Samson v Ward - [2022] WASC 171

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SAMSON -v- WARD [2022] WASC 171
CORAM:   MITCHELL J
HEARD:   13 MAY 2022
DELIVERED          :   13 MAY 2022
PUBLISHED           :   13 MAY 2022
FILE NO/S:   SJA 1004 of 2022
BETWEEN:   ANTHONY JOHN SAMSON
Appellant

AND

MICHAEL ANTHONY WARD
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE CAMPIONE
File Number            :   PE 9806 OF 2020

Catchwords:

Criminal law - Appeal against conviction of failing to comply with a requirement to allow a prescribed sample taker to take a sample of blood for analysis - Whether a miscarriage of justice arose from the inability of the prosecution to play audio of CCTV footage of the attempt to take a sample of blood from the accused - Where audio tended to exculpate the accused and was inconsistent with evidence of prosecution witness - Whether prosecution established that the accused failed to comply with the requirement

Legislation:

Road Traffic Act 1974 (WA), s 67(2)

Result:

Extension of time in which to appeal granted
Leave to appeal granted
Appeal allowed
Judgment of conviction set aside and judgment of acquittal substituted.

Category: B

Representation:

Counsel:

Appellant	:	S B Watters
Respondent	:	M C Barry

Solicitors:

Appellant	:	Chambers Legal
Respondent	:	State Solicitor's Office

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

Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Nguyen v the Queen [2020] HCA 23; (2020) 269 CLR 299

MITCHELL J:

(These reasons were delivered ex tempore and have been edited from the court's record of the proceedings)

On 15 May 2020, the appellant was convicted after a trial in the Magistrates Court of one charge of failing to comply with a requirement of a police officer to allow a registered nurse to take a sample of his blood for analysis. That is an offence contrary to s 67(2) of the Road Traffic Act 1974 (WA).
The appellant now appeals against his conviction on the sole ground that a miscarriage of justice was occasioned at trial when exculpatory material in the form of CCTV footage from the police station was inadequately adduced in court.

Evidence at trial

There was no real dispute at trial that, on 27 February 2020, a police officer, Senior Constable Smith, validly required the appellant to allow a prescribed sample taker to take a sample of his blood for analysis. The principal issue at trial was whether the appellant had failed to comply with that requirement for the purposes of s 67(2) of the Act.
There was also no dispute at trial that the appellant had accompanied Senior Constable Smith and Senior Constable Ward, who had stopped the vehicle he was driving, to the Perth police watch house. He sat in a phlebotomy chair, rolled up his sleeves and presented his arm to a registered nurse, Sharon Russell.
Senior Constable Ward's account was as follows:[1]
I returned to the office and Mr Samson was in the chair in the corner. Nurse Russell was attending to him. I could see she was pressing on his arm or patting his arm looking for a vein at the time, and that Mr Samson wasn't cooperating with her and kept moving his arm away and, yes, not allowing the nurse to take a sample of his blood. He was advised that he can be prosecuted for failing to provide the blood. However, he was - he kept moving his arm away, despite the nurse actually getting the needle in contact with him, but not successfully getting any blood.
[1] Trial ts 13.
Senior Constable Smith said that, after she made the requirement and as she was doing her paperwork, Ms Russell started her process of taking a sample of blood from the appellant's arm. Senior Constable Smith said:[2]
I could hear the accused saying he didn't like needles. He had had his veins butchered in hospital. I saw the nurse was doing her best to accommodate and try and, you know, take the blood sample. The accused was moving around and, to me, it seemed to be making it very challenging for the nurse to actually do what she needed to do to take the sample of blood.
…
So whilst Sharon Russell was trying to take, the blood, Senior Constable Ward warned the accused that if he, you know, failed to provide the sample, he would be charged. He continued - the accused continued to move his arm around, preventing the nurse from taking the blood sample. And at about 10.35 pm, Senior Constable Ward advised the accused that he would be charged with failing to provide the sample of blood.
[2] Trial ts 27 - 28.
Ms Russell's evidence was that the appellant consented to her taking a blood sample but, not unusually, was displaying some reluctance and discomfort at the prospect of blood being taken. She decided to use a butterfly needle, which was a smaller needle with a tube coming off it into which a sample vial is placed to draw out blood. Ms Russell said that she got the butterfly needle into the vein 'and then Mr Samson removed the needle', 'he just took it out'. Ms Russell elaborated that, 'He moved his arm and [it] removed the needle'.[3]
[3] Trial ts 34 - 35.
Ms Russell then gave the following evidence:[4]
Mr Samson then was adamant that he didn't want to have the blood test, and I was concerned, obviously, that it could have been dangerous to - to carry on because there was needles, and there might have been blood, which - I wasn't, you know, prepared to mess around with needles that were - - -
Okay?---Yes.
What can you tell the court about the exact words that were being said?---I don't recall the exact words. I just know Mr Samson did not want to proceed.
[4] Trial ts 35 - 36.

CCTV footage of the events was tendered, but due to technical difficulties the audio was unable to be played on the court's audio‑visual system. It was able to be played on the prosecutor's laptop computer, but the sound could not be played. When an extract of the CCTV footage was played to Ms Russell, she identified the point on the video where she was trying to guide the needle into the vein and the appellant 'pulled his arm away'. Ms Russell said that 'then Mr Samson didn't want to continue, and the decision was made not to continue'.[5]
[5] Trial ts 37.
The appellant, who was self-represented at trial, effectively did not cross‑examine the above witnesses on the critical issue. In his evidence the appellant denied failing to provide blood and said that Ms Russell 'failed to extract'. He repeatedly said that 'it's all on video'.[6] In cross‑examination he accepted that he moved his arm but said that he did so 'to save my arm getting hurt' and because he did not want to 'lose another vein'.[7] He also accepted that he had injected himself with methamphetamine on the morning of that day.[8]
[6] Trial ts 41.
[7] Trial ts 45 - 46.
[8] Trial ts 42.

The magistrate's reasons

The magistrate immediately gave ex tempore reasons for her decision at the conclusion of evidence and submissions. After referring to the evidence of the witnesses, all of whom her Honour found to be honest,[9] the magistrate said:[10]
In relation to the CCTV footage, there is no sound. Unfortunately, it wouldn't play. However, conversations are not really in dispute. I can see one of the auxiliary officers holding what appears to be tubes and leaning in as if ready to hand the tubes to Nurse Russell. I can also see, significantly, some movement on the part of the accused, whereupon, almost instantaneously, Nurse Russell backs off and shakes her head.
[9] The magistrate expressly found Ms Russell and the appellant to be honest witnesses at trial ts 52 - 53, and implicitly accepted the evidence of the police officers as honestly given.
[10] Trial ts 54.
The magistrate explained that complying with the requirement meant complying to the completion of the process of allowing a sample of blood to be taken, and allowing blood to flow into the first tube would not be sufficient compliance. The magistrate said that there was no medical evidence to substantiate that there was good reason not to allow the process to be completed. Her Honour concluded:[11]
The accused is clearly not sufficiently concerned about scarring as a result of cannulas in his arms to prevent him from self-administering illicit substances in his arm and as recently as that morning. I am not satisfied that the accused has proven on the balance of probabilities that there was any substantial reason for his failure to comply. I am further satisfied that he hasn't established that he attempted to comply with the requirement. He terminated the process and refused to engage, making reference to other concerns.
Ultimately, safety is the predominant consideration, and Nurse Russell made the decision that with the blood and the uncapped needle, the matter could not continue. He had also been warned of the need to allow the process to be completed and to comply on two occasions by Senior Constable Ward. Accordingly, the accused has not made out either of the defences available to him even on the balance of probabilities. The prosecution have established and proven the charge beyond reasonable doubt, and I enter a judgment of conviction.
(emphasis added)
[11] Trial ts 54 - 55.

The ground of appeal

The appellant's argument principally concerns the lack of audio on the CCTV footage played at trial and a concern that, because the video footage was played on a laptop, the magistrate did not have the opportunity to view the footage from beginning to end. The appellant submits that the magistrate was deprived of an opportunity to properly gauge the level of the appellant's cooperation and compliance.

CCTV footage

The appellant's written submissions set out a summary of the CCTV footage with sound. I have had the opportunity to view the whole of the CCTV footage with sound, and regard that summary as generally accurate. The video shows the appellant entering the room in handcuffs with police officers (22:19: 45). He took a seat in a phlebotomy chair, his handcuffs were removed and he rolled up his sleeves. He expressed a dislike of having his blood taken and said that a previous hospital visit had damaged a vein, but gave his consent to blood being taken.
The appellant indicated that he had an injury to his right arm (which does appear on the video to be injured). After examining the appellant's right arm, Ms Russell said 'we will have to use this arm then' (referring to the appellant's left arm) (22:23:01). Ms Russell applied a torniquet to the appellant's left arm (22:23:21) and asked the appellant which vein he would like the blood taken from. He indicated a vein which Ms Russell said is 'very solid' and she pointed to a vein she regarded as a better option (22:24:20).
Ms Russell then removed the torniquet from the appellant's left arm, and Senior Constable Smith read the formal requirement for the appellant to allow Ms Russell to take a sample (22:25:26). After some discussion as to where the blood will be taken from, Ms Russell removed the cap from a needle and approached the appellant (22:27:18). He moved his outstretched arm away but lowered it back into place (22:27:21). Ms Russell told the appellant that she is not going to fight with him, and a police sergeant in the room said, 'You know what the charge is if you refuse to do it' (22:27:35). Ms Russell pointed to a vein in the appellant's left arm and said that she can try that one if the appellant wants but if that does not work she will need to try the other vein (22:28:05).
At one point when Ms Russell was attempting to insert the needle, the appellant flinched and his right hand made light contact with Ms Russell (22:28:42). The appellant immediately apologised and Senior Constable Ward told the appellant that he has 'one last chance' and will be charged if he does not comply. Ms Russell indicated that she had not yet inserted the needle (22:29:22), and the sergeant commented 'another couple of minutes and we will go for a charge' (22:29:36).
Ms Russell inserted the needle into the appellant's arm and he made a wincing expression (22:29:35). The view of the appellant's arm is largely obscured by officers' heads at this point. Ms Russell commented that 'it’s not flowing' and told the appellant (who was not moving) to keep still (22:59:27). At about 22:30:00 the appellant's arm moved slightly and Ms Russell said that 'We had it and then you moved' (22:30:08). Ms Russell stepped away from the appellant and Senior Constable Ward informed the appellant that he will be charged (22:30:13).

Disposition

I am satisfied that the absence of audio on the version of the CCTV footage that was available to play in court at trial occasioned a miscarriage of justice. Complying with its obligation to tender all available, cogent and admissible evidence in the absence of proper grounds for not doing so,[12] the prosecution sought to play the CCTV footage. However, technical issues prevented it from providing the court with evidence of the audio.
[12] See Nguyen v The Queen [2020] HCA 23; (2020) 269 CLR 299.
The respondent accepts that the playing of the CCTV footage without the audio was an irregularity in the trial which will constitute a miscarriage of justice unless this court can be satisfied that the irregularity did not make a difference to the outcome of the trial.[13] The respondent says that the question for the court is whether the playing of the footage on a laptop, rather than the court equipment, without audio and not from start to finish could not have made a difference to the magistrate's decision to convict the appellant. That seems to me to be the appropriate question in the circumstances of this case.
[13] Citing Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 [26].
In my view, watching the CCTV footage with the audio could well have made a difference to the magistrate's conclusion that the appellant failed to comply with the requirement to allow a registered nurse to take a sample of his blood for analysis. The CCTV footage shows an important aspect of the evidence of Ms Russell to be inaccurate. Ms Russell's evidence was that the appellant 'was adamant that he didn't want to have the blood test' and 'did not want to proceed'.[14] However, that is not apparent from the audio.
[14] Trial ts 35, 36.
The respondent contends that the appellant can be heard to say 'no' or 'nah' just after moving his arm during the failed attempt to extract blood. I cannot hear that word said on the audio. However, even assuming the appellant did say 'no' at that point, the word spoken in the context of the appellant's demeanour at that time could not convey the adamant refusal to have a sample taken which was attributed to him by Ms Russell's evidence.[15] That evidence of Ms Russell was significant in the magistrate's reasons for convicting the appellant, which found that the appellant 'terminated the process and refused to engage, making reference to other concerns'.[16]
[15] See [8] above.
[16] See [12] above.
The appellant, who was self-represented at trial, did not put to Ms Russell in cross-examination the differences between her account and the CCTV audio. However, but for the technical difficulties the audio would have been adduced as part of the prosecution case and those differences would have been apparent to the magistrate. The appellant was a self-represented litigant who failed to appreciate the significance of those differences and lacked the capacity to cross-examine witnesses in a way that complied with the rule in Browne v Dunn. In the circumstances, the appellant's failure to more directly dispute Ms Russell's account of what he said after the failed attempt to take a sample of blood does not preclude the conclusion that the unavailability of the audio at trial occasioned a miscarriage of justice.
For these reasons, I am satisfied that the ground of appeal alleging a miscarriage of justice is established, and I cannot conclude that no substantial miscarriage of justice has occurred.
A miscarriage of justice having been established, it is necessary to consider the relief which should be granted by this court. The available orders are set out in s 14(1) of the Criminal Appeals Act 2004 (WA). They include the power to substitute the decision that should have been made by the court of summary jurisdiction (par (d)) or to order that the case be dealt with again by the court of summary jurisdiction (par (e)).
Ordinarily, where the question of whether to order a retrial is under consideration, there are two broad issues. First, whether the admissible evidence at the trial was sufficiently cogent to support a conviction. Secondly, whether there are any circumstances that might render it unjust to make the accused stand trial again.[17]
[17] See Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [204] ‑ [210].
In the present case, the evidence adduced at trial (which did not include the CCTV audio) was sufficiently cogent to support a conviction. However, I am in as good a position as the magistrate to assess the question of whether the evidence led at trial and the version of the CCTV footage with audio, considered together, established a failure or a refusal of the appellant to comply with the requirement. The parties accepted that I could make my own determination of whether the evidence adduced by the prosecution at trial, considered with the audio of the CCTV footage, established that the appellant failed to comply with the requirement.
Some of the magistrate's ex tempore remarks could be construed as suggesting that the appellant bore the onus of proving on the balance of probabilities that he attempted to comply with the requirement. In my view, that is not the correct position. Section 67(5) of the Act provides that it is a defence to a prosecution for an offence against s 67 if the accused satisfies the court that there was some substantial reason for the accused's failure to comply other than a desire to avoid providing information that might be used as evidence. However, the prosecution must prove, beyond reasonable doubt, that the accused did fail to comply with a requirement before the onus falls upon the accused to prove a substantial reason for the failure to comply.
In my view the evidence does not establish, beyond reasonable doubt, that the appellant failed to comply with the requirement that he allow a registered nurse to take a sample of his blood for analysis. The appellant sat in the phlebotomy chair and presented his left arm for the needle to be inserted. The appellant expressed a desire for blood to be taken from a particular vein in his left arm, which was not Ms Russell's preferred choice. However, Ms Russell appears from the CCTV footage to have discounted the injured right arm on her own examination of it. She agreed to try to take a sample from the appellant's preferred vein in his left arm, indicating that she would try her preferred vein in the appellant's left arm if that was not successful. While the appellant wanted to discuss and debate matters in a way that no doubt tested the officers' and Ms Russell's patience, he did do what was necessary for Ms Russell to make an attempt to take a sample of his blood.
Significantly, there was a single attempt at inserting the needle and obtaining a sample from the appellant. That attempt failed when the appellant appears to have slightly moved his arm. One may be suspicious of the degree of apprehension about needles expressed by an admitted intravenous drug user. However, the appellant's claimed experience of damage to his vein as a result of a prior medical procedure is capable of explaining that apprehension. The CCTV footage and other evidence does not demonstrate beyond reasonable doubt that the arm movement was a voluntary movement made with the intention of frustrating the process.

If there had been a second attempt to insert a needle into a vein (perhaps that preferred by Ms Russell) which failed due to the appellant's actions, or the appellant had indicated a refusal to allow a second attempt, then a failure to comply with the requirement may have been established. However, there was no refusal by the appellant, who continued to hold his arm in an extended position with the elbow pit facing upwards after the failed attempt. Rather than a second attempt being made, the officers immediately indicated that the appellant would be charged. The fact that the single attempt to take a sample of the appellant's blood failed does not establish that he failed to comply with the requirement to allow a sample to be taken.
In my view the evidence led at trial considered together with the audio of the CCTV footage does not establish, beyond reasonable doubt, that the appellant failed to comply with a requirement to allow a registered nurse to take a sample of his blood for analysis. When the evidence led at trial and the version of the CCTV with audio are considered together, in my view there is no reasonable prospect of the appellant being properly convicted of the charged offence. In these circumstances, it would be unjust to make the accused stand trial again, and not in the interests of justice to order a retrial.
I would therefore grant an extension of time in which to appeal (which the respondent does not oppose), grant leave to appeal, allow the appeal, set aside the appellant's conviction and substitute a judgment of acquittal of the charge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
13 MAY 2022