McGuinness v Heffernan
[2017] WASC 40
•1 MARCH 2017
MCGUINNESS -v- HEFFERNAN [2017] WASC 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASC 40 | |
| Case No: | SJA:1060/2016 | 6 FEBRUARY 2017 | |
| Coram: | LE MIERE J | 1/03/17 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KENNETH GERARD MCGUINNESS CIARA HEFFERNAN |
Catchwords: | Criminal law Appeal against decision Failure to raise option of seeking an adjournment No miscarriage of justice No substantial miscarriage of justice Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(2), s 39(1), s 40(1)(e) Road Traffic Act 1974 (WA), s 67(2)(a), s 67(5) |
Case References: | Leary v The Queen (1975) WAR 133 O'Connell v The State of Western Australia [2012] WASCA 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
CIARA HEFFERNAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE A D HILLS-WRIGHT
File No : PE 5589 of 2016, PE 5590 of 2016
Catchwords:
Criminal law - Appeal against decision - Failure to raise option of seeking an adjournment - No miscarriage of justice - No substantial miscarriage of justice - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 14(2), s 39(1), s 40(1)(e)
Road Traffic Act 1974 (WA), s 67(2)(a), s 67(5)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S M Shadgett
Respondent : Mr J F Bennett
Solicitors:
Appellant : Shadgett Legal
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Leary v The Queen (1975) WAR 133
O'Connell v The State of Western Australia [2012] WASCA 96
- LE MIERE J:
Summary
1 The appellant was convicted of failing to comply with a requirement to provide a sample of breath analysis pursuant to s 67(2)(a) of the Road Traffic Act 1974 (WA) (RTA). He was fined $900 and disqualified from holding or obtaining a driver's licence for 10 months. The conviction followed a trial in the Magistrate's Court at which the appellant was self-represented. The essence of the appellant's defence was a defence under s 67(5) of the RTA that there was a substantial reason for his failure to comply other than a desire to avoid providing information that might be used as evidence. The substantial reason was that he was unable to comply because of his medical condition and injuries he had sustained in an incident earlier that day.
2 The appellant now seeks leave to appeal and to appeal against his conviction. The appellant seeks leave to appeal on the ground 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 for the purpose of leading expert medical evidence to support his defence that he was unable to comply with the requirement to provide a breath sample.
The trial
3 At the commencement of the trial the magistrate informed the appellant of the process that the trial would take. The magistrate informed the appellant, amongst other things, that at the conclusion of the prosecution case the appellant may give evidence himself and may call other witnesses. The appellant informed the magistrate that he did not have any witnesses.
4 The prosecution led evidence from a neighbour of the appellant and two police constables. The appellant gave evidence himself but did not call any other witnesses.
5 The evidence is to the following effect. An altercation occurred between the appellant and the neighbour in the street outside the appellant's house at 31 Paddington Street. The appellant says, and the neighbour denies, that the neighbour assaulted him and the appellant received injuries including cuts to his face and elbow. The neighbour returned to his house at 44 Paddington Street. A car pulled into the driveway. The appellant got out. The police were called. Constable Heffernan and Constable Smith attended. The appellant was standing next to a vehicle parked in the driveway. He informed Constable Heffernan that he had driven from his house further down the street. Constable Heffernan believed the appellant was intoxicated and gave him a roadside breath test. The test was positive. The appellant then informed the constables that his wife had driven the car. Constable Heffernan and Constable Smith then attended the appellant's home and spoke to his wife. The constables then returned to 44 Paddington Street. The appellant informed the constables that he had been assaulted and showed them his injuries and told them he suffered from blood clots.
6 Constable Heffernan informed the appellant that she required him to accompany her to Perth police station for a further breath analysis. The appellant refused. The police constables informed the appellant he was under arrest for failing to comply with the requirement to accompany them to the police station for a breath analysis test. The appellant refused to accompany the constables to the station. While the constables were putting the appellant in the police van he became aggressive. He continued to shout and kick in the van for a short period of time. When they arrived at the Perth police station Constable Heffernan took the appellant to the breath test room. The appellant said he was going to refuse to blow and that he would not blow in the machine again. Constable Smith gave the appellant two attempts to blow into the breath apparatus and the appellant refused both times.
7 The appellant gave evidence including evidence to the following effect. At the police station he was asked by a police officer to do a breath test. He refused because:
I was not able - I was very unfit … I didn't have the strength … I had already given one take already, so … I thought, you've taken one test from me. You've got enough evidence. I mean, why do you another one? Why are you putting me through this agony when I [am] not fit to do it. I didn't realise … that there has to be 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 was the reason why I refused … (ts 129).
- In answer to a question from the magistrate the appellant said that the reason he refused was that he was unfit and unable to do the test and he thought he had done one already and he did not think another test was necessary (ts 129). The appellant told the police officers he had asthma and bronchitis (ts 130).
8 The magistrate asked the appellant if there was anything further he wanted to show. The appellant said:
This is just my doctor, the clinical psychologist (indistinct) the evidence of the sicknesses that I have. It's also the (indistinct), … (ts 133).
- The prosecutor said that she would object. The magistrate looked at the documents provided by the appellant. The magistrate said that he could not receive them in evidence because they 'are just letters from other people' and the court cannot receive them as evidence of the truth. The appellant then said:
Yes. 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 have done (ts 134).
The magistrate then said that it was a matter for the appellant. The appellant said:
I was not given sufficient time … 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 …(ts 134).
I couldn't request my doctor because he's a busy man (ts 150).
- The magistrate then told the appellant that his decision has got to be based just on the evidence and nothing else. The appellant said he understood.
Magistrate's reasons for decision
10 The magistrate found that the charge was proved for the following reasons. The appellant refused to comply with the requirement to provide a sample of his breath for analysis. The appellant gave a reason for his failure to comply: that he had asthma and bronchitis and had been hit in the lung and could not breathe well at the time. The appellant was not a credible witness. There were aspects of the appellant's evidence that did not ring true and were fanciful and did not make sense. After the appellant had received the injuries of which he complained he was able to and did drive to the residence in North Perth and confront the resident. He was physically capable of doing so. The appellant admitted to police he drove there but when he blew a positive reading on the preliminary test, only then did he claim his wife drove and that change of evidence demonstrates the appellant's capacity to say something different or untrue if he thinks it will assist him. The appellant clearly had some injuries but he was not falling down or unable to stand due to those injuries and state of health. He was not unable or unfit to provide a sample at Perth police station. There are two reasons for that finding. First, 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 the resident to get in his car and drive to the residence 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. The appellant was not hyperventilating or having any actual difficulty breathing in the breath analysis room. His behaviour was of an obnoxious kind rather than a kind where he was in any apparent or real medical danger. The appellant has not satisfied the court on the balance of probabilities that he had any substantial reason for failing to comply, other than a desire to avoid providing information that might be used in evidence. Whatever injuries the appellant received, either in isolation or combination, did not inhibit him from providing a sample of his breath. There was no evidence that satisfies the court 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. At the police station he never attempted to blow into the mouthpiece. He simply refused point blank. The court is not satisfied on the balance of probabilities that the appellant was unable physically to provide a sample.
Ground of appeal
11 On the hearing of the appeal the appellant's counsel sought leave to amend the grounds of appeal. The application was not opposed by the respondent. I give leave to amend the grounds of appeal. Accordingly, the sole ground of appeal is:
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.
Magistrate's duty to unrepresented defendant
12 The Court of Appeal outlined the relevant principles concerning a trial judge's duty to an unrepresented defendant in O'Connell v The State of Western Australia [2012] WASCA 96. Mazza JA, with whom Martin CJ and Buss P agreed, said:
A criminal trial is an adversarial process. It is not the role of the trial judge, when faced with an unrepresented accused, to play the part of his or her advocate and give the advice, guidance and representation which counsel would have provided: Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 334 - 335 (Deane J). However, consistent with a trial judge's duty to ensure a fair trial, he or she is under an obligation to give an unrepresented accused such information and advice as is necessary to ensure that he or she has a fair trial: MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 534 (Mason J). There is no limited category of matters of which a judge must advise an unrepresented accused: MacPherson v The Queen, (524) (Gibbs CJ and Wilson J). The scope of the assistance to be given depends on the particular litigant and the nature of the case. The touchstones are fairness and balance: Tomasevic v Travaglini (2007) 17 VR 100 [14] (Bell J) [106].
13 In Leary v The Queen (1975) WAR 133 the Full Court observed that it is fundamental to the administration of justice that an accused person must be given full opportunity to present his or her defence and that an adjournment should be granted if it is necessary to enable the accused person to properly present that defence. However, it was also said that in considering an application for an adjournment to allow a defence witness to be brought from elsewhere, it is proper to reject such an application if the court reaches the conclusion upon reasonable grounds that such a witness would be unlikely to give evidence tending to exculpate the accused.
Magistrate did not fail to ensure fair trial
14 Counsel for the appellant submitted that the magistrate should have advised the appellant that he could summons the doctor and could apply for an adjournment of the trial to enable him to do that.
15 I am not satisfied that the magistrate breached his obligation to give the appellant such information and advice as was necessary to ensure that he had a fair trial. This is not a case where the defendant had asked a doctor to attend court and give evidence and the doctor had refused. The appellant informed the magistrate that he had not asked the doctor to give evidence because 'he's a very busy man'. Secondly, the appellant did not inform the magistrate that his doctor would or could give evidence directly relevant to the appellant's ability to comply with the requirement to give a breath sample. The appellant had some letters which he wished to show to the magistrate. At least one of them was from the appellant's doctor, a clinical psychologist, and was evidence of 'the sicknesses that [the appellant] has'. The appellant did not tell the magistrate that he wished to lead evidence from his doctor that at the time he refused to provide a breath sample he was suffering an attack of asthma or bronchitis, or some other disease or injury, that prevented him providing a breath sample. In the circumstances, the magistrate's duty to ensure a fair trial did not require that he inform the appellant that the appellant could summons the doctor to give evidence and could apply for an adjournment of the trial for that purpose.
No miscarriage of justice
16 The respondent submitted, and the appellant accepted, that in cases where the decision of a magistrate to refuse an adjournment have been appealed there will be a miscarriage of justice only if the effect of the decision to refuse an adjournment was to deny the appellant a realistic opportunity of securing an acquittal. No miscarriage of justice will have occurred if the effect of the magistrate's failure to raise the possibility of an adjournment did not deny the appellant a realistic opportunity of securing an acquittal. Section 39(1) of the Criminal Appeals Act 2004 (WA) requires an appeal to be decided on the evidence and materials before the lower court. Section 40(1)(e) empowers the appeal court to admit any other evidence. The appellant has not applied for leave to adduce the evidence that he says he was denied the opportunity to adduce. There is no evidence before the court of the evidence which the appellant says he was denied the opportunity of adducing. There is no basis for the court to find that a miscarriage of justice has occurred in the absence of such evidence.
No substantial miscarriage of justice
17 If, contrary to my findings, a miscarriage of justice has occurred, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred pursuant to s 14(2) of the Criminal Appeals Act.
18 In coming to his decision to convict the appellant the magistrate made the following relevant findings:
a. the appellant did not attempt to provide a breath sample at Perth Police Station, rather he simply refused to do so;
b. the appellant was not a credible witness and there were aspects of his evidence that 'did not ring true and … were fanciful and didn't make sense';
c. the appellant initially admitted to police that he drove to 44 Paddington Street, North Perth, but once he gave a positive reading on a preliminary breath test he then told them that his wife drove to that address;
d. the appellant has the capacity to say something different or untrue if he thinks it will assist him;
e. the appellant had some injuries from his altercation with the neighbour, but was not falling down and was not unable to stand due to those injuries and state of health;
f. the appellant was not unable or unfit to provide a sample at Perth Police Station because he was able to;
i. provide a preliminary breath test at 44 Paddington Street, North Perth despite his claims that he was unable to stand or breathe;
ii. get in his car and drive to 44 Paddington Street, North Perth and get to his boot and throw items from it, despite any injuries he received as a result of the altercation with the neighbour; and
iii. physically resist police with the result that force had to be used to get him in the police vehicle.
g. the appellant was not hyperventilating or having difficulty breathing while awaiting the breath test at Perth Police Station and he was not in apparent or real medical danger;
h. even with regard to injuries that the appellant says he sustained, these would not provide a substantial reason for his failure to comply; and
i. it was more likely that the appellant refused the breath test at Perth Police Station because he mistakenly believed police did not need to do another test.
- Given the magistrate's findings, which are unchallenged on appeal, in order for any medical evidence to provide a realistic prospect of acquittal it would need to overcome these findings. In particular, it would need to explain how the appellant's injuries and ailments prevented him from providing a sample of breath at the Perth police station, but did not prevent him from earlier providing a preliminary sample at 44 Paddington Street, North Perth. It may also need to explain how the injuries and ailments did not overtly manifest themselves in a way that the police officer would observe and would not prevent the appellant from physically resisting police officers with some force.
19 The appellant has neither led evidence, nor made any submissions as to how those findings of the magistrate might be overcome by the medical evidence which the appellant says he was denied the opportunity to adduce. There was no substantial miscarriage of justice.
Leave refused
20 The appeal has no reasonable prospect of success. Leave to appeal is refused and the appeal is dismissed.
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