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 comply with a request to give police his personal details contrary to s 16(6) of the Criminal Investigation (Identifying People) Act 2002 (WA) (CI (IP) Act). He was fined $600 and ordered to pay court costs of $264.30.
Mr McKenzie seeks leave to appeal against his conviction. Mr McKenzie is self‑represented in the appeal and was self‑represented when he was convicted in the Magistrates Court.
Mr McKenzie's appeal notice was filed out of time, and he therefore requires an extension of time within which to appeal. The questions of leave to appeal and an extension of time to appeal were deferred to the hearing of the appeal.[1] Mr McKenzie relies on his affidavit sworn 5 February 2024 in support of his appeal and to explain why the appeal was lodged out of time.
[1] Orders of Registrar Whitbread made on 28 March 2024.
Mr McKenzie has also filed an application for leave to rely on additional evidence which was not before the trial magistrate. That evidence concerns events which occurred after he had been arrested at the police station. Mr McKenzie asserts that he was denied the opportunity to make a phone call until after he had been charged. That application is opposed by the respondent.
The appeal raises the following issues for determination:
(1)Should Mr McKenzie be granted leave to appeal out of time and be granted leave to adduce the additional evidence?
(2)Are the legal authorities relied on by Mr McKenzie relevant and did the magistrate incorrectly apply the law (Ground 1)?
(3)Did the police use any incorrect procedure/s, and if so, how did this effect the charge and conviction (Ground 2)?
(4)Was the magistrate's verdict unreasonable or unsafe (Ground 3)?
For the reasons that follow, I grant leave for the appeal to be filed out of time, but refuse Mr McKenzie leave to adduce additional evidence. I grant Mr McKenzie leave to appeal on ground 3 only, but I dismiss the appeal.

Trial December 2023

At the commencement of the trial, the prosecutor made the following opening address:
At about 10.15pm, Saturday, 22 April 2023, accused was on Pier Street in Perth. Two police officers conducting patrols on their bicycles rode past the accused and could smell cannabis. They turned around and spoke to him, who was the only person in the area. Accused began walking away from police. They detained him for a search under the Misuse of Drugs Act.
Prior to the search commencing they asked the accused to identify himself as they suspected he was committing an offence of possessing prohibited drugs, however, he refused to provide any of his details to the officers. He was subsequently conveyed to the Perth Watch-house where he was identified there at a later time.
The prosecution called the two police officers involved in Mr McKenzie's search and arrest (Senior Constable Griffin and Constable Hazzard) and also played the footage from the officers' body cameras. It is sufficient to summarise that evidence as follows:
(a)the two officers were conducting patrols on bicycles in the Perth CBD area when they cycled down Pier Street, Perth. The area was well lit, and they could only see one person in the area. One officer's evidence was that he saw the individual put something on the floor as they rode past;
(b)as the officers cycled past the individual, they smelt cannabis. The officers spoke to each other about the smell about 20‑30 metres past that individual and then cycled back to the individual;
(c)when the officers reached the individual, they asked him to stop and he did not. The officers explained that they smelt cannabis and were stopping him to conduct a search under the Misuse of Drugs Act 1981 (WA). The officers placed the individual in handcuffs as they were concerned that he was placing his hands in his pockets and might be destroying evidence;
(d)the officers then required the individual to provide his full name. The individual refused. There was then some discussion between the officers and the individual but he continued to refuse to provide his name;
(e)one of the officers searched the immediate area and did not locate any drugs;
(f)there were then further interactions between the officers and the individual, who still refused to provide his name. The officers explained to the individual that under the CI (IP) Act if he did not provide his name, his date of birth and his address he would be arrested and taken back to the Perth Watch House until he was identified. The individual was then arrested for failing to provide his personal details when requested;
(g)the officers then conducted a search of the individual. No drugs or any identifying material was located. The individual was then taken to the Perth Watch House and later identified via his fingerprints; and
(h)the officers each gave evidence that they stopped Mr McKenzie as they suspected him of being in possession of drugs.
In cross-examination, Mr McKenzie did not challenge the evidence of the police officers that they smelt cannabis as they rode down Pier Street; that the officers did not know the name or the identity of Mr McKenzie or that Mr McKenzie refused to provide his name, date of birth and address when requested. Rather, the focus of the cross‑examination was on Mr McKenzie's right not to provide his identifying details unless he was arrested and whether there were other people on the street in the area. There was also no cross‑examination about whether Mr McKenzie asked for, but was denied, a phone call when he was back at the police station.
Mr McKenzie did cross-examine both officers as to whether Mr McKenzie had offered to provide his name and address to the police if they first took him back to his accommodation in Northbridge. Senior Constable Griffin agreed that Mr McKenzie had said he would provide his details if taken back to his accommodation first. However, the police did not accept this.[2] The cross‑examination on this issue included the following:[3]
In the world - if you want to talk hypothetical, if you had provided your full name, date of birth, that, and we had identified you, like we did eventually, you weren't subject to anything else, no worries, I think the guys with the van probably would have given you that short lift to [redacted] just around the corner, because there was nothing outstanding with you, if you wanted it then. Yes. But we're not about to enter into a bargain or a deal or something to say, 'All right, we will give you a lift to where you want to go, and then we'll get your ID.' No.
Now, once you - let's say somebody informs you that they are, you know, how - as they see themselves, as a vulnerable person, and they're offering to - you know, to - to identify themselves, because they need to go back to [redacted], which they do say on the - on the body-worn camera, that that is safe place for them, and they will feel safe doing that, as somebody - you know, essentially you've got to understand that you're dealing with somebody who was having mental health issues at the time, you could say. Yes. I was seeing a psychologist for PTSD. I'm a veteran. I've been to war, and it's something that I have to deal with every day, and so it - my question that I'm trying to get to really is, you know, once I kind of explained those - those situations to you, why - why would you not, you know, think, 'Okay. Well, look, we need a name for this guy. How about we escort him back to [redacted]. I can get the name for the search report. We can close this off. I've not found any weed on him. There's nothing there. We can close it off'? It seems a bit extreme to just decide, after you had been informed that (1) I was a vulnerable person seeing a psychologist, having mental health issues, and (2) that I did conditionally tell you where I lived, I just didn't give you my name, and I did inform on the bodycam that I would be happy to give my name and my details at [redacted] as that is my safe place. Would that not in your kind of - you know, obviously your professional capacity, be reason for you to say, 'Okay. Look, let's go with this now and take him back, and we can get this closed off'?---No. We're there dealing with it now. You can provide your full name, date of birth there. It's not a big ask. It's not a hard ask.
[2] Trial ts 29 ‑ 30.
[3] Trial ts 31 ‑ 32.
Mr McKenzie elected to give evidence at the trial. By way of overview, Mr McKenzie's evidence was that there were several people who went past him on Pier Street in a 30 second ‑ one minute interval before the police stopped him.[4] Mr McKenzie also gave evidence as to his understanding of his obligation to provide details under the common law. Mr McKenzie's evidence was that he was not required to provide his name and address unless he was under arrest. Mr McKenzie, who is from the United Kingdom, explained that this was the position there and as Australia is also a common law country, it was his understanding that this is also the position in Australia.[5]
[4] Trial ts 40.
[5] Trial ts 40.
Mr McKenzie also gave evidence that he did offer to provide his details if the police officers first took him back to his crisis accommodation in Northbridge which was very close to where he was arrested. Mr McKenzie's evidence in this regard was:[6]
And, also, you know, in relating to, you know, these charges and why, you know, I refused to kind of give my details at the time, you know, it's my understanding – you know, obviously, I'm from the UK, which is a common law jurisdiction the same as Australia, which is a common law jurisdiction - that I don't have to help the police with their inquiries. I've got no obligation to aid them or to answer any questions that they - that they give, which is the reason why, you know, I - I've - I essentially refused to give my name.
But it was - it was actually - I did conditionally accept to do that if they had have taken me back to my place of residence and I told them I was living at [redacted], you know, which is a homeless crisis centre. I did explain to them very clearly on the body cam footage, you know, that I was - you know, I'm a vulnerable person. I'm dealing with PTSD. I'm in the process at the time. I was seeing a psychologist.
And I - and, you know, I didn't think that was an unreasonable request, your Honour, to ask, you know, for them to, you know, to take me back to [redacted] and I would have identified myself there. I would have been quite happily [sic] to do it, to be honest. But the thing is, I mean, there was no evidence of - they initially stopped me under the Misuse of Drugs Act. There was no - there was no - there was - it was - which was merely just a suspicion.
They claimed that they smelt something. I mean, I didn't have any - anything on me. I - like I said, I don't - I don't smoke drugs. I don't do any drugs. I don't even drink. So I didn't think it was an unfair request, you know, to be taken back there where I would have been happy to do it. So I did conditionally act - you know, offer to help them, well, even though I have no obligation to do so, your Honour.
[6] Trial ts 40 ‑ 41.
Mr McKenzie did not give evidence about being denied his right to make a phone call until after he was charged.
Mr McKenzie's defence as explained in his closing submissions was that:[7]
(a)his understanding was that the common law prevailed above statutes, and that he had an inalienable right to remain silent when questioned by police when he was not under arrest. Mr McKenzie referred the magistrate to the decisions of R v Banner [1970] VR 240; The Director of Public Prosecutions v Hamilton [2011] VSC 598; (2011) 33 VR 505; and George v Rockett (1990) 170 CLR 104 in support of this submission;
(b)he would have been willing to give his details if the police had found evidence that he had committed a crime, but as they had not he was within his rights to refuse to give his details; and
(c)he was a vulnerable person and would have been willing to give his details if the police had taken him back to his accommodation which was a safe place for him.
[7] Trial ts 42 ‑ 52.
The magistrate then proceeded to convict Mr McKenzie. When giving his reasons, the magistrate made the following remarks:[8]
[8] Trial ts 52 ‑ 55.
This case involves an allegation that on 22 April this year two police officers rode their bicycles past Mr McKenzie adjacent to the Children's Court. Those officers were not challenged in relation to their evidence that they smelt what they understood to be marijuana when they drove - when they rode past the vicinity of Mr McKenzie …
…
… They both gave clear evidence that on 22 April riding their bicycles that's what they smelt, and I accept that evidence. Now, Mr McKenzie says there were other people in the area prior to the police arriving. The police say there was no one there when they got there and saw Mr McKenzie.
There's no intrinsic conflict between those two accounts. The police aren't saying, 'Well, there was no one there before we got there'. They just don't know. But I accept their evidence that when they did arrive there was only Mr McKenzie standing in that approximate area, at least from what they could see. I accept their evidence that they smelt a strong odour of what they understood to be the smell of marijuana. We see the CCTV footage, exhibit 1 and 2, in relation to those officers' dealings with Mr McKenzie on the night in question.
So it is indisputable that they drove past him, turned around, and then engaged with Mr McKenzie. He is charged that, contrary to section 16 of the Criminal Procedure (Investigating People) Act, that the police have made a request of him to supply his personal details and he has refused to provide those details …
…
… It is an uncontroversial proposition that statute law prevails over whatever the pre-existing situation was, whether it was common law or whether it was some earlier enactment.
There is, no doubt, given exhibit 1 and 2 and given the exhibit of Mr McKenzie, and given the evidence of the police officers, that they did ask Mr McKenzie for those personal details, particularly for his name. There was also no doubt that Mr McKenzie refused to provide those details. He said as much in his own evidence where he confirmed that he did, you know, refuse to provide those details because he didn't think he was obliged to provide them as a result of an inalienable right to not do so.
So those conditions or those elements of the offence, rather, are satisfied. The remaining element or aspect of the charge against Mr McKenzie is whether the police had the right to ask for his details in those circumstances so as to enliven the statutory obligation on the part of Mr McKenzie to provide those details …
This is not a prosecution under the Misuse of Drugs Act. No one is saying that Mr McKenzie did anything wrong in terms of marijuana possession or otherwise. The question isn't whether it's likely or it's established that Mr McKenzie was involved in the possession of marijuana. The only question in terms of this element of the charge is whether the police had a reasonable suspicion that he was. Now, both have said that's their suspicion.
To have a reasonable suspicion, you have to have a basis for it, and you also actually have got to suspect that the thing - the subject of a suspicion is what has occurred or what has occurred. They both said that that's what they believed and they both have given evidence that they could smell marijuana. There was no one else there. They haven't said, 'Well, it was definitely Mr McKenzie with a joint', or something to that effect. But they have both formed a suspicion, and a suspicion isn't proof. It doesn't mean you did it. A suspicion is a view that it might be true.
…
So there was a reasonable basis for them to suspect what they suspected, and they did, in fact, suspect that Mr McKenzie had some cannabis in his possession.
Mr McKenzie received a fine of $600.00 and was ordered to pay court costs of $264.30.

Grounds of appeal

In his appeal notice, Mr McKenzie seeks leave to appeal against both the conviction and sentence imposed by the magistrate on the following two grounds:
1.High court precedence [sic] of 3 cases that were ignored and dismissed and overlooked
2.Incorrect procedures of legislation used by Police
Mr McKenzie explained his grounds of appeal in his affidavit sworn 5 February 2024 as follows:
The reason I am lodging this appeal is because, there were several points that I brought up to do with the legislation. As it appears there were procedural errors that happened on the night of the arrest. These points were addressed at the hearing yet were either dismissed or ignored.
I also stated there is three high court cases of similar nature whereby, in each case it has been proved that a person not under arrest has no obligation to stop for the police answer their questions or help them with their inquiries. That there was no crime having been committed on the night in question. Only what the police claim a suspicion of the smell of cannabis. There was no cannabis found on myself. I was not smoking any cannabis. There was no crime committed. They searched me and nothing was found. I was only arrested because I wouldn't give my name. Yet I had no obligation to give it.
I explained this to the magistrate who dismissed this. Claiming that Common Law and my inalienable right of silence was just a childish idea, and it matters not what some Druid said to a sheep 1000 years ago. Neither does it matter what happens in other states because Western Australia has its own parliament and that is what the law is.
In the full transcript I explain what Justice Stephen Kaye Melbourne Supreme Court said about one of the case laws.
And I quote:
It is an ancient principle of common law that a person NOT under arrest has NO OBLIGATION to stop for police. Or answer their questions. And there is NO statute or ACT that removes that right. The conferring of such a power on a police officer would be a SUBSTANTIAL detraction from the FUNDAMENTAL freedoms which have been guaranteed to the citizen by the Common Law for centuries.
The high court case laws quoted are:
Regina vs Banner 1970
George vs Rocket 1990
DPP vs Hamilton 2011
I don't think the magistrate was aware of these case laws. As during the hearing, he got the cases confused. Thinking that DPP vs Hamilton was from the Northern Territory, and that it should be dismissed because the Norther Territory has NO parliament. I corrected him saying it was from Victoria Australia. This fact was ignored and dismissed.
There are many other points all noted in the transcript of the hearing.

Mr McKenzie expanded on these points in his submissions filed 2 May 2024. However, at the hearing of the appeal, Mr McKenzie did not press the grounds as detailed in his affidavit and written submissions. In relation to ground 1, Mr McKenzie accepted that he had received incorrect information as to the legal position in relation to providing his name to the police officers.
Rather, the focus of Mr McKenzie's oral submissions was on the effect of his assertion that after he was arrested and taken back to the police station, he was denied his opportunity to make a telephone call until after he had been charged. That is, the focus of Mr McKenzie's submissions concerned the evidence which he sought leave to adduce for the first time in the appeal.
In his appeal notice, Mr McKenzie indicated he was also appealing against the sentence imposed by the trial magistrate. However, in his oral submissions Mr McKenzie clarified that he was not seeking to separately appeal against his sentence.

Statutory framework and legal principles

Appeal

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 of a court of summary jurisdiction to convict an accused of a charge may be appealed to the Supreme Court by a person aggrieved on the grounds that the court made an error of law or fact or both, or on the basis that there has been a miscarriage of justice.[9]
[9] CA Act s 6(c), s 7(1), and s 8(1).
Leave to appeal is required for each ground.[10] Leave to appeal must not be granted on a ground unless the court is satisfied that the ground has a reasonable prospect of succeeding,[11] meaning that the ground is required to have a rational and logical prospect of succeeding.[12] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[13]
[10] CA Act s 9(1).
[11] CA Act s 9(2).
[12] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[13] CA Act s 9(3).
A grant of leave to appeal does not of itself indicate that an appeal will succeed, or even that it is more likely than not to succeed.[14] 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.[15]
[14] Sami v Duggan [2011] WASC 304 [38].
[15] CA Act s 14(2).
An appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision unless the court orders otherwise.[16] An extension of time to appeal will be granted if it is in the interests of justice to do so.[17] In considering whether it is in the interests of justice to grant an extension of time, factors which may generally be considered are the nature and extent of the delay, the reasons for the delay, the proposed grounds of appeal and their merits, the prejudice to the appellant if an extension of time is not granted and the prejudice (if any) to the respondent if an extension of time is granted.[18]

Offence

[16] CA Act s 10(3).

[17] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Buss JA) (Wimbridge).

[18] Wimbridge [45] (Buss JA); Duckworth v The State of Western Australia [No 4] [2018] WASCA 2 [24] ‑ [30].

Mr McKenzie was convicted of an offence under s 16(6) of the CI (IP) Act. The long title to the CI (IP) Act is:
An Act to enable personal details and identifying particulars of people to be obtained by police and other officers for forensic purposes, and for related purposes.
Section 16(2) of the CI (IP) Act provides as follows:
If an officer reasonably suspects that a person whose personal details are unknown to the officer —
(a) has committed or is committing or is about to commit an offence; or
(b) may be able to assist in the investigation of an offence or a suspected offence,
the officer may request the person to give the officer any or all of the person's personal details.
Section 16(6) of the CI (IP) Act is the offence creating provision, and provides:
A person who, without reasonable excuse, does not comply with a request made under subsection (2), (3) or (4A) commits an offence.
Penalty: Imprisonment for 12 months
'Personal details' are defined in s 16(1) of the CI (IP) Act to mean the person's full name; the person's date of birth; the address of where the person is living; and the address of where the person usually lives.
Section 7A of the CI (IP) Act provides that if the CI (IP) Act permits a person to make a request to another person, the request may be given to the other person orally or in writing.
The elements of an offence against s 16 of the CI (IP) Act were recently restated by the Court of Appeal in Frailing v Mackay as follows:[19]
(a)the accused's personal details are unknown to a police officer;
(b)the police officer reasonably suspects that the accused has committed or is committing or is about to commit an offence;
(c)the police officer requests the accused to give the officer any or all of his or her personal details; and
(d)the accused does not comply with the request.
[19] Frailing v Mackay [2020] WASCA 73 [127]; citing Tey v Plotz [No 2] [2011] WASCA 34 [42].

Application for leave to appeal out of time

Mr McKenzie's explanation of his reason for filing his appeal documents out of time are contained in his affidavit sworn 5 February 2024. Broadly, Mr McKenzie deposes that he has limited spare funds to pay for the appeal process as the result of being a Centrelink recipient and it has taken him time to save as much as he could in order to afford the costs involved in lodging his appeal.
The length of the delay is short; there is no prejudice to the respondent if leave is granted; and as set out below I am of the view that it is appropriate that leave to appeal be granted in relation to one of the grounds of appeal. I therefore grant Mr McKenzie leave to appeal out of time.

Ground 1 ‑ relevant cases

Mr McKenzie did not press this ground of appeal. For completeness, and as Mr McKenzie is unrepresented, I have briefly considered the ground as drafted.
I do not consider the ground has reasonable prospects of success for the following two reasons:
(1)the legal authorities to which Mr McKenzie refers do not support the submission that the common law overrides the requirements of s 16 of the CI (IP) Act and that Mr McKenzie was not required to provide his personal details to the police unless he was first arrested; and
(2)Mr McKenzie's erroneous understanding to this effect was a mistake of law and not a mistake of fact which could found a defence under s 24 of the Criminal Code.
At common law, a person has a right to remain silent, and is not required to assist police by providing their name and address unless they have been arrested. However, this common law right can be modified by statute.[20] An example of such statutory modification of the common law right to silence is s 16(2) of the CI (IP) Act which provides the police with the power to request a person give the officer any or all of the person's personal details, subject to and in accordance with the CI (IP) Act.
[20] Landsman v R (2014) 88 NSWLR 534 [71], [90] ‑ [91]; The Director of Public Prosecutions v Hamilton [32]; Re Essential Media and Entertainment Pty Ltd [2020] NSWSC 990 [60]; Petty v R (1991) 173 CLR 95, 99.
The authorities referred to by Mr McKenzie at the trial and on appeal do not limit or alter the application of the CI (IP) Act.
R v Banner concerned an application to the Full Court of the Supreme Court of Victoria for leave to appeal against a guilty verdict on a charge of murder. One of the grounds of appeal was that the trial judge erred in not exercising his discretion to exclude evidence given by police officers of confessional statements made by the accused. For present purposes, the Court held that although the conduct of the police officers in detaining the applicant for 15 hours for questioning in circumstances where they had no reasonable or probable grounds for suspecting the applicant was both improper and unlawful, there were no features present that would make it unfair to admit the evidence.
In admitting the evidence, the Court observed that police officers have the power to arrest and detain a citizen where they have reasonable and probable grounds for suspecting that a felony has been committed, and that he is the person who committed it. However, this power is exercisable only for the purpose of taking him before a magistrate to be dealt with according to law for that felony, and the police do not have a power to arrest or detain a citizen for the purpose of questioning them or of facilitating their investigations.[21] The case did not concern the application of the equivalent to s 16 of the CI (IP) Act.
[21] R v Banner (249).
The Director of Public Prosecutions v Hamilton concerned an appeal to the Supreme Court of Victoria from a decision dismissing a charge of resisting a member of the police force executing their duty contrary to s 52(1) of the Summary Offences Act 1966 (Vic).[22] The accused was charged after fleeing from police when they requested to speak to him.
[22] That section has since been repealed: No. 69/2014.
Significantly, in considering the appeal Kaye J expressly stated that the appeal did not concern a situation in which the accused refused to provide his name and address in response to a request by a police officer contrary to the Victorian equivalent of the CI (IP) Act. Rather, the case concerned whether police officers had the power at common law to require the accused to stop and speak to them when they were not in the course of arresting him. Kaye J held that the police did not have that power.[23]
[23] The Director of Public Prosecutions v Hamilton [25] ‑ [32], citing Kenlin v Gardiner [1967] 2 QB 510, Collins v Wilcock [1984] 1 WLR 1172 and Waaka v Police [1987] 1 NZLR 754.
George v Rockett concerned a separate issue, being the meaning of the words 'there are reasonable grounds for suspecting'. I have considered this case in the context of considering whether the verdict was unreasonable or not supported by the evidence.
None of these cases support the proposition originally advanced by Mr McKenzie, being that Mr McKenzie was not required to provide his personal details to the officers unless he was arrested. Further, to the extent Mr McKenzie honestly, but mistakenly, held a belief that he was not required to give his personal details to the police unless he was arrested, that mistake was a mistake of law and does not afford a defence under s 24 of the Criminal Code.
I would refuse leave to appeal on ground 1 of the appeal notice.

Ground 2 ‑ police procedures

Mr McKenzie's second written ground of appeal concerns the procedures adopted by the police officers back at the police station after his arrest. These are detailed in Mr McKenzie's submissions dated 2 May 2024.
Both before the trial magistrate and in his written submissions, Mr McKenzie referred to a number of provisions of the CI (IP) Act which he says were not followed by the police officers.
It is not necessary to set out each of those matters here. Most do not concern the offence for which Mr McKenzie was charged and then convicted. Rather, they largely concern subsequent matters regarding actions seemingly taken by the police to identify Mr McKenzie after he refused to provide his personal details. They appear to concern the application of the various identifying procedures under the CI (IP) Act.
To the extent any of the matters referred to in this submission may touch on the offence under s 16 of the CI (IP) Act, I have considered these below when considering whether the conviction was unreasonable or unsafe.
To the extent the matters raised concern the subsequent identifying procedures undertaken by the police, these matters do not give rise to a reasonably arguable ground of appeal in relation to the offence for which Mr McKenzie was convicted.
For these reasons, I would also refuse leave to appeal on ground 2 of the appeal notice.

Ground 3 ‑ was the conviction unreasonable or unsafe?

Notwithstanding my conclusion that leave to appeal on grounds 1 and 2 of the appeal notice should be refused, several matters referred to by Mr McKenzie in the appeal raise for consideration the question of whether the verdict is unreasonable or cannot be supported by the evidence. These matters include:
(1)whether it was reasonable for the officers to suspect that Mr McKenzie might have committed the offence of possession of cannabis; and
(2)whether Mr McKenzie's interactions with the police officers, and his proposal to provide his personal details if the officers first returned him to his crisis accommodation, constitute a reasonable excuse for failing to comply with the officers' request.
The respondent's written submissions accept that it is appropriate to consider whether the verdict is unreasonable or cannot be supported by the evidence. The appeal proceeded on that basis. Accordingly, I consider it appropriate to grant Mr McKenzie leave to add a third ground of appeal, being that there has been a miscarriage of justice, and to grant Mr McKenzie leave to appeal on this ground.[24]
[24] Whilst there may be different ways in which to draft an appeal ground considering this issue, whether there has been a miscarriage of justice was most consistent with how the appeal was argued. See CA Act s 8(1)(b); Webb v Tang [2021] WASC 344 [121] ‑ [123].
However, for the reasons set out below, I do not consider that the verdict was unreasonable or could not be supported by the evidence.

Legal principles

The principles governing a ground of appeal that a verdict is unreasonable or cannot be supported by the evidence are well known and have been summarised by the Court of Appeal in various authorities including Wells v The State of Western Australia as follows:[25]
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.
[25] Wells v The State of Western Australia [2017] WASCA 27 [13].
Wells v The State of Western Australia was concerned with a verdict of guilty entered after a trial before a judge and jury. However, the same principles apply to a verdict of guilty entered after a trial before a judge alone or before a magistrate.[26]
[26] Filippou v The Queen (2015) 256 CLR 47 [12] (French CJ, Bell, Keane & Nettle JJ), [82] (Gageler J); Webb v Tang [2023] WASCA 119 [129].
I have therefore conducted my own independent assessment of the evidence at the trial and the various elements of the offence for the purpose of determining whether, upon the whole of the evidence, it was open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty.

Were Mr McKenzie's personal details unknown to the police officers?

The evidence before the magistrate was sufficient to establish beyond reasonable doubt that the police officers did not know Mr McKenzie's name and personal details. That was the evidence of the police officers; there was no cross‑examination on this issue; and there was no other evidence before the magistrate giving rise to any reasonable doubt in this regard.

Did the police officers reasonably suspect that Mr McKenzie had committed or is committing or is about to commit an offence?

Section 16(2) of the CI (IP) Act permits a police officer to request a person to provide all or any of their personal details if the officer reasonably suspects that the person has committed or is committing or is about to commit an offence. It is not a requirement of s 16(2) of the CI (IP) Act that the person actually commit the offence.
The term 'offence' is defined in s 3 of the CI (IP) Act to mean an offence under a written law (but does not include contempt of court). Contrary to Mr McKenzie's written submissions, there is no requirement that the officers reasonably suspect that a person has committed or is committing or is about to commit a 'serious offence'. The references to serious offences are contained in pt 6 of the CI (IP) Act in relation to other identifying procedures for uncharged suspects who are reasonably suspected of having committed a serious offence.
Section 4 of the CI (IP) Act defines 'reasonably suspects' as follows:
For the purposes of this Act, a person reasonably suspects something at a relevant time if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.
The statutory definition of 'reasonably suspects' as contained in the Criminal Investigation Act 2006 (WA) is identical to that contained in the CI (IP) Act. Tottle J considered this definition in Labriola v Morgan and held as follows:[27]
There are two aspects to the definition:
(i)The arresting officer must suspect the thing. A suspicion is a state of mind. It has been held to mean 'a state of conjecture or surmise where proof is lacking'; and, 'more than an idle wondering … it is positive feeling of actual apprehension or mistrust amounting to a slight opinion but without sufficient evidence'. In the context of an investigation, a suspicion has been held to mean a 'working hypothesis' for which there is some supporting material, and where there is a rational connection between the suspicion and the supporting material. The information acted on by the arresting officer need not be based on his own observations. He is entitled to form a suspicion based on what he has been told. He may act on hearsay evidence, information from an informant or even an anonymous tipoff.
(ii)The suspicion must be objectively reasonable. That is, the information or material from which the officer's suspicion arises must also engender that suspicion in the mind of a reasonable person thinking about that information. In assessing this, the Court is required to look at the grounds which were in the officer's mind at the relevant time, and judge those grounds objectively against what was known, or reasonably capable of being known by the officer at the time. The question whether the information provided reasonable grounds for the suspicion will depend on the source of the information in its context seen in the light of the surrounding circumstances. (citations omitted)
[27] Labriola v Morgan [2017] WASC 256 [46].

I consider that the above explanation of the term 'reasonably suspects' is equally applicable to the CI (IP) Act.
The concepts of suspicion, belief and knowledge are all states of mind directed to varying degrees of certainty of the existence of a fact.[28] In George v Rockett the High Court considered the meaning of the words 'suspicion' and 'belief'. The Court held that suspicion is:[29]
[A] state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'.
[28] Webb v Tang [2023] WASCA 119 [270].
[29] George v Rockett (115), citing Hussein v Chong Fook Kam [1970] AC 942, 948.
Belief, however, involves a higher level of certainty:[30]
Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[30] George v Rockett (116).
The police officers were only required to suspect that Mr McKenzie had committed, was committing or was about to commit an offence. It was not necessary to have a belief or any higher level of certainty.
In George v Rockett the High Court also held that where a statute prescribes that there must be reasonable grounds for a state of mind, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[31] George v Rockett concerned a search warrant issued by a justice. The High Court held that, prior to issuing the warrant, it was necessary for the issuing justice to satisfy himself, on the basis of the material before him, that there were reasonable grounds to induce the required state of mind.[32] However, it was not necessary for the justice to also hold the relevant state of mind.[33] The same is applicable in relation to the magistrate when considering the charge.
[31] George v Rockett (112).
[32] George v Rockett (112 ‑ 113).
[33] George v Rockett (112).
I am of the view that there was sufficient evidence before the magistrate to be satisfied beyond reasonable doubt that the officers reasonably suspected that Mr McKenzie had committed or was committing the offence of possession of drugs, being cannabis, contrary to s 6(2) of the Misuse of Drugs Act. The elements of this offence are that a person; has in his or her possession; a prohibited drug. Cannabis is a prohibited drug.[34]
[34] Schedule 1, item 5, Misuse of Drugs Act 1981 (WA).
Turning to the first aspect of the definition of 'reasonably suspects', both police officers gave evidence that they rode past Mr McKenzie and smelt a strong smell of cannabis. Each officer gave evidence that they saw no other people in the immediate location, and one officer gave evidence that he saw Mr McKenzie put something on the ground. The officers' evidence was also that when approached, Mr McKenzie refused to stop; kept walking away; and was putting his hands in his pockets.
Mr McKenzie's evidence was that he saw other people in the area in a 30 second - one minute interval before the police rode past him. This was put to the officers in cross‑examination and the officers' response was that they did not see any other people. As observed by the magistrate, there is not necessarily any conflict between these two accounts. The officers could only give evidence as to what they observed. There may have been other people in the area before they arrived.
I consider it was therefore open to the magistrate to accept the officers' evidence. That Mr McKenzie was not later found to be in possession of any drugs and was not charged with any offence does not impact upon whether the officers held the relevant suspicion.
For completeness, I note that one reading of Constable Hazzard's evidence in chief as recorded in the transcript is that Mr McKenzie was arrested for failing to provide his personal details after the complete search under the Misuse of Drugs Act was completed. If this were to be the case, there may well be reasonable doubt as to whether the officers, after the search, held the requisite suspicion. However, if that were Constable Hazzard's evidence in chief, then it is inconsistent with the body camera footage of both officers and Senior Constable Griffin's evidence in chief. In these three pieces of evidence, the request to Mr McKenzie to provide his personal details, and his arrest for failing to do so, occurred prior to the search of Mr McKenzie.
I therefore consider it was open to the magistrate to be satisfied beyond reasonable doubt that the individual officers did in fact suspect that Mr McKenzie had committed or was committing the offence of being in possession of a prohibited drug, being cannabis.
Turning to the second aspect of the definition, I consider the same evidence referred to above was sufficient for the magistrate to be satisfied beyond reasonable doubt that the officers' suspicion was reasonably held. Again, it is important to observe that it is not necessary for the officers to believe that Mr McKenzie had committed or was committing the offence of possession. Section 16(2) of the CI (IA) Act simply requires that the officers reasonably suspect that the person has committed, is committing or is about to commit an offence. The strong smell of cannabis and Mr McKenzie being the only person in the vicinity, combined with one officer observing Mr McKenzie throw something on the ground, are information or material which would engender the officers' suspicion in the mind of a reasonable person.

Did the police officers request Mr McKenzie to give the officers any or all of his personal details and did Mr McKenzie refuse to comply with the request?

The evidence before the magistrate was sufficient to establish beyond reasonable doubt that the officers had requested that Mr McKenzie provide his name, his date of birth, and his address by way of orally asking him to provide those details, and that Mr McKenzie refused to comply with the request. That was the evidence of the police officers, and it was observable in the body camera footage. It was also not in dispute at the trial or on appeal.

Did Mr McKenzie have a reasonable excuse for refusing to comply?

Where the elements of an offence under s 16(6) of the CI (IP) Act are established, an accused will not be guilty of the offence if the accused had a reasonable excuse for not complying with the request. The accused bears the onus of establishing this exception on the balance of probabilities.[35]
[35] Criminal Procedure Act 2004 (WA) s 78.
The respondent, appropriately, concedes that the magistrate did not consider whether Mr McKenzie had a reasonable excuse for not complying with the officers' request by offering to provide his details if the officers took him back to his crisis accommodation. However, the respondent submits that in the present case this failure does not result in a miscarriage of justice (or a substantial miscarriage of justice under s 14(2) of the CA Act) as this offer did not constitute a reasonable excuse.
In Taikato v The Queen[36] the High Court held as follows in relation to the term 'reasonable excuse':
The term 'reasonable excuse' has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception. (footnotes omitted)
[36] Taikato v The Queen (1996) 186 CLR 454, 464.
Section 16(7) of the CI (IP) Act provides one example of a reasonable excuse, being that if a person requests an officer identify himself or herself, and the officer does not do so as soon practicable. That was not the case here.
Accordingly, it is necessary to consider the purpose of s 16(2) of the CI (IP) Act in order to determine whether Mr McKenzie had a reasonable excuse for failing to comply with the officers' request.

In Hounslow v Woodward Johnson J held as follows in relation to the purpose of s 16(2) of the CI (IP) Act:[37]
[T]he purpose of s 16(2) is to enable a Police officer to identify a person suspected of committing an offence. In that regard it is a significant forensic tool. The provision also facilitates identification of those suspected of being involved in offences, and those who have witnessed offences, who might not otherwise wish to assist the police in their enquiries. The imposition of the penalty emphasises the importance of the power and must have been intended to influence those who might not wish to assist the police to do so. In those circumstances, I believe that the term 'reasonable excuse' was not intended to have a broad operation.
[37] Hounslow v Woodward [2007] WASC 27 [97].
The above description of the purpose of s 16(2) of the CI (IP) Act was endorsed by Jenkins J in Tey v Plotz [No 2].[38] Jenkins J further held that:[39]
In my view, a reasonable excuse for the purpose of s 16(6) is one which the court thinks that an ordinary and reasonable person in the accused's position, but without any of the idiosyncratic characteristics of an individual accused, would think was reasonable. The reasonable person takes into account not only the circumstances from the accused's point of view but also from the police officer's point of view as they ought reasonably to have been known to the accused, and the public interest issues … which render it important that police officers be able to identify suspects correctly.
[38] Tey v Plotz [No 2] [63].
[39] Tey v Plotz [No 2] [67].
I also respectfully agree with and adopt the above descriptions.
The above authorities identified some examples of situations which would constitute a reasonable excuse, and which would not adversely impact on the effectiveness and purpose of s 16(2) of the CI (IP) Act. These include a person being unable to answer the police officer's request because of injury; or if a person had a hearing difficulty which prevented them from understanding the nature of the request.[40] Further, where a person has provided to the officer a document containing their personal details and advised the police officer that those details were correct, or when the accused has advised another officer within the requesting officer's earshot of their personal details and they advised the requesting officer that those details were correct.[41]
[40] Hounslow v Woodward [98].
[41] Tey v Plotz [No 2] [70].
In each of Hounslow v Woodward and Tey v Plotz [No 2] the appellant was unsuccessful in demonstrating that their circumstances constituted a reasonable excuse for the purposes of s 16(6) of the CI (IP) Act. In Hounslow v Woodward Johnson J held that the fact that a person does not accept that he or she has committed an offence, or simply believes they have a defence to the charge, would not constitute a reasonable excuse for the purposes of s 16(6) of the CI (IP) Act.[42] In Tey v Plotz [No 2] Jenkins J held that it is not a reasonable excuse for someone to decline to comply with a police officer's request because they have given another public officer their personal details in respect to an entirely different transaction, or because a Minister of the State (but not the individual police officer) is aware of their personal details.[43]
[42] Hounslow v Woodward [98] ‑ [101].
[43] Tey v Plotz [No 2] [71].
In the present case, at trial Mr McKenzie's evidence was that he was a vulnerable person who was living at crisis accommodation and seeing a psychologist. His evidence was that he offered to provide his personal details if he was first taken back to his accommodation (which was located nearby). Mr McKenzie's case on appeal is that this constitutes a reasonable excuse.
I do not consider that this explanation constitutes a reasonable excuse for the purposes of s 16(6) of the CI (IP) Act. The purpose of s 16(2) of the CI (IP) Act is to enable police officers to quickly obtain the personal details of someone who they reasonably suspect has committed, is committing or may be about to commit an offence. The purpose of the section is to ensure that this information is provided in a timely manner as needed by the police to facilitate their investigation or other immediate actions. It would undermine the entire purpose of the section if an accused was able to place conditions on when and how or if the person responds to that request (over those conditions contained in the express language of the section).
There is no medical evidence before the court that Mr McKenzie was unable to understand the request to provide his particulars, or to provide them when asked.
For completeness, during his oral submissions Mr McKenzie provided some additional submissions as to his state of mind on the date of the offence. In broad terms, Mr McKenzie explained that he was a veteran and he had been asked to give a speech at an upcoming ANZAC Day commemoration at his crisis accommodation. Mr McKenzie explained that this had left him feeling the effects of his post traumatic stress disorder and his time in service. This evidence was not given at the trial, and was not the subject of the application for leave to adduce further evidence. The respondent opposes the receipt of this evidence. I consider that this additional evidence takes the matter no further than the evidence Mr McKenzie gave at trial as to being a vulnerable person. I have considered these submissions in this broad context in considering whether Mr McKenzie had a reasonable excuse in the form of offering to provide his personal details if taken back to his crisis accommodation.
Accordingly, whilst I accept that the magistrate did not consider the question of whether Mr McKenzie offering to provide his details if the police took him back to his crisis accommodation was a reasonable excuse, I have found that this would not constitute a reasonable excuse for the purposes of s 16(6) of the CI (IP) Act. Accordingly, I do not consider a miscarriage of justice (or a substantial miscarriage of justice under s 14(2) of the CA Act) has occurred.
Therefore, whilst I grant Mr McKenzie leave to appeal on this new ground, I dismiss this ground of appeal.

Application for leave to adduce additional evidence

Mr McKenzie also made an application in the appeal dated 5 August 2024 seeking leave to adduce additional evidence in the form of his further affidavit sworn 27 June 2024 and his further submissions dated 27 June 2024. In support of his application Mr McKenzie relied on his affidavit sworn 5 August 2024.
The additional evidence which Mr McKenzie seeks to rely on is that after he was taken back to the Perth Watch House, he was denied the opportunity to make a phone call until after he had been identified and charged with the present offence. Mr McKenzie's evidence is that:[44]
When I got to the watch house I was escorted to a holding cell.
As soon as I was put inside this holding cell, I requested to make a phone call. I wanted to seek legal advice and to speak with a lawyer.
This request was made directly to the shift sgt on duty that night.
His response was that he denied me that right unless I gave him my name.
When I was arrested the cautionary words used by pc Hazzard explained that I had the right to make a phone call. Even though at that time I had not given my details.
My aim was to seek legal advice straight away.
The shift sgt denied me this right.
I was denied the right to make a phone call before the police completed their identifying procedure.
[44] Affidavit of Mr McKenzie sworn 27 June 2024.
Mr McKenzie relies on these documents in support of a submission that he was denied an opportunity to make a phone call at the Perth Watch House until after he had been charged. Mr McKenzie submits that if he had been given an opportunity to make a phone call before he was charged, and in that phone call he was told that he did need to provide his details to the police, he would have done so. The result would have been that Mr McKenzie would not have been charged with the offence. Mr McKenzie submitted that this constitutes a reasonable excuse for not providing his personal details to the officers.
Mr McKenzie's explanation for why he did not give this evidence during the trial is contained in his affidavit sworn 5 August 2024. Mr McKenzie deposes that he did not raise this issue during the trial as he was confused about his rights, and he had been given inaccurate or confusing advice:
When I was arrested and taken to the watchhouse in Northbridge the first thing I did was ask the shift sgt to make a phone call.
He said to me that I have to give my name first.
It has always been my understanding that a person under arrest has the right to remain silent to seek legal advice.
So, when the shift sgt denied me this it confused me.
I was unsure if this was the case. Having grown up in the UK, whereby if the police reasonably suspect a thing, they can stop and search you. You don't have to give your name unless they arrest you for an offence, and even then, you have the right to remain silent until seeking legal advice.
I still held the belief that a person has this right.
After being released I sort legal advice from a place called Street Law. Who offer legal help for people who are staying at [redacted], as I was at the time.
On my first meeting with them I verbally explained what had happened to me, and explained that I had been denied a phone call by the shift sgt.
During the period from my first meeting until the last appearance by Street Law representing me, the point of the denial of the phone call was not mentioned in the several appearances in the magistrate's court leading up to the final hearing.
As Street Law had not mentioned the fact that I was denied a phone call by the shift sgt. It made me think this relevant fact was not important. And that the shift sgt's actions on that night were maybe correct.
While at the [redacted] I had a heated conversation with the resident doctor one day as I was getting my injuries checked, from being assaulted during the strip search, I was put through, when I was assaulted by 6 officers including the shift sgt. As I have damage to my wrists. To which the doctor tried very fervently to, as he thought, correct my belief that I had a right to remain silent.
Again, this erroneous idea further confused me that the actions of the shift sgt were maybe correct.
This again went against my belief that I had the right to remain silent until seeking legal advice.
In October 2023 I sort some help from an organisation who are based in Victoria called Warrior at Law, that is ran by a person called Zed Freeman. The organisation offers help with legal situations.
I had a zoom call with Zed and explained what had happened, I told him again that I had been denied a phone call by the shift sgt. He didn't say anything about this fact during the zoom call.
The only advice given was the basis of my defence during the hearing.
I believe this to be bad advice given.
As he again didn't highlight the fact of being denied a phone call, further reinforced an erroneous belief that the actions of the shift sgt were maybe correct.
When I went to the hearing in December, I didn't mention about the shift sgt denying me a phone call because I wasn't 100% sure it was relevant. Because of the reasons stated.
Yet it was straight after the hearing. After replying in my mind, the questions when I asked the police officers what their cautionary word used when arresting someone that sparked in me again my belief that I have the right to remain silent until seeking legal advice.
The very wording used by the police say 'you are not obliged to say anything' and that 'You have the right to make a phone call to seek legal advice.'
This stuck out to me.
When I put through the appeal. I mentioned that I was denied a phone call and in the response from the state solicitor's office, this point was overlooked. And the focus moved back to the argument of my original defence at the hearing in December.
So, I responded by submitting my affidavit that I was denied a phone call by the shift sgt the night I was arrested before the police had the opportunity to complete their identifying procedure.

The respondent objects to the admission of the above evidence for the following reasons:
(a)the evidence is irrelevant;
(b)the public interest against adducing further evidence on appeal;
(c)the evidence is new evidence and not fresh evidence as it existed at the time of trial and could have been presented; and
(d)the evidence, if admitted, does not demonstrate that Mr McKenzie should not have been convicted.
In accordance with s 39(1) of the CA Act an appeal court must decide the appeal on the evidence and material that was before the lower court. However, s 39(1) does not affect this court's power as contained in s 40(1)(e) to 'admit any other evidence' for the purposes of dealing with an appeal.[45]
[45] CA Act s 39(3).
The power to admit further evidence is discretionary and is not expressly limited or confined. However, the subject matter, scope and purpose of the relevant provisions of the CA Act and the issues to be resolved in each appeal will indicate those considerations which are relevant to the exercise of the discretion.[46] In addition, the nature and relevance of the evidence sought to be relied on is relevant to the exercise of the discretion.
[46] Tsang v Francis [2021] WASCA 131 [79] citing Clarke v The State of Western Australia [2018] WASCA 14 [236].
Traditionally, the courts have treated appeals based on fresh evidence differently from appeals based on new evidence.[47] Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial.[48] At common law, where an accused has been convicted an appellate court will not allow an appeal on the basis of new evidence unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. An appellate court will not allow an appeal on the basis of fresh evidence unless there is a 'significant possibility' that, on the basis of all of the admissible evidence (that is, the fresh evidence and the evidence given at trial), a jury, acting reasonably, would have acquitted the appellant.[49]
[47] Clarke v The State of Western Australia [238].
[48] Clarke v The State of Western Australia [237]. See also, Beamish v R [2005] WASCA 62 [9].
[49] Clarke v The State of Western Australia [239] ‑ [240] and the authorities cited therein.
The public policy considerations underpinning the common law distinction between fresh evidence and new evidence, in the context of an appeal against conviction following a trial, were explained by Mason J in Lawless v The Queen as follows:[50]
However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty. Two considerations operate to bring about this result. The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call. He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal. He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented. Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.
The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted. No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged. If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.
[50] Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676.
These common law principles are relevant to the exercise of the discretion under s 40(1)(e) of the CA Act, but not determinative.[51]
[51] Tsang v Francis [81] - [87]; Clarke v The State of Western Australia [242] - [245].
I do not consider it appropriate to grant Mr McKenzie leave to adduce the additional evidence for the following two reasons.
First, the evidence is new evidence, as opposed to fresh evidence, and Mr McKenzie was aware of it at the date of trial. Mr McKenzie represented himself at the trial and could have given that evidence if he chose to, but he decided not to and instead ran a defence based on whether he had a right to remain silent unless and until he was arrested.
Secondly, even if the evidence was admitted, it would not establish that Mr McKenzie was innocent or raise such a doubt as to lead me to be satisfied that Mr McKenzie would not have been convicted and that a miscarriage of justice has occurred. Accepting for now that Mr McKenzie's account is accurate, the events in question did not occur until after the police officers had requested Mr McKenzie to provide his personal details; after Mr McKenzie had refused to provide those details; and after Mr McKenzie had been arrested and conveyed back to the Perth Watch House. The events therefore occurred after the commission of the offence. I have some difficulty in understanding how, in this case, these subsequent events can provide a reasonable excuse for conduct which had already occurred and for which Mr McKenzie had already been arrested. At best it may have resulted in the police officers changing their mind and deciding (in the exercise of their discretion) not to proceed with the charge, but that is speculation. It is also speculation as to who Mr McKenzie would have called and the advice he may have received. In any event, the failure to provide the phone call until after Mr McKenzie had been identified and charged does not, in my view, constitute a reasonable excuse for the purposes of s 16(6) of the CI (IP) Act. I consider it would undermine the entire purpose of the section if an accused was able to refuse to provide their personal details when lawfully requested unless and until they had been able to obtain legal advice.
I am therefore not satisfied that the new evidence raises any issue of a miscarriage of justice or would establish that Mr McKenzie was innocent or raise such a doubt as to lead me to be satisfied that Mr McKenzie would not have been convicted.

Conclusion and orders

I will make the following orders:
1.Leave to commence the appeal out of time is granted.
2.Leave to adduce additional evidence is refused.
3.Leave to appeal on grounds 1 and 2 is refused.
4.Leave to appeal on ground 3, being that there was a miscarriage of justice, is granted.
5.Appeal dismissed.
I will hear further from the parties in relation to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CH
Associate to Justice Seaward
25 OCTOBER 2024