MSB v WA Police
[2024] WASC 286
•17 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: MSB -v- WA POLICE [2024] WASC 286
CORAM: FORRESTER J
HEARD: 3 MAY 2024
DELIVERED : 17 SEPTEMBER 2024
FILE NO/S: SJA 1064 of 2023
BETWEEN: MSB
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1064 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE C CRAWFORD
File Number : PE 32888 of 2022
Catchwords:
Criminal Law - Single judge appeal - Appeal against conviction - Trespass - Whether evidence relied upon by prosecution was inadmissible - Whether lack of consent or licence proved - Whether magistrate erred in using alleged lie as consciousness of guilt - Whether magistrate erred in failing to consider s 22 and s 24 of the Criminal Code (WA) - Whether verdict unreasonable and unsupported by evidence - Whether substantial miscarriage of justice - Appeal against sentence - Whether sentence was excessive
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Dividing Fences Act 1961 (WA)
Surveillance Devices Act 1998 (WA)
Result:
Leave to appeal granted on ground 1
Leave to appeal refused on all other grounds
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr C Payne |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office (WA) |
Cases referred to in decision:
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338
Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138
CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Evans v WA Police [2024] WASC 24
Holmes v The State of Western Australia [2023] WASCA 26
Hunt v Russell [2019] WASC 284
Lance v Weston [2014] WASCA 62
LBC v The State of Western Australia [2011] WASCA 201
M v The Queen (1994) 181 CLR 487
Martincic v The State of Western Australia [2019] WASCA 134
Michael v The State of Western Australia [2007] WASCA 100
Molina z Zaknich [2001] WASCA 337; (2001) 24 WAR 562
Morgan v Cramer [2019] WASC 68
NYL v The State of Western Australia [2022] WASCA 41
Police v Slobodian [2008] SASC 69
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Reynolds v Rayney [2023] WASCA 144
Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
Strahan v Brennan [2014] WASC 190
Walden v Hensler (1987) 163 CLR 561
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilson v McDonald [2009] WASCA 39; (2009) 253 ALR 560
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494
FORRESTER J:
On 12 July 2023, the appellant was convicted after trial in the Perth Magistrates Court of a charge that on 5 June 2022 he trespassed on the property of his next door neighbour, by climbing over the fence between their properties and being in his neighbour's back yard without his neighbour's consent. He was sentenced to a $750 fine and costs.
The appellant has appealed his conviction on numerous grounds, and his sentence on the ground that it was excessive.
Issues
The appeal against conviction requires me to determine whether:
(1)the learned magistrate should have disqualified herself from presiding at the trial;
(2)there was a miscarriage of justice as a result of the admission at the trial of closed circuit television (CCTV) footage;
(3)there was a miscarriage of justice as a result of the admission at the trial of body worn camera (BWC) footage;
(4)the property was a building site and, if so, whether the prosecution failed to prove a trespass;
(5)the learned magistrate erred in using an alleged lie told by the appellant as consciousness of guilt;
(6)the learned magistrate erred in failing to consider s 22 of the Criminal Code (WA);
(7)the learned magistrate erred in failing to consider s 24 of the Criminal Code;
(8)the verdict was unreasonable and not supported by the evidence.
For the reasons which follow, leave to appeal is refused on all but one ground and the appeal is dismissed.
Factual background
The following facts are not in dispute.
The appellant and the complainant reside on neighbouring blocks. As at 5 June 2022, building works were being undertaken in the rear part of the complainant's block. On that date, the appellant was constructing a privacy screen on his side of the fence between the two blocks. At about 4.20 pm, the appellant lifted a ladder over that fence and put it in the complainant's yard. The appellant then used a second ladder to climb up on his side of the fence, and onto and down the ladder on the other side. He walked along the side of the complainant's house. The complainant saw the appellant doing this via CCTV and came out to see the appellant climbing back over the fence.
The complainant called police, and Senior Constable Kelly and Constable Ashton attended at the appellant's house at about 9.50 pm. SC Kelly activated his body worn camera and the conversation was recorded.
The footage showed that when the officers attended the appellant's house, it was in darkness. They knocked on the door and then rang the doorbell. It took the appellant some time to answer and, when he did, he was dressing himself.
SC Kelly told the appellant they were investigating an allegation of trespass having occurred that day. The appellant was cautioned. When asked if he understood, he said he did. However, he failed to explain the caution back when asked.
The appellant then said (without being asked) that he was fixing his side fence, which he claimed to be entitled to do. He asked if there had been a complaint, and SC Kelly told the appellant that it was alleged he had gone into his neighbour's yard. In response, the appellant said he was never there; that he worked on his side of the fence. He said he had had to lean over, because one of the panels had come loose. He said his feet never touched the ground in his neighbour's yard.
SC Kelly showed the appellant screen shots from the complainant's CCTV and the appellant denied that the person shown in that footage was him. He said it could be anyone. When it was pointed out that person was wearing the same clothes as the appellant, he said it was common clothing. He then asserted that it was not a trespass if the person had a lawful excuse, such as repairing the fence.
The appellant asked if he was going to be arrested, and he was told he was going to get an infringement notice, which he could pay or defend.
When asked if he had any questions, the appellant alleged that the complainant stole his step ladder. The police offered to, and did, retrieve the appellant's ladder from the complainant.
The appellant asked for the complainant to be charged with assault, claiming the complainant had pushed the appellant as he was climbing back over the fence. The appellant was asked when that happened, and he responded, '[w]hen that occurred'. The appellant showed the officers his leg and pointed to injuries which he said occurred in the incident. SC Kelly told the appellant he would have to go to the police station and make a complaint, because it would be inappropriate for them to be taking a complaint from the appellant as well as the complainant.
Trial
At the commencement of the trial, counsel for the appellant informed the learned magistrate that the appellant asserted that he had a lawful excuse, namely that he was permitted to enter the complainant's property to repair the fence, pursuant to provisions of the Dividing Fences Act 1961 (WA).
Evidence of the complainant
The complainant gave evidence that he and his wife resided at the property in question, which was 'owned through in‑laws'. They paid rent, and had resided at the property for almost three years.[1]
[1] Transcript, Magistrates Court of Western Australia, 8 August 2024, 4 (ts 12 July 2023).
At about 4.20 pm on 5 June 2022 the complainant heard his dog barking. He checked the CCTV and saw that the appellant was putting a ladder over the adjoining fence. He was unable to go outside at that time but observed the appellant come into the yard. When he was able to go outside, the appellant was climbing back over the fence.[2]
[2] ts 12 July 2023, 4 - 5.
There had been prior incidents between the complainant and the appellant. The complainant did not give the appellant permission to enter his yard. The fence was in good condition and had been replaced about 18 months before.[3]
[3] ts 12 July 2023, 5 - 6.
The CCTV footage was played and tendered. It runs for under a minute, and shows a person putting a ladder into the complainant's yard, climbing into the complainant's yard, and walking towards the camera, whereupon the recording ends. The person is not clearly identifiable from the footage.
In cross-examination, the complainant said that the footage did not extend to the point at which the appellant returned back over his fence because he stopped the recording in order to run outside and take a photograph of the appellant.[4]
[4] ts 12 July 2023, 9.
The complainant said that there had been an incident in which the fence had blown over, and his father in law had had to get it fixed on insurance. However, his father‑in‑law had since died.[5] He did not know exactly when the fence had been replaced and was unable to say whether he had been living there at the time.[6]
[5] ts 12 July 2023, 9.
[6] ts 12 July 2023, 9 - 10.
At the time of the incident, the appellant appeared to be building a structure. Since that date, the structure had been completed, which blocked the complainant's CCTV from showing the appellant's back yard.[7]
Evidence of Constable Ashton
[7] ts 12 July 2023, 10 - 11.
Constable Ashton attended the complainant's premises with SC Kelly. After speaking to the complainant, they went to the appellant's house. The body worn camera footage of his colleague was played at the trial.[8]
[8] ts 12 July 2023, 12 - 14.
In cross-examination, Constable Ashton was asked if he had examined the fence. He said that the only time he saw the part of the fence was to retrieve the ladder. He was then on the complainant's side of the fence. He did not see any damage at that time. He did not go to the appellant's side of the fence.[9]
Evidence of the appellant
[9] ts 12 July 2023, 14 - 15.
The appellant was 77 years of age at the time. He had lived at the property continuously since 1996. He had inoperable cataracts, leaving him with very poor vision.[10]
[10] ts 12 July 2023, 16.
On 5 June 2022, the appellant was building a screen for privacy purposes. He put posts in the ground, and was trying to put the last beam on the top. It was very high, and it fell on the fence; half on either side. He retrieved it and tried to reattach it. He assumed that the fence had been damaged, because the incident had made a lot of noise and a panel appeared to be out of alignment. A clamp had also fallen into his neighbour's property.[11]
[11] ts 12 July 2023, 17 - 18.
As a result, the appellant went over the fence and checked to see if there was any damage. It did not look as if there was any. He picked up his clamp. He was climbing back over the fence when the complainant came out.[12] The complainant told him that they had cameras, and that he should get back on his side of the fence. As the appellant was doing so, he felt two hands push him, and he fell. As he fell, he looked back and saw the complainant with his hands on the appellant's side of the fence. The complainant then took the appellant's ladder.[13]
[12] ts 12 July 2023, 18.
[13] ts 12 July 2023, 19 - 20.
In cross-examination, the appellant said it looked like one of the fence panels had come loose and he had to push the panel from the other side of the fence to repair it. He thought it was urgent to fix it, but discovered it was not actually damaged.[14]
[14] ts 12 July 2023, 20.
The appellant said he did not go and notify his neighbours beforehand because he had not seen anyone there all day. He thought he had made a lot of noise such that someone would have come out, but no one did. He did not go and knock on their door because he assumed no one was home and to go through their gate to knock on the front door would have been a trespass.[15]
[15] ts 12 July 2023, 21.
The appellant claimed that the area he went into was a building site. He said he would have had to get permission from the builder to go inside.[16]
[16] ts 12 July 2023, 22.
The appellant was cross-examined as to statements he made in the body worn camera footage which were allegedly inconsistent and as to his lies to police, which I will address later in these reasons.
Submissions
Counsel for the appellant submitted that s 15(7) of the Dividing Fences Act provided that, in the event of a fence being damaged or destroyed by accident, the appellant was entitled to immediately repair the fence without notice to the complainant. Further, pursuant to s 21 of the Dividing Fences Act, the appellant, being a person who was repairing the fence under the Dividing Fences Act, was entitled to enter onto lands adjoining the fence and do such things as were necessary or reasonable required to carry into effect the repair of the fence. As such, it was submitted the appellant had established a 'lawful excuse' to the trespass.
The prosecutor submitted that the Dividing Fences Act had no application in a case involving the suspicion of minor damage, as in this case.
Decision
The learned magistrate observed that there were two questions to be answered in order to determine the charge:
(a)had the prosecution established that the accused trespassed on the premises; and
(b)whether the accused had discharged the onus of proving on the balance of probabilities that he had a lawful excuse for the trespass.
The learned magistrate observed that it was common ground at the trial that the appellant had entered the property without the consent of the complainant.[17]
[17] ts 12 July 2023, 36.
Her Honour summarised what she had seen in the CCTV footage, and held that there was nothing to indicate there was any damage to the fence. Further, she found that the appellant did not inspect the fence; when he went into the complainant's yard, he walked along the fence, looking in front of him.[18]
[18] ts 12 July 2023, 39 - 40.
The learned magistrate considered the provisions of the Dividing Fences Act, but ultimately did not accept that the appellant went over the fence believing it to have been damaged or having the intention to repair it. Her Honour found that the appellant had lied to the police as to whether he was actually in the property, and found that the lie was told because he knew he had gone onto the property and that it was wrong to have done so.[19] Accordingly, the Dividing Fences Act had no application.
[19] ts 12 July 2023, 40 - 41.
On this basis, the learned magistrate was satisfied that the appellant did commit trespass, in that he went onto the neighbour's property and had no permission to be there. Her Honour then said:
On question 2, the prosecution have negatived lawful excuse to the requisite standard, that is, beyond reasonable doubt.[20]
[20] ts 12 July 2023, 41.
In sentencing, the learned magistrate imposed a suspended fine in the sum of $750 plus costs, and made a spent conviction order.
Amended grounds of conviction appeal
The appellant's amended grounds of appeal against his conviction allege a number of errors of law on the part of the learned magistrate, as well as claiming that a miscarriage of justice has occurred.
In determining this appeal, I have borne in mind that the appellant is unrepresented. As he is a litigant in person, the appellant has been granted considerable leeway in finalising his grounds of appeal, and I have approached the manner in which the appellant has articulated those grounds with some flexibility. Further, the parties have been permitted time to file supplementary submissions on two occasions to enable matters which have required clarification to be properly addressed by the appellant and the State.
As there is considerable overlap and repetition, I have grouped the grounds of appeal as follows:
(1)there was a miscarriage of justice because the learned magistrate should have disqualified herself from presiding over the trial due to her previous involvement in a related matter;
(2)there was a miscarriage of justice as a result of the admission at the trial of the CCTV footage;
(3)there was a miscarriage of justice as a result of the admission at the trial of the BWC footage;
(4)the property was a building site and accordingly the prosecution had failed to prove a trespass;
(5)the learned magistrate erred in using an alleged lie told by the appellant as consciousness of guilt;
(6)the learned magistrate erred in failing to consider s 22 of the Criminal Code;
(7)the learned magistrate erred in failing to consider s 24 of the Criminal Code; and
(8)the verdict was unreasonable and not supported by the evidence.
The appellant has raised a number of other issues. However, they can be briefly dispensed with, and so I will deal with those matters at the conclusion of these reasons.
Application to adduce additional evidence
The appellant has applied for leave to adduce four photographs of the complainant's backyard, said to have been taken in December 2021. Their relevance is said to be to demonstrate that the location where the appellant was said to have trespassed was a building site.
The appellant has also sought to adduce additional evidence to the effect that the fence was constructed in July 2011.
The appellant has not sought to adduce any other additional evidence on appeal. This is despite it being clearly explained to him that, in the event that he sought to raise any matter of fact, or to any give evidence as to what he understood or thought at the time of the offence which was not before the learned magistrate, he was required to do so.[21]
[21] ts 10 January 2024, 17 - 19, 28 - 29, 31.
Statutory framework
The appeal against conviction
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 to convict an accused after a trial is a decision which may be appealed.[22]
[22] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[23] meaning that the ground is required to have a rational and logical prospect of succeeding.[24] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[25]
[23] CA Act s 9(2).
[24] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[25] CA Act s 9(3).
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.[26]
Application to adduce additional evidence
[26] CA Act s 14(2).
An appeal court must decide an appeal on the evidence and material that were before the lower court.[27] However, the court has broad powers to admit other evidence, pursuant to s 40(1) of the CA Act.
[27] CA Act s 39(1).
In CD and EF v Chief Executive Officer, Department for Child Protection and Family Support,[28] Pritchard J (as her Honour then was) said:
The exercise of the statutory discretion to admit new evidence will be informed (although not necessarily determined) by the principles concerning new and fresh evidence. In the context of a criminal trial, where an appellant seeks to rely on new evidence - that is, evidence which was available at the time of the trial, or could, with reasonable diligence, have been discovered - no miscarriage of justice will arise simply because the new evidence was not adduced. Rather, new evidence will only give rise to a miscarriage of justice if the appellate court is either satisfied that the accused is innocent or concludes that the accused should not have been convicted, and it is not sufficient that the new evidence reveals only a likelihood that the court below would have returned a verdict of not guilty. An appellant thus faces a high hurdle in overturning a finding of guilt based on new evidence.
[28] CD and EF v Chief Executive Officer, Department for Child Protection and Family Support [2017] WASC 126 [119]; see also Hunt v Russell [2019] WASC 284 [11] (Smith J).
Disposition - appeal against conviction
Apprehended or actual bias of magistrate (Ground 3.3)
After the conduct the subject of the trial, the complainant's wife (the applicant) sought a violence restraining order. An interim order was granted on 26 July 2022. The appellant objected to the order and a final hearing was listed for 25 October 2022.
However, on 24 August 2022, the applicant sought an adjournment of the final order hearing. The application was supported by a letter from the applicant's doctor.
The adjournment application came before the same learned magistrate who later heard the appellant's trial.
The appellant initially requested a final hearing date after the trial date for the trespass charge, so that he would not be prejudiced at his criminal hearing. However, he also did not want the restraining order hearing to be delayed for a lengthy period due to the harshness of the conditions of the restraining order. Accordingly, he opposed the adjournment application. Despite this, the adjournment was granted and the matter adjourned for mention to 15 September 2022.
Also on 24 August 2022, the appellant applied to vary the interim restraining order. That application was granted.
The appellant claims that her Honour should have disqualified herself from presiding over his trial due to 'her previous involvement with the appellant and in any event her judgment was tainted'.[29] No application to that effect was made at the trial.
[29] Appellant's amended grounds of appeal dated 19 December 2023, 3.3 (Amended grounds of appeal).
The appellant has not asserted actual bias on the part of the learned magistrate, and there was nothing put before her Honour which could have resulted in her pre‑judging the matter the subject of the criminal trial. Nothing has been pointed to which suggests that her Honour had pre‑judged the matter.
Almost a year had passed between the application to adjourn the final hearing and the criminal trial. There is no evidence that the learned magistrate even recalled the adjournment application.
In Evans v WA Police,[30] Derrick J summarised the well‑known legal principles in relation to apprehended bias as they apply in the summary jurisdiction.[31]
[30] Evans v WA Police [2024] WASC 24 [73] ‑ [81].
[31] See also Reynolds v Rayney [2023] WASCA 144[28] ‑ [34].
The test to be applied in determining whether a judicial officer is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question they are required to decide.[32]
[32] Evans v WA Police [73]; Michael v The State of Western Australia [2007] WASCA 100 [56]; Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [24].
The fact that a judicial officer has rejected an argument or submission on the part of the appellant in an earlier hearing does not and cannot demonstrate actual or apprehended bias.[33]
[33] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91.
At the hearing on 24 August 2022 the learned magistrate varied the interim restraining order, at the request of the appellant, to make sure it was clear and able to be complied with. Further, in light of the applicant's medical issue, her Honour adjourned the final hearing date. It cannot sensibly be argued that granting the adjournment in those circumstances was unreasonable.
The mere fact that her Honour granted an adjournment to the applicant is not a basis to assert apprehended bias.
At no stage in the course of the hearing on 24 August 2022 did the learned magistrate make any remark about a question of fact which was a live issue in the criminal trial. She made no remarks about the credit of the appellant or any other person involved in the criminal trial. The appellant has identified no part of the trial transcript which supports his claim of apprehended bias.
The learned magistrate was not called upon to assess the credibility or reliability of the evidence of any witness in the criminal proceedings, and no evidence relevant to the criminal proceeding was adduced.
In my view, neither of the decisions made by her Honour on 24 August 2022, nor the exchanges between her Honour and the parties in relation to them, could result in any fair‑minded lay observer reasonably apprehending that her Honour might not act impartially and without prejudice at the criminal trial.
In my view this ground is not reasonably arguable.
Admissibility of body worn camera footage
Trespass (Ground 1.10)
The appellant submitted that the police committed trespass when they went onto his property and recorded the appellant on their body worn cameras. At the hearing of the appeal, it became apparent that the relevance of this argument was that the appellant was alleging that the body worn camera footage should have been ruled to be inadmissible as a result of the trespass of the officers. This was not an argument raised at trial and, as such, the issue is whether a miscarriage of justice was occasioned by the admission of the evidence.[34]
[34] LBC v The State of Western Australia [2011] WASCA 201 [10].
In Roy v O'Neill, Kiefel CJ observed:
It is well understood that the law of trespass requires that for a person lawfully to enter private premises there must be an invitation or permission from the occupier respecting that entry. The common law also recognises that such a rule would be unworkable in our society if it were strictly applied so as to render all visitors who did not have an express permission from the occupier, trespassers. It recognises that it is in the interests of the occupier, entrants and society more generally that there be a qualification to the law of trespass. It effects that qualification by implying a permission, on the part of an occupier, for persons to enter upon premises and approach a dwelling to engage in lawful purposes. It balances its recognition of that implied permission by acknowledging that an occupier may negate the permission, by sufficiently indicating that entry is not permitted, and that an occupier may revoke the permission at any time, by requiring the visitor to leave the premises. The implied licence applies to members of the public and the police alike, albeit that the business which they may have with the occupier or those present on the premises may differ.[35]
[35] Roy v O'Neill [2020] HCA 45; (2020) 272 CLR 291 [11].
In Roy, in three separate judgments, the court held that the implied licence to 'knock and talk' applies as much to a police officer as to any other person. It is available to be invoked by a police officer to walk up a path, stand on the doorstep and knock on the door and speak to the occupant should they choose to answer the door. The police officer can do all of that in the context of investigating a crime, even if the occupant is a suspect.[36]
[36] Roy v O'Neill [15] - [16] (Kiefel CJ), [33] - [34] (Bell & Gageler JJ), [77] - [78] (Keane & Edelman JJ).
The appellant conceded that the police had an implied licence to enter onto his property, and knock on his door to make enquiries, but argued they were not entitled to turn on their body worn cameras.[37]
[37] Appellant's submissions (undated) filed 3 November 2023 [24] (Appellant's written submissions).
In his submissions, the appellant also denied giving the officers permission to turn on their cameras and said he did not even hear them tell him that he was being recorded.[38] However, the appellant did not give evidence to that effect at the trial, and has not sought to adduce any additional evidence to that effect on the appeal.
[38] Appellant's written submissions [26] - [27].
Further, and in any event, it is not a requirement of admissibility that a suspect consent before their statements made in an interview are recorded.[39]
[39] Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 [63] ‑ [73].
The footage showed that SC Kelly told the appellant immediately after he opened the door that he was recording the conversation.[40] The appellant did not directly respond. SC Kelly then cautioned the appellant, which included the caution that anything the appellant did say would be recorded and may be given in evidence. When asked if he understood, the appellant said he did. The appellant started to tell SC Kelly 'what was going on' but SC Kelly stopped him to ensure he understood the caution. SC Kelly then repeated parts of the caution.[41] When he repeated that anything the appellant did say would be recorded on camera, the appellant paused and then nodded.[42] The appellant did not then respond to the question as to where the recording might be played, but instead proceeded to give his account.[43]
[40] Body worn camera footage dated 5 June 2022, 00:01:55 - 00:02:00 (BWC Footage).
[41] BWC Footage 00:02:05 - 00:02:32.
[42] BWC Footage 00:02:29.
[43] BWC Footage 00:02:35.
At one point later in the recording, the appellant told SC Kelly he could not hear him, and SC Kelly repeated what he had said.[44] There is no suggestion that the appellant was cowed by the officers or was unable to indicate hearing difficulties if he was experiencing them. The appellant also demonstrated some awareness of criminal procedure in the course of the recording.
[44] BWC Footage 00:05:10.
On the available evidence, there is nothing which suggests that the appellant was not aware that the conversation with police was being recorded; all of the evidence is to the contrary.
Further, even if the appellant was not aware he was being recorded, I do not accept the appellant's contention that the police became trespassers by reason of turning on their body worn cameras. I am satisfied that an implied licence for police to attend premises such as that which existed in the present case extended in this case to recording that attendance in a reasonable fashion.
Unfairness discretion (Grounds 1.3, 3.9 and 3.10)
The appellant did not suggest that the admissions he made on the body worn camera footage were involuntary. At best, he submitted that it would be unfair to use the admissions he made against him because, had he been aware he was being recorded, he would have ordered the officers from his property.[45]
[45] Appellant's written submissions [27].
Even if the police did become trespassers by reason of activating their body worn cameras, or the appellant was not aware he was being recorded, that does not mean that the footage was inadmissible. It would be a matter of whether, in the exercise of discretion, the footage should be excluded on the basis that it would be unfair to admit it against the appellant.
The appellant made submissions about his failure to hear and understand the police caution.[46] However, he gave no evidence about this at the trial, and did not seek to adduce additional evidence in relation to those matters or any other. The evidence adduced at trial does not give rise to any issue in that regard.
[46] Appellant's written submissions [27].
The appellant was apparently keen to provide an account. He was not pressed by the police to answer questions, and he took his time in responding.
The appellant also submitted that the police had acted unfairly by not showing him the screenshots from the complainant's CCTV footage immediately. However, as I have observed, the appellant was apparently eager to give his account, and commenced to do so without having been asked questions about the incident by SC Kelly. Further, and in any event, there is nothing inherently unfair in the police asking a suspect for their account prior to showing them any evidence they might have in their possession.
An appellant who seeks to exclude admissions on the basis of the unfairness discretion bears the onus of establishing, on the balance of probabilities, that they should be excluded.[47]
[47] Holmes v The State of Western Australia [2023] WASCA 26 [201] ‑ [204].
The appellant has not established that it would be unfair to admit what he said in the course of the police interview at the trial.
I am satisfied that there has been no miscarriage of justice as a result of the admission of the body worn camera footage.
Admissibility of closed circuit television footage (Ground 1.10)
The appellant contended, again for the first time on appeal, that the CCTV evidence was unlawfully obtained because the security camera was pointing into his backyard contrary to the provisions of the Surveillance Devices Act 1998 (WA).
The appellant submitted that the CCTV also included a sound recording component. There is no evidence that it did so. However, I will deal with it as if it did.
The Surveillance Devices Act relevantly provides:
5.Regulation of use, installation and maintenance of listening devices
(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a)to record, monitor, or listen to a private conversation to which that person is not a party; or
(b)to record a private conversation to which that person is a party.
…
6. Regulation of use, installation and maintenance of optical surveillance devices
(1)Subject to subsections (2) and (3), a person shall not install, use or maintain, or cause to be installed, used, or maintained, an optical surveillance device -
(a)to record visually or observe a private activity to which that person is not a party; or
(b)to record visually a private activity to which that person is a party.
There is no doubt that the CCTV footage constituted an 'optical surveillance device' and, to the extent that it was capable of hearing or recording sound, a 'listening device' within the meaning of the Surveillance Devices Act.[48]
[48] Surveillance Devices Act 1998 (WA) s 3.
Pursuant to s 3, 'private conversation' means:
[A]ny conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
Also pursuant to s 3, 'private activity' means:
[A]ny activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed.
In the present case, there is no evidence that the placement or use of the camera offended against the Surveillance Devices Act. While the footage does indeed show a small part of the appellant's backyard, along with a brick wall on the appellant's side of the fence, the camera is pointed down the side of the complainant's house.
There is no evidence the CCTV was installed, used or maintained to record any private conversation or private activity on the part of the appellant or in the appellant's yard.
In the present case, the CCTV was used to observe and record the appellant's movements in placing a step ladder into the complainant's yard, and entering it. The appellant had no reasonable expectation of not being observed or recorded in doing so.
In my view, the CCTV footage was not inadmissible and there was no miscarriage of justice which arose as a result of its admission in evidence at the trial.
Whether the property was a building site and, if so, whether the prosecution failed to prove a trespass (Grounds 1.1, 1.2, 1.5, 1.9 and 3.2)
One of the appellant's principal submissions was that, at the time of the alleged offence, the relevant part of the property in question was a building site under the control and management of a construction company, not the complainant.[49] The appellant argued that the complainant therefore had no standing to make a complaint of trespass against him.[50]
[49] Appellant's written submissions [10].
[50] Appellant's written submissions [11].
The question is not one of standing; any person is entitled to complain to the police about a breach of the law. The person who commenced the prosecution was Constable Ashton. There is no doubt he was entitled to do so, pursuant to s 20 of the Criminal Procedure Act 2004 (WA).
The appellant's real complaint was, in essence, that in order to prove the offence, the prosecution needed to prove an absence of consent on the part of the party lawfully in control of the premises. The appellant submitted that party was the builder, not the complainant.
Section 70A of the Criminal Code relevantly provides:
(1)In this section -
…
person in authority, in relation to a place, means —
(a)in the case of a place owned by the Crown, or an agency or instrumentality of the Crown — the occupier or person having control or management of the place or a police officer; or
(b)in any other case —
(i)the owner, occupier or person having control or management of the place; or
(ii)a police officer acting on a request by a person referred to in subparagraph (i);
trespass on a place, means —
(a)to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or
(b)to remain in the place after being requested by a person in authority to leave the place; or
(c)to remain in a part of the place after being requested by a person in authority to leave that part of the place.
(2)A person who, without lawful excuse, trespasses on a place commits an offence.
Penalty for this subsection: imprisonment for 12 months and a fine of $12 000.
Accordingly, in order to prove trespass in this case, the prosecution needed to prove beyond reasonable doubt that the appellant did not have the consent or licence of the owner, the occupier, or person having control or management of the place.
The complainant in this case was a tenant, and thus an occupier, of the premises. The premises were owned 'through in laws'.[51] The complainant testified that the appellant had no consent to enter the premises.[52]
[51] ts 12 July 2023, 4.
[52] ts 12 July 2023, 6.
The appellant asserted that the backyard of the property was a building site and the builder had 'sole control' of that area.[53] There was no evidence as to either the extent of any building site, or whether the builder did have 'sole control' of any part of the property. The complainant was not questioned about the matter in any way. Further, the appellant has not sought to adduce any additional evidence which substantially assists in resolution of this issue.
[53] ts 12 July 2023, 22.
The images of the area adduced by way of additional evidence show a temporary fence, erected closer to the rear of the property than the place where the appellant climbed the fence. That suggests that, even if the complainant was excluded from part of the property, it was not the part on which the appellant was alleged to have trespassed.
Further, and in any event, the alleged offence occurred on a Sunday afternoon. The appellant gave evidence that he had been there all day and 'never saw anyone'. At least by implication, he acknowledged that he did not call the builder to seek permission to enter the property.[54] As a result, the totality of the evidence established that, regardless of who was entitled to give consent or licence to enter the property, the appellant did not have it.
[54] ts 12 July 2023, 22.
In those circumstances, it is unnecessary to determine whether the premises were a building site or not, and what that entailed. The element of lack of consent or licence was made out.
Whether the learned magistrate erred in using an alleged lie told by the appellant as consciousness of guilt (Ground 3.10)
When interviewed by the police, the appellant denied having been in his neighbour's backyard, saying, 'I was never there.'[55] When shown the screenshot from the CCTV, he denied being the person shown in it.[56]
[55] BWC Footage 00:02:55.
[56] BWC Footage 00:04:00.
In cross‑examination, when asked if he had told the police that he was not on the complainant's property, the appellant initially claimed not to recall,[57] and then said, 'I might have … I have to check through the evidence.'[58] The following exchange then occurred:[59]
Why did you say that? - - Is it against the law?
It's against the law for what? - - To do that?
And now you're saying to the court that you've gone to fix your fence, aren't you? - - I'm saying what?
You're telling the court today that you were fixing your fence that day? - - Well, attempting to.
But you didn't tell the police that night.
[57] ts 12 July 2023, 23.
[58] ts 12 July 2023, 24.
[59] ts 12 July 2023, 24.
The appellant's counsel then objected on the basis that the appellant had in fact told the police that he was fixing the fence. The learned magistrate allowed the objection. The questioning eventually resumed:[60]
So the police come to your house that night and speak to you about an allegation. You first advise police that you weren't there and that someone else was wearing the same clothes as you; correct? It's yes or no? - - Maybe.
Well, it's yes or no. It's not maybe. It's yes or no.
HER HONOUR: Or, you can't remember. It's up to you. - - - Yes. I don't recall.
Right. Okay. - - I'm 77. I'm not 21.
…
Right. So you tell police that you were fixing that panel. Okay. And then when you are spoken to about it, you state that you never even touched the ground on the other side; correct? - - I don't recall.
You don't recall. Okay? - - No.
[60] ts 12 July 2023, 26 - 27.
It was apparent from the cross‑examination that the prosecution was alleging that the appellant's denial was a lie. However, the prosecution did not at any time put to the appellant that he had lied because he knew that the truth would implicate him in the offence, or specify in submissions how it sought to use the evidence of that lie. The appellant's counsel did not address the issue of the appellant's alleged lies at any point during the trial either.
The matter was additionally complicated by the fact that, while the body worn camera footage had been served on the appellant, the appellant had apparently been unable to watch it and his counsel was apparently unaware of it until it was played at the trial.[61]
[61] ts 12 July 2023, 13.
The learned magistrate found that the appellant had lied to police in denying it was him in the CCTV footage.[62] That finding was a factor in her Honour's assessment of the appellant's credibility and reliability.[63]
[62] ts 12 July 2023, 39.
[63] ts 12 July 2023, 39.
Further, towards the end of her reasons, in dealing with the contention that the appellant was entitled to enter the complainant's property to repair the fence, her Honour concluded that she did not believe that the appellant went over the fence believing it had been damaged and intending to repair it. Her Honour said:
If it was as straightforward as that then one might expect the accused would have told the police … when they came to the door five hours later that that was the situation. I simply don't accept that the accused was fixing or intending to fix the fence.
Now, on the day, as I've indicated earlier, after the caution the first thing that the accused says to Kelly is he was fixing the fence. Now, in court he said he was erecting a privacy screen and it was in the process of that that the beam had fallen and damaged the fence. Now, I note that the accused was defensive, if not somewhat hostile with the police on the evening that he was spoken to and there was a good reason for him being defensive. He had been in the property - the neighbour's property - and he lied to police about whether he had actually been in the property and he well knew that he had been in the property and, I infer, the lie was because he knew it was wrong to do so.
I am satisfied that the accused did commit trespass. He went onto the neighbour's property and had no permission to be there. On question 2 the prosecution have negatived lawful excuse to the requisite standard, that is, beyond reasonable doubt.[64]
[64] ts 12 July 2023, 41.
The respondent properly conceded that, in this part of her reasons, the learned magistrate used the evidence of the appellant's lie to police as an Edwards lie.[65]
[65] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
The evidence was clearly capable of being used in this way. The appellant's denial of being on the property was emphatic. It was plainly a lie. It was told after the appellant first claimed he had been entitled to fix the fence, so the denial cannot be said to have been made in ignorance of his right to do so. The appellant persisted in the denial even when shown the screenshot depicting a person in the property and challenged as to the clothing worn by that person. The appellant's evidence at trial regarding the denial was capable of being seen as evasive and he provided no alternative explanation for making it.
On appeal, the appellant submitted that, when he told the police he was 'never there', he had meant to say he was not in his neighbour's back yard; he was on a building site, but he was not allowed to explain that.[66] The appellant did not seek to adduce any additional evidence on appeal to that effect. Further, this explanation is wholly inconsistent with the appellant's denial that the person shown in the CCTV footage screenshot was him. Accordingly, even the submission that the explanation now claimed was open on the evidence cannot be accepted.
[66] Amended grounds of appeal, 3.10.
The respondent submitted that the potential to conclude that the lie was told out of a consciousness of guilt was obvious from the footage, and the appellant's counsel was therefore on notice as to that potential use.[67] The respondent contended that further, and in any event, in circumstances in which the appellant disputes that the statement was a lie at all, no substantial miscarriage of justice arose.[68]
[67] Respondent's written submissions dated 26 March 2024 [6] - [7] (Respondent's written submissions).
[68] Respondent's written submissions [9].
At some point after the playing of the body worn camera footage commenced but before it concluded, the appellant's counsel sought to take instructions from the appellant. The learned magistrate waited in court while counsel did so.[69] Accordingly, it is clear counsel had limited opportunity to properly consider the footage, its contents, or its potential legal implications. After the footage was played, Constable Ashton was briefly cross‑examined, and the appellant was then called to give evidence, without any further adjournment. In those circumstances, I do not consider it is appropriate to find that the appellant's counsel should have been on notice as to the potential use of the evidence in the circumstances of this case.
[69] ts 12 July 2023, 13.
In the context of this case, for reasons which will become apparent, the learned magistrate's use of the statements as Edwards lies was significant.
Had the appellant's counsel been on notice as to the fact that the appellant's alleged lies might have been used as Edwards lies, there would have been an opportunity to lead evidence from the appellant about his reason for saying what he did, and counsel would have had an opportunity to make submissions as to whether the evidence should be used in such a way.
In my view, in the circumstances of this case, it would have been appropriate for the learned magistrate to raise the issue of Edwards lies with counsel and to give them an opportunity to make submissions about it. In my view the failure to do so gave rise to a miscarriage of justice.
I will return to consider whether there has been a substantial miscarriage of justice after I have considered the other grounds.
Whether the learned magistrate erred in failing to consider s 22 of the Criminal Code (Ground 1.7)
The appellant submitted that the learned magistrate erred in failing to consider whether he had an honest claim of right to recover his property, namely a clamp which had accidentally fallen into the premises.[70]
[70] Appellant's written submissions [88].
Section 22 of the Criminal Code provides:
Ignorance of law, honest claim of right
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.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
If there is an evidentiary foundation for honest claim of right to operate in any given case, it is for the prosecution to prove, beyond reasonable doubt, that the accused is not relieved of criminal responsibility by reason of an honest claim of right.
Evidentiary foundation
When questioned by police, the appellant made no mention of losing the clamp, or trying to retrieve it. He said he had tried to repair the fence, but denied entering the premises at all in order to do so, which was a lie.
At trial, the appellant gave unchallenged evidence that he had dropped his clamp into the premises at the same time as the incident he thought had damaged the fence. He said:
I tried to figure out a way to - to recover my clamp, you know, and fix the fence at the same time, so I put one stepladder on one side, stepladder on the other, and then I managed to climb over, and I went over, checked to see if there was any damage to the fence and, well, it didn't look as though it was - there was any. So I merely picked up my clamp, went back, threw the clamp over the fence, and then started climbing the stepladder back to my own property, but something happened when I got halfway up the ladder. The next door neighbour came out.[71]
[71] ts 12 July 2023, 18.
In cross-examination, the appellant was specifically asked if he went over the fence to retrieve his clamp, and he said he had.[72]
[72] ts 12 July 2023, 22.
The complainant had given evidence that he stopped recording the CCTV footage to take a photograph of the appellant.[73] The CCTV footage shows the appellant climbing off the ladder and walking towards the camera, before the footage ends. The photograph shows the appellant climbing the ladder, on the complainant's side of the fence.
[73] ts 12 July 2023, 9.
The only evidence as to what the appellant did on the complainant's side of the fence came from the appellant.
In cross-examination, the appellant gave evidence that he believed it was urgent to repair the fence at the time he went over it, because he damaged it and was responsible for repairing it.[74] He said he did not go to speak to his neighbour because he assumed that no one was home; he had seen no one all day, despite having made a lot of noise at the fence.[75]
[74] ts 12 July 2023, 20.
[75] ts 12 July 2023, 21.
When asked why he did not go and knock on his neighbour's door, the appellant also said that his neighbours had a fence and a gate, which was not locked, but closed, so if he went to knock on the front door, that would be trespass; he was not allowed in there.[76]
[76] ts 12 July 2023, 21 - 22.
Further, and in any event, he claimed, the area was a building site, saying:
For me to get permission to go in [the premises] I would have had to rung up the builder, because he has got sole control of that area.[77]
Honest claim of right
[77] ts 12 July 2023, 22.
There is no doubt that an accused is entitled, in certain circumstances, to raise honest claim of right, pursuant to s 22 of the Criminal Code, to avoid criminal responsibility in respect of the offence of trespass.[78] The question is whether the learned magistrate ought to have directed herself in relation to that provision in the appellant's case.
Whether the appellant's property in the clamp required the learned magistrate to consider honest claim of right under s 22 of the Code
[78] Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338.
The appellant was charged with trespassing on the property next door to his. The claim of right he asserted on appeal was as to the ownership of the clamp.
In Police v Slobodian,[79] the appellant had been directed to leave a Centrelink office due to his disruptive behaviour. Police had directed him not to return within 24 hours. However, he re‑entered the premises in breach of that direction and was arrested and charged with trespass. Relevantly, the appellant claimed that he had an honest claim of right in that he honestly believed he was entitled to re‑enter the premises to collect documents belonging to his partner.
[79] Police v Slobodian [2008] SASC 69.
In relation to the charge of trespass under s 17A(1) of the Summary Offences Act 1953 (SA), Gray J said:
The fact that the defendant may have believed that property to which he was entitled was still on the Centrelink premises did not give a right to re-enter the building. A reasonable and honest claim to retrieve property in the manner and circumstance in which the defendant sought to retrieve the property did not preclude a finding of trespass. An honest belief in a special entitlement to property does not necessarily constitute a defence - it would only do so if the entitlement would preclude what was done from constituting a breach of the relevant criminal law which the defendant was assumed to know. In other words, it is not the point to establish an honest belief of a special relationship with property, which even if it existed, would not constitute an answer to the offence charged.[80]
[80] Police v Slobodian [35]; Walden v Hensler (1987) 163 CLR 561 (Deane J) 580 ‑ 581; Molina z Zaknich [2001] WASCA 337; (2001) 24 WAR 562 [87].
While the charge in Slobodian related to an offence of trespass by re‑entry, the charge was made out once it was established that the offender in that case was aware that he was not entitled to enter the premises and had done so anyway. His claim to own property inside the premises did not give rise to an honest claim of right to re‑enter the premises.
There is a difference between the legislation considered in Slobodian and s 70A of the Criminal Code. Unlike s 17A(1) Summary Offences Act 1953 (SA), s 70A of the Criminal Code provides that, even if trespass has been made out, an offender may establish, pursuant to s 70A(3), that they had a 'lawful excuse' for being on the premises. However, that difference does not detract from the principle that honest claim of right did not apply in the circumstances of that case.
At no stage in this matter has the appellant asserted a belief as to his right to enter the premises. Indeed, the learned magistrate found that the entirety of the evidence established that the appellant well knew that he was not permitted to be in the premises.[81]
[81] ts 12 July 2023, 41.
In my view, there was no room for the application of s 22 of the Criminal Code on the basis claimed by the appellant.[82]
Whether the learned magistrate was required to consider honest claim of right as a result of the appellant's claim to be entitled to repair the fence
[82] See, for example, Lance v Weston [2014] WASCA 62 [46].
Given the manner in which the ground was expressed, and as the appellant is self‑represented, it is also necessary to determine whether the appellant's claim that he was entitled by the provisions of the Dividing Fences Act 1961 (WA) to enter the premises for the purposes of repairing the fence required consideration of s 22 of the Code.
In the course of the interview with the police, the appellant did assert that he was fixing his fence and that that was his right. However, the appellant denied ever setting foot on the premises. As such, he did not assert in his interview that he honestly believed he was entitled to do so.
At trial, it was the appellant's case that one of his purposes in entering the premises was to inspect the fence, and, if it was damaged, repair it. He gave evidence that it looked like one of the panels had come loose, and he went over the fence to push it back into place.[83] He said he thought fixing it was urgent.
[83] ts 12 July 2023, 20.
The appellant did not expressly give evidence as to any belief on his part that he was entitled to be on the premises for that purpose, or that he thought that the Dividing Fences Act gave him that entitlement. However, as his counsel informed the magistrate in opening, that was his case.
In Martincic v The State of Western Australia, the court said:
Section 22 of the Code only applies if there is evidence, usually if not invariably from the accused, that raises a 'defence' under s 22. If, at the close of the evidence, there is evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt as to whether the State had negatived a defence under s 22, the trial judge must leave the defence to the jury even if counsel has not put the defence, and even if counsel has expressly abandoned it …
A claim, for the purposes of s 22 of the Code, need only be honest. It does not have to be reasonable or one that is recognised in law.
…
[T]he claim of right must be one that, if correct, would legally entitle the person to do to the property that which he or she did.[84]
[84] Martincic v The State of Western Australia [2019] WASCA 134 [52] ‑ [54] (citations omitted).
The respondent argued that the respondent's failure to state in evidence his belief in his right to enter the property pursuant to the Dividing Fences Act meant that the evidential onus had not been discharged. Further, the respondent pointed out, in cross‑examination the appellant conceded he had not asked for permission to enter the property, suggesting he did not have such a belief.[85]
[85] Respondent's written submissions dated 31 May 2024 [8] - [9].
I accept that the appellant's evidence was internally inconsistent. However, an inference was open on the evidence at its highest that the appellant was asserting a belief in his right to be on the property pursuant to the Dividing Fences Act. Accordingly, in my view, the evidence was sufficient to raise s 22 of the Criminal Code, such that her Honour was obliged to direct herself as to whether the prosecution had established beyond reasonable doubt that the appellant did not have an honest claim of right to enter the premises to inspect and repair the fence, pursuant to the Dividing Fences Act.
While her Honour did not refer to s 22 of the Criminal Code or honest claim of right, her Honour did consider the appellant's state of mind when he entered the property.
Her Honour's finding in this regard must be considered in light of her earlier finding that she had difficulty accepting that the accused was a credible or reliable witness, a finding explained by reference to some of the appellant's responses to questions in cross-examination and particularly the manner in which he responded in his interview with police.[86]
[86] ts 12 July 2023, 38 - 39.
Clearly, the concept of 'lawful excuse' is different to that of 'honest claim of right', although there may be substantial overlap in the circumstances of any given case. In this case, the factual starting point for both honest claim of right and lawful excuse happened to be the same: whether the appellant entered the property genuinely intending to repair the fence.
The learned magistrate considered the appellant's conduct and indicated that she 'simply [did] not accept that he was going over the fence believing it had been damaged with the intention of repairing it'.[87]
[87] ts 12 July 2023, 41.
Her Honour referred to the lack of visible damage to the fence, the fact that the appellant did not go to inspect the fence once on the property,[88] the appellant's statements to the police and his demeanour when making them and his evidence in court.[89] In addition, her Honour formed the view that the appellant had lied to the police about not having been in the premises because he knew that it was wrong for him to have been there.[90]
[88] ts 12 July 2023, 39 - 40.
[89] ts 12 July 2023, 41.
[90] ts 12 July 2023, 41.
Having so found, the learned magistrate stated that the prosecution had negatived lawful excuse 'to the requisite standard, that is, beyond reasonable doubt'.[91]
[91] ts 12 July 2023, 41.
Her Honour's application of this onus and standard is inconsistent with her earlier expression of what was required to be proved:
Firstly, the prosecution must establish each element of the offence beyond reasonable doubt. Secondly, the accused does not have to prove anything. However, in this case the parliament has stipulated that where the accused says he has a lawful excuse he or she has the onus of proving that lawful excuse, that is, by adducing evidence of the balance of probabilities (sic). It is then for the prosecution to negative that beyond reasonable doubt.[92]
[92] ts 12 July 2023, 36.
I am conscious of the often repeated principle that the reasons of a magistrate should not be examined with a 'fine‑tooth comb or with an eye keenly attuned to the identification of error'[93] and that error should not be readily inferred from infelicity of language.
[93] Strahan v Brennan [2014] WASC 190 [89] - [90].
Despite articulating the test in this manner at the outset, when her Honour made her findings, she made no reference to any burden of proof being on the appellant, or him having failed to meet it. She said only that she was satisfied that the prosecution had negatived lawful excuse beyond reasonable doubt.
Pursuant to s 70A of the Code, the onus of establishing a lawful excuse was on the appellant, to the standard of the balance of probabilities. Any requirement that the prosecution disprove lawful excuse beyond reasonable doubt was unduly favourable to the appellant.
However, in finding herself satisfied to that standard, her Honour by necessary implication found that the prosecution had proved beyond reasonable doubt that the appellant was not acting under an honest belief that he was entitled to enter the premises to repair the fence. Once the learned magistrate was so satisfied, the defence of honest claim of right was also necessarily disproved beyond reasonable doubt.
Accordingly, in the circumstances of this case, I am not satisfied that the key requirements of honest claim of right were not considered and found to have been disproved. This ground fails.
Whether the learned magistrate erred in failing to consider s 24 of the Code (Ground 1.4)
The appellant submitted that the prosecution was required to prove beyond reasonable doubt that he did not have an honest and reasonable but mistaken belief that the fence was damaged. He argued that he believed that the fence was damaged, and even if he was mistaken, he was therefore entitled to enter the property pursuant to the Dividing Fences Act.
Her Honour did not expressly consider s 24 of the Code.
However, as I have already indicated in relation to the defence of honest claim of right, the learned magistrate rejected the appellant's evidence that he believed the fence was damaged and went over the fence intending to repair it. Her Honour's misstatement of the onus and burden of proof as being on the prosecution to disprove lawful excuse beyond reasonable doubt had the unintended consequence that the correct onus of proof was applied in relation to the matters which needed to be considered under s 24 of the Code.
Her Honour's factual finding that the appellant did not go over the fence believing it to be damaged means that there was no room for the defence of honest and mistaken belief to practically operate in this case.
Accordingly, no miscarriage of justice has been established.
Whether the verdict was unreasonable and not supported by the evidence
A number of the appellant's grounds were, in effect, arguments that the verdict was unreasonable and not supported by the evidence.
The principles governing an appeal on the ground that the verdict is unreasonable and unsupported by the evidence are well settled.[94]
[94] M v The Queen (1994) 181 CLR 487; NYL v The State of Western Australia [2022] WASCA 41.
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.
In the present case, it was clearly established by the CCTV footage that the appellant entered onto the complainant's property. It was also clearly established, even on the appellant's own evidence, that he did not have consent to enter onto the property and he knew that to be the fact.
The appellant argued that a person must be warned to leave premises before they can be convicted of trespass.[95] However, that submission relied on trespass cases in which, prior to the warning being given, the offender had had an implied right to enter the premises. That was not the case in this matter.
[95] Amended grounds of appeal, 1.5, 1.6.
The evidence was clearly capable of establishing beyond reasonable doubt that the appellant trespassed on the property., and on an independent evaluation of the evidence, I do not have a doubt in this regard.
The sole issue at trial was whether the appellant had established, on the balance of probabilities, that he had a lawful excuse for doing so. In this case, the question is whether, upon the whole of the evidence, it was open to the learned magistrate to find that the appellant had failed to establish, on the balance of probabilities, that he had a lawful excuse for his trespass.
In Wilson v McDonald, Martin CJ observed that a lawful excuse under s 70A(2) of the Code means an excuse that is not forbidden, as opposed to one that is positively authorised by law,[96] and said:
Essentially what will be required in each case is a value judgment by the court as to whether the excuse established by the defendant justifies the trespass established by the prosecutor. One of the matters properly taken into account by a court when making that value judgment is the context of the normative assessment, that is, that the determination differentiate that conduct which is criminal from that which is not. However, that will only be one of many factors properly taken into account, and its significance may depend entirely upon the facts and circumstances of the particular case.[97]
[96] Wilson v McDonald [2009] WASCA 39; (2009) 253 ALR 560 [53].
[97] Wilson [62].
At trial, the appellant gave two explanations for being on the complainant's property. The first was to repair the fence. I have already dealt with the learned magistrate's findings in this regard. Having independently considered all of the evidence, including the movements of the appellant as shown on the CCTV footage, what is shown of the fence on the CCTV footage, the appellant's statements to the police and the appellant's evidence, it was clearly open to her Honour to reject this explanation. I too reject it.
The second explanation was that the appellant wanted to get his clamp, which had dropped into the complainant's yard.
This was an explanation first provided by the appellant in his evidence at trial. He did not mention it at all to the police when they attended his house on the night of the trespass.
The CCTV footage commences at the point at which the appellant placed his ladder over the fence. Accordingly, it does not show the earlier incident in which the clamp was said to have fallen into the complainant's yard.
The CCTV shows the appellant climb into the complainant's yard and walk towards the camera before it ends. In that time, it does not show the appellant looking at the fence. However, it also does not show the ground ahead of where the appellant was walking at the time the CCTV ended and where the clamp would presumably be if the appellant was in fact trying to recover it.
The evidence at trial was that, by the time the complainant was able to go outside, he saw the appellant climbing back over the fence.[98] There was no suggestion that any property of the complainant's had been damaged or moved.
[98] ts 12 July 2023, 5.
The appellant's evidence that he wanted to recover his clamp and that he did so was not challenged in cross‑examination.
The learned magistrate did not address this part of the appellant's explanation for entering the complainant's property. Given it was not the subject of any submissions by the appellant's counsel, it is perhaps unsurprising that her Honour did not refer to it.
Even if the appellant generally lacked credibility, there was little apparent basis to reject this part of his evidence, apart from the fact that he had not mentioned it when first questioned by the police. The prosecution did not take issue with the explanation. The appellant was only in the complainant's yard for a short time.[99] His movements, such as they were recorded, were apparently purposeful and focussed on what was ahead of him. While the footage does not show what he did, it could reasonably be inferred that, by the time the complainant emerged from his house, the appellant had achieved his purpose, because he was already returning to his own property. There was no evidence that anything had been done to the complainant's property. On the available evidence, it was entirely plausible that the appellant did in fact collect a clamp and go back to his property.
[99] The complainant said that from when he first saw him on the CCTV to when he saw the appellant climbing back over the fence was 'within the minute' (ts 12 July 2023, 8).
If that were what happened, the sole issue would be whether that explanation constituted a lawful excuse for the trespass.
In the abstract, the appellant entering his neighbour's property to retrieve his clamp might seem relatively benign, and it would be open to question whether the conduct should properly be regarded as criminal. However, in this case:
(a) there had been prior incidents between the complainant and the appellant and their relationship was 'not a good one';[100] and
(b)the appellant well knew that the complainant did not consent to him being on his property (as was demonstrated by his evidence that he believed he was not permitted even to enter his neighbour's unlocked front gate);[101] and
(c)the appellant was concerned about interference with his own privacy by the complainant, given he was erecting a screen to protect his yard from oversight from the complainant's property.
[100] ts 12 July 2023, 5, 6.
[101] ts 12 July 2023, 21 - 22.
The complainant's property was, as far as can be seen, fully enclosed. It was protected by security cameras. The complainant was entitled to exclude the appellant from his property and had communicated that to the appellant. In those circumstances, the deliberate intrusion by the appellant onto the complainant's property, achieved by climbing over the fence, without an attempt to seek permission, in wilful disregard of, and without respect for, the complainant's property rights, even for the purpose of retrieving his own property, was, in my view, a matter of sufficient seriousness to warrant the attention of the criminal law.
Accordingly, on an independent assessment of the evidence, I am satisfied that it was open to the learned magistrate to find that appellant had not established, on the balance of probabilities, that he had a lawful excuse for entering the complainant's property.
This ground fails.
Other 'grounds of appeal'
The appellant raised a number of other bases for challenging his conviction. However, the matters raised are irrelevant or otherwise have no merit on the matter. They are:
(1)the fact the complainant pushed the appellant off the fence as he climbed back over the fence meant that the complainant was precluded from making a complaint of trespass (Ground 1.8). This submission was not supported by authority and is not reasonably arguable;
(2)the learned magistrate's judgment was only seven pages during which she cited no case law and 'provided no legal argument'[102] and the outcome of the trial could not be predicted until the conclusion of her reasons (Ground 3.1). The learned magistrate's reasons adequately summarised the evidence and explained the reasons for decision. There was no need for case law or 'legal argument' in order to explain the decision;
(3)the complainant committed perjury in the course of the trial in relation to the timing of the construction of the fence. Perjury requires that a person knowingly give false evidence. There is no evidence either that the complainant's evidence in this respect was false or, if it was, that it was deliberately so. This allegation has no merit;
(4)the police were biased against the appellant, on the basis that the appellant 'had been subjected to years of systemic abuse by the police' and 'none of the appellant's complaints had ever been properly investigated'.[103] The appellant adduced no evidence of any of these matters. The ground has no merit;
(5)the non-attendance of SC Kelly led to a miscarriage of justice. The appellant has not identified anything which would or could have been adduced at the trial had SC Kelly been called as a witness. The entirety of the relevant police interaction with the appellant was recorded on body worn camera. This ground is not reasonably arguable;
(6)the police officers committed perjury in their witness statements by saying that they had no further involvement in the matter, when in fact they told the complainant's wife to apply for a restraining order against the appellant. The witness statements of the officers were not evidence in the trial. The appellant has adduced no evidence that the officers did what he claims they did. The matter was not material to the issues in the trial. This ground has no merit;
(7) the offence of trespass as set out in the Code is inconsistent with the decision of Roy and provisions of other States, and thus s 109 of the Australian Constitution renders s 70A of the Code invalid. This argument fundamentally misapprehends s 109 of the Constitution and its effect. There is no law of the Commonwealth which is inconsistent with s 70A. The ground is without merit.
[102] Appellant's written submissions [92].
[103] Appellant's written submissions [97].
Whether there was a substantial miscarriage of justice
I have determined that the fact that the learned magistrate used evidence of a lie told by the appellant to the police on the night after the trespass as consciousness of guilt, without application by the prosecution and without notice to the appellant, gave rise to a miscarriage of justice.
However, I may still dismiss the appeal if I am satisfied that there was no substantial miscarriage of justice.[104]
[104] CA Act s 14(2).
In Morgan v Cramer,[105] Hall J (as he then was) said of s 14(2):
This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.[106]
Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.[107]
…
A conclusion that there has been no substantial miscarriage of justice in this case could be reached in one of two ways. Firstly, by finding that the errors were not material to the decision to acquit. Secondly, if this court is satisfied on a review of the evidence that an acquittal was inevitable.
[105] Morgan v Cramer [2019] WASC 68 [45] - [46], [49].
[106] WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] ‑ [242].
[107] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45]; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438.
The error in this case was the denial to the appellant of notice that the lie he told to the police on the night of the alleged trespass would be used as evidence of the appellant's knowledge of the fact that he was not allowed in the complainant's premises. It was therefore an error of law.
I am not satisfied that this constituted such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded. While the manner in which the evidence was used was such as to deny the appellant procedural fairness, it was not an error of such gravity that it constituted a radical departure from the requirements of a fair trial.
I am however, satisfied that the error was material. Her Honour used the evidence to a significant extent in reaching her decision that she was satisfied beyond reasonable doubt that the appellant knew that he was not entitled to be in the property.
In those circumstances I must be satisfied on a review of the evidence that, even allowing for the error, a conviction was inevitable.
It is unnecessary to repeat the review of evidence I have conducted in relation to the unreasonable verdict ground, although I do rely on it.
The appellant has not pointed to, or sought to lead, any additional evidence on appeal to provide an alternate explanation for the lie. Indeed, in his submissions, the appellant maintained that he had not lied at all; he submitted he simply was not given a chance to explain that he had meant to say he was not on the complainant's property but instead on the building site.
As I have indicated already, that submission must be rejected. The appellant positively asserted to police that the person shown in the CCTV was not him. There was no rational possibility that at the time that he did that, he was doing so because of the area in which the alleged offence occurred.
I am satisfied that, had the error not occurred, it would still have been appropriate to use the evidence of the lie in this way, and it was inevitable that, in those circumstances, the appellant would be found to have known that he was not permitted to be on the complainant's property. Once that was established, conviction was also inevitable.
As there has been no substantial miscarriage of justice, the appeal against conviction should be dismissed.
Appeal against sentence
The appellant's ground of appeal against sentence was that 'the penalty of $750 fine plus court costs of $94 was excessive considering that the appellant was not guilty'.
In circumstances in which the appellant's appeal against conviction has been dismissed, the appeal against sentence must also be dismissed.
Orders
Leave to appeal is granted on ground 5.
Leave to appeal is refused on all other grounds.
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
The appellant pay the respondent's costs to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SI
Associate to the Honourable Justice Forrester
17 SEPTEMBER 2024
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