Rainier v The State of Western Australia
[2013] WASCA 119
•13 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RAINIER -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 119
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 16 APRIL 2013
DELIVERED : 13 MAY 2013
FILE NO/S: CACR 193 of 2012
BETWEEN: KIM VARY RAINIER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAUDE DCJ
File No :IND 1251 of 2011
Catchwords:
Criminal law - Appeal against conviction - Attempting to pervert the course of justice - Plea of guilty - False statements to the police for the purpose of having a traffic infringement notice for a speeding offence withdrawn - Whether a miscarriage of justice occurred because, upon the admitted facts, the appellant could not in law have been guilty of attempting to pervert the course of justice
Legislation:
Criminal Code (WA), s 143
Result:
Extension of time to appeal granted
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered
Category: B
Representation:
Counsel:
Appellant: Ms K A Vernon & Ms L Zinenko
Respondent: Mr J McGrath SC & Mr L M Fox
Solicitors:
Appellant: Lyn Zinenko Lawyers
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bowden v The State of Western Australia [2013] WASCA 118
Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31
McLURE P: For the reasons given by Buss JA, the State correctly conceded that the appellant's conviction ought to be set aside and a judgment of acquittal entered. The appellant could not in law, on the admitted facts, be guilty of the offence charged.
BUSS JA: The appellant has applied for an extension of time to appeal against conviction.
On 20 December 2011, the appellant was convicted, on her plea of guilty in the District Court before Staude DCJ, on one count in an indictment which alleged that the appellant had attempted to pervert the course of justice, contrary to s 143 of the Criminal Code (WA) (the Code).
His Honour imposed a fine of $300 and made a spent conviction order pursuant to s 39(2)(c) of the Sentencing Act 1995 (WA).
The application for an extension of time
Counsel for the State did not oppose the granting of an extension of time. The delay has been explained satisfactorily. An extension should be granted.
The facts and circumstances of the offending
When the offence occurred the appellant was a police officer.
In the early morning of 21 September 2010, while on duty and driving with a partner in a marked police motor vehicle, the appellant drove through an intersection in South Perth and activated a fixed speed camera. The camera recorded that her vehicle was travelling at 72 km an hour. The speed limit was 60 km an hour. The appellant was liable to a fine and demerit points.
On the appellant's version of events, which the sentencing judge accepted, the appellant was speeding because she had been directed to assist in the interception of a stolen motor vehicle. However, on her own admission, she had no authority to exceed the speed limit. After passing through the intersection and activating the speed camera, the appellant was notified by radio that she was no longer required to pursue the stolen vehicle.
About one or two minutes after receiving that radio communication, the appellant noticed a motor vehicle weaving between lanes on Canning Highway. She and her partner stopped the vehicle. His Honour found
that the vehicle stop was legitimate. However, what was not legitimate was the appellant's decision, upon returning to the police station, falsely to attribute her breach of the speed limit, as she passed through the intersection, to the vehicle stop incident.
The appellant made a note on 21 September 2010 in her police notebook about the vehicle stop incident. She falsely claimed in the note that she had seen the offending vehicle before she entered the intersection and that she had exceeded the speed limit in an attempt to apprehend it.
The appellant made a further note on 21 September 2010 in her police task running sheet. She falsely asserted in the note that the activation of the speed camera at the intersection was related to the vehicle stop incident.
On 18 October 2010, the appellant was served with a traffic infringement notice in respect of the matter. The notice was issued on photographic evidence.
On 25 October 2010, the appellant sent a memorandum to Acting Senior Sergeant Hannan, the officer in charge of her station, in which she repeated the false statement that she had exceeded the speed limit, while proceeding through the intersection, because she had noticed a motor vehicle weaving between lanes on Canning Highway. The appellant annexed to her memorandum a copy of the infringement notice, the false notebook entry and the false task running sheet entry. Acting Senior Sergeant Hannan prepared a report in which he accepted that the appellant's explanation was feasible. He sent the report to his supervisor.
On 28 October 2010, Acting Senior Sergeant Hannan was informed by another police officer that there was an issue with the memorandum and annexed documents prepared by the appellant. A police internal investigation was commenced.
On 31 October 2010, the appellant sent an email to Acting Senior Sergeant Hannan in which she referred to 'an error' with her correspondence in relation to the traffic infringement notice. She requested an interview with him. The sentencing judge found that the appellant's email was prompted by an application she had made for appointment as a forensic investigator and, also, by 'talk she had heard around the station' about there being a CCTV camera at the intersection in question.
At about this time, Senior Sergeant Warner, the permanent officer in charge of the appellant's station, returned to duty. He replaced Acting Senior Sergeant Hannan. Acting Senior Sergeant Hannan did not respond to the appellant's email. He forwarded it to Senior Sergeant Warner.
On 2 November 2010, Senior Sergeant Warner sent an email to staff at the appellant's station. He encouraged the staff to admit any mistakes they made, and not to jeopardise their careers by attempting to cover them up. The following day, the appellant sent an email to Senior Sergeant Warner in which she said the message in his email applied to her. The appellant then initiated a meeting with Senior Sergeant Warner. During that meeting on 3 November 2010 she confessed to having made the false statements and apologised.
The appellant was interviewed later on 3 November 2010 by Inspector Hill and Inspector O'Rourke. The sentencing judge found that she gave them a truthful account of what had occurred. On 22 December 2010, the appellant was interviewed by Inspector Anderson and again made admissions. On 27 April 2011, she was interviewed by officers from the Internal Affairs Unit and made further admissions.
The prosecution accepted that the appellant was not aware of the internal investigation into her conduct when she made the admissions to Acting Senior Sergeant Hannan and Senior Sergeant Warner.
In November 2011, the appellant was dismissed from the police service.
The history of the proceedings
On 23 July 2011, the appellant was charged with the offence of attempting to pervert the course of justice.
On 20 December 2011, the appellant appeared in the District Court. She was represented by senior counsel. The appellant was arraigned and pleaded guilty. After hearing a plea in mitigation and submissions from the State, his Honour imposed sentence.
The ground of appeal
The sole ground of appeal alleges that the appellant's conviction for attempting to pervert the course of justice 'constituted a miscarriage of justice' in that '[her] conduct was not an offence known to the law'.
On 9 November 2012, Mazza JA granted leave to appeal.
The decision in Bowden v The State of Western Australia [2013] WASCA 118
This appeal was heard together with the appeal in Bowden v The State of Western Australia [2013] WASCA 118.
In my reasons in Bowden I discussed:
(a)the test to be applied by an appellate court in deciding whether to set aside a conviction based on a plea of guilty;
(b)the statutory scheme in Western Australia in relation to speeding offences and traffic infringement notices;
(c)s 143 of the Code and attempting to pervert the course of justice; and
(d)the decision of the Court of Criminal Appeal of New South Wales in Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31.
It is unnecessary to repeat that discussion.
The State's concession
Counsel for the State accepted that the appellant could not, in law, upon the admitted facts, have been guilty of the offence. He conceded that the conviction ought to be set aside and a judgment of acquittal entered.
I am satisfied that counsel for the State's concession was properly made. My reasons are as follows.
The merits of the ground of appeal
The appellant engaged in three acts of deception. First, the false statement in her police notebook. Secondly, the false statement in her police task running sheet. Thirdly, the false statement in the memorandum and annexed documents sent to Acting Senior Sergeant Hannan. The first and second acts of deception occurred on 21 September 2010, within a few hours after the vehicle she was driving activated the speed camera. The third act of deception occurred on 25 October 2010. On 18 October 2010, the appellant was served with the traffic infringement notice. On 3 November 2010, she admitted her deceit.
At the interview on 3 November 2010, Inspector O'Rourke asked the appellant about the 'purpose' of the false statements in her notebook and running sheet. She replied:
[A]t that point I thought OK well I'm going to get a ticket, I'll just wear it … I'll run it by my shift sergeant about the issue with the going in the direction of Orrong Street [sic: Road], with stinger on board and so forth and then when I had the vehicle stop, I thought well that's just, that will be must [sic: much] easier and that's what it came down to its … I have made a really, really stupid decision to keep something simple … yeah never done anything like that and absolutely ashamed of that (prosecution brief 65 ‑ 66). (emphasis added)
At the interview on 27 April 2011, the appellant explained to officers from the Internal Affairs Unit:
I felt justified in having gone through the speed camera and I thought this is just going to be easier to just write it up to pulling this car over. And so I made notes in my note book that I had seen … the intersection prior to where I had seen him, and that was my reason for having gone through the speed camera. So when I received the infringement, that's how I presented the report.
I didn't at any point think of the monetary consequences of the ticket. It would be obvious, but I had no intent of avoiding a $150 ticket. My intent was or my thinking was me going through the camera was justified. What I wrote was obviously incorrect and was deliberate. And, after having written the report and submitted it - I think I submitted it a couple of days before I went on annual leave, maybe three days before I went on annual leave. And a couple of nights later … some of the officers were talking about it at work, I think kind of in a joking way, and … I felt pretty disgusted at what I'd done and … thought of what I'd done, and so it didn't sit well with me. It's not characteristic of me and, at that stage, my boss was on leave and so there was an acting OIC. So I sent him an email asking to speak to him, then I went on leave (prosecution brief 158 ‑ 159). (emphasis added)
Later in her interview with officers from the Internal Affairs Unit, the appellant was asked about her purpose in making the false statements:
COPELAND: So what, in essence, you've done is you've tied this statement here into the false statements that you've written in your note book.
RAINIER: That's correct.
COPELAND: Would that be fair?
RAINIER: Yes.
COPELAND: Why did you do that? Why did you write that comment?
…
RAINIER: Well, the purpose, to explain why I had gone through at speed. At that point I did ‑ at no point did I make this decision to avoid a penalty. As bizarre as that may seem, it didn't enter my mind. I just didn't want to have … to deal with having to explain myself and ask for Police tapes and so forth.
…
COPELAND: Okay. So the outcome that you were looking for, as you said, was for it to go away.
RAINIER: Yeah. Not so much the infringement. I just didn't want to deal with any more paperwork or anything to do with it.
LEE-KONG: Well, I can't see that as reasonable, Kim, because that's the total amount of paperwork you would have had to submit ‑ ‑ ‑
COPELAND: Submit in any ‑ ‑ ‑
LEE-KONG: ‑ ‑ ‑ anyway.
COPELAND: ‑ ‑ ‑ case.
LEE-KONG: I'll put it to you that the fact is you didn't want to pay for the infringement notice; that it's not just about having to do paperwork. It's more than that, isn't it?
RAINIER: Actually, it's not to do with the infringement notice or with the penalty with it. It's certainly not an excuse and nothing that I've said so far would provide a reasonable excuse. I can only tell you what I know for myself. I've had a shitty two years and I didn't want to have to deal with anything. I didn't think of a monetary penalty. I just was thinking of Xs on the book against me and me trying to get back into being a Police officer, and I wasn't thinking of the monetary penalty whatsoever. Whether that sounds reasonable or not, I can't ‑ I can't assist you with that. I'm telling you I have been trying to get back into being a Police officer. I've only been back since the end of June of last year. And I didn't want … to have to deal with anything. I didn't want anything tarnishing anything.
LEE-KONG: So you would have quite happily worn a ticket over this?
RAINIER: I would have quite happily worn a ticket over it, yes, and that makes it look extra stupid and ignorant that I've done it (prosecution brief 211, 223). (emphasis added)
The references to a 'ticket' in these passages are undoubtedly to a traffic infringement notice.
Counsel for the State accepted that there was no evidence in the prosecution brief that was capable of supporting an inference that:
(a)the appellant believed that the police would or might invoke the jurisdiction of a court in relation to her contravention of the speeding regulations or would or might invoke that jurisdiction unless her false statements deflected them; or
(b)the appellant either knew that the false statements would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the false statements should have that effect.
It is apparent that as at 21 September 2010, when she made the first and second false statements, the appellant anticipated that a traffic infringement notice would be issued. She made the third false statement after she was served with the notice.
The only inference adverse to the appellant, reasonably open on the evidence in the prosecution brief, was that the appellant only intended by the false statements to construct a foundation for seeking to have the traffic infringement notice withdrawn on discretionary grounds.
I am satisfied that the evidence was not capable of supporting an inference that:
(a)the appellant contemplated that the police would or might invoke the curial processes of a court to deal with her contravention of the speeding regulations; or
(b)the appellant's intention, in making the false statements, was to establish a false defence to an offence for which she would or might be prosecuted in a court.
In these circumstances, the appellant could not, in law, have been guilty of the offence of attempting to pervert the course of justice. A miscarriage of justice has occurred. The appeal should be allowed, the
judgment of conviction in respect of the count in the indictment should be set aside and a judgment of acquittal should be entered.
MAZZA JA: I agree with Buss JA.
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