McKenzie v WA Police - [2024] WASC 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   MCKENZIE -v- WA POLICE [2024] WASC 394
CORAM:   SEAWARD J
HEARD:   19 SEPTEMBER 2024
DELIVERED          :   25 OCTOBER 2024
FILE NO/S:   SJA 1008 of 2024
BETWEEN:   SIMON ERIC MCKENZIE
Appellant
AND
WA POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MACLEAN
File Number            :   PE 21679 OF 2023

Catchwords:

Appeal against conviction - Section 16 of the Criminal Investigation (Identifying People) Act 2002 (WA) - Failure to provide personal details when required - Relevance and application of common law authorities - Where there is a statutory modification of common law principles - Whether incorrect procedures used by police - Relevance of post-arrest conduct by police - Whether the Magistrate's verdict was unreasonable or unsafe - Whether it was reasonable for the police to suspect the appellant might have committed an offence - Whether the appellant had a reasonable excuse for failing to comply with the police request

Application to adduce additional evidence - Whether the appellant should be granted leave to adduce additional evidence - Fresh evidence compared to new evidence

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Investigation (Identifying People) Act 2002 (WA) s 16
Criminal Investigation Act 2006 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Leave for an extension of time granted
Leave to adduce additional evidence refused
Leave to appeal on ground 3 granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	C Madondo

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

Beamish v R [2005] WASCA 62
Clarke v The State of Western Australia [2018] WASCA 14
Collins v Wilcock [1984] 1 WLR 1172
Duckworth v The State of Western Australia [No 4] [2018] WASCA 2
Filippou v The Queen (2015) 256 CLR 47
Frailing v Mackay [2020] WASCA 73
George v Rockett (1990) 170 CLR 104
Hounslow v Woodward [2007] WASC 27
Hussein v Chong Fook Kam [1970] AC 942
Kenlin v Gardiner [1967] 2 QB 510
Labriola v Morgan [2017] WASC 256
Landsman v R (2014) 88 NSWLR 534
Lawless v The Queen (1979) 142 CLR 659
Petty v R (1991) 173 CLR 95
R v Banner [1970] VR 240
Re Essential Media and Entertainment Pty Ltd [2020] NSWSC 990
Sami v Duggan [2011] WASC 304
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Taikato v The Queen (1996) 186 CLR 454
Tey v Plotz [No 2] [2011] WASCA 34
The Director of Public Prosecutions v Hamilton [2011] VSC 598; (2011) 33 VR 505
Tsang v Francis [2021] WASCA 131
Waaka v Police [1987] 1 NZLR 754
Webb v Tang [2021] WASC 344
Webb v Tang [2023] WASCA 119
Wells v The State of Western Australia [2017] WASCA 27
Wimbridge v The State of Western Australia [2009] WASCA 196

SEAWARD J:

Overview

In December 2023 the appellant, Simon Eric McKenzie, was convicted after trial of failing to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASC 394
Decision Date: 25 OCTOBER 2024

CaseChat Overview and Summary

In the case of McKenzie v State of Western Australia, the appellant, McKenzie, was convicted in the Magistrates Court of Western Australia for an offence under section 16 of the Criminal Investigation (Identifying People) Act 2002 (WA). McKenzie appealed against his conviction, arguing that the police did not follow the correct procedures when requesting personal details and that the Magistrate's verdict was unreasonable or unsafe. The appeal centred on whether the police had a reasonable suspicion that McKenzie had committed an offence, whether McKenzie had a reasonable excuse for failing to provide personal details, and whether the Magistrate's decision was correct in light of the evidence presented.

The legal issues in this case were whether the police's actions in requesting personal details from McKenzie complied with the relevant statutory provisions, and whether the Magistrate's verdict was reasonable and safe given the evidence. The court had to consider the relevance and application of common law authorities in the context of the statutory modification of common law principles, as well as the significance of the post-arrest conduct by the police. The court also had to determine if it was reasonable for the police to suspect McKenzie might have committed an offence and if McKenzie had a reasonable excuse for not complying with the police request. Additionally, the court considered an application to adduce additional evidence and whether it was appropriate to grant McKenzie leave to present this evidence.

The court found that the police had acted reasonably in suspecting McKenzie might have committed an offence, and that there was no evidence of incorrect procedures used by the police. The court concluded that the Magistrate's verdict was reasonable and safe, taking into account all the evidence presented. The court also found that McKenzie did not have a reasonable excuse for failing to comply with the police request for personal details. The appeal was ultimately dismissed, and the original conviction was upheld. McKenzie's application to adduce additional evidence was denied, as the court determined that the evidence was not fresh but rather new, and therefore, not admissible.

Orders