MJM v BNZ
[2024] WASC 416
•8 NOVEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MJM -v- BNZ [2024] WASC 416
CORAM: MUSIKANTH J
HEARD: 10 OCTOBER 2024
DELIVERED : 8 NOVEMBER 2024
FILE NO/S: SJA 1033 of 2024
BETWEEN: MJM
Appellant
AND
BNZ
Respondent
ON APPEAL FROM:
For File No: SJA 1033 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J ANDRETICH
File Number : MR 300/2023; MR 301/2023
Catchwords:
Criminal law - Single Judge Appeal - Whether respondent had 'required' appellant provide breath sample - Whether appellant made an 'honest mistake of fact' - Whether conduct of police officers rendered evidence inadmissible - Whether no order for pre-trial disclosure of body-worn camera a miscarriage of justice - Whether prosecution required to prove instrument used for preliminary test was an approved device - Whether magistrate correct not to allow evidence instrument was working 'improperly' - Whether prosecution required to prove respondent was an authorised person - Whether magistrate should have permitted questioning about an 'unlawful request' regarding provision of a DNA sample
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Investigation Act 2006 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to adduce further evidence refused
Leave to appeal refused in respect of grounds 1 - 14 and 16 - 19
Leave to appeal granted in respect of ground 15
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr Z R Clifford |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Accident Claims Lawyers Pty Ltd (Subject to Deed of Company Arrangement) v Legal Practice Board [2024] WASC 249
Archibald v Barndon [1991] WASC 321; (1991) 16 MVR 239
Bromley v Bembridge [2022] WASCA 192; (2002) 132 A Crim R 16
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Clarke v The State of Western Australia [2018] WASCA 1 [239]; Huggins v The State of Western Australia [2018] WASCA 61
Cullen v Huffa [1970] SASC 630; [1970] SASR 155
Dobie v Pinker [1982] WASC 322; [1983] WAR 48
JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295
Lambert v Tomasini [1981] WASC 336
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Lisiecki v Grigg [1990] VSC 20; (1990) 10 MVR 336
MacDonald v County Court (Vic) [2004] VSC 202; (2004) 41 MVR 183
Mukevski v The State of Western Australia [2010] WASCA 138
Parfenova v Diss [2021] WASCA 50
Sangster v Collins [1973] WASC 126
Singh v Hodgson [2022] WASC 334; (2022) 102 MVR 122
Town of Cambridge v The Hon David Templeman MLA, Minister for Local Government; Heritage; Culture and the Arts [2020] WASC 350
Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2009) 196 A Crim R 415
Webb v King [1987] WASC 129; (1987) 5 MVR 153
Wilden Pty Ltd v Green [2009] WASCA 38
MUSIKANTH J:
On 20 May 2024, the appellant was convicted following a trial in the Magistrates Court of two offences contrary to the Road Traffic Act 1974 (WA) (RTA).
The two offences were:
(1)Failing to comply with the requirements of a police officer to provide a breath sample for a preliminary test in accordance with the officer's directions contrary to s 67A(1) read with s 66 of the RTA (preliminary sample offence).
(2)Failing to comply with the requirement of a police officer to provide a breath sample for analysis contrary to s 67(2) read with ss 67(1) and 66 of the RTA (analysis sample offence).
For the preliminary sample offence, the appellant was fined $450, ordered to pay costs of $272.70, and disqualified from driving for three months.
For the analysis sample offence, the appellant was fined $2,050, and disqualified from driving for 15 months.
The disqualifications were ordered to run concurrently.
A spent conviction was also granted with respect of each offence.[1]
[1] These reasons have been anonymised to preserve the benefit of the spent conviction orders.
The appellant now seeks leave to appeal his convictions on nineteen grounds.
He also seeks leave to adduce additional evidence on appeal.
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding.
For the reasons which follow I would refuse the appellant's application to adduce further evidence, grant leave with respect to Ground 15, refuse leave with respect to all other grounds, and dismiss the appeal itself.
Background
The facts of the offending the subject of this appeal are as follows.
At approximately 1:22 am on Sunday 15 October 2023, the appellant was stopped by the respondent and another police officer while driving a motor vehicle.
The respondent requested the appellant to provide him with a sample of his breath for the purposes of a preliminary test. The appellant failed to do so.
The appellant was then offered two more opportunities to provide a breath sample. He again failed to do so.
The appellant's three failures, which were captured on a body-worn camera fitted to the respondent, led to his conviction on the preliminary sample offence.
In consequence of his failures, the appellant was placed under arrest and conveyed to the local police station.
While at the police station, the appellant was again asked to provide a sample of his breath; this time for analysis. He failed to comply.
This conduct, which was also captured on body-worn camera, led to the appellant's conviction on the analysis sample offence.
At trial the State called one witness: the respondent.
Through the respondent, the two sets of body-worn camera footage described above were adduced as evidence.
The appellant chose to cross-examine the respondent.
However, the appellant did not elect to give evidence in his own defence.
The appellant's grounds of appeal, issues for determination
Noting several of the appellant's grounds of appeal overlap or are closely related, I propose addressing the grounds thematically.
So grouped, I understand the issues I am to determine to be:
(1)Whether the magistrate erred in effectively concluding that the respondent had 'required' the appellant to provide a breath sample in accordance with s 66(1) of the RTA. (Grounds 4, 7, 8, 9, 11, 12, 13 and 14)
(2)Whether it was proved that the appellant's failure to comply stemmed from an 'honest mistake of fact'. (Ground 3)
(3)Whether the conduct of the police officers was such as to render evidence adduced by the prosecution inadmissible. (Grounds 5, 16, 18 and 19)
(4)Whether any failure by the magistrate to order pre-trial disclosure of body-worn camera evidence amounted or led to a miscarriage of justice. (Ground 1)
(5)Whether it was necessary for the prosecution to prove the instrument intended to be used for the preliminary test was an 'approved apparatus' under the RTA. (Ground 15)
(6)Whether the magistrate was correct not to allow evidence to be introduced that that instrument was working 'improperly'. (Ground 10)
(7)Whether the magistrate was correct in finding the prosecution did not have to prove the respondent was an 'authorised person' for the purposes of operating the breath analysing equipment and in finding that he was such a person. (Grounds 2 and 6)
(8)Whether the magistrate should have permitted questioning about an 'unlawful request' allegedly made about the provision of a DNA sample. (Ground 17)
Before addressing each issue, it is convenient to make some observations about relevant aspects of the statutory context.
RTA: statutory context
Under s 66(1) of the RTA, a police officer may require, relevantly, the driver of a motor vehicle to provide a sample of their breath 'for a preliminary test in accordance with the directions of the police officer'. (emphasis added)
By section 65 of the RTA 'preliminary test' is defined to mean:
a test of a sample of a person's breath by means of apparatus of a type approved by the Minister under section 72(2)(b) for the purpose of providing an indication of a person's blood alcohol content or an indication of whether or not a person's blood alcohol content is of or above a predetermined level or an indication of whether or not alcohol is present in the blood of a person.
Section 72(2)(b) in turn explains that an apparatus employed to conduct preliminary tests for the purposes of s 66 becomes approved by notice of the Minister in the form of publication in the Government Gazette.
If, having been required to provide a breath sample for a preliminary test, the driver refuses or fails to do so, a police officer 'may require [the driver] to provide a sample of the [driver's] breath for analysis … and … may require [the driver] to accompany a police officer to a police station … and … to wait at any such police station …': RTA, s 66(2)(b). (emphasis added)
A person required to supply a breath sample for either a preliminary test or analysis 'must comply with that requirement by providing the sample of their breath into approved apparatus in accordance with the directions of a police officer or an authorised person, as the case may be': RTA, s 66(3).
In the absence of a defence, a person who 'fails' to comply with a requirement of a police officer made pursuant to s 66 of the RTA:
(1)to provide a breath sample for a preliminary test commits an offence under s 67A(1); and
(2)to provide a breath sample for analysis commits an offence under s 67(2).
Did the respondent 'require' the appellant to provide breath sample in accordance with s 66(1) of the RTA? (Issue 1)
The appellant appears to assert that the two officers who approached his car at the roadside gave inconsistent orders.[2]
[2] Ground 4.
He also asserts that more was needed to make a 'requirement' for the purposes of s 66(1) of the RTA than merely asking 'for a breath analysis' or stating 'I require you to submit a sample of your breath for a preliminary breath test'.[3]
[3] Grounds 7 and 9.
The appellant also asserts that the magistrate failed to consider legal authorities he drew to her attention relevant to the topic.[4]
[4] Ground 8.
He also appears to contend that a police officer administering a breath test must give both a direction that the test be undertaken and directions as to the manner in which the test is to be taken.[5]
[5] Ground 11.
The appellant also asserts the magistrate found that the appellant would have to say 'yes, I will do it' (in regards to the preliminary test) for the officer to 'give directions to make the requirement'.[6]
[6] Ground 12.
He also contends the magistrate erred in concluding the respondent had made a requirement under s 66 of the RTA, and in determining the prosecution had established that accordingly.[7]
[7] Grounds 13 and 14.
Ultimately, the fate of all these assertions and contentions depends on whether I accept that the magistrate, by finding the appellant guilty of the preliminary sample offence, erred in thereby effectively concluding that the respondent had 'required' the appellant to provide a sample of his breath within the meaning of s 66(1) of the RTA.
Section 66(1) is unequivocal in its terms.[8]
[8] Webb v King [1987] WASC 129; (1987) 5 MVR 153, 156 (Olney J).
As noted earlier, it relevantly provides that a police officer may 'require' the driver of a motor vehicle to provide a sample of their breath for a preliminary test in accordance with the 'directions' of the police officer.
There is no statutory basis to justify a view that a police officer should accompany such a requirement with any particular 'formula of words'.[9]
[9] Webb v King (1987) 5 MVR 153, 157 (Olney J).
That said, such a requirement must be 'clear'.[10]
[10] Cf. Archibald v Barndon [1991] WASC 321; (1991) 16 MVR 239, 241 (Walsh J).
In my view, the footage from the respondent's body‑worn camera, which was in evidence before the magistrate[11] and played in the presence of the parties at the hearing of the appeal, leaves little doubt that this criterion was satisfied.
[11] Exh 1.
As was apparent from that evidence:
(1)After being stopped by the respondent and another police officer, the respondent introduced himself to the appellant, stated his name and rank and explained the appellant was being stopped for a driver's licence check, a breath test and a few other tests.
(2)After being shown the appellant's driver's licence, the respondent advised the appellant that the respondent was 'going to place you under a requirement now to provide a breath test. I now require you to submit a sample of your breath for analysis for a [preliminary] breath test'.
(3)The respondent then said, 'If you decline you are going to be charged with refusing, you are going to be arrested and taken back to Margaret River police station'.
(4)The respondent then said 'So, I now require you to submit a sample of your breath for analysis. Do you want to provide a sample?'
(5)The respondent then said 'You are not going to provide it? I will give you one more go. I now require you to provide a sample of breath for analysis. I now require a sample of breath'.
(6)The respondent then said 'You're not going to provide one to me? Are you refusing? I'm asking you because this is all being recorded, you are going to be charged with refusing, we are going to arrest you and take you to Margaret River police station'.
The appellant did not respond verbally to any the respondent's repeated requests.
The appellant did, however, appear to shake his head slightly several times and, after the respondent asked his final questions, responded with words to the effect 'I am not answering any questions'.
While the respondent made his requests, a small orange machine with the brand name 'Alcolizer' printed on it and having an illuminated blue screen was held close to the wound-down driver's window of the appellant's vehicle.
One of the police officers inserted what appeared to be a straw into the machine and removed a plastic wrapper from it.
Before the respondent made his third and final request, part of the machine was placed through the driver's window with the straw close to the appellant's mouth.
In my view, it would have been abundantly clear from the combined effect of the words and actions of the police officers that what the appellant was being required and directed to do was to provide a breath sample by placing his mouth over that straw.
Noting the appellant declined to follow that direction, the question as to what further directions (if any) may have been necessary does not arise.[12]
[12] Cf. Dobie v Pinker [1982] WASC 322; [1983] WAR 48, 66 (Olney J).
For the above reasons, Grounds 4, 7, 8, 9, 11, 12, 13, and 14 enjoy no reasonable prospects of success and leave to appeal on those grounds is refused.
Was 'honest mistake of fact' proved? (Issue 2)
By Ground 3 the appellant asserts he made an 'honest mistake of fact'.
Whilst the precise nature of the asserted mistake is not expressly articulated, in his submissions the appellant suggests it was such as would have allowed him 'to reasonably question whether the [officer's] orders were lawful'.
Further, and as has been observed, after the respondent asked his final questions the appellant said 'I am not answering any questions'.
Presumably, in those circumstances, the essence of the appellant's point is that he mistakenly believed he had a right to silence and was therefore entitled to refuse to comply with any direction.
Properly understood, such a misapprehension would not be a mistake of fact but rather one of law.
And, as s 22 of the Criminal Code makes clear:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
That said, it is a defence to a charge of refusing to provide a breath sample if the accused satisfies the court that there was some 'substantial reason' for doing so, 'other than a desire to avoid providing information that might be used as evidence.'[13]
[13] RTA, s 67A(5).
However, as the respondent in my view correctly submits, any belief by the appellant in his 'right' to silence does not constitute a 'substantial reason' as it is necessarily borne of a desire to avoid providing information that might be used as evidence and this is an expressly excluded excuse.
Accordingly, I consider Ground 3 enjoys no reasonable prospects of success and leave to appeal on that ground is refused.
Did police officers' conduct render prosecution evidence inadmissible? (Issue 3)
By Grounds 5, 18 and 19, the appellant effectively contends that the actions of the police officers rendered evidence adduced by the prosecution inadmissible.
The actions identified include the alleged 'demeanour' and other aspects of the officers' 'behaviour' on the night in question.
I digress to observe that despite the reference to 'officers' in the formulation of Grounds 18 and 19, the respondent was the only police officer who gave evidence at trial.
As the High Court explained in Bunning v Cross,[14] a trial judge has a discretion to exclude evidence that has been improperly obtained.
[14] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
In Mukevski v The State of Western Australia,[15] the Court of Appeal identified five considerations which serve as guides to the way in which this discretion should be exercised:[16]
(1)Whether the unlawfulness was other than the result of a mistaken belief on the part of the police officers that they were entitled to do what they did.
(2)Whether the nature of the unlawfulness in the case affects the cogency of the evidence.
(3)The ease with which the law might have been complied with.
(4)The nature of the offence with which the offender has been charged.
(5)Whether the law breached reflects a deliberate intent on the part of the Legislature narrowly to restrict the police in the exercise of their powers.
[15] Mukevski v The State of Western Australia [2010] WASCA 138.
[16] Mukevski v The State of Western Australia [2010] WASCA 138 [22] (Owen JA, McLure P and Buss JA agreeing).
Common to principles (1) - (3) and (5) above is the element of unlawfulness.
Having reviewed both the transcript of the hearing and the exhibits before the magistrate, including the body-worn camera footage, I am satisfied there was nothing in the evidence to suggest her Honour should have found that any conduct of the officers ought to have led to the relevant evidence being excluded on the basis that any of it was improperly obtained.
Indeed, as the respondent correctly points out, the officers gave the appellant repeated opportunities to provide a breath sample for the purposes of a preliminary test and, once at the police station, the officers went so far as to attempt to contact Legal Aid on the appellant's behalf.[17]
[17] Respondent's Outline of Submissions [49]; ts 44.
Whilst the power used by the officers to arrest the appellant may have been a matter in relation to which any question concerning the lawfulness or otherwise of their actions might legitimately have been raised, this was not a matter explored in the proceedings below.
That said, and even if there had been no arrest at all, s 66(2) of the RTA in any event empowered the respondent to require the appellant accompany him to a police station in circumstances where the appellant had failed to comply with the respondent's requirement to provide a sample of his breath for a preliminary test.
In all the circumstances, I consider the appellant has neither established any unlawfulness on the part of the officers nor shown that Grounds 5, 18 and 19 enjoy any reasonable prospects of success.
Accordingly, leave to appeal on those grounds is refused.
By Ground 16, the appellant suggests his rights under s 138 of the Criminal Investigation Act 2006 (WA) were denied.
The ground is misplaced.
The appellant was effectively informed of the offence for which he had been arrested, as required by s 138(2)(a) of the Criminal Investigation Act. He was also afforded a reasonable opportunity to communicate with (or attempt to communicate with) a legal practitioner, as required by s 138(2)(c) of that same Act.
As noted earlier, the arresting officers even attempted to contact Legal Aid on the appellant's behalf.
As the appellant was not interviewed as a suspect, he was not required to be cautioned.[18]
[18] Criminal Investigation Act 2006 (WA), s 138(2)(b), (d).
Accordingly, no contravention of s 138 of the Criminal Investigations Act has been shown.
Ground 16 enjoys no reasonable prospects of success and leave to appeal on that ground is refused.
Did any failure to order pre-trial disclosure amount or lead to miscarriage of justice? (Issue 4)
By Ground 1 the appellant effectively submits he suffered a miscarriage of justice because he was not provided with disclosure of body-worn camera evidence before trial.
The question as to what ruling(s), if any, may have been made by the magistrate in relation to disclosure at any preliminary hearing need not be resolved.
That is because any such decision is not amenable to appeal, not being a 'decision' within the meaning of 7(1) read with s 6 of the Criminal Appeals Act 2004 (WA).
By s 35 and s 61 of that Act, the prosecution did not have a statutory duty of disclosure with respect to the charged offences.[19]
[19] The offences being 'simple offences' under that Act, rather than 'listed simple offences' or 'prescribed simple offences': Criminal Procedure Regulations 2005 (WA), reg 12 and sch 4 and reg 10 and sch 3 respectively.
As the respondent properly accepts there is some doubt as to whether there may be a residual common law duty of disclosure which has not finally been resolved.[20]
[20] See Parfenova v Diss [2021] WASCA 50 [58], citing Bromley v Bembridge [2022] WASCA 192; (2002) 132 A Crim R 16 [52]; and Singh v Hodson [2022] WASC 334; (2022) 102 MVR 122 [64].
However, as the respondent notes this case does not require me to determine that matter for at least two reasons.
First, the appellant was provided with 'at least some' disclosure as the following exchange below reveals:[21]
SEIDNER, MR: Your Honour, just before the break we watched the video. That was tendered, so I'm just going to continue from there now. I'm just going to hand this document over if you want to have a look (indistinct).
HER HONOUR: Just if you could show that to [MJM].
ACCUSED: I - yes. I've got - I've been - - -
HER HONOUR: Have you seen that document?
ACCUSED: I got this in disclosure here.
HER HONOUR: All right. That's terrific.
[21] ts 24 - 25.
Secondly, the appellant did not raise the issue at trial and made no suggestion before her Honour that his ability to conduct his case was prejudiced by any limited disclosure that he may have received.
Indeed, as was the case in Singh v Hodgson:[22]
The appellant did not raise the issue of the non-disclosure at the hearing before the magistrate. The appellant was unable to point to any detriment suffered by him by not having had access to the footage prior to the trial or how he would have conducted the matter differently had he had that access.[23]
[22] Singh v Hodgson [2022] WASC 334; (2022) 102 MVR 122 ('Singh v Hodgson').
[23] Singh v Hodgson [67] (Forrester J).
In my view no miscarriage of justice has been shown.
Ground 1 enjoys no reasonable prospects of success, and leave to appeal on that ground is refused.
Was prosecution required to prove instrument for preliminary test was 'approved apparatus' (Issue 5)
According to the appellant, the magistrate erred 'in determining the evidence provided proved the Alcolizer LE5 preliminary breath testing device was approved breath analysing equipment'.[24]
[24] Ground 15.
Her Honour did not make such a determination in terms.
Nonetheless, it is understood that by Ground 15 the appellant intends challenging his conviction, on the preliminary sample offence, on the basis that the respondent did not prove that the instrument into which he had been required to provide a breath sample was an 'approved apparatus' under the RTA.
It is common ground that the prosecution did not prove that fact.
Thus, the crisp question for determination is whether the prosecution was required to do so.
As the respondent observes, there have been conflicting approaches in Western Australia in this regard.
In Sangster,[25] Wallace J agreed with a conclusion to the effect that 'a refusal to exhale into any breath analysing instrument made it unnecessary for the prosecution to prove that the instrument produced was an approved breath analysing instrument'.[26]
[25] Sangster v Collins [1973] WASC 126.
[26] Sangster v Collins [1973] WASC 126, pp 4-5 Wallace J referring to remarks made by Mitchell J in Cullen v Huffa [1970] SASC 630; [1970] SASR 155, 157 - 158.
His Honour accepted that conclusion in the context of considering a ground of appeal that there was no or insufficient evidence that the appellant in Sangsterhad been required to undergo a preliminary test under the statutory predecessor of s 66(1).
The point was raised again in Lambert,[27] a decision of the Full Court involving an appeal by an accused who had 'in somewhat forthright language' refused to provide a sample of her breath for a preliminary test.
[27] Lambert v Tomasini [1981] WASC 336 ('Lambert v Tomasini').
In Lambert, Jones J, after some analysis, arrived at a conclusion similar to that of Wallace J in Sangster.[28]
[28] Section 66(1) then read in substantially the same terms as it now does.
However, Kennedy J did not do likewise. Rather, in his Honour's view, in order to show non-compliance with a direction given under s 66(1) of the RTA,[29] 'it must … be established that the directions which were given relate to an approved device'.[30] (emphasis added)
[29] Lambert v Tomasini, pages 8 - 9 (reasons of Jones J).
[30] Lambert v Tomasini, page 4 (reasons of Kennedy J).
Smith J agreed 'generally' with Kennedy J's reasons for dismissing the appeal but did not engage with the point.[31]
[31] Lambert v Tomasini [1981] WASC 336, page 1 (reasons of Smith J).
I note that Kennedy J's (brief) conclusion was expressed in the context of considering whether the primary court had erred in finding the preliminary test 'was to be by means of an apparatus authorised by the Minister'. Ultimately, his Honour appears to have dismissed the appellant's ground to that effect because he considered it had in fact been established before the magistrate that the apparatus was so approved.[32]
[32] Lambert v Tomasini [1981] WASC 336, page 5 (reasons of Kennedy J).
In the circumstances, it seems to me that Kennedy J's conclusion was neither a step necessary to his decision to dispose of the ground nor a necessary step in his Honour's decision to dismiss the appeal itself.
Since Lambert, a line of interstate authorities has emerged reflecting an approach broadly consistent with the conclusions expressed by Wallace J in Sangster and by Jones J in Lambert.
One of those authorities is Lisiecki v Grigg,[33] which concerned an appeal brought in the context of analogous legislation.
[33] Lisiecki v Grigg [1990] VSC 20; (1990) 10 MVR 336.
In Lisiecki, the appellant had submitted to a preliminary breath test, which proved positive, but subsequently refused to furnish a breath sample for analysis.
The appellant contended that there was no evidence there was an 'approved' breath analysing instrument present and available at the time the accused was required to furnish a sample of breath for analysis by such an instrument.
Relevantly, Marks J made observations to the following effect:
(1)There is a marked difference between a prosecution for refusal to furnish a sample of breath for analysis by an instrument and a prosecution based on what such an instrument displays.
(2)In the latter case it is necessary to prove that the machine met the requirements of the statute, the legislature having expressly provided that only such a machine is to be used to obtain results which might found a conviction.
(3)No provision of the Victorian statute required proof of the presence of a breath analysing instrument to sustain a prosecution for the relevant offence.
(4)Neither did 'common sense nor any principle of law'.[34]
[34] Lisiecki v Grigg [1990] VicSC 20; (1990) 10 MVR 336, pages 340 - 341.
His Honour went on to conclude that:
[w]here evidence shows that a suspect refused point blank to provide a sample of his breath no matter what the instrument, particularly in circumstances indicating that his refusal was motivated by fear of the result of compliance with such a requirement, a tribunal of fact is entitled to conclude that the elements of the offence have been established.[35]
[35] Lisiecki v Grigg [1990] VicSC 20; (1990) 10 MVR 336, page 341.
There is with respect much to be said for the approach reflected in his Honour's reasons.[36]
[36] See also in this regard MacDonald v County Court (Vic) [2004] VSC 202; (2004) 41 MVR 183; [25] (Teague J) and Uren v Neale [2009] VSC 267; (2009) 53 MVR 57; (2009) 196 A Crim R 415 [81] - [88] (Forrest J).
However, ultimately, I consider that resolving the question raised by Issue 5 turns on a consideration of the purpose of the power granted to a police officer by s 66(1) of the RTA, having regard to the text and context of that provision, and the particular circumstances of its exercise.
Purpose of the power
As with the legislation under consideration in Lisiecki, there is no provision in the RTA which expressly requires proof of the presence of an 'approved' apparatus for the purposes of prosecuting a driver for failing to comply with a direction to provide a sample of their breath.
Nor, for the reasons which follow, do I consider such a requirement to be implicit on a proper construction of the Act.
As has been observed, by s 66(1) of the RTA a police officer may require the driver of a motor vehicle to provide a sample of their breath 'for a preliminary test in accordance with the directions of the police officer'. (emphasis added)
As is readily apparent from the definition of 'preliminary test' itself, the purpose of the power granted by s 66(1) is:
(1)to provide 'an indication of a person's blood alcohol content or an indication of whether or not [their] blood alcohol content is of or above a predetermined level or an indication of whether or not alcohol is present in [their blood]';[37] and
(2)achieved by testing a sample of the person's breath 'by means of apparatus of a type approved by the Minister'.[38]
[37] RTA, s 65 (definition of 'preliminary test').
[38] RTA, s 65 (definition of 'preliminary test').
The requirement for Ministerial approval may thus be seen as supportive of a mechanism designed to establish whether a driver has a particular level of alcohol in their bloodstream; being a matter in relation to which adverse consequences may flow for the driver depending on the result of the test.
However, it would seem to me that where, as here, the driver from the outset refuses or fails to provide any breath sample at all, the very purpose for which any exercise of the statutory power exists is not facilitated.
In those circumstances it cannot be thought to matter whether the apparatus had been approved. Let alone by whom. Instead, all that would matter is whether the driver in fact complied with the officer's requirement and, if not, whether the driver had a 'substantial reason' for not doing so.
Here, there was irrefutable evidence that the driver failed to comply with the officer's requirement, and it formed no part of his defence that the status of the apparatus was in any way relevant to his decision not to do so.
Circumstances in which power was exercised
As has been observed, s 66(1) relevantly contemplates that a police officer may require the provision of a breath sample 'for' a preliminary test.
Read in its proper context, the word 'for' is in my view directed at the subjective purpose of the officer in making any requirement.
Although purpose is subjective, it is ordinarily to be inferred from objective factors including the relevant surrounding circumstances.[39]
[39] Compare by analogy Wilden Pty Ltd v Green [2009] WASCA 38 per McLure JA (as her Honour then was) [120]; Town of Cambridge v The Hon David Templeman MLA, Minister for Local Government; Heritage; Culture and the Arts [2020] WASC 350 [98] - [100] (Tottle J) ; and Accident Claims Lawyers Pty Ltd (Subject to Deed of Company Arrangement) v Legal Practice Board [2024] WASC 249 [16(d)] (Seaward J).
Here, those circumstances included:
(1)the respondent and a fellow police officer conducting traffic patrols at night;[40]
(2)the officers stopping the appellant;[41]
(3)the appellant being advised that he was being stopped for a driver's licence check, a breath test and a few other tests;[42]
(4)the respondent thereafter requiring the appellant, several times, to provide a sample of his breath;[43] and
(5)while the respondent did so, a small orange machine, with the brand name 'Alcolizer' printed on it and having an illuminated blue screen, being held close to the wound-down driver's window of the appellant's vehicle.[44]
[40] ts 13.
[41] ts 13.
[42] Exh 1.
[43] Exh 1.
[44] Exh 1.
As was evident from the video footage, the machine was not of a kind which might reasonably have been expected to arouse suspicion on the part of the average motorist. Rather, it had an appearance similar to that which would readily be recognised by drivers in this State as commonly used by members of the WA Police to conduct roadside alcohol breath testing.
Indeed, the respondent gave evidence before the magistrate that the machine was an 'Alcolizer …[used] … [t]o do a preliminary breath test roadside'.[45]
[45] ts 15.
Significantly, that evidence was unchallenged.[46]
[46] ts 28 - 45.
In short, there was in my view little before her Honour from which it might reasonably have been open to infer that the respondent could have had any purpose other than to conduct a preliminary test on the appellant by using an approved apparatus.
Indeed, I consider the only reasonable inference that would have been open in the circumstances was that the respondent's intention was to do precisely that.
Conclusion - Ground 15
Although I would grant leave to appeal in respect of Ground 15 given the conflicting approaches to which I have referred, I consider the ground must fail for the above reasons.
Ground 15 is accordingly dismissed.
Was the magistrate correct not to allow evidence Alcolizer not functioning properly? (Issue 6)
By Ground 10, the appellant alleges the apparatus presented to him for the purposes of the preliminary test, namely an 'Alcolizer' device, was not functioning properly.
In connection with this proposition, the appellant seeks leave to adduce evidence on appeal which he says the magistrate refused to receive into evidence at trial including (still) screenshots extracted from the body-worn camera footage together with an excerpt from the Alcolizer LE5 manual.
As the respondent correctly points out, the screenshots have no probative value, it not being possible to determine if the Alcolizer was functioning properly merely by viewing them.
For similar reasons, the manual also has no probative value.
More fundamentally, and as has been noted, the appellant in any event failed to comply with the respondent's requirement to provide a sample of his breath for a preliminary test.
For this reason alone, the question of whether the Alcolizer was functioning properly does not arise.
There is no merit in Ground 10 and leave to appeal on that ground is refused.
Was prosecution required to prove respondent was an 'authorised person'? (Issue 7)
The appellant also submits the respondent was not an 'authorised person',[47] and therefore had no approval to operate the breath analysing equipment (ie. at the police station following his arrest).
[47] See RTA, s 65 definition of 'authorised person' read with s 68(6).
The evidence before the magistrate suggests that the respondent was indeed such a person.[48]
[48] ts 25, 30. Exh 2.
But even if the respondent was not, the question as to whether he met the relevant statutory criterion would in my view only have been relevant had the appellant in fact provided a sample of his breath for analysis.
I hold this view for substantially the same reasons articulated in the context of Issue 5 above.
Put simply, because the appellant failed to provide such a sample there was nothing for any breath analysing equipment to analyse. It must necessarily follow that the status (if any) of the operator of that equipment was wholly irrelevant.
Grounds 2 and 6 enjoy no reasonable prospects of success and leave to appeal on those grounds is refused.
Should the magistrate have permitted questioning relating to provision of DNA sample? (Issue 8)
Finally, the appellant complains of the magistrate's refusal to allow him to question the respondent at trial about the provision of a DNA sample.
The relevant exchange at trial was as follows:[49]
[49] ts 45.
ACCUSED: Do you remember when you pulled me over and said - doesn't matter - I - you would like to perform a few other checks in addition to a driver's licence and a breath requirement?---Yes.
What other checks did you have in mind?---Sometimes we do drug wipes - oral fluid wipes.
Okay. So DNA?
HER HONOUR: That's not necessary for a charge of this nature, Mr ---
…
ACCUSED: Why was I requested in identifying procedures to have my DNA taken?
HER HONOUR: I don't think he did. [MJM], it's not relevant. I've told you.
ACCUSED: If we watch the video, it - I mean, it ---
HER HONOUR: It's not relevant.
The appellant was charged with and convicted of failing to provide a sample of his breath for a preliminary test, and then failing to provide such a sample for analysis.
Whether or not taking a sample for any additional purpose was discussed is irrelevant to either of those offences.
The magistrate was therefore correct to curtail the appellant's line of questioning.
Ground 17 enjoys no reasonable prospect of success and leave to appeal on that ground is refused.
Application for leave to adduce further evidence
As noted earlier, the appellant also sought leave to file additional evidence on appeal.
As a general principle, and pursuant to s 39(1) of the Criminal Appeals Act 2004 (WA) (CA Act), an appeal court must decide an appeal on the evidence and material that was before the primary court.
However, s 40(1)(e) of the CA Act grants the court power to 'admit any other evidence.'
In circumstances where the evidence which an appellant seeks to introduce is not 'fresh', an appellant must show that the evidence establishes that they are innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted.[50]
[50] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676; Clarke v The State of Western Australia [2018] WASCA 1 [239]; Huggins v The State of Western Australia [2018] WASCA 61, 123; JEL v The State of Western Australia [2022] WASCA 32; (2022) 58 WAR 295.
The evidence the appellant seeks to introduce on appeal is material he had with him at the hearing before the learned magistrate, but which the magistrate did not permit him to rely upon below on relevance grounds.
In my view, the application to adduce further evidence is therefore tantamount to a ground of appeal challenging the magistrate's decision not to permit him to do so.
The further evidence which the appellant seeks to introduce comprises:
(1)an excerpt from the Alcolizer LE5 manual;
(2)enlarged still photographs of the respondent's body-worn camera footage (which footage was, as noted earlier, already in evidence before the magistrate);[51]
(3)an extract from the Road Traffic (Breath Analysis) Regulations 1975 Schedule 1; and
(4)screenshots of the results of Google searches relating to '24 hour attorney', a law firm with a 24-hour phone number and to the Criminal Lawyers' Association showing an '[a]fter [h]ours' directory of criminal lawyers.
[51] Exh 1.
Having carefully considered the transcript below, I do not consider there is either any reason to doubt the correctness of her Honour's decision not to permit the appellant to rely on the above materials, or to infer that any of the material would have been capable of raising any doubt as to the appellant's guilt on either of the offences of which he stood accused.
Nor does any of that material offer anything which would alter my conclusions as to the merits of any of the appellant's grounds of appeal.
Accordingly, the appellant's application to adduce further evidence on appeal is refused.
Conclusion and orders
For the foregoing reasons I make the following orders:
(1)Leave to adduce further evidence be refused.
(2)Leave to appeal be refused in respect of Grounds 1 - 14 and 16 - 19.
(3)Leave to appeal be granted in respect of Ground 15.
(4)The appeal be dismissed.
I will hear from the parties as to the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to the Judge
8 NOVEMBER 2024
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