. He was then placed into the back of the police van where Mr Cox could hear him kicking. By that stage other people had come out of their houses (ts 19 ‑ 21).
In cross‑examination the appellant put to Mr Cox that he twice shouted out words to the effect 'don't come near me' or 'stay away from me' and that Mr Cox then came out and knocked him 'out cold' (ts 25). Mr Cox said this was not true. The appellant also put to Mr Cox that the children kicked him whilst he was on the verge. Mr Cox denied this.
Senior Constable Ciara Heffernan gave evidence that she and a colleague arrived at the scene shortly after 10.50 pm. On arrival she observed the appellant standing by the driver's side of a white Ford Falcon vehicle. The vehicle was running and the lights were on. She said that the appellant was very irate and appeared intoxicated. He said that he had driven his vehicle from his home address a short distance down the same street. Senior Constable Heffernan then administered a roadside preliminary breath test. She informed the appellant that it was a positive reading for alcohol. He became quite upset and told the police officers that they would lose their jobs and that he would sue them. He then told the officers that his wife had driven the car. Senior Constable Heffernan and Constable Smith went to the appellant's home and spoke to his wife. On their return the appellant informed them that he had been assaulted, showed them his injuries and said that he suffered from blood clots (ts 55 ‑ 56).
Senior Constable Heffernan informed the appellant that she required him to accompany her to a police station for a further breath analysis. The appellant refused. The appellant was then informed that he was under arrest for failing to comply with the requirement. He became aggressive whilst the officers were placing him in the police van. He continued to shout and kick in the van for a short time. On arrival at the Perth police station Senior Constable Heffernan took the appellant to the breath test room. The appellant said that he would not blow into the machine. Constable Smith gave the appellant two attempts to blow into the breath apparatus and the appellant refused on both occasions (ts 56 ‑ 57).
The appellant gave evidence that he had been assaulted by Mr Cox. He also said that he had been injured as a result of being kicked by Mr Cox's children. He did not explain how his car came to be at Mr Cox's house. He said his car was normally parked at his house which was about 100 to 150 m away from that of Mr Cox. He said that when the police arrived he told them that he had been assaulted and asked to be taken to hospital. He said that he gave the preliminary breath test when asked but when the police said they wanted another test he told them that he had given one already and that he did not have the strength 'to do it any more' (ts 126). He said that the police were then rude to him and put him into handcuffs. He said that at the police station he was asked to undertake a breathalyser test and responded by saying that he was bleeding and needed to go to the hospital. The magistrate then asked the appellant some questions:
HIS HONOUR: So you were asked by the officer to do a breath test back at the police station.
ACCUSED: And I refused, your Honour, yes.
HIS HONOUR: You refused?
ACCUSED: Your Honour, because I was - I was not able - I was very unfit, your Honour. I - I didn't have the strength.
HIS HONOUR: And you refused because you were unfit?
ACCUSED: I was unfit, your Honour.
HIS HONOUR: And unable?
ACCUSED: I had given one take already, so I - I thought you've taken one test from me. You've got enough evidence. I mean, why do you [need] another one? Why are you putting me through this agony when I not [sic] fit to do it? I didn't realise, your Honour, that there has to be a second - I was just thinking on that ground that if they - because I only had two drinks - for - if they had enough evidence, you know, why don't they just, you know, settle for that. That - that was the reason why I refused, your Honour.
HIS HONOUR: So the reason why you refused was that you were unfit and unable to do the test?
ACCUSED: Yes.
HIS HONOUR: And you …
ACCUSED: And I thought I had done one already.
HIS HONOUR: And you didn't think another test was necessary?
ACCUSED: Yes, your Honour. Yes, your Honour (ts 129).
The appellant said that he told police that he was about to pass out and was getting giddy spells and asthma. He said that he felt an asthma attack coming on due to anxiety and that he did not have Ventolin with him. He said he told the police that he had asthma and bronchitis (ts 130).
The appellant produced a number of photographs to the magistrate that he said were taken by his sister and his wife the day after the incident. He said that these photographs depicted injuries that he had suffered during the alleged assault by Mr Cox and his children (ts 131).
When asked by the magistrate if there was anything further that he wished to say, the appellant offered to hand up some documents and said:
This is just my doctor, the clinical psychologist [indistinct] the evidence of the sickness that I have. It's also the [indistinct] your Honour, if you just - if he wants to see it he might not want to [indistinct] (ts 133).
The prosecutor objected and the magistrate noted that he could not receive the documents in evidence because they were just 'letters from other people' and the court could not receive them as evidence of the truth. The appellant then said:
Yes. I - I didn't want to call on my doctor anyhow, look he's a very busy man, but, you know, if I had to I would - would have done. That's a matter for you, but I? I was not given sufficient time, your Honour, because I received on 5 July - I had to go to different places to get my disclosure statement so I've realised at the end of this I could have made arrangements to see a specialist and they could have been present. Getting my medical [indistinct] I can't - couldn't do that, but I didn't have sufficient time, your Honour (ts 134).
In cross‑examination the appellant conceded that he was able to comply with the request to give a preliminary sample at the scene, though he said he did this 'with the greatest difficulty' and under duress (ts 141). He was asked whether he was offered Ventolin at the police station and he said he could not recall. When questioned about when the photographs had been taken the appellant repeated that they had been taken the following day, though they were processed a week later. He also said that his doctor had evidence of 'all those things' (ts 144 ‑ 145, 147).
After the appellant had completed his evidence the magistrate asked if he had any other witnesses that he intended to call. The appellant said that he 'couldn't request my doctor because he's a busy man' (ts 150). The magistrate then told the appellant that his decision had to be based only on the evidence that he had heard and nothing else. The appellant said that he understood.

The magistrate's reasons

The magistrate reserved his decision. On 3 August 2016 the magistrate found the appellant guilty of both charges and gave oral reasons for his decision. After summarising the evidence his Honour noted that the evidence of the police officers was consistent and that they were both impressive witnesses. His Honour then made the following findings:
I find based on the police evidence, which I accept, that although the accused did say he had been assaulted and was angry, and he said he did need medical attention, that he didn't at the scene provide a list of other medical conditions nor beg to be taken to hospital. I accept he showed Constable Heffernan cuts to his elbows and mentioned blood clots.
I find as he was being put into the police vehicle, having been advised that he was under arrest for failing to comply, that he was resisting and some force had to be applied in order to actually get him into the police vehicle. He was shouting, he was being abusive and he shouted the threat 'I will kill you, you cunts' to police. I find that threat was directed at police.
…
I find - and in any event, it's not in dispute - that the accused did refuse to comply with the requirement from Constable Smith to provide a sample of his breath at Perth Police Station as per section 66 subsection (2) of the Road Traffic Act. I accept the evidence of both Constable Smith and Heffernan, that the accused did not say to them that he would do any test they required if he were taken to a hospital. Both of them denied that was said once by the accused, let alone several times in the manner of beginning.
I find consistent with the evidence of Constable Smith which I accept as accurate and reliable and supported by the document which is exhibit 3 that he refused twice - at midnight and then again at three minutes past midnight. I find it was an approved apparatus, being a Dräger Alcotest 7110 and that the constable was an approved operator. And I find that the requirement that Constable Smith did make was a lawful requirement.
I accept Constable Heffernan's evidence that even before Constable Smith introduced himself as the operator to the accused, the accused said he would refuse to blow. This is not a situation on any version of the evidence where the accused attempted or tried to provide a sample of his breath at the police station, but couldn't for some reason muster enough breath in the circumstances. He simply refused.
So that failure being established, it's not the end of it. I've now got to consider the defence pursuant to subsection (5) of section 67. And it seems to me fairly obvious that the accused did give a reason for his failure to comply. That was that he had asthma and bronchitis and furthermore that he said he had been hit in the lung and couldn't breathe well at the time, and I accept Constable Smith's evidence that those things. But that they were said does not amount to them being true, and that they were said does not amount to them being a substantial reason for his failure to comply.
Having heard his evidence, I did not find the accused to be a credible witness - and I say that giving due allowance to the obvious difficulties associated with an unrepresented accused in an unfamiliar environment such as a courtroom, where there are rules and procedures - not only having to put propositions to witnesses, but giving evidence‑in‑chief himself and being cross-examined.
…
Whilst he clearly had some injuries, I do not accept the accused's claim that he was falling down and was unable to stand due to those injuries and state of health, or that he was unable or unfit to provide a sample at Perth Police Station. Firstly, he managed to do so at the scene; secondly, he was clearly able, despite any injuries he received as a result of the altercation with Mr Cox to get in his car and drive to number 44 to get to his boot and throw items from it; and he was able to at least try to resist police and some force had to be used to get him in the police vehicle.
I find based on the evidence of police that he wasn't hyperventilating or having actually [sic] difficulty breathing in the breath room. I accept Constable Smith's evidence that the accused behaviour was of an obnoxious kind rather than a kind where he was in any apparent or real medical danger. In short, the accused has not satisfied me on the balance of probabilities that he had any substantial reasons for failing to comply, other than a desire to avoid providing information that might be used in evidence.
It was the initial positive reading at the scene that seemed to mark distinctly a change in his attitude and behaviour toward police, and in my view it was a desire to avoid providing information that might be used in evidence that was the overwhelming reason for his failure to comply. Clearly, that is not a substantial reason as the law is concerned.
His evidence that he thought police didn't need to do another test because he had already done one, and that was partly why he refused - because he was unfit, unable and he thought in any event they didn't need to do another test - in my view is more likely to be true. However, that mistaken belief if it was in fact held is not a substantial reason for failing to comply.
I don't accept that whatever injuries physically the accused had received - that any of them in isolation or combination - inhibited him from providing a sample of his breath, nor was there evidence that satisfies me that he was actually suffering from asthma or bronchitis and that was inhibiting him, rather than simply he was asserting that he was suffering from those things (ts 181 ‑ 185).

Appeal to the primary judge

On appeal to the primary judge there was a single ground of appeal. It was that 'There has been a miscarriage of justice as a result of the magistrate failing to raise with the appellant the option of seeking an adjournment'. The appellant was represented by counsel on that appeal.
His Honour referred to the relevant principles concerning a trial judge's duty to an unrepresented defendant as referred to in O'Connell v The State of Western Australia [2012] WASCA 96 [106]. He also referred to the principles relevant to when an adjournment should be granted to enable an accused person to properly present their defence: Leary v The Queen (1975) WAR 133.
His Honour concluded that the magistrate had not failed in his obligation to give the appellant such information and advice as was necessary to ensure that there was a fair trial. The appellant had chosen not to ask his doctor to attend court to give evidence. Furthermore the appellant did not tell the magistrate that his doctor could or would give evidence that was directly relevant to his ability to comply with the requirement to give a breath sample. There was no suggestion that the appellant wished to lead evidence from a doctor that at the time he refused to provide a breath sample he was suffering an attack of asthma or bronchitis that prevented him from providing a sample [14] ‑ [15].
As to whether there was any miscarriage of justice, his Honour noted that it was not disputed that a refusal to adjourn a trial could only result in a miscarriage of justice if the effect was to deny the appellant a realistic opportunity of securing an acquittal. The appellant had not sought leave to adduce on appeal the evidence that he said he had been denied the opportunity to adduce at the trial. Accordingly, his Honour concluded that there was no basis to find that a miscarriage of justice had occurred [16].
In any event, his Honour concluded that even if a miscarriage of justice had occurred he would nonetheless dismiss the appeal because he considered that no substantial miscarriage of justice had occurred pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA). In coming to that conclusion his Honour referred to the unchallenged factual findings of the magistrate. His Honour noted that in order for any medical evidence to provide a realistic prospect of acquittal it would need to overcome those findings. In particular, it would need to explain how the appellant's injuries and ailments prevented him from providing a breath sample at the Perth police station but did not prevent him from earlier providing a preliminary sample. It also needed to explain how the injuries claimed by the appellant were not observed by the police officers and did not prevent the appellant from forcibly resisting the police officers [17] ‑ [19].

Grounds of appeal

The grounds of appeal to this court as set out in the appeal notice are, in essence, as follows:
1.that the appellant's lawyer in the proceedings before the primary judge failed to arrange a meeting with the appellant prior to the hearing date so that the appellant could provide 'additional medical evidence and arrange for specialists';
2.that the appellant's lawyer failed to advise the appellant of the date of the appeal hearing before the primary judge;
3.that the appellant's lawyer failed to advise the appellant that if the appeal was dismissed he could be ordered to pay the respondent's costs;
4.that there were discrepancies in the evidence given by the police officers; and
5.that the primary judge had made errors of fact in referring to the evidence.
Notwithstanding ground 1, the appellant did not file any application to adduce additional medical evidence on this appeal prior to the hearing. At the hearing on 15 August 2017 he sought to hand up documentary material. An order was made that the appellant was to file and serve an application for leave to rely on additional evidence together with an affidavit annexing any documents that he sought to rely on, including any medical or psychological reports. An application was filed on 21 August 2017. An affidavit was also filed on 21 August 2017, which included 15 annexures.

Grounds 1 and 2

These grounds assert failures on the part of the appellant's lawyer in the hearing of the appeal before the primary judge. There is no evidence to support these assertions. The affidavit filed by the appellant annexes a letter from the Legal Profession Complaints Committee which refers to the resolution of a cost dispute between the lawyer and the appellant. That letter does not establish the veracity of the claims made by the appellant. In any event any failure by the lawyer which resulted in the loss of an opportunity to the appellant to adduce additional evidence could only result in a miscarriage of justice if it is established that the evidence could have changed the outcome. In substance, these grounds depend upon the appellant producing medical evidence that, if it had been adduced in the Magistrates Court, could have resulted in an acquittal.
Section 66(2) of the Road Traffic Act 1974 (WA) provides that where a person has provided a sample of his breath for a preliminary breath test and it appears to a police officer that the preliminary test indicates that the person has a blood alcohol content of or above 0.05 g of alcohol per 100 ml of blood, the officer may require that person to provide a sample of his breath for analysis. For these purposes the officer may require that the person accompany the officer to a police station. Section 66(3) provides that a person who is required to supply a sample of his breath for analysis shall comply with that requirement by providing that sample into an approved apparatus in accordance with the directions of a police officer. Section 66(4)(c) provides that a person is not required to provide a sample of his breath for analysis if it appears to a police officer that because of his physical condition he is incapable of providing a specimen of breath for analysis. A person who fails to comply with a requirement to provide a sample of his breath for analysis commits an offence: s 67(2). It is a defence to such a charge for the accused to satisfy the court that there was some substantial reason for his failure to comply other than a desire to avoid providing information that might be used as evidence: s 67(5). It is for the accused to prove that he had such a substantial reason on the balance of probabilities.
In the present case it was not disputed that a requirement to provide a sample of breath had been made and that the appellant had refused to comply with that requirement. The defence case was that he had a substantial reason for that failure, namely that he was incapable of providing such a sample for health reasons. In particular he claimed that he had bronchitis and asthma. He also claimed to have other injuries that he said required immediate medical attention. The only evidence called in support of this defence was from the appellant himself. It is clear from the transcript of the proceedings before the magistrate that the appellant had considered calling his doctor and decided not to. He did not seek an adjournment and accepted that the case had to be decided on the available evidence. He also faced the difficulty that he gave another reason for his refusal to comply, namely that in his view the police did not require further evidence. Clearly, that was not a proper reason for non‑compliance.
The affidavit filed by the appellant on this appeal annexes 15 documents, three of which are relevant to this issue. The first is described as a Royal Perth Hospital emergency registration record (annexure 2). This record contains very little information. It appears to show that the appellant presented at triage in the early hours of the morning on 31 January 2016 at the 'critical' unit of the hospital. It records the presenting complaint as 'multiple injuries'. There are no details as to the nature of the injuries or what treatment was required.
The second document is a report from a psychologist dated 23 June 2017 (annexure 3). This report refers to the appellant's account of events and that he has attended for psychological counselling on a number of occasions between 20 February 2016 and 6 June 2017. It refers to the psychological impact of the incident and states that the appellant meets the criteria for a major depressive disorder and post‑traumatic stress disorder. There is no reference in this report to any medical condition that could interfere with the appellant's ability to provide a sample of his breath.
The third document (annexure 4) comprises three letters from a medical practitioner. These are dated 8 February 2016, 22 July 2016 and 26 June 2017. The entire content of the 8 February 2016 letter is as follows:
Mr Kenneth McGuinness suffers from bronchial asthma. Coupled with chest and head injury and having asthma. He could not exert himself to have a successful breath test.
It is not apparent whether this is an expression of a medical opinion or simply the repetition of a statement made to the doctor by the appellant. Nothing is stated as to the extent or severity of the asthma or the reasons why it would have been impossible for the appellant to provide a sample of his breath on this occasion. Further the letter appears to rely upon an account of the chest and head injuries that was not accepted by the magistrate. The letter is dated more than a week after the incident and does not state when the doctor saw the appellant, if in fact he did so. The other two letters refer to injuries that the appellant claims to have suffered in the incident and the consequences of those injuries. The only other matter of relevance is a brief reference in the 26 June 2017 letter that the appellant has a history of asthma and uses medication for it. These letters do not provide any explanation for how the appellant could have been unable to provide a sample of breath at the police station and yet have been able to provide a preliminary sample a short time before, yelled at Mr Cox and the police and forcibly resisted arrest (all unchallenged findings of the magistrate).
None of the annexures referred to contain admissible expert evidence on the issue of whether the appellant had a substantial reason for not complying with the requirement to provide a sample of his breath. Despite having had multiple opportunities to obtain and provide such expert evidence the appellant has failed to do so. He has not shown that any loss of an opportunity to adduce additional evidence, either in the Magistrates Court or before the primary judge, prejudiced him. Accordingly no miscarriage of justice has been established.

Ground 3

The appellant complains that his lawyer did not advise him that he could be liable to pay the respondent's cost of the appeal to the primary judge. There is no evidence to support this claim. In any event it is not a matter that is relevant to the merits of the decision made by the primary judge.
On the determination of an appeal the court may make an order as to the costs of the appeal: s 14(1)(h) Criminal Appeals Act. Ignorance of that possibility does not mean that an order cannot be made. Whether costs on an appeal are ordered is a discretionary decision. It is for the appellant to show that the decision is wrong. He has not done so. It is not apparent why any other decision as to costs than that made by the primary judge would have been appropriate.

Ground 4

The appellant submits that there were discrepancies given by the two police witnesses who attended the incident. The implication is that these witnesses were generally unreliable and that this is a conclusion that should have been reached by the magistrate. This is not a complaint that was raised in the court below.
The discrepancies alleged by the appellant are as follows:
1.that Senior Constable Heffernan said that the Dog Squad officer who attended was standing near to the appellant's car, whereas Constable Smith said that there was no officer at all on the premises.
2.that Senior Constable Heffernan said that she gave the appellant a breathalyser test but in fact the breathalyser test was administered by Constable Smith; and
3.that Senior Constable Heffernan gave evidence that the appellant was probably handcuffed whereas Constable Smith said that there were no handcuffs used on the appellant.
It is not clear from the transcript that there is any inconsistency in regard to the location of the Dog Squad officer. This was not a matter of any significance at the trial. As regards the administration of breathalyser tests, the evidence of the police witnesses was that Senior Constable Heffernan administered the preliminary test and that Constable Smith administered the test at the police station. There was no inconsistency in this regard. Nor was there any significant inconsistency in regard to the handcuffs. Senior Constable Heffernan's evidence was that the appellant was probably handcuffed or that the police were holding his hands. This was a matter expressly referred to by the magistrate in his reasons and he was satisfied that any inconsistency in this regard did not diminish the evidence of the police officers as to what had occurred at the scene or at the police station.
In his affidavit and his submissions the appellant sought to dispute other parts of the evidence. Those matters were not properly raised by the grounds of appeal. An appeal is not an opportunity to re‑argue all of the evidence at the initial hearing. In any event, none of the matters referred to by the appellant gives rise to a reasonably arguable ground of appeal.

Ground 5

The appellant took issue with the fact that in his reasons Le Miere J had referred to Mr Cox as the appellant's neighbour and that the altercation took place outside the appellant's house. There is nothing in this complaint. His Honour referred to the initial altercation occurring between the appellant and 'the neighbour' in the street outside the appellant's house at 31 Paddington Street. He then said that the neighbour returned to his house at 44 Paddington Street. It is clear that his Honour was using the word 'neighbour' in a broad sense and was not under any misapprehension as to where the appellant and Mr Cox lived, nor where each part of the incident had occurred.

The grounds of appeal in the appellant's case

The so‑called grounds of appeal in the appellant's case are not proper grounds of appeal. In any event, they do not add anything of substance to the grounds set out in the notice of appeal.

Conclusion

None of the material annexed to the appellant's affidavit consists of admissible evidence. In addition to the three annexures that we have earlier referred to, the other annexures are extracts from the primary decision, extracts from the transcript in the Magistrates Court and statements or documents that were not tendered in evidence and are not relevant to any of the grounds of appeal. We would refuse leave to adduce the additional evidence.
None of the grounds of appeal have any reasonable prospect of success. We would refuse leave to appeal in respect of each of the grounds and dismiss the appeal.