Parfenova v Diss

[2021] WASCA 50

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PARFENOVA -v- DISS [2021] WASCA 50

CORAM:   BUSS P

BEECH JA

VAUGHAN JA

HEARD:   5 FEBRUARY 2021

DELIVERED          :   24 MARCH 2021

FILE NO/S:   CACR 169 of 2019

BETWEEN:   IRYNA NIKOLAEVNA PARFENOVA

Appellant

AND

HAYDEN RAYMOND DISS

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   HALL J

Citation: PARFENOVA -v- DISS [2019] WASC 363

File Number            :   SJA 1073 of 2019

Catchwords:

Criminal law - Appeal against conviction - Public nuisance offence - Common law duty to disclose evidentiary material - Failure by prosecution to disclose all evidentiary material - Application of the proviso under s 14(2) Criminal Appeals Act 2004 (WA) - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Public Transport Authority Regulations 2003 (WA) reg 13

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	E Jance
Respondent	:	A J Sefton SC & B D Nelson

Solicitors:

Appellant	:	Moana Chambers
Respondent	:	State Solicitor's Office

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

Bromley v Bembridge [2002] WASCA 192; (2002) 132 A Crim R 16.

Carew v Carone (1991) 5 WAR 1.

Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537.

Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517.

Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62.

Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196.

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.

OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268.

Parfenova v Diss [2019] WASC 363.

Pramzo v Urquhart [2018] WASCA 10.

Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282.

SYO v The State of Western Australia [2020] WASCA 202.

Wark v The State of Western Australia [2020] WASCA 19.

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

Wright v McMurchy [2012] WASCA 257.

JUDGMENT OF THE COURT:

Overview

1. On 27 May 2019, after trial in the Magistrates Court, the appellant was convicted of an offence of acting, on 3 August 2018, in a way as to cause a nuisance to persons on a conveyance contrary to reg 13 of the Public Transport Authority Regulations 2003 (WA). The appellant was fined $200 and ordered to pay costs. A subsequent application for leave to appeal against the conviction was dismissed by Hall J.[1]  The appellant now seeks leave to appeal against the decision of the primary judge.

   [1] Parfenova v Diss [2019] WASC 363 (primary reasons).

2. While, on their face, two of the four proposed grounds of appeal might be seen as renewing grounds advanced before the primary judge, the true gravamen of the application for leave to appeal is a new point: the appellant alleges that the primary judge erred in failing to find that there was a breach of a common law duty of disclosure by non‑disclosure of CCTV footage surrounding the incident.

3. For the reasons that follow none of the proposed grounds have a reasonable prospect of succeeding.  Leave to appeal on the proposed grounds should be refused.  It follows that the appeal should be dismissed.

The decision in the Magistrates Court

1. The appellant made no complaint in relation to the primary judge's account of the proceedings in the Magistrates Court and the magistrate's decision.  Accordingly, what follows substantially reproduces what was said by the primary judge.[2]

Prosecution case

[2] Primary reasons [2] - [18].

1. The prosecution case was that, on 3 August 2018, the appellant boarded a train at the Wellard train station.  It was alleged that the appellant walked along the train carriages until she found a woman, Ms Mieko Cowap, with whom she, the appellant, had previously had an interaction.  The appellant told Ms Cowap to: 'Get off my train'.  This, it was alleged, was said repeatedly and loudly.  The appellant then took a small bottle from her bag and began shaking it in the direction of Ms Cowap.  As the appellant was doing this she was speaking a foreign language.  Ms Cowap was frightened and moved to another seat.  Ms Cowap called her husband who contacted transit security.

The evidence at the trial

1. Ms Cowap gave evidence about an altercation between her and the appellant on the previous day, ie 2 August 2018.  Ms Cowap said that she had been at the Wellard train station that day and that the appellant had pushed past her.  There had been an angry exchange of words as a result.  Ms Cowap said that this had included a racial insult, directed at her by the appellant.[3]

   [3] ts 8.

2. Ms Cowap said that, on 3 August 2018, she was again at the Wellard train station and saw the appellant.  Ms Cowap said that the appellant took her photograph as Ms Cowap was tagging‑on when entering the station.  Ms Cowap's husband was with her at the station and he approached the appellant and told her to stay away from his wife.[4]

   [4] ts 9.

3. A short time later both women boarded a train to Perth, getting into different carriages.  Ms Cowap entered the second carriage; her evidence was that the appellant entered the train through a different door.[5]  Ms Cowap said that soon after she sat down she saw the appellant coming towards her and that the appellant proceeded to sit down opposite her.  Ms Cowap said that the appellant said something in a foreign language and then repeatedly said, 'Get off the train' or 'Get off my train'.  Ms Cowap said that this was said in a very loud voice.  Ms Cowap said that the appellant then took a small bottle from her bag and started shaking it in her direction whilst again speaking in a foreign language.  Ms Cowap said that she was scared and moved to another seat and called her husband.  Ms Cowap saw transit officers at Perth station and explained what had happened.[6]

   [5] ts 10.  In re-examination Ms Cowap suggested that the appellant came in a door that was 'probably two carriage (sic) up' from where Ms Cowap entered: ts 27.

   [6] ts 10 ‑ 12.

4. In cross‑examination the appellant put to Ms Cowap that she, Ms Cowap, had blocked the appellant's passage on the platform at the Wellard station on the previous day and on other days.  Ms Cowap denied the allegation.  It was also put that Ms Cowap had made insulting remarks to the appellant, which Ms Cowap also denied.  Ms Cowap did admit having taken a photograph of the appellant on 2 August 2018, after the appellant had made a racial insult.  This was, Ms Cowap said, so that she could report it to the transit security office.  Ms Cowap said that the appellant had pushed her and taken photos of her over the previous three months.  It was also suggested, by the appellant, that Ms Cowap's husband had aggressively threatened the appellant, but this too was denied.[7]

   [7] ts 12 ‑ 26.

5. Emma Weber also gave evidence.  She was a passenger on the train.  Ms Weber did not know either the appellant or Ms Cowap.  Ms Weber referred to them as the Russian and Japanese ladies respectively (the appellant being the Russian lady and Ms Cowap being the Japanese lady).  Ms Weber was already on the train when Ms Cowap and the appellant both got on at Wellard, getting into different carriages.  Ms Weber was in the carriage that Ms Cowap entered.  Ms Weber noticed the two women because she had observed an altercation between them the day before.[8]

   [8] ts 34.

6. Ms Weber gave evidence that on 3 August 2018 she observed that:[9]

   1.Ms Cowap (the Japanese lady) got on the second carriage from the front of the train (which was where Ms Weber was seated).  Ms Cowap was seated on the other side of the carriage to Ms Weber.

   2.The appellant got in the third carriage from the front of the train.[10]

   3.The appellant (the Russian lady) walked through from the third carriage to the second carriage, passing in front of Ms Weber from her (ie Ms Weber's) left, and sat at a chair a couple of seats to the right of Ms Weber.

   [9] ts 33 - 35.

   [10] In cross-examination Ms Weber clarified that she saw the appellant entering the train with her, Ms Weber's, peripheral vision: ts 38.

7. According to Ms Weber, the train was not at full capacity ‑ it was 80% full.[11]

   [11] ts 34.

8. Ms Weber said that the two women yelled at each other.  Ms Weber heard Ms Cowap say: 'Why are you harassing me?  Please leave me alone'.  Ms Weber said that the appellant was shaking something in Ms Cowap's face, but Ms Weber was not entirely sure what it was.  Ms Weber said that the appellant was yelling things like: 'You're disgusting.  Get off my train.  You don't belong here'.  The appellant also said other things, in a language Ms Weber could not understand.  Ms Weber saw that Ms Cowap was getting quite upset and got up and moved to another seat.  The appellant then laughed and remained where she was until the transit guards got on the train.[12]

   [12] ts 35, 37 ‑ 38.

9. In cross‑examination it was put to Ms Weber, by the appellant through an interpreter, that the appellant did not move from a different carriage and that the appellant did not speak to Ms Cowap.  Ms Weber maintained her evidence in these respects.[13]  Ms Weber stated that she saw the appellant walking through the carriage.[14]

   [13] ts 38 ‑ 46.

   [14] ts 38, 43.

10. Piers McCarney, a transit officer, gave evidence that he boarded the train at Elizabeth Quay, located the appellant and spoke to her.  They both got off at Perth station and he continued to speak to her and took an account of what the appellant said had happened.  Mr McCarney then told the appellant that she would be charged and would receive a summons.[15]

    [15] ts 47 ‑ 48.

11. The appellant gave evidence using an interpreter.

12. The appellant said that for the previous '236 days', prior to 3 August 2018, Ms Cowap had 'forced in a demonstrative way all the passengers to go through the narrow spot on the platform.'[16]  The appellant felt that this was unsafe.  The appellant said Ms Cowap had large bags and took up too much space.  She said that on 2 August there was a verbal altercation and that Ms Cowap had insulted her and then taken photos of her.[17]

    [16] ts 53.

    [17] ts 54 - 55.

13. The appellant said that on the following day (ie 3 August 2018) she had decided to take a photograph of Ms Cowap and that she, the appellant, was then confronted by Ms Cowap's husband, who she said threatened her with violence.  The appellant said Ms Cowap's husband walked with her to the train and that she, the appellant, said that they could deal with the issue between them in the courts.  The appellant stated that then: 'the doors opened on the train, and I walked in and sat down.  And there I saw that this woman [ie Ms Cowap] was on the train'.[18]  The appellant said that she was not really chasing Ms Cowap, but ‑ because Ms Cowap's husband had threatened her ‑ the appellant decided to take a photograph of Ms Cowap and send it to her friends.  The appellant said Ms Cowap did not like her photograph being taken and got up and moved.[19]

    [18] ts 56.

    [19] ts 55 ‑ 56.

14. Accordingly, on the appellant's evidence, she did not walk through from the third carriage to the second carriage to seek out and sit opposite Ms Cowap: instead, the train doors opened, the appellant walked in and sat down.  The appellant repeated evidence substantially to that effect in cross‑examination.[20]  She said the seat (ie the seat opposite Ms Cowap) was the first free spot.[21]  That was also the appellant's position in cross‑examining Ms Weber and Ms Cowap.  The appellant claimed that she did not move from one carriage to the other[22] and that she got in the nearest door on the train and sat on the nearest seat.[23]

    [20] ts 59.

    [21] ts 60 - 61

    [22] ts 43.

    [23] ts 26.

15. In cross‑examination the appellant denied yelling at Ms Cowap or telling Ms Cowap to get off the train.  The appellant denied having the ability to say in English some of the things that were attributed to her.  The appellant agreed that she had a bottle in her hand (being mouth freshener) and that she had waved it around.  Initially the appellant said that she decided to use it because Ms Cowap's husband had been 'touching my face' and she did not know what he had touched before touching the appellant's face and so she had decided to disinfect.  Later the appellant said that waving the bottle was to distract Ms Cowap's attention from the appellant or to reduce the tension ‑ the appellant stated that she, the appellant, 'felt that this lady [Ms Cowap] was very stressed, aggressively stressed'.  The appellant denied any intention to intimidate.[24]

    [24] ts 59 ‑ 60.

16. The only other material evidence at the trial was CCTV footage from the platforms and the train.  More will need to be said about the CCTV footage when dealing with ground 1.  For now, however, it is uncontroversial and was evident at trial that the CCTV footage showed that: (1) the appellant entered the train on the third carriage;[25] and (2) Ms Cowap entered the train from a separate carriage[26] ‑ a carriage readily identifiable from the CCTV footage as being the second carriage.[27]  The CCTV footage also showed the appellant walking through the carriage in which Ms Cowap was seated before the appellant sat down opposite Ms Cowap.[28]  In these respects the CCTV footage corroborated Ms Weber's and Ms Cowap's testimony; it also falsified the appellant's evidence that she did not walk through the train's carriages but instead immediately sat down at the first available seat.

    [25] ts 28.  See also Ex 1 File WRD 301-20 (VTS_11_1) at approx. 05.10.45 am.

    [26] ts 30.

    [27] Ex 1 File WRD 301-20 (VTS_11_1) at approx. 05.10.47 am.

    [28] Ex 1 File T Car 1 (VTS_01_1) at approx. 05.11.00 am - 05.11.08 am.

17. The CCTV footage otherwise confirms the movements of the appellant, Ms Cowap and Ms Cowap's husband.  However, there is no audio.  As the primary judge observed, in relation to what was said on the train, the evidence came from Ms Cowap, Ms Weber and the appellant.[29]

The appellant's closing address

[29] Primary reasons [14].

1. In closing submissions the appellant denied yelling, insulting or threatening Ms Cowap with the bottle.  The appellant maintained that she had been the victim of mistreatment by Ms Cowap and her husband for much of the previous year.[30]

   [30] ts 65 ‑ 66.

2. The appellant also submitted that:[31]

   1.Ms Cowap's evidence was a falsification.

   2.The appellant sat where she sat on the train without seeking out Ms Cowap.

   3.The appellant was not waving the bottle, but was shaking the bottle ‑ and this was to counteract the stress the appellant was experiencing after the interaction with Ms Cowap's husband.

   [31] ts 65.

3. The appellant also made reference to the CCTV footage.  She said that 'the video doesn't show that I'm talking for that long', contending that it would take longer to say everything that she had been accused of saying.[32]  According to the appellant, the CCTV footage was not enough evidence to find that the appellant was telling Ms Cowap to leave the carriage.[33]  The appellant invited the magistrate to consider the video footage to see whether, by reference to the time when the appellant was moving her lips, there was enough time for the appellant to say all that she had been accused of saying.[34]

The magistrate's decision

[32] ts 65.

[33] ts 65.

[34] ts 66.

1. The magistrate gave oral reasons for his decision.[35]

   [35] ts 66 - 70.

2. His Honour reviewed the evidence and noted the existence of the independent witness, Ms Weber, who he found to be an honest witness, in contrast with the appellant.[36]  The magistrate, based on Ms Weber's evidence, accepted that the appellant stated to Ms Cowap ‑ then directly across the aisle ‑ words to the effect that: 'You are disgusting.  Get off my train.  You don't belong here.'[37]  The magistrate referred to this as being offensive.[38]

   [36] ts 67.

   [37] ts 67.

   [38] ts 70.

3. By reference to the CCTV footage, the magistrate found that it could be seen that the appellant's lips were 'clearly moving' while she was opposite Ms Cowap (the appellant having suggested in cross‑examination of Ms Weber that there was no conversation) and that the appellant had her hand up in the air shaking the bottle.[39]  The magistrate stated:

   I could see it on the CCTV footage, that the accused was looking directly across the aisle, at the complainant, Ms Cowap, and shaking the bottle.  I didn't time it, but it was a long time, relatively speaking.[40]

   [39] ts 68.

   [40] ts 68.

4. The magistrate also found that:

   1.The appellant's evidence as to what she had done with the bottle, and why, was inconsistent.[41]  The magistrate saw as inconsistent the appellant's suggestions that:

   [41] ts 68.

   (a)she wanted to use the liquid in the bottle to disinfect her face because it had been touched by Ms Cowap's husband; and

   (b)she was shaking the bottle to calm everyone down.

   2.He did not accept the appellant's account of how she came to be sitting where she was on the train.  There was, the magistrate found, 'ample room' for the appellant to sit somewhere else.  The magistrate concluded that the appellant was not truthful when she said that it was a coincidence that she found herself sitting opposite Ms Cowap.[42]

   3.The appellant was prone to exaggeration which did not help her credibility,[43] giving particular examples as to exaggerations in the appellant's evidence including:[44]

   (a)stating that she was very worried about getting thrown on the train tracks; and

   (b)suggesting that for the preceding 230 or so days she had been in dire danger of falling from the platform.

   4.The appellant could have sat somewhere else ‑ but she sat where she did on purpose and shook the bottle with the purpose of frightening Ms Cowap.[45]

   [42] ts 69.  See also ts 70.

   [43] ts 69.

   [44] ts 69 - 70.

   [45] ts 69.

5. The magistrate said that while there may be cultural differences between people, it was important for travellers on public transport to be tolerant.  However annoying the appellant may have found Ms Cowap, the appellant was not entitled, his Honour found, to make a nuisance of herself.  Ms Cowap was, like other travellers, entitled to a quiet, uninterrupted journey.  His Honour said that whilst this was not the worst case of an offence of its type, he was satisfied that it was proved beyond reasonable doubt.  The appellant had deliberately sat across from Ms Cowap and behaved in a threatening manner, saying offensive things and shaking the bottle.[46]

   [46] ts 69 ‑ 70.

The appeal before Hall J

1. The appellant was self‑represented at the appeal before the primary judge.  His Honour noted that there were five grounds of appeal: alleged failure to give adequate reasons; alleged failure to have regard to the evidence; the magistrate allegedly preventing the appellant adducing relevant evidence; so‑called 'cut and shut' evidence; and alleged 'fresh evidence'.[47]  The primary judge also identified other issues raised in oral argument[48] which included that the CCTV footage was inconsistent with the evidence of witnesses[49] and that the video evidence was edited or that some relevant parts were not included.[50]

   [47] Primary reasons [19].

   [48] See generally primary reasons [29] - [37].

   [49] Primary reasons [30], [32].

   [50] Primary reasons [33].

2. What was meant by 'cut and shut' evidence was not clear.  The alleged 'fresh evidence' consisted of argument in the form of notes prepared by the appellant after the event.[51]  Otherwise the primary judge dealt succinctly with the remaining three grounds and the other issues.[52]  The primary judge found that there was no merit in any of the grounds and refused leave to appeal.[53]

   [51] Primary reasons [21].

   [52] Primary reasons [23] - [37].

   [53] Primary reasons [38] - [39].

3. As will be seen, grounds 2 and 3 in the appeal before this court echo three of the grounds that were agitated before the primary judge. In this respect the reasoning of the primary judge is examined at [83] below. In part, however, even these asserted legal errors are presented in a different way on the appeal to this court ‑ they rely on the premise that there was a miscarriage of justice by reason that the CCTV footage was not disclosed to the appellant before the trial.

The grounds of appeal

1. The appellant's grounds of appeal are as follows:

   1.The primary judge erred in failing to find that the non‑disclosure of CCTV evidence to the appellant was a breach of the common law duty of disclosure.

   2.The primary judge erred in fact, alternatively in fact and law by finding that the trial magistrate had proper regard to the evidence and gave adequate reasons as to why the appellant's evidence was not credible.  [Primary reasons [25] ‑ [26]]

   3.Having found that the trial magistrate did not prevent the appellant from adducing relevant evidence [Primary reasons [27]], the primary judge erred in fact in that the appellant was not capable of adducing relevant evidence as it was not disclosed to the appellant.

   5.The primary judge erred in fact in finding that 'even if there was evidence that [the appellant] was the subject of some abuse on the platform immediately prior to the events, that would not excuse or provide a defence for her conduct on the train'.  [Primary reasons [33]]

2. There was a ground 4.  However, in written submissions the appellant abandoned ground 4 as it was absorbed by ground 1.[54]  On 16 May 2020 Mazza JA refused the appellant's application for leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1, 2, 3 and 5 to the appeal hearing.[55]

   [54] Appellant's further submissions par 14 WAB 25.

   [55] WAB 4.

3. The submissions in support of ground 2 (alleged failure to have proper regard to the evidence and to give adequate reasons) relied on the CCTV footage.  So too, self‑evidently, did ground 3 ‑ the ground itself states that the appellant was incapable of adducing relevant evidence (that being the CCTV footage) as it was not disclosed to the appellant.

4. Before considering ground 1 it is necessary to refer to the CCTV footage in more detail.

The CCTV footage

1. Exhibit 1 before the magistrate consisted of six files of CCTV footage.[56]  The video surveillance officer who compiled the CCTV footage gave evidence that the footage concerned an incident on 3 August 2018 at the Wellard train station, on board a rail car and at the Perth underground station.[57]  These videos, in part, were viewed by the magistrate ‑ some on multiple occasions.  However, the DVD containing the CCTV footage included 12 files not six files.  Accordingly, six files containing CCTV footage were never viewed by the magistrate.

   [56] ts 6.

   [57] ts 4.

2. In addition to the circumstance that only six of the 12 files were tendered, the prosecutor only showed part of the footage in the various files.  It is, however, difficult to identify from the transcript the exact portions of the footage that were viewed by the magistrate.[58]

   [58] ts 5 - 6.

3. The failure, pre‑trial, to disclose the whole of the CCTV footage (ie all 12 files) is the subject of ground 1.  The appellant submits that there was a breach of the duty to disclose evidentiary material at common law such that there was a miscarriage of justice.[59]  The appellant contends that:

   [59] Appellant's submissions pars 1, 19 WAB 18, 20; Appeal ts 8 - 9.

   1.Had the CCTV footage been disclosed, there was a significant possibility that she would have been acquitted.[60]

   2.The additional six CCTV files were not tendered in evidence.[61]  (This submission must be accepted.)

   3.The appellant was not aware of the existence of the CCTV footage until the beginning of the trial and did not appreciate its significance until reviewing it after the trial.[62]  Accordingly, she did not have an opportunity to prepare and direct the court's attention to the CCTV files and segments that supported her case but were not played by the prosecutor at trial.[63]

   4.The CCTV files not played by the prosecutor would have shed a different light on the explanations that the appellant gave for her behaviour on the train ‑ this being relevant to her defence and the credibility of her evidence.[64]

   5.Had the remaining CCTV footage (ie that not shown to the magistrate) been played at trial, his Honour may have accepted a defence of provocation or mistake of fact.[65]

   6.Had the remaining CCTV footage been played at trial, other possible consequences were that:[66]

   (a)the magistrate may have placed significantly less weight on Ms Cowap's and Ms Weber's evidence;

   (b)the appellant's evidence would have been seen as more consistent with the course of events as she described them, eg the magistrate would have more readily accepted the appellant's explanation for shaking the mouth freshener bottle and that there was no conversation on the train in which the appellant verbally abused Ms Cowap.

   [60] Appellant's submissions par 2 WAB 18.

   [61] Appellant's submissions par 12 WAB 19.

   [62] Appellant's submissions pars 13, 15 WAB 19.

   [63] Appellant's submissions par 13 WAB 19.

   [64] Appellant's submissions par 14 WAB 19.

   [65] Appellant's submissions par 18 WAB 19 - 20.

   [66] Appellant's submissions par 20 WAB 20.

4. Ground 1, and the submissions in support of it, depend on the whole of the CCTV footage ‑ including the six files that were not tendered at trial.  The appellant made an application in the appeal for leave to adduce additional evidence in the form of the CCTV files not played at trial.[67]  In order to determine ground 1 it has been necessary to review all the CCTV footage on the DVD.  In the circumstances, having particular regard to the nature of the contention raised by ground 1, we would grant the application in the appeal for leave to adduce additional evidence.  The CCTV footage on the DVD which was not played to the magistrate and was not part of Exhibit 1 should nevertheless be received as evidence in the appeal.

   [67] Application in an appeal dated 12 May 2020 WAB 5.

5. The CCTV footage is described in detail in the schedule to these reasons.  Part A deals with five of the six files that were viewed by the magistrate.  Part C deals with five of the six files that were not viewed by the magistrate, ie the additional evidence now received in the appeal.

6. The remaining two files are described in pt B.  At the appeal hearing there was some debate as to whether the CCTV footage the subject of file WRD 202‑20 (VTS_09_1) was shown to the magistrate or whether the sixth file viewed was the footage the subject of file WRD 302‑20 (VTS_12_1).  The position cannot be reconciled on the transcript from the proceedings in the Magistrates Court.  It is more likely that WRD 302‑20 (VTS_12_1) was viewed.  This shows the continuing altercation between the appellant and Ms Cowap's husband in the minute before the appellant gets on the train.  By contrast, WRD 202‑20 (VTS_09_1) depicts nothing of consequence.  Nevertheless, in circumstances where the position is uncertain, it is appropriate to consider the appeal on the basis, favourable to the appellant, that the footage in WRD 302‑20 (VTS_12_1) was not shown to the magistrate.

7. On appeal in this court the appellant focussed on two aspects of the CCTV footage:[68] first, the interactions between the appellant and Ms Cowap's husband on the train platform;[69] and second, the appellant's continued shaking of the bottle after Ms Cowap moved from her seat.[70]  The former was shown to the magistrate, at least in part (it is depicted in WRD 301‑20 (VTS_11_1)).  However, it is unclear whether the magistrate was shown the further footage of those interactions as was available on WRD 302‑20 (VTS_12_1). The appeal ought to be determined on the basis that the further footage was not seen.  The CCTV footage of the appellant continuing to shake the small bottle after Ms Cowap moved was included in Exhibit 1.  However, there is nothing to suggest that this part of the footage was viewed by the magistrate ‑ at least from immediately after Ms Cowap moved seats.  It is appropriate to consider the appeal on the basis, favourable to the appellant, that this part of the CCTV footage was also not shown to the magistrate.

   [68] See generally Appeal ts 10 - 14.

   [69] See: Affidavit of I N Parfenova sworn 12 May 2020 pars 19 - 23 WAB 8 - 9; Appellant's submissions par 18 WAB 19 - 20; Appellant's further submissions pars 2, 5, 12 WAB 23 - 24.

   [70] See: Affidavit of I N Parfenova sworn 12 May 2020 par 2 WAB 10; Appellant's submissions par 20(d) - (e) WAB 20; Appellant's further submissions pars 12, 21 - 22 WAB 24 - 26.

8. Counsel for the appellant argued that, so far as the CCTV footage was played selectively, the parts not played would have assisted the appellant's defence by establishing that: (1) there were prior interactions between the appellant and Ms Cowap's husband where he threatened the appellant; (2) the appellant just entered the train and walked into the first available carriage ‑ there was no intent on the appellant's part to sit opposite Ms Cowap; and (3) after Ms Cowap moves away, the appellant's demeanour and behaviour does not change ‑ she continues to shake the small bottle ‑ which was consistent with the appellant's case that she was merely shaking the bottle to calm herself down rather than to cause a nuisance.[71]

   [71] Appeal ts 11, 12, 14.

9. It was also submitted that the trial was unfair because the appellant did not have an opportunity to consider all the CCTV footage before the trial began.[72]

   [72] Appeal ts 14.

10. Viewed as a whole, the CCTV footage depicts and establishes the following:

    1.The appellant enters the Wellard train station at 5.02.51 am.  She positions herself opposite the electronic gateway with a tablet and waits (5.04.24 am).  As Ms Cowap and her husband walk through the electronic gateway, the appellant puts the tablet in front of her face as if to take an image of Ms Cowap and her husband (5.05.25 am).

    2.Animated discussions proceed between the appellant and Ms Cowap's husband ‑ during which Ms Cowap is mostly a little distance way (5.05.45 am ‑ 5.07.04 am).

    3.The appellant moves down an escalator, towards the train platform (at about 5.07.04 am).  Ms Cowap and her husband follow the appellant but do not proceed down the escalator ‑ during this time Ms Cowap points at the appellant (5.07.06 am).  Ms Cowap and her husband remain on the foyer level above the train platform until at least about 5.08 am.

    4.The appellant alights from the escalator and moves on to the platform at about 5.07.27 am.

    5.Ms Cowap's husband approaches the appellant on the train platform at about 5.10.03 am.  Animated discussion, including finger pointing by both parties, continues until the appellant enters the train at about 5.10.45 am.

    6.The train to Perth commences to arrive at about 5.10.15 am (other camera angles show slightly later arrival times ‑ but this is affected by the camera direction and angle).

    7.In rapid succession:

    (a)the appellant enters the train through a door in the third carriage from the front (about 5.10.45 am);

    (b)Ms Cowap enters the train through a door in the second carriage from the front (about 5.10.47 am);

    (c)the train doors close (about 5.11.00 am); and

    (d)the train leaves the Wellard platform (about 5.11.05 am).

    8.At 5.11.00 am Ms Cowap is seated on the train.  The appellant can be seen in the aisle of the same carriage.  The appellant walks down the aisle of the train carriage passing available seats.  The appellant reaches a position opposite Ms Cowap at 5.11.06 am and sits down opposite Ms Cowap at 5.11.08 am.

    9.The appellant puts the tablet up in front of her face, as if to take an image, and directs it towards Ms Cowap (5.11.27 am).

    10.From about 5.11.46 am the appellant can be seen with a small bottle in her left hand (retrieved from a handbag) which she moves to her right hand.  Over slightly more than a minute (commencing from around 5.11.50 am) the appellant shakes the bottle.  The appellant's mouth opens and closes while the bottle is being shaken.  Her gaze is directed to Ms Cowap.

    11.Ms Cowap leaves her seat ‑ moving away from the appellant ‑ at about 5.13.02 am.

    12.After Ms Cowap leaves, the appellant remains in the same seat.  She continues to shake the bottle.  However, the appellant's gaze is no longer directed opposite (as where Ms Cowap was seated).  Instead the appellant's gaze is directed down to her left ‑ the direction in which Ms Cowap departed.  The appellant continues to shake the bottle for a considerable period.

11. The CCTV footage goes on to show events as the train approaches Perth and thereafter.  None of that is relevant to whether the contravention occurred as alleged.  Accordingly, it is not necessary to describe these matters in any further detail than appears in the schedule to these reasons.

Ground 1: The appellant's contention that there was a miscarriage of justice by reason of non‑disclosure of the CCTV footage prior to trial

The parties' submissions

1. In support of ground 1 the appellant submitted, in effect, that there was a breach of the duty to disclose evidentiary material at common law such that there was a miscarriage of justice.

2. The appellant's general contentions in this respect have already been referred to (see [40] above).  Otherwise:

   1.The appellant accepted that the statutory disclosure obligations under s 61 of the Criminal Procedure Act 2004 (WA) did not apply.[73]

   2.The appellant contended that:[74]

   (a)a common law duty of disclosure existed independently of, and was not derogated by, the statutory disclosure obligation;

   (b)the common law duty of disclosure extended to any material in the prosecutor's possession which would tend to assist the defence case; and

   (c)the non‑disclosure of the CCTV evidence was a breach of the common law duty of disclosure leading to a miscarriage of justice.

   [73] Appellant's submissions pars 3 - 4 WAB 18; Appeal ts 8.

   [74] Appellant's submissions pars 8 - 10, 19 WAB 18 - 20; Appeal ts 9.

3. The respondent opposed leave to appeal on ground 1.  Essentially three propositions were relied on.  First, the respondent submitted that, in terms of the ground as drafted, there was no relevant error by the primary judge as the allegation that there had been a breach of a common law duty of disclosure was never raised in the appeal to the primary judge.[75]  Second, the respondent said that, on a proper construction of the Criminal Procedure Act, there was no relevant residual common law obligation of disclosure in the context of a simple offence of this nature.[76]  Third, the respondent contended that, even if there had been a breach of some residual common law duty of disclosure, no substantial miscarriage of justice had occurred.[77]

No relevant error

[75] Respondent's submissions pars 12 - 20 WAB 31 - 32.

[76] Respondent's submissions pars 21 - 43 WAB 32 - 37.

[77] Respondent's submissions pars 44 - 58 WAB 37 - 40.

1. The substance of the respondent's first contention in answer to ground 1 should be upheld.

2. This court examined the nature of an appeal such as the present ‑ one under div 3 of pt 2 of the Criminal Appeals Act 2004 (WA) ‑ in Wright v McMurchy[78] and Pramzo v Urquhart.[79]  In Pramzo v Urquhart the court stated:

   Section 16(2) of the Criminal Appeals Act 2004 (WA) provides for a right of appeal to this court from the primary judge's decision. Section 9 and s 18 of the Criminal Appeals Act provide that the leave of this court is required for each ground of appeal to this court, and that this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.

   The appeal to this court is by way of rehearing: see r 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The CriminalAppeals Act does not prescribe the grounds on which an aggrieved party may appeal to this court under s 16 of that Act.  However, the appellate power is to be exercised only once an error by the primary court or a miscarriage of justice is demonstrated: Wright v McMurchy [28], [97]. Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Criminal Appeals Act must identify an error by the single judge whose decision is under appeal: Wright [96].[80]  (citations omitted)

   [78] Wright v McMurchy [2012] WASCA 257 [25] - [29], [71] - [98].

   [79] Pramzo v Urquhart [2018] WASCA 10 [9] - [10].

   [80] Pramzo v Urquhart [10] - [11].

3. The powers conferred by s 14(1) (through s 18) and s 19(2) of the Criminal Appeals Act (ie to set aside or vary the decision of the single judge or to substitute a decision that should have been made or to order that the case be dealt with again in a court of summary jurisdiction) are powers only to be exercised once an error or miscarriage of justice has been shown.[81]

   [81] Wright v McMurchy [28].

4. The right to appeal, pursuant to s 16(2) of the Criminal Appeals Act, is provided to a person who is aggrieved by a decision made in an intermediate appeal before a single judge under div 2 of pt 2 of the Act. The appeal to this court is an appeal from the decision of the single judge in the intermediate appeal. Accordingly, in the same way that the grounds of appeal in an appeal pursuant to div 3 of pt 2 of the Act must identify error in the decision of the single judge on the intermediate appeal, so too any miscarriage of justice must arise in the context of the intermediate appeal. This is not to say that an allegation of miscarriage of justice in the court of summary jurisdiction can never be examined in this court. Such a ground may be advanced before the single judge on the intermediate appeal (s 8(1)(b)). If it is contended that the single judge erroneously dismissed such a ground in the intermediate appeal, that dismissal may constitute an error of law which is capable of demonstrating error on an appeal to this court.

5. The appellant did not, however, make any allegation of miscarriage of justice in the intermediate appeal to the primary judge.  And, so far as the intermediate appeal itself is concerned, there was and could be no allegation of miscarriage of justice in the context of the intermediate appeal.  It was accepted at the appeal hearing before this court that by the time the primary judge heard and determined the intermediate appeal there had been disclosure of all of the CCTV footage.  The appellant had obtained the DVD and viewed the CCTV footage before the intermediate appeal was heard.[82]

   [82] Appeal ts 10, 14.

6. Insofar as, by ground 1, the appellant alleged that there was error on the part of the primary judge in failing to find a breach of the common law duty of disclosure, counsel for the appellant, quite properly, accepted that there was no complaint of non‑disclosure before the primary judge.[83]  There was, in this respect, no relevant error as alleged in ground 1.  Counsel for the appellant initially embraced a suggestion that ground 1 should be understood in the sense that there was a miscarriage of justice because there was a breach of the common law duty of disclosure by non‑disclosure of the CCTV footage.[84]  The difficulty with this suggestion is that ‑ as counsel for the appellant again, quite properly, accepted ‑ any miscarriage of justice was a miscarriage in the proceedings before the magistrate rather than in the proceedings before the primary judge,[85] meaning that ground 1 must fail.[86]

   [83] Appeal ts 15.

   [84] Appeal ts 16.

   [85] Appeal ts 16- 17.

   [86] Appeal ts 18.

7. Ground 1 being, in substance, conceded by counsel for the appellant due to the way in which the appellant proceeded in the intermediate appeal, we do not consider it necessary or appropriate to consider the question of whether there was a breach of any common law duty of disclosure.  There is, in our view, an unresolved question about the existence of a common law duty of disclosure in relation to a simple offence of the type the appellant was found to have committed.[87]  The resolution of that question should await a case where it will be determinative.

   [87] See for example: Carew v Carone (1991) 5 WAR 1, 8; Bromley v Bembridge [2002] WASCA 192; (2002) 132 A Crim R 16 [52]. Compare Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282 [18] - [20]. Moreover, as the respondent submitted, if there was such a common law duty of disclosure in relation to a simple offence, a question arises as to whether it has survived the enactment of the Criminal Procedure Act 2004.  See, in the related context of indictable offences, Carney v The State of Western Australia [2010] WASCA 90; (2010) 201 A Crim R 537 [4(b)] (compare [114]).

1. Ground 1 does not have a reasonable prospect of succeeding.  Leave to appeal on this ground should be refused.

No substantial miscarriage of justice

1. While ground 1 fails it is worthwhile recording that, had ground 1 been upheld, we would have dismissed the appeal in any event on the basis that no substantial miscarriage of justice has occurred.[88]

   [88] See Criminal Appeals Act s 14(2), s 18.

2. There is no universally applicable description of what constitutes no substantial miscarriage of justice.[89]

   [89] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [44].

3. The High Court has considered the application of the so-called 'proviso' in four recent cases: Kalbasi v The State of Western Australia,[90] Collins v The Queen,[91] Lane v The Queen[92] and OKS v The State of Western Australia.[93]  The effect of those decisions was summarised in Wark v The State of Western Australia:

   [90] Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62.

   [91] Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517.

   [92] Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196.

   [93] OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268.

   The majority in Kalbasi v The State of Western Australia observed that the appellate court's determination of whether the proviso applies does not turn on 'its estimate of the verdict that [might have been returned] had the error not occurred'.  Rather, the task of determining whether, notwithstanding an error, there has been no substantial miscarriage of justice is committed to the appellate court.  In undertaking that task the following principles apply:

   (1)The appellate court must undertake an independent assessment of the whole of the record of the trial.  That examination requires account to be taken of the guilty verdict.

   (2)It is a necessary, although not sufficient, condition of the application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt.  That is because the conviction of a person whose guilt has not been proved beyond reasonable doubt will always be a substantial miscarriage of justice.

   (3)Consideration of the application of the proviso requires identification of, and consideration of the nature and effect of, the error(s) made at trial.  Some errors will prevent the appellate court from being able to assess whether guilt was proved beyond reasonable doubt.

   (4)There are natural limitations on the appellate court's ability to determine, based on the record, whether guilt was proved beyond reasonable doubt, particularly in cases in which the credibility of witnesses is of importance.  In such cases, because the appellate court has not seen and heard the witnesses give their evidence, the court may be precluded from concluding that guilt was proved beyond reasonable doubt.

   (5)In some cases, the appellate court may rely on the guilty verdict in a manner that enables those limitations to be overcome.  However, the appellate court will not be able to rely on the verdict where the verdict may have been affected by the error(s).

   (6)In some extreme cases, which are likely to be rare, the appellate court may be able to rely on its own conclusion, based on the record, that oral evidence contrary to the prosecution case is obviously false.  The respondent did not suggest that this was such a case.

   (7)Some errors are so fundamental or breach the fundamental presuppositions of the trial so as to be beyond the reach of the proviso regardless of whether, in the eyes of the appellate court, the evidence at trial proved guilt beyond reasonable doubt.  This is not a case of that kind.[94] (citations omitted)

   [94] Wark v The State of Western Australia [2020] WASCA 19 [689].

4. In considering the application of s 14(2) and s 18 of the Criminal Appeals Act to the present appeal (ie whether the appeal may be dismissed as no substantial miscarriage of justice has occurred) it is necessary to assume that there was a miscarriage of justice by reason of the non‑disclosure of the CCTV footage before trial.  Accordingly, we assume ‑ without deciding ‑ that there was a departure from trial according to law in this respect.[95]  We are also cognisant that the concepts of justice and miscarriage of justice bear two aspects ‑ outcome and process ‑ that are different but related.  Moreover, a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case.[96]

   [95] Weiss v The Queen [18].

   [96] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [3], [5] - [7] (see SYO v The State of Western Australia [2020] WASCA 202 [186] for a concise statement of these and other relevant propositions).

5. In the present case the appellant contended that, had the additional CCTV footage been played at trial, the magistrate may have accepted a defence of provocation or mistake of fact. That submission is misconceived. No defence of provocation was available. So far as the CCTV footage demonstrates a relevant altercation, it is one between the appellant and Ms Cowap's husband; Ms Cowap is not involved in any altercation on the platform at the Wellard train station. In any case, provocation is not available as a defence to a charge of nuisance under reg 13 of the Public Transport Authority Regulations (the offence not having an assault as an element).[97]  So far as the appellant raised a defence of mistake of fact, she did not point to any relevant alleged mistake of fact which might have given rise to any possible defence to the charge.  There was no substantial miscarriage of justice in either of these two respects.

   [97] See Criminal Code s 245, s 246.

6. Consideration must then be given to the appellant's submission that the CCTV footage, viewed in its totality, would have impacted on the magistrate's assessment of the credibility and reliability of the three material witnesses (ie the appellant, Ms Cowap and Ms Weber).  In the circumstances of the present case, and how the argument was presented, process considerations were subsumed within and superseded by that outcome directed enquiry.  The appellant's contention as to unfairness was based on lack of opportunity to prepare for the trial and direct the magistrate's attention to the CCTV footage that supported her case.  The suggested significance of the lack of opportunity was premised on the contentions recounted at [40.1], [40.4], [40.6] and [45] above.

7. The appropriate approach in a non‑disclosure case of the present kind was considered by the court in Hughes v The State of Western Australia.[98] It is necessary to independently assess the evidence adduced at trial ‑ and the evidentiary material not disclosed in the form of the additional CCTV footage ‑ and determine whether, making due allowance for the natural limitations that exist in an appellate court proceeding and taking into account the verdict of guilty, the appellant was proved beyond reasonable doubt to be guilty of the offence pursuant to reg 13. In Hughes, the issue was expressed as follows:

   Generally, the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict.  In that event, the issue is whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the trial jury.  Where the error or miscarriage arises from the absence of evidentiary material relevant to the charge at trial, the question is whether the additional material would, or at least should, have no effect on the verdict that was returned by the trial jury.  If the answer is uncertain or in the negative, the proviso cannot apply.[99]  (emphasis added) (citations omitted)

   [98] Hughes v The State of Western Australia [2015] WASCA 164 [64] - [65] (referring to White v The Queen [2006] WASCA 62 [192] - [193].)

   [99] Hughes v The State of Western Australia [65].

8. In the present case, for the reasons that follow, contrary to the appellant's submissions outlined in [40] above, the undisclosed CCTV material could not, by any sensible possibility, have affected the verdict.  In that light, taking into account the magistrate's verdict of guilty, we are satisfied that the evidence admitted at trial proved the appellant's guilt beyond reasonable doubt.

9. The CCTV footage has an objective character which means that this court is in as good a position as the magistrate to assess its significance.

10. Two aspects of the appellant's reliance on the CCTV footage should be rejected at the outset.

11. First, the CCTV footage does not support the contention that the appellant had no intent to sit opposite Ms Cowap.  The CCTV footage establishes that the appellant does not sit down until after the train leaves the platform ‑ some 23 seconds after the appellant enters the train.  It also shows the appellant walking through the carriage and deliberately sitting opposite Ms Cowap.  The relevant footage (which was in fact viewed by the magistrate) provided strong ‑ indeed irresistible ‑ support for his Honour's rejection of the appellant's evidence to the effect that it was a coincidence that she found herself sitting opposite Ms Cowap (the appellant having otherwise conducted her case on the basis that she had not moved between carriages and sat down in the first available seat).

12. Second, although the appeal must be considered on the basis that the magistrate was not shown all of the CCTV footage of the altercation between the appellant and Ms Cowap's husband on the platform, it is plain that the magistrate was shown some of that footage (that in WRD 301‑20 (VTS_11_1)).  Moreover, the magistrate, having viewed the earlier CCTV footage, stated that one could see what appears to be 'a very angry husband'.[100]  It is apparent, as to the altercation between the appellant and Ms Cowap's husband, that the magistrate viewed the interactions between the appellant and Ms Cowap's husband on the platform in the period immediately before the appellant entered the train on at least seven occasions.[101]  Seeing the altercation from a different angle (through WRD 302‑20 (VTS_12_1)) would, and at the very least should, have had no effect on the magistrate's findings.

    [100] ts 66.

    [101] These being the initial viewing of the footage (ts 5) and then the numerous occasions on which the footage was replayed to determine the carriages from which the appellant and Ms Cowap entered the train (ts 28, 29, 31).

13. The remaining aspect of the appellant's reliance on the CCTV footage is what is shown in the period after Ms Cowap moves away from the appellant at about 5.13.03 am on 3 August 2018 ‑ the circumstance that the appellant continues to shake the bottle and that, according to the appellant's argument, her demeanour and behaviour does not change.

14. We accept that part of the CCTV footage in Exhibit 1 (taken, for the purposes of the appeal, not to have been shown to the magistrate) shows that the appellant continued to shake the small bottle after Ms Cowap moved away.  However, we do not accept that the same footage shows no change in the appellant's demeanour and behaviour.  Although the appellant continues to shake the bottle, her gaze is no longer directed towards the opposite seat formerly occupied by Ms Cowap.  The appellant's gaze becomes directed towards her left.

15. The post‑5.13.03 am CCTV footage neither undermined the prosecution case, nor supported the appellant's defence, in any material way.

16. The magistrate found that the appellant shook the bottle with the purpose of frightening Ms Cowap. At the appeal hearing there was some debate as to whether reg 13 required that a person act with the intention or purpose of causing a nuisance.[102]  It is not necessary to resolve that question.  Assuming, consistently with the magistrate's finding, that there is such a requirement, we are satisfied that there is no reasonable possibility that the post‑5.13.03 am CCTV footage would have affected the magistrate's verdict.

    [102] Appeal ts 27 - 30.

17. The appellant gave three reasons for shaking the bottle (the first two in evidence[103] and the third in her closing address[104]):

    1.First, to 'disinfect' because Ms Cowap's husband had been touching her face.

    2.Second, to distract Ms Cowap's attention from the appellant so as to reduce the tension.

    3.Third, to counteract the stress the appellant was experiencing after her interaction with Ms Cowap's husband.

    [103] ts 60.

    [104] ts 65.

18. The post‑5.13.03 am CCTV footage could not support the appellant's professed reasons, in evidence before the magistrate, for shaking the bottle so as to undermine his Honour's rejection of her evidence in this respect.  The continued shaking belied any intention to disinfect.  There was, moreover, nothing in the CCTV footage to support the suggestion that Ms Cowap's husband had touched the appellant.  Nor, once Ms Cowap had moved away, was there any need to distract Ms Cowap's attention and reduce the tension.  As to the third reason, it was not the appellant's evidence that she was shaking the bottle merely to calm herself ‑ her evidence was, relevantly, that it was to reduce the tension as between the appellant and Ms Cowap.[105]  In any case, as the magistrate observed, at the time of the incident the appellant was shaking the bottle 'and looking directly across the aisle' at Ms Cowap.[106]  The post‑5.13.03 am demeanour and behaviour as depicted in the CCTV footage is qualitatively different.  There is no reasonable possibility it would have had any effect on the magistrate's finding as to the appellant's purpose in shaking the bottle whilst opposite Ms Cowap.

    [105] ts 60.

    [106] ts 68.

19. The appellant's reliance, on appeal, on the post‑5.13.03 am CCTV footage invited consideration of the evidence on a piecemeal basis.  It ignored the evidence of the independent witness, Ms Weber, which was accepted by the magistrate and which corroborated Ms Cowap's evidence.  It ignored the inconsistencies and exaggerations in the appellant's evidence as well as the magistrate's rejection of the appellant's evidence as to how she came to be sitting opposite Ms Cowap (a finding that was well supported by the CCTV footage).

20. There is no reasonable possibility that the post‑5.13.03 am CCTV footage could have affected the magistrate's fact finding as to the offence.  There is nothing objectively significant in the post‑5.13.03 am CCTV footage which impugns the magistrate's conclusions on the evidence as a whole.  Nothing in any of the non‑disclosed CCTV footage was, by any sensible possibility, capable of affecting the magistrate's views as to the weight to be attributed to Ms Weber's evidence.

21. The non‑disclosure, pre‑trial, of the CCTV footage was of no or no material significance in the context of the overwhelming evidence against the appellant at trial ‑ particularly the accepted evidence of Ms Weber. Based on our review of the evidence adduced at trial, together with the further CCTV footage that has been adduced as additional evidence on appeal, and taking into account the magistrate’s verdict of guilty, we are satisfied that the appellant was proved beyond reasonable doubt to be guilty of the offence of acting in a way as to cause a nuisance to persons on a conveyance contrary to reg 13 of the Public Transport Authority Regulations.  We are satisfied that, even if there was a miscarriage of justice because there was a breach of a common law duty to disclose the CCTV footage before trial, there has been no substantial miscarriage of justice.

22. Accordingly, if, contrary to our view, ground 1 ought to be upheld, we would nevertheless have dismissed the appeal because there has been no substantial miscarriage of justice.

Grounds 2 and 3: The allegations of error in the primary judge not upholding grounds of alleged error

1. The terms of grounds 2 and 3 are reproduced above (see [34]).  On their face, these grounds can be read as alleging error in not upholding contentions made in the appeal to the primary judge based on: (1) the magistrate allegedly failing to have regard to the evidence and giving inadequate reasons (ground 2); and (2) the magistrate allegedly preventing the appellant from adducing relevant evidence (ground 3).

2. In dealing with these contentions, the primary judge stated:

   1.As to the alleged failure to have regard to the evidence:

   It appears this [ground] is intended to be a reference to the magistrate not having proper regard to the evidence.  It must also fail.  It is plain from the magistrate's reasons that he took into account all of the evidence that was given, including the history that was adduced by the appellant of her grievances against the complainant, Ms Cowap.[107]

   2.As to the alleged inadequacy of the magistrate's reasons:

   In respect of the alleged failure of the magistrate to give adequate reasons for his decision, as I have noted the magistrate gave oral reasons for his decision immediately following the trial.  That is not unusual, particularly in a matter of this nature and for a trial that was a relatively short one.  The issues at trial were simple.

   Section 31 of the Magistrates Court Act 2004 (WA) states that the reasons for judgment need only identify the facts that the court has accepted, and the law that the court has applied in coming to its decision and give the reasons for doing so. The reasons need not canvass all of the evidence given in the case, or all of the factual and legal issues that arise.

   Having read the transcript of the reasons given by the magistrate, it is my view that they are entirely adequate.  They set out the evidence that was given at trial, and the reasons for accepting the evidence of the prosecution witnesses and as to why the appellant's evidence was not credible.[108]

   3.As to allegedly preventing the appellant from adducing relevant evidence:

   In regard to the suggestion that there was an interference by the magistrate in the adducing of evidence, it is common for magistrates to have to deal with self‑represented litigants.  They pose particular problems, in that they are often unfamiliar with the way in which court proceedings are conducted.  Those problems are compounded where the litigant does not understand English and requires an interpreter.  It is incumbent on a judicial officer in those circumstances to carefully advise the litigant of the way in which the proceedings will be conducted.  Sometimes it is also necessary to clarify questions that have been asked to ensure that the witness understands what is being put to them and can fairly answer the contention. 

   I have read the whole of the trial transcript and it seems to me that the magistrate in this case behaved in an exemplary fashion.  His Honour carefully conducted the proceedings to ensure that they were entirely fair to [the appellant].  The only times he interfered were to ensure that a question was clarified or put in proper form.  He ensured that the appellant had every opportunity to put her case and to give evidence to explain her version of what had occurred.   There is no merit whatsoever in this ground of appeal.[109]

   [107] Primary reasons [26].

   [108] Primary reasons [23] - [25].

   [109] Primary reasons [27] - [28].

3. There is no arguable error on the part of the primary judge in the manner alleged in grounds 2 and 3.  We too have considered the whole of the evidence before the magistrate, the trial transcript and the magistrate's reasons for decision.  It suffices, in our view, to state that, in dismissing these various contentions as they were advanced before him, the primary judge was manifestly correct for the reasons that his Honour gave.

4. Before this court, grounds 2 and 3 were presented slightly differently.  In part they relied on ground 1 and the allegation that there was a miscarriage of justice by reason of the pre‑trial non‑disclosure of the CCTV footage.  Thus, as to ground 2, the allegation was of failure to have regard to evidence ‑ and inadequacy of the reasons in not having regard to that evidence ‑ so far as parts of the CCTV footage were not before the magistrate.[110]  As to ground 3 ‑ which in terms raised the non‑disclosure ‑ the argument was that the appellant was unable to adduce relevant evidence as it was not disclosed to the appellant.[111]

   [110] Appellant's further submissions pars 1 - 3, 6 WAB 23 - 24.

   [111] Appellant's submissions pars 8 - 9, 12 - 13 WAB 24 -25.

1. To the extent that grounds 2 and 3 are advanced in this different respect, they rely on acceptance of ground 1.  Ground 1 has failed.  Accordingly, the additional aspects of grounds 2 and 3 as presented in this court also fail.

2. Leave to appeal on grounds 2 and 3 should be refused.

Ground 5: Abuse on platform did not provide excuse or defence for conduct on the train

1. Ground 5 alleges that the primary judge erred in fact in finding that:

   In any event, even if there was evidence that [the appellant] was the subject of some abuse on the platform immediately prior to these events, that would not excuse or provide a defence for her conduct on the train.  It might be relevant in imposing sentence, but as I said the sentence here was a fine of only $200.[112]

   [112] Primary reasons [33].

2. The primary judge made that statement having noted an allegation by the appellant, in the course of oral submissions before his Honour, that the CCTV footage should have showed her being physically assaulted and abused by Ms Cowap's husband.[113]

   [113] Primary reasons [33].

3. There is no evidence of physical assault.  The CCTV footage does not get any higher than finger pointing and gesticulation on the part of Ms Cowap's husband.  Whether there was oral abuse directed towards the appellant cannot be identified.  There appears to be some forcible verbal exchanges between Ms Cowap's husband and the appellant.  However, as we have mentioned already, the magistrate was well aware of that (see [71] above).

4. In support of ground 5 the appellant did not identify any available defence that might have been open to her had there been abuse as alleged.  Rather, it is said that the acts of the appellant in sitting down opposite Ms Cowap and shaking the bottle did not constitute a nuisance.[114]  That submission is outside ground 5.  It goes to whether, on the facts as found, the elements of the offence were made out ‑ not whether, in the circumstances posited by the appellant to the primary judge, there was an available defence.

   [114] Appellant's submissions par 20 WAB 25.

5. Ground 5 is without merit. The appellant has not identified any arguable defence to the offence of contravening reg 13 of the Public Transport Authority Regulations that might have been availed of in the circumstances posited by the appellant to the primary judge.  The appellant posited abuse on the part of Ms Cowap's husband rather than Ms Cowap.  Leave to appeal on ground 5 should be refused.

Conclusion and orders

1. The proposed grounds do not have a reasonable prospect of succeeding.  Leave to appeal on the proposed grounds should be refused.  Accordingly, the appeal should be dismissed.[115]

   [115] Criminal Appeals Act s 9(3), s 18.

2. We would make orders that:

   1.The appellant has leave to adduce additional evidence on appeal, namely, the DVD of CCTV footage as identified in annexure B to the affidavit of the appellant sworn 12 May 2020 as filed herein.

   2.Leave to appeal on proposed grounds 1, 2, 3 and 5 is refused.

   3.The appeal is dismissed. 

Schedule: Summary of CCTV footage

Part A: The CCTV footage shown to the magistrate at trial

WRD 204‑20 (VTS_10_1) ‑ Depicts foyer entrance to Wellard train station[116]

[116] This footage was replayed at ts 19 - 21.

05.02.00 am	Commencement.
05.02.51 am	The appellant enters Wellard train station through an electronic gateway and moves to the right of screen where she removes a tablet from her bag.
05.04.24 am	The appellant positions herself opposite the electronic gateway with the tablet.
05.05.09 am	The appellant puts the tablet up in front of her face (as if to take an image) and Ms Cowap and her husband walk through the electronic gateway.
05.05.25 am	Ms Cowap's husband walks over to appellant.  Discussions ensue.  Ms Cowap maintains a distance from her husband and the appellant.  There are gesticulations from the appellant and finger pointing by Ms Cowap's husband.
05.05.45 am	Ms Cowap's husband moves away from the appellant and motions to someone out of screen.  He then moves back towards the appellant.  Discussion continues between the appellant and Ms Cowap's husband (he continuing to finger point in the appellant's direction).
05.06.05 am	The appellant moves away and Ms Cowap's husband follows.  More discussions ensue.  Both the appellant and Ms Cowap's husband use hand gesticulations.
05.06.57 am	The appellant moves away.  Ms Cowap follows and her husband follows after her.  The appellant goes down the escalator.
05.07.07 am	The appellant having exited the foyer via the escalator, Ms Cowap and her husband move to doors at the top of the screen and appear to speak to a bystander.  Another person joins them.
05.07.59 am	Ends.  At this time Ms Cowap and her husband remain in the foyer of the train station.

WRD 301‑20 (VTS_11_1) ‑ Depicts Perth platform at Wellard train station (camera facing north to Perth)[117]

[117] This footage was replayed at ts 28 - 31.  The appellant refers to it at ts 41 - 42.

05.07.00 am	Commencement.
05.07.33 am	The appellant enters screen.  Moves north along platform.  Moves out of screen approx. 5.07.46 am.
05.08.23 am	The appellant re‑enters screen momentarily and ambles north along the platform.  The appellant moves out of screen at approx. 5.08.35 am.
05.10.00 am	The appellant re‑enters screen momentarily.  Ms Cowap's husband enters the screen at approx. 5.10.03 am and commences to speak at the appellant, pointing his finger at her.  The appellant moves out of screen at approx. 5.10.07 am.  Ms Cowap's husband moves out of screen at approx. 5.10.09 am.
05.10.21 am	The train to Perth commences to arrive.  The appellant moves north along the platform.  Ms Cowap's husband is to her left.  The appellant is shaking her finger at Ms Cowap's husband.  Ms Cowap's husband points his finger at the appellant before she enters the train.  The appellant enters the train at approx. 5.10.45 am in the third and last carriage component of the first train car (numbering from the front).  Ms Cowap enters the train slightly after the appellant (approx. 5.10.47 am) at a door north of the door entered by the appellant in the second carriage (numbered from the front).  The train doors shut at approx. 05.11.00 am.
05.11.05 am	Train leaves.
05.11.59 am	Ends.

T Car 1 (VTS_04_1) ‑ Depicts train carriage (camera facing south ‑ ie against direction of travel)[118]

[118] This footage was replayed at ts 40 - 41 and at ts 44 (and possibly at ts 45).

05.11.00 am	Commencement.
05.11.00 am	On commencement Ms Cowap is seen sitting down to the right of screen in the permanent 'priority' seat adjacent to the doors.  The appellant can seen standing in the aisle some way down the carriage (partially obscured by the standing pole in the door area).  As the CCTV footage commences it can be seen that the appellant is walking down the aisle.
05.11.06 am	The appellant reaches a position opposite Ms Cowap.
05.11.08 am	The appellant assumes a seated position opposite Ms Cowap.
05.11.27 am	The appellant puts the tablet up in front of face (as if to take an image) and directs it to Ms Cowap.
05.12.00 ‑ 05.13.00	The appellant can be seen moving her right arm with her gaze directed to Ms Cowap.
05.13.02 am	Ms Cowap leaves and walks down the train carriage.  The appellant remains in the same seat.  The appellant continues to move her arm but re‑directs her gaze to look down the carriage in the direction of Ms Cowap.  The appellant otherwise remains seated.
05.41.40 am	Transit officers approach the appellant.
05.42.51 am	The appellant de‑trains with transit officers.
05.42.59 am	Ends.

T Car 2 (VTS_05_1) ‑ Depicts train carriage (camera over location where the appellant and Ms Cowap are sitting)[119]

[119] This footage is referred to at ts 41 (it is the 'opposite angle' as mentioned by the prosecutor),and ts 42.  It is replayed at ts 44 (and possibly at ts 45).

05.11.00 am	Commencement.
5.11.00 am	On commencement Ms Cowap is seen sitting down to left of screen in the permanent 'priority' seat adjacent to the doors.  The appellant is out of screen.
5.11.06 am	The appellant enters screen and sits down, right of screen, opposite Ms Cowap.
05.11.27 am	The appellant puts the tablet up in front of face (as if to take an image) and directs it to Ms Cowap.
05.11.46 am	The appellant can be seen with a small bottle in her left hand (retrieved from a hand bag).  Over the ensuing period the appellant moves the bottle to her right hand and shakes it.  The appellant's mouth opens and closes while the bottle is being shaken.  Her gaze is directed to Ms Cowap.
05.13.02 am	Ms Cowap leaves.  The appellant remains in the same seat.  The appellant continues to move the bottle.  The appellant otherwise remains seated.  The appellant's gaze is no longer directed opposite (to the seat where Ms Cowap was located).  Instead it is directed down to her left.
05.41.40 am	Transit officers approach the appellant.
05.42.51 am	The appellant de‑trains with transit officers.
05.42.59 am	Ends.

PUG 210‑20 (VTS_02_1) ‑ Depicts platform on Perth underground station[120]

[120] This footage was replayed at ts 49.

05.42.00 am	Commencement.
05.42.31 am	Train arrives at platform.
05.42.52 am	Direction of camera realigns to show the appellant de‑training with transit officers.  The camera follows the appellant as she goes to sit on seats while being interviewed.  In the course of the interview the appellant gets up to demonstrate various matters to the transit officers.  The camera tracks discussions between the appellant and the transit officers for some time.
06.08.49 am	The appellant moves on to the escalator to exit the platform.
06.10.59 am	Ends.

Part B: The CCTV footage one file of which was shown to the magistrate at trial

WRD 202‑20 (VTS_09_1) ‑ Depicts Wellard train station platform (camera facing south ‑ black and white image only)

05.07.00 am	Commencement.
05.07.29 am	The appellant comes into screen moving down the platform.  She continues moving down the platform and exits the screen at approx. 05.07.47 am.  The appellant reappears between 05.08.03 am and 05.08.26 am before ambling to the north of the platform.
05.10.15 am	The train to Perth commences to arrive.
05.11.05 am	Train leaves.
05.11.59 am	Ends.

WRD 302‑20 (VTS_12_1) ‑ Depicts Perth platform at Wellard train station (camera facing south to Mandurah)

05.07.00 am	Commencement.
05.07.32 am	The appellant enters screen.  Moves north along platform.  Moves out of screen approx. 5.07.44 am.
05.08.22 am	The appellant re‑enters screen until 05.08.36 am.
05.10.01 am	The appellant re‑enters screen until 05.10.07 am.
05.10.03 am	Ms Cowap's husband enters screen (from bottom of screen, ie Perth side of platform) pointing his finger at the appellant.  Exits screen at approx. 05.10.10 am.
05.10.15 am	The train arrives (the appellant can be partially seen to the right of the screen).
05.10.27	The appellant walks north along platform while the train comes to a stop.  Ms Cowap's husband can be seen pointing and talking at the appellant until approx. 05.10.37 am.  The appellant and Ms Cowap's husband then exit the screen.
05.11.00 am	Train doors shut.
05.11.05 am	Train leaves.
05.11.58 am	Ends.

Part C: The CCTV footage not shown to the magistrate at trial

WRD 102‑20 (VTS_08_1) ‑ Depicts electronic gateway at Wellard train station

05.02.00 am	Commencement.
05.02.49 am	The appellant 'tags on' and enters the Wellard train station.
05.02.59 am	Ends.

WRD 001‑20 (VTS_06_1) ‑ Depicts escalator down from Wellard train station foyer to platform (from foyer)

05.07.00 am	Commencement.
05.07.04 am	The appellant enters the escalator to move from the foyer down to the platform.
05.07.06 am	Ms Cowap and Ms Cowap's husband can be seen to follow the appellant (although remaining in the foyer at the top of the escalator).  Ms Cowap appears to point at the appellant.
05.07.08 am	Ms Cowap exits the screen.  Ms Cowap's husband gesticulates at the appellant who turns around and gesticulates back.
05.07.17 am	Ms Cowap's husband exits the screen.
05.07.59 am	Ends.

WRD 003‑20 (VTS_07_1) ‑ Depicts escalator down from Wellard train station foyer to platform (from platform)

05.07.00 am	Commencement.
05.07.16 am	The appellant comes into screen moving down the escalator towards the platform.
05.07.27 am	The appellant alights from the escalator and moves up the platform.  Vision of the appellant becomes obscured from approx. 05.07.47 am.  She reappears at approx. 05.08.20 am.  Vision is again obscured as the appellant ambles up the platform at approx. 05.08.34 am.
05.10.21 am	The train to Perth commences to arrive.
05.11.00 am	Train doors shut.
05.11.05 am	Train leaves.
05.11.59 am	Ends.

PUG 301‑20 (VTS_03_1) ‑ Depicts platform on Perth underground station

05.42.00 am	Commencement.
05.42.20 am	The train arrives at the platform.
05.43.03 am	Ms Cowap can be seen speaking to transit officers for some time.  She is then seen standing on the platform on‑looking.
05.46.30 am	The appellant can be seen speaking to transit officers while Ms Cowap is on‑looking.
06.08.59 am	Ends.

PUG 203‑20 (VTS_01_1) ‑ Depicts foyer to Perth underground station (showing escalator from platform)

06.09.00 am	Commencement.
06.09.03 am	The appellant comes up the escalator from the platform of Perth underground station.  The camera then follows the appellant for a short while as she walks through the station.  It then reverts to centre on the escalator exit in the foyer.
06.09.59 am	Ends.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AT

Research Associate to the Honourable Justice Vaughan

24 MARCH 2021