Said v Watson - [2018] WASC 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SAID -v- WATSON [2018] WASC 181
CORAM:   SMITH AJ
HEARD:   17 MAY 2018
DELIVERED          :   20 JUNE 2018
FILE NO/S:   SJA 1057 of 2017
BETWEEN:   MICHAEL NASSIB SAID
Appellant
AND
GEOFF WATSON
Respondent

ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE R D YOUNG
MAGISTRATE M M FLYNN

File Number : PE 8568 of 2017

Catchwords:

Criminal law - Appeal against conviction - Contravene red pedestrian signal - Grounds rely upon challenge to findings of reliability of evidence - Appeal out of time

Whether it was appropriate for magistrate to question witnesses when the accused self-represented

Meaning of decision in s 5(1) Criminal Appeals Act 2004 (WA)

Order made by magistrate to set aside summonses prior to hearing of the prosecution charge does not constitute a decision that may be subject to an appeal

Decisions made by the magistrates to refuse to hear applications for disclosure did not constitute decisions in the matter that may be subject to an appeal

No error demonstrated in decision made by magistrate to refuse to join third parties as co‑accused to the charge against the accused - The refusal in this matter does not constitute a decision that may be subject to an appeal

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7, s 7(1), s 7(4), s 9(1), s 9(2)
Criminal Procedure Act 2004 (WA), s 20, s 20(5), s 42(1), s 42(1)(e), s 60(5), s 60(5)(a), s 60(5)(b), s 61, s 82(a), s 82(b), s 82(c), s 82(d), s 82(e), s 163(1), s 163(3), s 163(3)(a), s 182
Road Traffic Code 2000 (WA), reg 3, reg 9, reg 197(2)

Result:

Leave to appeal out of time refused
Leave to appeal on all grounds refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Mr L R Nicholls

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor for Western Australia

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

Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Copeland v Watson [2017] WASC 261
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Dean v Legal Practice Board [2013] WASC 155
Fradale v Zonic [2016] WASC 114
Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593
Hodder v Ball [2013] WASCA 65
JS v The State of Western Australia [2014] WASCA 177
Michael v The State of Western Australia [2007] WASCA 100
Nafranec v Nicol [2012] WASC 436
NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Pah v The State of Western Australia [2015] WASCA 159
Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147
R v Edwards [2009] HCA 20; (2009) 83 ALJR 717
R v Saleam (1989) 16 NSWLR 14
R v Salmat Document Management Solutions Pty Ltd [2005] WASC 232
Tey v Carpenter [2011] WASC 263
Tey v Plotz [No 2] [2011] WASC 34
The State of Western Australia v Burke [No 2] [2010] WASC 74
The State of Western Australia v Christie [2005] WASC 214
The State of Western Australia v JWRL (a child) [2010] WASCA 179
Vo v The State of Western Australia [2012] WASCA 6

SMITH AJ:

The charge

The appellant was charged that on 16 September 2016 at Wellington Street, Perth (the intersection) he contravened a red pedestrian light, contrary to reg 197(2) of the Road Traffic Code 2000 (WA). On 21 August 2017, the appellant was tried and convicted of the offence.
Regulation 197 provides:
197. Crossing at pedestrian lights
(1)This regulation applies to a pedestrian approaching or at an intersection, or another place on a carriageway, with traffic‑control signals that include pedestrian lights.
(2)If a traffic‑control signal shows a red pedestrian light and the pedestrian has not already started crossing the intersection or carriageway, the pedestrian shall not start to cross until the pedestrian light changes to green.
Modified penalty: 1 PU
Note   A traffic‑control signal (including a pedestrian light) generally only applies to a person if the signal or light faces the person.
(3)If, while the pedestrian is crossing the carriageway, the pedestrian light changes to flashing red or red, the pedestrian shall not stay on the carriageway for longer than necessary to cross safely to the nearer (in the direction of travel of the pedestrian) of the following:
(a)a dividing strip or traffic island, forming part of the area set aside or used by pedestrians to cross the carriageway at the intersection or place (the safety area);
(b)the far side of the carriageway.
Modified penalty: 1 PU
(4)If, under subregulation (3), a pedestrian crosses to 'the safety area', the pedestrian shall remain in 'the safety area' until the pedestrian lights change to green.
Modified penalty: 1 PU
(5)Despite this regulation, if a pedestrian cannot operate the pedestrian lights from the safety area, that pedestrian may cross to the far side of the carriageway when ‑
(a)the traffic control signals display a circular green signal or a flashing circular yellow signal, or there is no circular red signal showing; and
(b)it is safe to do so.
Red pedestrian light             Green pedestrian light
(pedestrian symbol in red)       (pedestrian symbol in green)
Regulation 3 defines a red pedestrian light to mean a device designed to show at different times being either an illuminated red pedestrian symbol (whether or not flashing), or the words 'don't walk' illuminated in red (whether or not flashing).
Regulation 9 of the Road Traffic Code provides that:
(1)A person who contravenes or fails to comply with any of the provisions of these regulations, commits an offence.
(1A)A person who commits an offence against Part 16 Division 2 or regulation 244 is liable ‑
(a)for a first offence, to a minimum penalty of the number of penalty units that could be imposed as a modified penalty for the particular offence and a maximum penalty of 56 penalty units (56 PU); and
(b)for a subsequent offence, to a minimum penalty of the number of penalty units that could be imposed as a modified penalty for the particular offence and a maximum penalty of 84 penalty units (84 PU).
(1B)For the purposes of subregulation (1A)(b), an offence is regarded as a subsequent offence if the person by whom it is committed has previously committed an offence of any kind against Part 16 Division 2 or regulation 244.
…
The only element of the offence in dispute by the appellant was whether he started to cross the intersection while the traffic‑control signal facing him was showing a red pedestrian light.
The prosecution's case was that, immediately prior to the appellant starting to cross the intersection, the pedestrian light was red, and, more specifically, it was a solid red. That is, it was not flashing.[1]
[1] The general traffic infringement notice issued to the appellant states 'lights both working, constant red before crossing'.

Will an appeal lie against a pre‑trial decision?

The appellant seeks leave to appeal out of time against the conviction. He also seeks leave to appeal out of time against 'decisions' made by Magistrate R Young on 18 August 2017 and Magistrate M Flynn during the course of the trial on 21 August 2017.
Section 9(1) of the Criminal Appeals Act 2004 (WA) provides that leave of the Supreme Court is required for each ground of appeal. Section 9(2) prohibits the court from granting leave to appeal on a ground of appeal unless satisfied the ground has a reasonable prospect of succeeding.
On 18 August 2017, Magistrate Young heard an application made by the Commissioner of Main Roads (the Commissioner) to set aside two summonses, issued by the Magistrates Court on application by the appellant.
After hearing counsel on behalf of the Commissioner of Main Roads and the appellant, Magistrate Young set aside each of the summonses. The appellant seeks to institute an appeal against this decision. He also seeks to institute an appeal against what he says was 'a decision' made by Magistrate Young refusing to hear and to make an order for disclosure.
The appellant contends Magistrate Young erred by informing him that he was not prepared to grant the orders so late in the day and before the trial on the following Monday (21 August 2017) and by telling him to raise an application the following Monday before the trial magistrate.
For reasons that follow, it is clear that the grounds upon which the decisions made by Magistrate Young are sought to be impugned by the appellant have no merit. In any event, whilst I have briefly dealt with these grounds in my reasons, it is clear that each of the 'decisions' made by Magistrate Young that are sought to be challenged by the appellant do not constitute a 'decision' from which an appeal will lie.
An appeal against a decision of the Magistrates Court arises solely by statute. Consequently, the power of a convicted person to institute an appeal and the power of the Supreme Court to hear and determine the appeal is derived solely from the governing legislation.[2]
[2] JS v The State of Western Australia [2014] WASCA 177 [4] (McLure P, Buss & Mazza JJA agreeing).
Section 7(1) of the Criminal Appeals Act provides that a person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision. Section 7(4) provides that no appeal lies against the decision of the court of summary jurisdiction except as provided by s 7.
An appeal does not lie under s 7(1) against any decision made by a court of summary jurisdiction. Section 6 of the Criminal Appeals Act defines a 'decision' of a court of summary jurisdiction to mean any of the following:
(a)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);
(b)a decision ordering a permanent stay of a prosecution;
(c)a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;
(d)a decision to acquit an accused of a charge;
(e)a decision to acquit an accused of a charge on account of unsoundness of mind;
(f)a sentence imposed, or order made, as a result of a conviction or acquittal;
(g)a refusal to make an order that might be made as a result of a conviction or acquittal;
(h)a decision as to costs;
(i)a decision made under the Criminal Investigation Act 2006 section 151;
As Hall J explained in Dean v Legal Practice Board,[3] the definition of a 'decision' in s 7(1) makes it plain that an appeal will only lie under s 7(1) of the Criminal Appeals Act against a final decision. His Honour explained:[4]
The right to appeal to this court from a decision of a magistrate arises from s 7 of the Criminal Appeals Act 2004 (WA) (CAA). Appeals are entirely creatures of statute and the rights of appeal must be determined by the words of the CAA: See Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 and Mansell v Mignacca‑Randazzo [2013] WASC 66 [32].
Section 7 of the CAA provides that 'a person who is aggrieved by a decision of a magistrate may appeal to the Supreme Court'. The word 'decision' as used in s 7 is defined in s 6 of the CAA. The types of decisions referred to include a permanent stay, a conviction or an acquittal. They are decisions with a final character. There is very good reason for this. It prevents the disruption of criminal proceedings by appeals of rulings and interlocutory decisions. That is not to say such rulings can never be raised in an appeal; they can, but only in the context of an appeal from a final decision.
[3] Dean v Legal Practice Board [2013] WASC 155.
[4] Dean v Legal Practice Board [2013] WASC 155 [18] ‑ [19].
The decision made by Magistrate Young to:
(a)set aside the summonses; and
(b)refuse to hear an application for an order for disclosure;
are not 'decisions' that are capable of being characterised within any of the categories of 'decision' within the meaning of an appealable decision in s 6 of the Criminal Appeals Act.
For these reasons, I am of the opinion that grounds 1A, 1B, 1C, 1D, 1E and 1F have no prospect of success. Accordingly, leave to appeal out of time on these grounds should be refused.
In any event, even if an appeal on these grounds could lie, I am not of the opinion the argument sought to be put in each of these grounds by the appellant has any merit for the reasons that follow.

The interlocutory applications before Magistrate Young on 18 August 2017

(a) The summonses

Upon application of the appellant on 13 July 2017, the Magistrates Court issued two summonses. The return date of each summons was 21 August 2017.
The first summons required Mr Richard Sellers, who is the Commissioner of Main Roads, to produce various items relating to the setting of the pedestrian signals at the William Street and Wellington Street intersection pedestrian crossing (the intersection) and the subsequent complaint made by the appellant in relation thereto. The second summons required the Commissioner to appear and give oral evidence.
Both summonses were served on the Commissioner on 13 July 2017.
Once a summons is challenged, the applicant bears the onus of satisfying the court that the summons has a legitimate forensic purpose.[5]
[5] The State of Western Australia v Burke [No 2] [2010] WASC 74 [9] ‑ [10]; The State of Western Australia v Christie [2005] WASC 214 [22]; R v Salmat Document Management Solutions Pty Ltd [2005] WASC 232 [36].
Where the issue is raised, it is the duty of the court to require the party calling on a summons (in this matter the appellant) to identify expressly and with precision the legitimate forensic purpose for which he seeks the documents, or the person summoned to give evidence.[6]
[6] NSW Commissioner of Police v Tuxford [2002] NSWCA 139 [22]; R v Saleam (1989) 16 NSWLR 14, 18.
On 7 August 2017, in compliance with the summons to produce items, the Commissioner provided to the Magistrates Court the following documents:
(a)a traffic signal timing sheet for the intersection;
(b)a record of complaint made by the appellant and response thereto;
(c)a record indicating the checksum number for traffic signal software installed on 21 April 2016;
(d)SCATS screenshot taken on 21 July 2017 indicating the checksum number; and
(e)an email exchange indicating no faults found on, and around, 16 September 2016.
In relation to the summons which sought the production of items, the Commissioner applied to cancel the summons in part as it also sought production of CCTV footage of the intersection, on grounds that the Commissioner does not hold such information.
The appellant sought production of CCTV footage from the Commissioner of Main Roads as he had been informed by the Police that Main Roads WA would have relevant CCTV footage in their possession. The appellant was later informed by officers of Main Roads WA that was not the case.
Subsequent inquiries by the appellant had revealed that the City of Perth and not Main Roads WA operated CCTV cameras at the relevant intersection. Prior to the hearing of the application to set aside the summonses, the appellant had successfully applied for a summons to be issued to the City of Perth, returnable on 21 August 2017, to produce CCTV footage of the intersection as at the date of the offence.
The appellant informed Magistrate Young that the summons had been served on the City of Perth whose officers had informed him that because of the passage of time, CCTV footage of the intersection on the day in question had been erased.
The Commissioner sought to set aside the summons to appear and give oral evidence on grounds that the summons lacked a legitimate forensic purpose and an appropriately qualified officer employed by the Commissioner, Mr Martin Woolley, was able to attend court to provide oral evidence in relation to the sequencing of the traffic lights at the intersection.
The appellant did not, and does not contend in the appeal, that the lights at the intersection were faulty at the time he was apprehended by the police.
The appellant took the view that the Commissioner was the only appropriately qualified witness to give oral evidence about the settings of the lights at the intersection as the Commissioner has overriding responsibility for the conduct of the officers of his Department.
It appears from the oral submissions the appellant made in the appeal that he wished to adduce evidence from the Commissioner:
(a)that the timing of the pedestrian lights on the day the alleged offence occurred had been set so that the length of the green light sequence was too short for compliance;
(b)that the timing of the pedestrian lights at the intersection had been changed after the date of the offence;
(c)whether directions had been given by the Commissioner to subsequently change the settings of the lights at the pedestrian crossing; and
(d)whether directions had been given to mislead the appellant when he made enquiries of officers of the Main Roads Department as to the availability of CCTV footage of the intersection on the day in question.
At the time the application to set aside the summonses was heard by Magistrate Young, the magistrate was informed by counsel for the Commissioner that arrangements had been made for the prosecution to call Mr Woolley at the hearing as a witness to provide the evidence in relation to the settings of the pedestrian traffic signals at the intersection.
The appellant asserts Magistrate Young erred in fact and in law by not requiring the Commissioner to provide an affidavit in support of his application and that counsel for the Commissioner gave inadmissible evidence from the bar table.
The appellant's contentions are wrong in law. The onus was on the appellant to satisfy the magistrate that the summonses should not be set aside. There was no requirement for the Commissioner to provide an affidavit to the court or otherwise adduce any evidence in respect of the application. Further, it is not the case that counsel for the Commissioner gave evidence from the bar table. Counsel for the Commissioner simply put forward submissions to the magistrate.
After hearing argument on behalf of the Commissioner and the appellant, Magistrate Young set aside the summonses. It is clear from the transcript of his Honour's reasons that he formed the opinion that the summonses to the Commissioner to give evidence lacked a legitimate forensic purpose as:
(a)the Commissioner was not qualified to speak to technical information relating to the settings of pedestrian traffic signals at the intersection; and
(b)he was not convinced the Commissioner had anything to do with misdirecting, misinforming or concealing CCTV footage from the appellant.
As the live issue at trial was what colour the pedestrian light facing the appellant was showing when the appellant began to cross the intersection, it is clear that the finding made by Magistrate Young, that the Commissioner's evidence would not be relevant to the charge and could not assist in the resolution of this issue, was properly made.

(b) The application made by the appellant for disclosure to Magistrate Young

The appellant made an application to Magistrate Young for 'disclosure' of documents handed to the Magistrates Court, on behalf of the Commissioner, in compliance with the summons to produce documents.
The appellant complained to Magistrate Young that counsel for the Commissioner had handed to his Honour documents from the bar table without allowing him (the appellant) access to, or knowledge of, those documents.
It appears, however, that prior to appearing before Magistrate Young, the appellant had made an application to the Magistrates Court to inspect the documents produced by the Commissioner, pursuant to the summons to produce items. When the appellant complained he had not been provided with copies of the documents, Magistrate Young properly informed the appellant that he was entitled to inspect the documents.

However, an entitlement to inspect the documents did not require 'disclosure' of the documents by the Commissioner. There was no obligation on counsel for the Commissioner to provide the documents directly to the appellant, either at the hearing to set aside the summonses or at any other time. As the respondent points out in written submissions filed on his behalf in the appeal, the obligation imposed under the summons to produce documents was for the Commissioner to provide documents to the court, not to the appellant. This obligation is clear from the express terms of s 163(1) and (3) of the Criminal Procedure Act 2004 (WA) which provide that:
(1)A person may obey a witness summons to produce a record or thing by producing the record or thing and delivering it into the custody of the court at the place specified in the summons ‑
(a)at least 2 days before the attendance date in the summons; or
(b)on that attendance date.
…
(3)If a record or thing is produced to a court under a witness summons before the trial of the case concerned, the court must notify the parties and may, before the trial ‑
(a)give leave for any party or other person to inspect the record or thing or to take a copy of the record; or
(b)order the record or thing to be returned to the person who produced it on any just conditions; or
(c)make any other orders it thinks fit in relation to the record or thing.
Consequently, it was open to the appellant, as he did, to apply for leave to inspect or take copies of the documents.[7]
[7] Criminal Procedure Act 2004 (WA) s 163(3)(a).
After Magistrate Young informed the appellant that he could inspect the documents which had been produced to the court in compliance with the summons, and in response to the appellant's complaint that they were 'supposed to provide me with documents they provided to the court', his Honour informed the appellant that they were not required to do so and that this was not a 'disclosable offence' and there had been no order for disclosure made. His Honour also informed the appellant that if he wanted to seek an order for disclosure he could do so at the trial on Monday.
In response, the appellant informed Magistrate Young that he had an application to join the Commissioner and Mr Woolley as co‑defendants and a request for the Police to provide disclosure. Magistrate Young informed the appellant that it was too late, the trial was on Monday and he would have to renew his application to the trial magistrate. Counsel for the Commissioner then informed Magistrate Young that the prosecution of the offence involves the Police and not the Commissioner so she was unable to assist the court in respect of the application for disclosure by the Police.
Although Magistrate Young did not deal with the appellant's application to join the Commissioner or Mr Woolley as co‑accused to the charge, for reasons that follow, clearly such an order was not open at law to be made.
In respect of the application made to Magistrate Young for a disclosure order of documents in possession of the Police, in circumstances where the only matter before his Honour was the application made by the Commissioner to set aside the summonses, and where there was no appearance on behalf of the prosecution, Magistrate Young was properly not in a position to deal with the appellant's application.

The appeal against conviction

(a) The evidence

As set out earlier in these reasons for decision, at the trial the prosecution case was that immediately prior to the appellant starting to cross the intersection, and as the appellant started to cross the intersection, the pedestrian light was solid red.
The prosecution called three witnesses: Sergeant Stewart Rodney McRae, Constable Joshua Gammon‑Carson and Mr Woolley.
The appellant elected to give evidence and called one witness, Steven John Cummings from the City of Perth.
Sergeant McRae's evidence was that on the day in question he was attached to the Perth Police Station, Bicycle Patrol Group No 3, and he was working with Constable Gammon‑Carson. They were riding their pushbikes, conducting patrols of the Perth central business district area. At about 6.00 pm, they approached the intersection of Wellington Street and William Street, Perth. At the time, they were attempting to cross from the busport side (the northern side) to the southern side of Wellington Street (into the central business district).
When he arrived at the intersection the pedestrian light facing Sergeant McRae was red. Sergeant McRae and Constable Gammon‑Carson were stationary on the north‑west corner of the intersection. Sergeant McRae first noticed that the pedestrian light that he was facing was flashing red and observed there were pedestrians walking towards him from the other side of the intersection. Some of the pedestrians had passed the centre line when he noticed the flashing red signal light change from a flashing red to solid red. At this point in time, he saw two males approaching from the southern side of the intersection and entering the carriageway onto Wellington Street from the southern boundary of the intersection when the red pedestrian light was showing solid red. Sergeant McRae yelled to both of the pedestrians to stop and go back off the carriageway.
Sergeant McRae and Constable Gammon‑Carson rode out into the intersection on their pushbikes in an attempt to stop the persons from continuing to cross. Sergeant McRae spoke to the appellant whilst Constable Gammon‑Carson spoke to the other person. The appellant refused to stop and continued to walk to the northern boundary of the intersection. Sergeant McRae then spoke to the appellant. The appellant questioned Sergeant McRae about the sequence of the traffic control lights. Sergeant McRae explained to the appellant that the traffic control lights were under control of Main Roads and not the Police. Sergeant McRae subsequently issued a traffic infringement notice to the appellant for failing to obey the direction of the red traffic control signal.
When cross‑examined, Sergeant McRae agreed that:
(a)there were people crossing from the southern side to the northern side of the appellant who were ahead of the appellant when crossing;[8]
(b)Constable Gammon‑Carson had joined them and there was a conversation between the Constable and the appellant. However, Sergeant McRae was unable to recollect what was said in the conversation between Constable Gammon‑Carson and the appellant.[9]
[8] ts 21 August 2017, page 50.
[9] ts 21 August 2017, pages 47 ‑ 48.
When Constable Gammon‑Carson gave evidence he said he was on duty with Sergeant McRae when he saw two males walking across the road towards them and when he looked at the traffic control lights he saw that the lights were displaying 'a red man'. He heard Sergeant McRae call out to the males to stop but they continued walking across the road, so he and Sergeant McRae went out into the middle of the road to stop them.
Constable Gammon‑Carson stopped one of the males, explained to him that it was against the law to cross the road against 'a red man' and gave him a caution. Constable Gammon‑Carson then waited on the medium strip in the middle of the road for Sergeant McRae.
When cross‑examined, Constable Gammon‑Carson said that he was on his pushbike when he went into the middle of the intersection and so was Sergeant McRae. When asked in cross‑examination why he cautioned the other person rather than charge him, Constable Gammon‑Carson said he used the opportunity to educate the person because the other person was not aware of the law, so he explained to the person what the law was and cautioned him.
Constable Gammon‑Carson was also cross‑examined about matters stated by him in his witness statement. It was also put to Constable Gammon‑Carson that he (the appellant) had asked for his name and he (Constable Gammon‑Carson) had refused. Constable Gammon‑Carson said that he did not speak to the appellant on the day in question.
Constable Gammon‑Carson's statement was made on 29 June 2017 which was some nine months after the incident had occurred. When asked why he did not make an (earlier) note about what had happened, Constable Gammon‑Carson said that when he became aware that the matter was going to trial he wrote a witness statement.
Mr Woolley is employed by Main Roads Western Australia. His job title is SCATS and SVD area manager. At the time of giving evidence, he had been employed by Main Roads Western Australia for between 19 to 20 years. He provided to the court a traffic signal drawing. He also produced a report which was a timing sheet which showed the timing of each of the sequences of the pedestrian traffic signals that were programmed into the traffic controller at the intersection.
Mr Woolley's evidence was also that he had a report from Main Roads' electrical services who advised that there were no faults reported at the intersection on the day in question.
When cross‑examined, Mr Woolley was asked about the sequences of the timing of the pedestrian lights at the intersection. His evidence was that at the intersection the pedestrian green light flashes six seconds for walk, twenty seconds flashing red man and two seconds of red before the lights move to another sequence when it is solid red, whereby the total time of cycle for all phases was 40 seconds. Mr Woolley explained that the cycle time changes depending upon the demand for the sequences. He explained that the cycle time drops at night so that after the red flashing stops a continuous red cycle lasts for as long as 126 seconds or as short as 25, or 26 seconds.
Mr Woolley was cross‑examined at some length by the appellant. One of the matters the appellant put to Mr Woolley was at the time the incident occurred that the pedestrian green light ran continuously green for the count of five. Mr Woolley did not respond directly to this proposition and simply said his measurements were in seconds. The appellant then put to Mr Woolley that in February 2017 (after the incident occurred) there was a change in the sequencing which resulted in the green sequence becoming longer, to a count of nine. Magistrate Flynn interrupted and told the appellant that he did not see the relevance of this line of questioning, however, Magistrate Flynn then allowed the appellant to ask further questions about this issue. In response, Mr Woolley said that there had been no change to the sequencing of the pedestrian lights at the intersection since September 2016 and he had brought to the court documentation to show that the sequencing had remained exactly the same as it was in April 2016.
The appellant called Steven John Cummings from the City of Perth to give evidence. Mr Cummings is the co‑ordinator of surveillance for the City of Perth. His evidence was that there is a CCTV camera at the location of the intersection on the corner of William and Wellington Streets. He said the camera is a pan tilt zoom camera which can be moved around 360 degrees, lifted up, lifted down, zoomed in and out. He also said that if the camera had been pointing in the direction of the walkway at the time the incident occurred (in relation to which there was no certainty it would have been pointed in that direction) then it may have recorded the incident in question.
In answer to the summons to the City of Perth to produce CCTV footage, Mr Cummings said that no CCTV footage of the intersection on the day in question was available because the police had not requested the footage so it had been 'written over'. He said that the practice of the City of Perth was if a request is made by the Police following an incident to hold footage it is held indefinitely until required for a prosecution.
The appellant then elected to give evidence.
The appellant was nearly 70 years old at the time the offence occurred.
The appellant said that two weeks before the incident he had written a letter and sent it by post to the Commissioner of Police seeking to meet with him about a 'vendetta' against him. His attempt, to meet with the Commissioner of Police, however, was unsuccessful.
On the day in question, the appellant approached the intersection with his trolley and was about three metres from the intersection when the pedestrian light changed from red to green.
The appellant rushed to the intersection and was just entering the intersection beyond 'the pole' when the pedestrian light changed to red flashing. When Magistrate Flynn asked the appellant when the pedestrian light changed from red to green whether he was on the footpath side of the pole or on the road side of the pole, the appellant said he could not remember, that he was just trying to get across. What he did recall was that there 'was a wall' of people in front of him who had walked into the intersection when the pedestrian light turned green and he was two metres behind them in the middle of the intersection when he was apprehended by Sergeant McRae.
The appellant said, however, when he was apprehended that the pedestrian light was flashing red.
The appellant's evidence was also that:
(a)Sergeant McRae was not on a bicycle, that Constable Gammon‑Carson was standing on the north side of the intersection holding two bicycles;
(b)there was no other person behind the wall of people crossing in front of him;
(c)Sergeant McRae was shouting 'obscenities' at him and he told Sergeant McRae he 'wouldn't take nonsense from him'. When asked what Sergeant McRae was saying to him, the appellant said that he was shouting and waving 'Get back. Get back over'. The appellant told Sergeant McRae 'Get away … You're too dangerous. You're not supposed to be doing that'. He then said he chased Sergeant McRae and Sergeant McRae ran in front of him back to Constable Gammon‑Carson; and
(d)after the incident he counted the sequences of the pedestrian lights at the intersection and they were green for a count of five and a count of twenty‑five for flashing red.
The appellant claimed when giving evidence that:
(a)the police and others have had a long standing vendetta against him;
(b)Sergeant McRae and Constable Gammon‑Carson had lied; and
(c)he was misled as to who operated the CCTV cameras at the intersection. He was first told that Main Roads operated the cameras and did not find out that the City of Perth operated the cameras until well after the City of Perth had written over the footage.

(b) The findings made by Magistrate Flynn

When Magistrate Flynn stated his findings, his Honour properly observed that the burden of proving the charge beyond reasonable doubt was on the prosecution, that the appellant did not need to prove anything.
Magistrate Flynn found that the evidence given by Sergeant McRae was reliable and that the evidence of the appellant and his memory was not as strong as the appellant may consider. Magistrate Flynn made a similar finding about Constable Gammon‑Carson. His Honour found that Constable Gammon‑Carson's recollection may not be as strong as he considers it to be as he could not recall an exchange between himself and the appellant, despite both the appellant and Sergeant McRae recalling that such an exchange had occurred.
Importantly, Magistrate Flynn found that:
(a)Sergeant McRae was stationary on a bicycle in the north‑west corner of the intersection of Wellington Street and William Street and was proposing to cross at the intersection controlled by traffic control signals and was facing a pedestrian light on the south side of Wellington Street;
(b)Sergeant McRae saw that pedestrians were crossing from the south side to the north side, effectively approaching him and some of those pedestrians had passed the centre line when he noticed the red flashing light change from flashing red to a solid red light. At that point, Sergeant McRae noticed the appellant step from the footpath on the south side of Wellington Street onto Wellington Street. Sergeant McRae looked at the traffic control signal that was adjacent to where he was standing, that is, the signal that was facing the appellant, and he noticed that it was a solid red signal; and
(c)Sergeant McRae yelled to the appellant to stop but the appellant continued.
It is clear from the reasoning of Magistrate Flynn that the basis on which he found the evidence of the appellant was not as reliable as he may consider is that the appellant was frank in giving evidence that he (the appellant) could not be entirely clear where he was when the lights changed from green to a flashing light. The appellant's evidence was that he started to rush when he was three metres away (when the light turned green), and there was also some evidence from Mr Woolley that the flashing of the red would have been for a period of approximately 20 seconds. Magistrate Flynn found that it was of some significance that the appellant was not able to be clear (which was to his credit) to recall the colour the pedestrian light was when he stepped onto Wellington Street. On the appellant's assessment it was either green or flashing red and he could not say which of those it was. This evidence affected Magistrate Flynn's assessment of the reliability of the evidence of the appellant.
Magistrate Flynn also found that the lack of CCTV evidence did not affect his assessment of the case. He observed that the lack of CCTV evidence meant the evidence before the court was not 'as good as it could be, but court cases every day are resolved on imperfect evidence'.
Magistrate Flynn, however, did not decide the case on which version of events he preferred. Irrespective of his doubts about the appellant's version of events, he was satisfied beyond reasonable doubt that the pedestrian light was displaying solid red when the appellant entered the intersection. This was because he was satisfied that Sergeant McRae's evidence established the elements of the offence were made out and the attacks on Sergeant McRae's credibility and reliability had not been made good.

(c) The application for disclosure - ground 2A

When the trial commenced on 21 August 2017, the appellant informed his Honour that he sought an order for disclosure by the Police. Magistrate Flynn declined. In response his Honour said:[10]
HIS HONOUR: … under a trial of this type, there's no entitlement to disclosure. There has been no application for disclosure before today, that I can see.
[10] ts 21 August 2017, page 31.
Magistrate Flynn informed the appellant at the end of the prosecution case if he (the appellant) wanted to revisit the issue of disclosure he would hear from him. The appellant, however, made no further application or submission regarding disclosure during the remainder of the trial.
When an accused is charged with the simple offence, the prosecution is not obliged to provide disclosure of evidentiary material unless ordered to do so by the court under s 60(5) of the Criminal Procedure Act.
At the hearing of the appeal, the appellant was asked to list the documents that, if his application had been heard, he would have sought disclosure of. The appellant informed the court these documents were:
(a)the statement made by Constable Gammon‑Carson;
(b)the infringement books of Sergeant McRae showing all the infringements issued on the day in question;
(c)timesheets of Sergeant McRae and Constable Gammon‑Carson;
(d)a letter written by the appellant to the Police Commissioner dated 29 August 2016 requesting an urgent meeting;
(e)a record of a telephone call from an unnamed inspector from the Police Commissioner's office enquiring of the appellant about the intent of the meeting requested in the letter;
(f)information about why the Police did not ask the City of Perth to preserve the CCTV footage of the intersection on the day in question;
(g)daily station reports showing whether Sergeant McRae and Constable Gammon‑Carson had booked out bikes on the day in question; and
(h)records showing whether Sergeant McRae and Constable Gammon‑Carson were stationed to survey the intersection on the day in question.

I am not satisfied that in this matter it was open for a disclosure order to be made by the court. Section 60(5) of the Criminal Procedure Act provides:
(5)In the case of a charge of any other simple offence, the court ‑
(a)may order the prosecutor to serve the accused with any confessional material (as defined in section 42(1)) of the accused that is relevant to the charge and that the accused has not already received from the prosecutor; and
(b)if it makes an order under paragraph (a), may also order the prosecutor to comply with section 61; and
(c)in any event must adjourn the charge to a new court date that allows a reasonable time for the prosecutor to comply with any order made under paragraph (a) or (b).
The appellant had made no confessional statement, so s 60(5)(a) does not apply. Nor was the precondition specified in s 60(5)(b), for making an order under s 61 met, as no order could be made under s 60(5)(a).
In any event, if an order could be made for disclosure under s 61 of the Criminal Procedure Act, Magistrate Flynn would be obliged to adjourn the charge to a new court date. However, the appellant had on the Friday before the trial informed Magistrate Young (when he first made an application for disclosure by the prosecution) that he did not want the trial on the following Monday to be adjourned.[11]
[11] ts 18 August 2017, page 21.
Even if the Magistrates Court had power pursuant to s 60(5)(b) to make an order for disclosure under s 61, the majority of the documents sought to be disclosed are documents that do not come within the categories of material that the Magistrates Court could require to be disclosed, pursuant to an order made under s 61.
Section 61(5) provides:
(5)If ‑
(a)an either way charge is adjourned under section 60(3); or
(b)a charge of a listed simple offence is adjourned under section 60(4); or
(c)an order is made under section 60(5)(b) in respect of a charge of any other simple offence,
the prosecutor must serve the accused with the following ‑
(d)any confessional material of the accused that is relevant to the charge and that the accused has not already received from the prosecutor;
(e)any evidentiary material that is relevant to the charge;
(f)a copy of the accused's criminal record, if the accused has not already received it from the prosecutor;
(g)any document that is prescribed.
None of the documents sought by the appellant are prescribed documents. The appellant has no criminal record.
If an order is made under s 61(5) the prosecutor is obliged to provide 'any evidentiary material that is relevant to the charge'.
'Evidentiary material' is defined in s 42(1) of the Criminal Procedure Act to mean:
(a)statements (including electronic recordings) by any person who may be able to give evidence that is relevant to the charge, irrespective of whether or not it assists the prosecutor's case or the accused's defence;
(b)a written summary of the evidence to be given by a person who the prosecutor intends to call as a witness;
(c)a copy of every other document or object that the prosecutor intends to tender in evidence at trial; and
(d)a copy of every other document or object that may assist the accused's defence.
The test in s 42(1)(e) of every other document or object that may assist the accused's defence is objective.[12]
[12] Pah v The State of Western Australia [2015] WASCA 159 [136] (Buss JA, McLure P & Hall J agreeing).
Evidentiary material that is relevant to a charge is the subject of the proviso that the documents or objects must be in the possession of the organisation or person who investigated the offence. Buss JA in Pah v The State of Western Australia explained:[13]
The phrase 'that is in the possession of the organisation or person investigated the offence', at the conclusion of the definition of 'evidentiary material relevant to a charge', in s 42(1), is not defined in the Criminal Procedure Act. In my opinion, when s 95 is read with s 42, and in the context of the evident purpose or object of the prosecutor's disclosure obligation under s 95, it is apparent that the reference to 'the organisation or person who investigated the offence' has a broad connotation. Those words are not confined to the police service. They include the Director and his officers and employees where, for example, the Director or any officer or employee has inquired into or examined the offence in the course of preparing the State's case against the accused for trial.
[13] Pah v The State of Western Australia [2015] WASCA 159 [138] (Buss JA, McLure P & Hall J agreeing).
Whilst the test for relevance is not to be construed as narrow, the obligation to disclose includes all evidence that is relevant to the charge, that is, relevant to any issue that might possibly or conceivably arise at trial and is not fanciful or illusionary.[14]
[14] Vo v The State of Western Australia [2012] WASCA 6 [32] ‑ [33]; see also the observations made in The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] ‑ [61] (Martin CJ), [153] (McLure P), [155] (Buss JA).
As Mazza J pointed out in Tey v Carpenter:[15]
The question of relevancy, for the purposes of s 61(5) and s 42(1) of the Criminal Procedure Act, is not to be narrowly approached and should be viewed from the perspective of what is relevant or could be potentially relevant: see The State of Western Australia v JWRL (a child) [2010] WASCA 179 [59] - [61].
[15] Tey v Carpenter [2011] WASC 263 [15].
Justice Mazza also accepted, as a matter of principle, that a failure by the prosecution to disclose potentially relevant evidence to the defence can give rise to a miscarriage of justice. However, the failure to provide disclosure does not automatically give rise to a miscarriage of justice.[16]
[16] Tey v Carpenter [2011] WASC 263 [20], citing Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593.
Although an order for discovery was not made in this matter, when Constable Gammon‑Carson was cross‑examined by the appellant, the appellant called for and was provided with a copy of the Constable's witness statement. Magistrate Flynn told the appellant to sit and read the statement before asking any further questions of the Constable.[17] The appellant then proceeded to cross‑examine Constable Gammon‑Carson about the contents of his statement.
[17] ts 21 August 2017, pages 77 ‑ 78.
One of the factual issues in contention by the appellant was whether Sergeant McRae was on a bicycle when he apprehended the appellant in the intersection. The appellant's evidence was that Sergeant McRae was not on his bike and Sergeant McRae's bike was with Constable Gammon‑Carson who was on the north‑west side of Wellington Street at the time Sergeant McRae apprehended him.[18] When regard is had to this evidence, it cannot be said that any records of whether Sergeant McRae or Constable Gammon‑Carson had requisitioned bikes on that day could be said to be a document that may assist the appellant's case, as it was not in dispute that the officers were riding pushbikes when they were carrying out their duties on the day in question. In the circumstances, such documents, if they exist, would have served no purpose and were irrelevant.
[18] ts 21 August 2017, pages 43, 92 and 98.
As to the remainder of the classes of documents sought by the appellant, it is clear that none of the documents sought could assist the appellant's case. The appellant's case was that the pedestrian light was not red when he entered the intersection. Whether Sergeant McRae or Constable Gammon‑Carson had issued infringements to any other persons that day was not relevant to this issue. Nor were any records (if they existed) showing whether Sergeant McRae or Constable Gammon‑Carson were stationed to survey the intersection on the day in question, or their timesheets for that day, relevant to that issue.
The appellant believes there is a vendetta against him which extends from the office of the Commissioner of Police to the lower levels of the Police Force. However, on the basis of the subjective belief of the appellant and in the absence of any evidence (before the Magistrates Court) that could objectively be found to be reliable evidence to support the appellant's beliefs, any application for disclosure for the remaining documents sought by him must necessarily be regarded as irrelevant to the charge and any request for such documents is to be regarded as fanciful.
It necessarily follows that any application for disclosure of a letter written by the appellant to the Commissioner of Police, any record of a telephone call to the appellant (from the Commissioner's office, if it exists) and information about why the police did not ask the City of Perth to preserve CCTV footage (if it exists) would, if an application for disclosure of these documents if made, necessarily fail.
For these reasons, even if error could be established on grounds that Magistrate Flynn erred in refusing to hear the appellant's application for disclosure (in relation to which I am not satisfied at law that an error does in fact arise), I am not satisfied that a miscarriage of justice would arise. This is because, with the exception of the witness statement of Constable Gammon‑Carson (which the appellant called for and was provided access to during the course of the trial), none of the documents sought to be disclosed by the appellant could at law be capable of being the subject of an order for disclosure made pursuant to s 61 of the Criminal Procedure Act.
103For these reasons, this ground of appeal has no prospect of success.

(d) Application to join 'co‑accused' - ground 2A

The appellant asserts that the magistrate erred in fact and law by refusing to join the Commissioner of Main Roads and Mr Woolley to the charge as co‑accused.
However, the appellant had no right to apply for any person to be added to the charge as co‑accused. Section 20 of the Criminal Procedure Act provides that only certain persons can commence a prosecution for an offence. In particular, it is only persons who are acting in the course of his or her duties who are authorised to commence a prosecution in relation to the offence. Relevantly, an authorised officer specified in s 80(2)(a) to (e) of the Criminal Procedure Act is a police officer or a person appointed by the Governor under s 182 of the Criminal Procedure Act.
A person such as the appellant who is acting in his private capacity is prohibited from commencing a prosecution pursuant to s 20(5), unless another written law expressly provides otherwise. In this matter, there is no written law that provides power for the appellant to make an application to, or for, the Magistrates Court to make an order to join the Commissioner of Main Roads or Mr Woolley as co‑accused.
In any event, even if so authorised, there was not a shred of evidence before the Magistrates Court that such an application could properly be made and an order made by that court.
Further, this is not a 'decision' as defined in s 6 of the Criminal Appeals Act. Consequently, no appeal could lie under s 7(1) of the Criminal Appeals Act on this ground.
109For these reasons, this ground has no prospect of success.

(e) Allegations made that the transcript of the hearing has been altered ‑ further grounds 1, 2 and 3

The appellant raises three additional grounds of appeal in further grounds 1, 2 and 3. These grounds collectively can be summarised as an allegation that the transcripts were deliberately altered so as to remove any matter which assisted the appellant's case.
It appears from the transcript of the hearing before Magistrate Flynn there is at least one obvious mistake in the transcript. During the course of the hearing the name of the prosecutor was changed from Mr M McMahon (who was in fact the prosecutor who appeared) to a Mr M Sutherland.
However, aside from this obvious transcription error, the basis for the allegations made by the appellant in these grounds are not entirely clear.
In his oral submissions to the court, the appellant appears to make a submission that Magistrate Flynn made findings about whether the offence was proven by disregarding his (the appellant's) evidence.
The only aspect of his evidence that the appellant identified as not being accurately recorded was whether he was near a 'pole' when he approached and/or entered the intersection.[19]
[19] ts 17 May 2018, pages 29, 35, 48, 51, 54, 114 ‑ 115.
In the magistrate's reasons for decision he recounted Mr Said's evidence in this regard as follows:[20]
[20] ts 21 August 2017, pages 103 ‑ 104.
His evidence is to the effect that he was approaching Wellington Street. He was proposing to cross from the south side to the north side. He observed the pedestrian light change from a solid red to a solid green at a point when he was approximately three metres away from entering the intersection. Mr Said's evidence is that he rushed to the intersection in order to complete passage across Wellington Street. His evidence was that at some point as he was rushing from the footpath on the south side of Wellington towards Wellington Street, at a point when he was close to a pole on the edge of Wellington Street, the light changed from green to a flashing red.
Mr Said's evidence is he is not entirely sure which side of the pole he was on but that it was a flashing red light that was displayed when he was on Wellington Street, that he continued across Wellington Street when Sergeant McRae emerged from a group or a wall, …
The transcript of the trial on 21 August 2017 records the appellant's evidence from which Magistrate Flynn made these findings as follows:[21]
[21] ts 21 August 2017, pages 88 ‑ 90.
ACCUSED: … So on that day I was crossing the intersection. I had my trolley with me and I was about three metres away from the ‑ from the intersection when the green light came on. I rushed to it so I ‑ ‑ ‑
HIS HONOUR: Just pause?
ACCUSED: Yep. When the ‑ ‑ ‑
HIS HONOUR: So you are three metres away and the light changed to green. The pedestrian light?
ACCUSED: Yeah, pedestrian light (indistinct)
HIS HONOUR: And what was it before it was green. What was it showing?
ACCUSED: There was ‑ no, it was red before that.
HIS HONOUR: Yes?
ACCUSED: And it turned to green.
HIS HONOUR: So you rushed ‑ ‑ ‑
ACCUSED: I walk ‑ I walk then. I rush before it stopped but it stopped much shorter than I expected, you know.
HIS HONOUR: Just pause. Okay. So you rushed to the ‑ you rushed the three metres?
ACCUSED: Yeah.
HIS HONOUR: And then it changed from green to?
ACCUSED: To red flashing.
HIS HONOUR: Okay. And where were you when it changed?
ACCUSED: Well, I was actually just entering the intersection, just entering beyond the pole. There's a pole there. Just entering beyond the pole when it changed and the ‑ the ‑ ‑ ‑
HIS HONOUR: When you say 'beyond the pole' do you mean that you were on the roadside of the pole or on the footpath?
ACCUSED: On the footpath and I ran from the footpath in order to catch it before it goes green and it goes green much earlier than I expected.
HIS HONOUR: It goes red, flashing?
ACCUSED: Yeah.
HIS HONOUR: Okay?
ACCUSED: So that's what happened and I ‑ ‑ ‑
HIS HONOUR: When it changed from green to red flashing, were you on the footpath side of the pole or were you on the roadside of the pole?
ACCUSED: I can't remember that very well. Truly, to tell you the truth, I didn't ‑ I was just trying to get across.
HIS HONOUR: Okay?
ACCUSED: And I can't 100 per cent tell you what ‑ what it was ‑ ‑ ‑
HIS HONOUR: Okay?
ACCUSED: Where I was. I mean ‑ ‑ ‑
HIS HONOUR: Okay. So you find ‑ ‑ ‑
ACCUSED: I was just rushing ‑ I had the trolley with me and then I just ‑ ‑ ‑
HIS HONOUR: Yes. Okay?
ACCUSED: - ‑ ‑ sort of (indistinct)
HIS HONOUR: So you are on the road, it's flashing red and what happens then?
ACCUSED: And there was a wall of people in front of me because they ‑ as soon as it turned green they all walked and then they were only a few metres away from me and I was two metres behind them in the middle of the aisle ‑ in the middle of the intersection ‑ ‑ ‑
HIS HONOUR: Yes.
ACCUSED: - ‑ ‑ when Sergeant McRae just jump from among these wall of people, like a jack in the box, and he was shouting at me, obscenities.
When regard is had to this interchange between the appellant and Magistrate Flynn, it is clear that unless the appellant had not mentioned the pole, Magistrate Flynn would not have asked questions about the appellant's location in relation to the pole. In these circumstances, I do not accept the appellant's contention that the transcript in respect of this issue is not an accurate record.
However, even if the appellant's recollection of his evidence is correct, and the transcript is not an accurate record of the evidence about the pole, the appellant's evidence about the pole was not material to Magistrate Flynn's decision to convict and would not have affected the outcome. The sole issue before Magistrate Flynn was whether the pedestrian lights were solid red or flashing red when he entered the intersection.
At the hearing of the appeal, the appellant conceded that when he entered the intersection he did not know if the pedestrian lights were green or flashing red as he was not looking at the lights as he was looking at the people in front of him who were crossing the intersection in front of the appellant.[22]
[22] ts 17 May 2018, pages 33, 34 and 54.
The appellant also contended that the transcript incorrectly recorded that Mr Woolley had said that he had prepared the documents produced to the court (in answer to the summons to produce items) but that in fact Mr Woolley had said that the documents were prepared by his assistants.[23]
[23] ts 17 May 2018, page 17.
The fundamental difficulty with this submission is that it misconstrues what the evidence was by Mr Woolley. Mr Woolley gave evidence that he created a number of documents by 'running them off' the software system (which controls the traffic and pedestrian lights in the city) which showed there had been no change to the sequencing of the lights at the intersection since the lights were installed in April 2016. When it was put to Mr Woolley by the appellant that one of these documents had been falsified, Mr Woolley said he had created it and did not edit it.[24]
[24] ts 21 August 2017, pages 67, 70 ‑ 72.
In any event, the appellant, when making his submissions in the hearing of the appeal, encouraged the court to review the transcript of the hearing before Magistrate Flynn as it was his submission that the transcript recorded various matters that supported his case.[25]
[25] ts 17 May 2018, pages 35, 64, 66 ‑ 67, 74, 96, 100.
For these reasons, grounds 1, 2 and 3 of the appellant's further grounds of appeal have no prospects of success.

(f) Did the trial magistrate unduly interfere in the conduct of the appellant's case? - grounds 2C and 2E

The appellant asserts that the magistrate erred by interfering with the trial by:
(a)alerting the witnesses throughout the proceedings by his constant interference in the conduct of the examination of all witnesses, and especially during their cross‑examination; and
(b)taking a leading role away from the appellant's intended line of examination.
At the hearing of the appeal, the appellant made a submission that when he was cross‑examining Mr Woolley the magistrate interrupted and then took over the cross‑examination and led the witness away from the areas of questioning that he (the appellant) wished to raise. In doing so, the appellant contends that false answers were given by Mr Woolley. In particular, the appellant wished to put to Mr Woolley questions which would go to whether the Commissioner or any other person employed by the Commissioner had interfered with the pedestrian lights at the intersection.
The appellant also argued that when he was giving his evidence that Magistrate Flynn asked him a 'couple of questions' and then dismissed him from the witness box which had the effect of blocking him from being able to put his case.

Where a question is raised of whether a hearing was unfair by reason of interruptions by the magistrate in proceedings, the principles to be considered by the court are as set out by Hall J in Nafranec v Nicol as follows:[26]
[26] Nafranec v Nicol [2012] WASC 436 [10] ‑ [14].
Where it is contended that a trial has been unfair by reason of the conduct of the presiding judicial officer the test to be applied is whether the impugned behaviour has created a real danger that the trial was unfair: Michael v The State of Western Australia [2007] WASCA 100 [63] (Steytler P). That question depends principally on whether the appellant had a proper opportunity to advance his or her defence to the charges: RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, 11 (Gaudron ACJ, Gummow, Kirby & Hayne JJ).
Where it is alleged that a trial judge or magistrate has excessively interfered with the conduct of the case, the appropriate test is whether there has been 'such a departure from the due and orderly processes of a fair trial as to amount to a miscarriage of justice': R v Mawson [1967] VR 205, 207 (Winneke CJ, Adam & Barber JJ). Examples of interference that may result in a miscarriage are where a party is prevented from putting their case properly, where a witness is prevented from giving a full account of the facts or where the opposing party is given an unfair advantage.
It is not improper for a judge or magistrate to put questions to witnesses with a view to clarifying an answer, where it appears that a witness has misunderstood a question put by counsel or where he or she considers that an issue has not been sufficiently cleared up: Yuill v Yuill (1945) 1 All ER 183, 185 (Lord Green MR); Rowland v The Police (2001) 79 SASR 569 [60] (Perry J). There is greater latitude for questioning by a judge or magistrate who is acting as the finder of fact.
Whether interruptions by a magistrate have resulted in the trial being unfair will be a question of fact and degree. It will be necessary to consider the number of interruptions, the nature of them, the point in the proceedings at which they occurred and the context of them in the trial as a whole. The context is significant because it is necessary to consider whether interruptions have had the effect of so distorting the trial process as to bring about a miscarriage of justice: R v Davies (1984) 3 NSWLR 572, 575 (Street CJ).
Whether a particular trial has been rendered unfair will always depend upon an assessment of the particular circumstances. …
Importantly, these principles make it clear that a magistrate is entitled to ask questions of a witness to clarify evidence. Where an accused is unrepresented, it is particularly important for a magistrate to ensure that the evidence which is given by a witness is clear and it is easily able to be understood by the accused. It is also important for the magistrate to ensure that relevant evidence is given.[27]
[27] See the observations made by Jenkins J in Copeland v Watson [2017] WASC 261 [58].
It will often be necessary where an accused is self‑represented for a magistrate to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays and disruptions to the due and orderly processes of hearing a matter.[28]
[28] Michael v The State of Western Australia [2007] WASCA 100 [65] (Steytler P, McLure JA & Miller AJA agreeing); De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [71] (McLure P, Buss & Mazza JA agreeing).
I have read the transcript of the hearing before Magistrate Flynn very carefully and have satisfied myself that the trial was conducted fairly.
Magistrate Flynn gave the appellant assistance to adduce his evidence. His Honour was indulgent with the appellant as he allowed the appellant to stray into irrelevant matters. In particular, he allowed the appellant to stray into the issue as to whether the sequence timing of the pedestrian lights had altered some months after the alleged offence, when clearly such matter was plainly irrelevant.
Although the appellant was unrepresented it is clear from his questioning of the witnesses in cross‑examination that he was able to put his case. Magistrate Flynn, however, did require the appellant to move onto other issues after the appellant had exhaustively asked a number of questions on a particular topic.
Magistrate Flynn appropriately assisted the appellant with procedural aspects of the trial. For example, he explained to the appellant the consequences at law that applied when a party calls for a document.[29]
[29] ts 21 August 2017, page 72.
When, on occasions, the appellant inadequately put questions in cross‑examination, Magistrate Flynn assisted by asking appropriate questions for the purposes of clarifying the issue.[30]
[30] See for example, ts 21 August 2017, page 70.
For these reasons, these grounds of appeal have no reasonable prospect of success.

(g) Did Magistrate Flynn err in making findings of fact at the trial? ‑ grounds 2B and 2E

The appellant attempts to put an argument in grounds 2B and 2E that Magistrate Flynn erred in law, and in fact:
(a)in accepting the 'purged' evidence of Sergeant McRae in the face of glaring inconsistencies in the prosecution case;
(b)in rejecting his (the appellant's) evidence by regard to the fact that the appellant was unable to recall when he entered the intersection whether the pedestrian light was green or flashing red; and
(c)in finding that the appellant had failed to notice the presence of pushbikes (which never existed).
The bar for setting aside findings of fact made at first instance is high and not easily met.
Where there is a conflict in the evidence, the question on appeal is whether the magistrate's approach in view of the evidence was defensible.[31]
[31] Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
When the court is considering whether it is open to the magistrate as the tribunal of fact to accept relevant aspects of the evidence given by witnesses for the prosecution and to reject relevant aspects of the evidence of the accused, and his or her witnesses, the following principles applied by Buss JA in Hodder v Ball should be applied:[32]
[32] Hodder v Ball [2013] WASCA 65 [64] ‑ [67] (McLure P & Mazza JA agreeing).
In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said:
'Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).'
See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 55, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
'[W]hether it was open to the [tribunal of fact] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [tribunal of fact] must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the [tribunal of fact] to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the [tribunal of fact] was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the [tribunal of fact] should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)'
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
However, this court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
Further, as Beech JA observed in Fradale v Zonic:[33]
[33] Fradale v Zonic [2016] WASC 114 [22].
A finding of fact based on the credibility of a witness is not to be set aside merely because an appellate court thinks the probabilities of the case are against, even strongly against, that finding of fact. Such findings will not be interfered with by an appellate court unless it appears that the judicial officer failed to use or has palpably misused the advantage of seeing and hearing the witnesses or has acted upon evidence which was inconsistent with the facts incontrovertibly established, or which was glaringly improbable.
In this matter, the evidence from Sergeant McRae was that the pedestrian light was red when the appellant started to walk across the road. The appellant gave evidence that the pedestrian light was either green or flashing red, yet he could not be sure. He gave other evidence which was inconsistent with that of Sergeant McRae, which led Magistrate Flynn to question the reliability of the appellant's evidence.
In contrast, none of the evidence adduced at trial caused Magistrate Flynn to question the reliability of Sergeant McRae's evidence.
This is not a case where Magistrate Flynn's finding were 'glaringly improbable, contrary to compelling inferences, or inconsistent with facts incontrovertibly stated'. To the contrary, Magistrate Flynn's findings were open on the evidence. Consequently, no error is made out in his Honour being satisfied beyond reasonable doubt of the appellant's guilt.
I would also observe that the absence of the CCTV footage, which may or may not have been relevant to the charge, does not establish that there has been any miscarriage of justice.[34]
[34] Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147 [76]; R v Edwards [2009] HCA 20; (2009) 83 ALJR 717 [31] applied in Tey v Plotz [No 2] [2011] WASC 34 [36](7) (Jenkins J).
In Tey v Plotz [No 2], Jenkins J aptly observed that in criminal proceedings it happens on occasions that relevant material is not available, and that the fact that a court is required to determine issues of fact upon less than all of the material which could relevantly bear upon the charge does not make the trial unfair.[35]
[35] Tey v Plotz [No 2] [2011] WASC 34 [36](7) (Jenkins J).
For these reasons, grounds 2B and 2E have no prospects of success.

Conclusion

For the reasons given, there is no merit in any of the appellant's proposed grounds of appeal. Given the lack of merit in any of the grounds, an extension of time to institute an appeal should be refused and leave to appeal on all grounds should be refused and the appeal be dismissed.
I will hear the parties as to the orders that should be made and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH
20 JUNE 2018