Sikking v Harrod - [2023] WASC 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   SIKKING -v- HARROD [2023] WASC 127
CORAM:   FORRESTER J
HEARD:   6 APRIL 2023
DELIVERED          :   21 APRIL 2023
FILE NO/S:   SJA 1079 of 2022
BETWEEN:   BRETT MATTHEW SIKKING
Appellant
AND
MEGAN HARROD
Respondent

ON APPEAL FROM:
For File No:   SJA 1079 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HOLGATE
File Number            :   PE 1043 - 1044 of 2022

Catchwords:

Criminal law - Single judge appeal - Appeal against conviction - Whether verdict was unreasonable or unsupported by the evidence

Legislation:

Criminal Appeals Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Road Traffic Act 1974 (WA)

Result:

Leave to appeal is refused on all grounds
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	LM Kristopher
Respondent	:	RN Paljetak

Solicitors:

Appellant	:	Savannah Legal
Respondent	:	State Solicitor's Office

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

Attree v Randell (1993) 19 MVR 95
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gardner v Caporn [2005] WASCA 153
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Pickett v The State of Western Australia [2004] WASCA 291
R (a child) v Gwynne (1999) 28 MVR 441
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smart v Power [2019] WASCA 106
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Wells v The State of Western Australia [2017] WASCA 27

FORRESTER J:

Introduction

After a trial before a magistrate,[1] the appellant was convicted of two charges alleging that on 5 January 2022 at West Lamington he:
(1)breached a Family Violence Restraining Order contrary to s 61(1) of the Restraining Orders Act 1997 (WA); and
(2)wilfully drove a motor vehicle in a reckless manner contrary to s 60(1A)(b) of the Road Traffic Act 1974 (WA).
[1] The prosecution notice on charges 1043/2022 and 1044/2022 incorrectly records that pleas of guilty were entered on 14 October 2022. However, as is evident from the transcript of proceedings on 7 and 14 October 2022, the appellant pleaded not guilty to these charges and was convicted after trial.
The appellant was sentenced to a fine of $750 on each charge. A spent conviction order was made in respect of each of the charges. As a result of the reckless driving offence, the appellant was disqualified for six months from holding or obtaining a driver's licence.
The appellant was acquitted of a charge of common assault and two other charges of breaching a family violence restraining order. Those charges arose out of incidents other than the one which was the subject of the charges of which the appellant was convicted.
The appellant applies for leave to appeal against his convictions.

Grounds of appeal

The appellant appeals his conviction on three grounds:
1.The Magistrate erred by basing his decision primarily upon the testimony of one witness, [the complainant].
2.The Magistrate erred in finding the appellant guilty of Reckless Driving and breach of Family Violence Restraining Order as there was insufficient video evidence to establish Identity and manner of driving beyond reasonable doubt.
3.The Magistrate erred in finding that the totality of evidence was sufficient to find the appellant guilty beyond a reasonable doubt.

The trial

Prosecution case

Evidence of the complainant

The complainant gave evidence that she had been in an 'on and off' relationship with the appellant for 17 years. They had two children together, then aged 16 and 11 years of age.[2] The longest period of time the appellant and the complainant lived together was about six years.[3]
[2] Transcript, Megan Harrod v Brett Matthew Sikking, Magistrates Court of Western Australia, 7 October 2022, 8 (Transcript, 7 October 2022).
[3] Transcript, 7 October 2022, 16.
In January 2021, the complainant applied for and was granted a Family Violence Restraining Order (FVRO) against the appellant for a period of two years. This order was challenged by the appellant, and in February 2021, the matter was resolved by way of a Conduct Agreement Order for a period of 12 months commencing from 13 January 2021. The terms of the order included that the appellant not approach within 20 metres of the complainant and not behave in an intimidatory manner towards her.[4]
[4] Exhibits 1 and 2.
Relevantly, the complainant gave evidence that on 5 January 2022, she woke up early for work at about 3.55 am or 4.00 am. She saw a lantern, switched on, in the middle of her backyard. She did not know how it came to be there. The complainant said she put the matter to one side and continued to get ready for work but the incident made her feel 'strange' and 'edgy'.[5]
[5] Transcript, 7 October 2022, 10.
At around 5.00 am, the complainant left home for work in her Holden Barina. She said she always looked around her car first to see if it was ok, which it appeared to be on this occasion. However, she did notice that there was a car with its high beams on down the bottom of the road. The complainant noted it was 'dusk (sic)' and 'too light to have your high beams on'.[6] She pulled out of her driveway and started to drive down the road.
[6] Transcript, 7 October 2022, 10 - 11.
As she drove, the complainant noticed that the car was heading towards her 'really, really fast'. She first noticed the bull bar of the car, and thought to herself, 'I think that's [the appellant]'. When the car got closer, she realised it was definitely the appellant's car as it had a very distinctive canopy with two roof racks on the top and a big silver bull bar on the front.
The complainant said that, as the car got to her driver's side, its window was half down, and she saw the appellant was driving; she could clearly see the appellant's face and he was looking at her but not 'eyeballing' her.[7]
[7] Transcript, 7 October 2022, 11 - 12.
The complainant said she kept driving but then thought the appellant was going to her house, which caused her to panic. She started to do a U-turn to drive back to her house. At this point, she said, she was still on the same street as her house but about 20 houses away from it.[8]
[8] Transcript, 7 October 2022, 11.
The complainant said she had previously been told by police to film the appellant if he went near the house, so she got out her phone to do so. She then saw that the appellant's car had stopped, done a U-turn and started driving at her. The complainant pulled over as close to the gutter on the left side of the road as possible and stopped her vehicle. The appellant's car drove towards the complainant's car 'quite fast' on an angle on the incorrect side of the road. The complainant braced herself for impact and was watching the car but ducked down at the last second, at which point the appellant's car drove past her.[9]
[9] Transcript, 7 October 2022, 11 - 13.
The complainant had a small hatchback. The appellant's car was a large Mitsubishi Triton, and the complainant said that, as it went past her car, she felt a 'whoosh' and the wind pressure rocked her car.[10]
[10] Transcript, 7 October 2022, 13.
The complainant estimated that the incident occurred within two minutes of her leaving her house.[11]
[11] Transcript, 7 October 2022, 14.
The complainant said she was shaken and could not do anything for about 30 seconds, but then rang the police. The police told her they could not come and told her to come in later in the day to make a statement. The complainant went home before going to work later that morning. Later in the day, the complainant attended the police station and gave them a statement and the phone footage.[12]
[12] Transcript, 7 October 2022, 13 - 14; the phone footage became exhibit 4.
In cross‑examination, the complainant said she did not remember the exact time she left for work but believed it was around 5.00 am or 4.55 am. When she first spotted the appellant's car it was about three blocks from her house and on the same side of the street as her house.
She said that when she turned around to follow the appellant's car back towards her house she was about five houses behind him. She agreed that she was aware that the appellant had Misconduct Restraining Order against her but she was concerned for her children's safety.[13]
[13] Transcript, 7 October 2022, 32.
The complainant denied making up the story to 'get' the appellant or so that she had evidence to justify a further restraining order against the appellant.[14] She agreed she had reported other alleged breaches of the restraining order to the police but they had not prosecuted the appellant.[15]
[14] Transcript, 7 October 2022, 36 - 37.
[15] Transcript, 7 October 2022, 39.
In re-examination, the complainant said she was certain the vehicle belonged to the appellant; he had owned it during their relationship for about six years and she had driven it before.[16]

Evidence of Constable Megan Jean Harrod

[16] Transcript, 7 October 2022, 46.

The statement of Constable Megan Jean Harrod was read into evidence, which confirmed that Constable Harrod had taken the complainant's statement, compiled an incident report, and received the phone footage from the complainant. The footage confirmed the alleged offence time was 4.59 am on 5 January 2022.[17]
[17] The statement became exhibit 8 with annexures including map and footage.
On 24 January 2022, Constable Harrod received CCTV footage from the appellant's legal representative showing a vehicle matching that of the appellant,[18] travelling along Piccadilly Street at 5.00 am.[19] Constable Harrod used Google Maps to map the quickest route from the offence location to the address on Piccadilly Street and discovered it was only 650 m between the addresses. Constable Harrod therefore ascertained that the appellant would have been able to commit the alleged offence at 4.59 am and still be driving past the CCTV camera at 5.00 am.[20]

Defence case

Evidence of Erika Rae Huggins

[18] Neither the licence plate nor the registration were visible in the footage.

[19] Exhibit 8.

[20] Transcript, 7 October 2022, 51.

The appellant's de facto partner of two years gave evidence. Ms Huggins gave evidence that on 4 January 2022, the appellant had been at a friend's house for a drink, and messaged her at about 8.30 pm to pick him up. She picked the appellant up just before 9.00 pm.[21] The appellant left his car at his friend's house, which was in Robertson Street.[22]
[21] Transcript, 7 October 2022, 53.
[22] Transcript, 7 October 2022, 54.
On 5 January 2022, the appellant had to start work at 5.00 am and needed Ms Huggins to take him to his car. Ms Huggins, her daughter and the appellant left their house at around 4.45 am. The time on CCTV footage from Ms Huggins' house recorded the time was 4.48 am when they left.[23]
[23] Transcript, 7 October 2022, 56 - 59.
Ms Huggins estimated it would take probably six or seven minutes to get to Robertson Street, and that they would have got there at 'probably' 4.55 am. Ms Huggins said once they got there, the appellant got out of the car and they said their goodbyes. She said they saw the appellant's friend and gave him a wave. The appellant unlocked his car. Ms Huggins waited until his car started, and she then reversed out and headed out of Robertson Street, down Marshall Street and left onto Bourke Street.[24]
[24] Transcript, 7 October 2022, 56.
When asked what time the appellant would have left his friend's place, Ms Huggins said, 'if we got there at [4].55, it would have been at - at the earliest, probably [4].57, 58'.[25]
[25] Transcript, 7 October 2022, 56.
In cross‑examination, Ms Huggins confirmed they left her house around 4.45 am and got to the appellant's friend's house at approximately 4.55 am.[26] She said she did not see what the appellant did when he left, but she did not see any cars on Bourke Street when she drove along it. When asked if she was aware what was on Bourke Street around 5.00 am, Ms Huggins responded, 'Probably not, no'.[27]
[26] Transcript, 7 October 2022, 61.
[27] Transcript, 7 October 2022, 62.
Ms Huggins was shown footage she had obtained of what she said was the appellant's car driving on a road at 5.00 am (referred to by Constable Harrod). Ms Huggins said she had gone door knocking in order to obtain CCTV footage from around the time of the incident. She said she did not know the people who lived at the address where the footage was obtained but recognised the street to be Piccadilly Street.[28]
[28] Transcript, 7 October 2022, 62 - 64; Exhibit 9.
In re-examination, Ms Huggins was asked to identify on that CCTV footage which car was the one claimed to be the appellant's car and what direction it was heading. Ms Huggins nominated the vehicle, and said that the appellant was driving in the direction of his work at the end of Piccadilly Street, and that his work was probably about a minute up the road.[29]

Evidence of Robert Shane Banas

[29] Transcript, 7 October 2022, 64.

Mr Banas gave evidence that he lived at 5 Robertson Street, West Lamington. He met the appellant in 2014 when they worked together and they remained good friends.[30]
[30] Transcript, 7 October 2022, 65.
Mr Banas said that on 4 January 2023, the appellant went to his house for drinks. Mr Banas could not say exactly when the appellant left but said he texted the appellant at 9.30 pm asking if he had got home all right.[31] Mr Banas said the appellant left his car, a black Mitsubishi four‑wheel drive, at Mr Banas' house overnight.[32]
[31] Text messages became exhibit 10.
[32] Transcript, 7 October 2022, 67.
Mr Banas gave evidence that the appellant picked up his car from his house at around 5.00 am on 5 January 2022 but could not pinpoint the exact time. He heard a noise outside and thought, 'It's [the appellant], picking up his car', but he did not see who the appellant was with or who dropped him off.[33]
[33] Transcript, 7 October 2022, 69.
In cross‑examination, Mr Banas confirmed that, when he heard the appellant outside, he did not get out of bed, he did not go outside and speak to anyone, he did not acknowledge or wave to anyone, and he did not see the appellant's partner. He said he knew it was just before 5.00 am because he glanced at the clock on his partner's side of the bed.[34]
[34] Transcript, 7 October 2022, 70.
Two Google Maps handed to the magistrate during evidence were tendered as exhibit 11.[35]

Reasons for decision

[35] Transcript, 7 October 2022, 71.

The learned magistrate observed that the complainant's evidence regarding the offence was 'largely approximate', with 'no exact references or no consistent references to exact times.'[36] His Honour found the dates and times were largely corroborated by the other evidence, including evidence adduced by the defence, and that the times that the appellant was near Mr Banas' house broadly coincided with the times referred to by the complainant.[37]
[36] Transcript, Megan Harrod v Brett Matthew Sikking, Magistrates Court of Western Australia, 14 October 2022, 15 (Transcript, 14 October 2022).
[37] Transcript, 14 October 2022, 14.
His Honour found that while the phone footage did not capture the actual incident, it was consistent with the complainant's evidence and her reports to police on the day of the event, namely the swoosh or rush of air as the car passed and her reaction. While the actual event was not captured on the footage, his Honour observed that it was not surprising that the phone fell or was dropped during the incident.[38]
[38] Transcript, 14 October 2022, 15.
The learned magistrate was of the view that any inconsistencies between the police incident reports and the complainant's evidence were explicable, as such reports constitute summaries written by police officers and did not contain major inconsistencies.[39]
[39] Transcript, 14 October 2022, 15.
However, in acquitting the appellant of the common assault charge, his Honour found that the complainant had omitted the assault allegation from a Family Court affidavit, when one would have expected her to include it.
In assessing the complainant's overall credibility in relation to the evidence of the 5 January 2022 charges, the magistrate said:
… the questions are, firstly, how does that failure to mention an alleged assault consisting of spitting affect the assessment of that charge, and in my view, it does have a significant effect on my assessment of the reliability of her evidence that she was spat at in January 2021.
The next question then is how does that matter affect the assessment of her credibility overall, and whether I can or can't accept her evidence and rely upon her evidence in relation to other matters. In doing so, and then in considering the matters from January 2022, I consider then her evidence as to the times and locations, compared then to the times and locations that arise out of the evidence called on behalf of the defence.
I consider the fact that her description of her identification of [the appellant] and including details such as the position of the window, and consistent in giving her evidence, in motioning how, you know - where the window was, compared to by using her hand to indicate, sort of, elbow height on her body. It's suggested - and again, in making these comments, I remind myself of the burden and standard of proof, but it's suggested that this incident was made up.
In approaching that submission and that issue, I take into consideration these factors, that it's a very detailed and very unique description of an event involving a motor vehicle. As I say, there is some limited recording of this incident, which does show a vehicle in the position. That's consistent with what she described, and then the subsequent events are consistent with that. The evidence of Ms Huggins and Mr Robertson (sic) is that he was in this area, and I need to consider then the likelihood of that being coincidental that she would make up such an incident at the very time that [the appellant] was in the same vicinity.
It doesn't strike me as the sort of thing that - so the incident involving the car - that would be made up, and as I say, the video goes some way to supporting it is some respects. In many respects, it has the ring of truth. Her evidence then was - she was also criticised about other, or asked about other, allegations that she had made to police, that hadn't been actioned, and it was suggested that this was evidence that she was prone to making things up.
It seems to me that that's one explanation for no action having been taken in relation to other complaints and the other - another reason why action might not have been taken on complaints is that there was an assessment made by police that there was insufficient evidence upon which to prosecute for any other allegation.[40]
[40] Transcript, 14 October 2022, 16 - 17.
In assessing the defence evidence, the magistrate said:
The defence evidence, really, it goes only so - it goes so far. It goes up to the point that [the appellant] was dropped off at Mr Robertson's place to collect his car.
That evidence, and Mr (sic) Huggins agreed, does not cover the time when the driving incident described by [the complainant] was alleged to have occurred, and it doesn't, again, place him at such a location that it would not be possible for him to have been there, and what it does do is it places him in very close proximity to the location of the allegations that [the complainant] has made as to what occurred on 5 January 2022.[41]
[41] Transcript, 14 October 2022, 17.
His Honour had regard to the improbability of the complainant concocting the story referring to a time when the appellant happened to be in the vicinity, his assessment of the credibility of the evidence the complainant gave in relation to the 5 January 2022 incident (noting that her evidence was the only evidence of the incident), the complainant's identification of the vehicle and the appellant, and the mobile phone footage.

Taking into account those matters, the learned magistrate was satisfied beyond reasonable doubt that the appellant approached within 20 metres of the complainant. Further, as to the manner of his driving, the learned magistrate was satisfied that the appellant drove at the complainant and swerved at a very late stage causing the sounds that the complainant described and can be heard in the recording. Accordingly, his Honour was satisfied that the appellant's driving was dangerous in all the circumstances. His Honour considered the only explanation to be that the appellant did it deliberately.[42]
[42] Transcript, 14 October 2022, 18.

Statutory framework

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A decision to convict an accused after a trial is a decision which may be appealed.[43]
[43] CA Act s 6(c) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[44] meaning that the ground is required to have a rational and logical prospect of succeeding.[45] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[46]
[44] CA Act s 9(2).
[45] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[46] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[47]
[47] CA Act s 14(2).

Grounds of Appeal

At the hearing of the appeal, it became apparent that grounds 1 and 2 were more properly particulars of ground 3. The errors alleged in the case of each of grounds 1 and 2 were, in effect, that the learned magistrate could not reasonably have convicted the appellant on either charge based on the evidence of the complainant and the mobile phone footage respectively. Accordingly, it is convenient to deal with ground 3 first.

Ground 3

Appellant's submissions

At the outset of the appeal, the appellant's counsel clarified that this ground related to both convictions.
The appellant submitted that the learned magistrate should not have relied upon the complainant's evidence having regard to the issues his Honour had with other parts of her evidence, as well as what the appellant alleged were inconsistencies and a motive on the part of the complainant to lie.[48] Further, the appellant submitted that his Honour erred in finding the appellant's witnesses not to be credible.[49]
[48] Appellant's Outline of Submissions filed 13 March 2023 [29] (Appellant's submissions).
[49] Appellant's submissions [32].
The appellant argued that the mobile phone footage did not show the actual incident and was critical of the learned magistrate's finding that the complainant's reaction supported her evidence as to the manner of the appellant's driving, submitting that the complainant was calmer than would be expected.[50] The appellant also submitted that the complainant's car would have been shaken and that, and the 'whoosh' would have been apparent on the footage.[51]
[50] Appellant's submissions [50] - [51].
[51] Appellant's submissions [53].
The appellant contended that the phone footage was insufficient to establish identity, the manner of driving or that the act was wilful, yet was relied on by the magistrate to establish that the appellant was driving in a reckless manner.[52] The appellant argued that the learned magistrate erred in finding that the footage was the 'only evidence of truth or that in many respects has the ring of truth'.[53]
[52] Appellant's submissions [45].
[53] Appellant's submissions [40].
In oral submissions at the appeal, the appellant accepted that the evidence as to the timing of various events was all based on estimates, but submitted that the evidence that there was as to timing should have led the learned magistrate to have had a reasonable doubt about the allegations.

Respondent's submissions

The respondent submitted that the court should make due allowance for the fact that the learned magistrate had the advantage of seeing and hearing the witnesses, and that there is no basis for interfering with his Honour's findings, having regard to the well‑established legal principles.[54]
[54] Respondent's Outline of Submissions filed 31 March 2023 [13] - [14] (Respondent's submissions).
Further, the respondent argued that the learned magistrate did not find the appellant's witnesses not to be credible; his Honour found there was no conflict between their evidence and the prosecution case. This was not a circumstantial case; it was a direct evidence case, supported by the mobile phone footage and the appellant's witnesses.[55]
[55] Respondent's submissions [24].
The respondent submitted that the learned magistrate was alive to the limitations of the footage and that the footage was not relied upon by the prosecution or the learned magistrate to prove identity or the manner of driving.[56]

Disposition of ground 3

[56] Respondent's submissions [28] - [31].

The general principles governing an appeal on the ground of unreasonable verdict are well‑established. In Wells v The State of Western Australia,[57] the court summarised them as follows:
(1)the appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand;
(2)the question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty;
(3)that question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt;
(4)in answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses;
(5)a doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt;
(6)if the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict;
(7)the setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.[58]
[57] Wells v The State of Western Australia [2017] WASCA 27 [13].
[58] M v The Queen[1994] HCA 63; (1994) 181 CLR 487, 493 ‑ 495.
Subject to appropriate modifications being made to accommodate the fact that the decision maker in this case was a magistrate, these principles apply in the present case.[59]
[59] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA with whom McLure P & Mazza J agreed).
The prosecution case relied on the evidence of the complainant, but the complainant's evidence was supported by other evidence. There was the mobile phone footage. There was also the evidence of the appellant's witnesses. However, the credibility of the complainant's evidence was critical to establishing the elements of the offences. It is necessary, therefore, to have full regard to the learned magistrate's advantage in seeing and hearing her evidence.
His Honour found that the complainant gave a 'very detailed and very unique' description of the event, and her evidence was consistent the way she gave it.[60] It is plain that his Honour considered the complainant's evidence to be credible, having regard to what she said and the congruence of her gestures with her evidence.
[60] Transcript, 14 October 2022, 16 - 17.
The appellant submitted that, having found that the failure of the complainant to refer to an allegation of spitting (which was the subject of the common assault charge) in exhibit 7 was a factor of such significance as to cause the learned magistrate to acquit the appellant of the charge of common assault, his Honour was not entitled to accept that her evidence as to the charges of breaching the FVRO and reckless driving was able to be relied upon beyond reasonable doubt.
The learned magistrate's finding as to the significance of the complainant's failure to refer to the spitting allegation in exhibit 7 was that it impacted on the reliability of her evidence as to that charge, noting that the complainant did not report that incident until a year later. As a result, he was caused to have some doubt as to whether that charge was proved, and accordingly acquitted the appellant of that charge.[61]
[61] Transcript, 14 October 2022, 16, 17.
In the case of the charges of breaching the FVRO and reckless driving, there were two categories of evidence which provided substantial support for the complainant's account.
The first was the mobile phone footage. While it did not show the actual offences alleged by the complainant, it was nevertheless an important piece of evidence.
The complainant's evidence was that the appellant did a U‑turn and headed straight towards her. In doing so, he travelled onto the incorrect side of the road. The complainant had stopped as far as she could to the left of the road. She said:
… he must have been going quite fast. And then all I could do was brace myself for the impact. And I was just watching it and just seeing the bull bar getting closer and closer and at the very last second, like, when he was very close to me I really just crunched down and braced and was saying, 'Oh my God, oh my God' and then my car, sort of (makes sound) and then he drove past.[62]
[62] Transcript, 7 October 2022, 11.
On the footage, the complainant can be seen driving, in an apparently easterly direction, some distance behind another vehicle. She can be seen pulling to the left and then the camera's vision is obscured, and the complainant can be heard whimpering and then breathing quickly as her body moves back to a seated position. In my view, the complainant's reaction as recorded on the footage is entirely consistent with her description of what occurred.
I do not accept the appellant's submission that the mobile phone footage would necessarily have shown a 'massive shaking' or that more sound would have been apparent had the appellant engaged in the behaviour alleged. The complainant's phone was being moved and the sound was muffled at various points, consistent with the movements she described taking.
The second category of evidence is the appellant's witnesses.
The evidence of those witnesses did not relate to the time at which the incident allegedly occurred, but to the time shortly before it. The evidence of those witnesses put the appellant in a location very close to the alleged offending, at a time which left him with the opportunity to commit the offence.
Ms Huggins gave evidence that they arrived at Mr Banas' place at about 4.55 am. That was an approximation, based on her estimate as to the length of time they would have taken to get there, which was in turn based on the times on the CCTV footage which was exhibit 9. No evidence was given as to any checks as to the accuracy of that time.
Similarly, Ms Huggins' evidence as to the time the appellant left Mr Banas' house being 4.57 am or 4.58 am[63] was an estimate.
[63] Transcript, 7 October 2022, 56.
The complainant's evidence was that she left her house at 'about 5.00 am'[64] or 'around 5.00, maybe five to'.[65] Again, this was clearly an estimate. While she said that the mobile phone footage was taken about two minutes after she left her house, the uncontroverted evidence was that her mobile phone footage was taken at 4.59 am,[66] although there was no evidence of an actual check of the accuracy of that time.
[64] Transcript, 7 October 2022, 10.
[65] Transcript, 7 October 2022, 29.
[66] Transcript, 7 October 2022, 49.
The appellant relied on the evidence that CCTV footage from a nearby street placed the appellant's car in that street at 4.59 am.[67] Again, there was no evidence as to the accuracy of the time of that CCTV footage.
[67] Exhibit 8.
The appellant sought to rely on the complainant's evidence that she left her house at about 4.55 am as being inconsistent with Ms Huggins' evidence that the appellant only arrived at Mr Banas' house at 4.55 am. The appellant also sought to rely on the fact that his car was on Piccadilly Street at 4.59 am as making it impossible for him to have been involved in the altercation with the complainant at that time.
As Constable Harrod's evidence made clear, the CCTV footage which was exhibit 8 was only taken 650 m from the complainant's house. Even if the appellant's car is the vehicle recorded to be driving past (and, in my view, the CCTV footage is not at all clear in this regard) it was entirely possible for the incident with the complainant to have occurred, after which the appellant then continued to drive to work and passed the Piccadilly Street address at around that time.
In my view, rather than requiring the learned magistrate to have a reasonable doubt as to the appellant's guilt, the evidence of the appellant's witnesses actually provided significant evidence of opportunity.
The evidence of the timing of the various events was significant for a reason additional to establishing opportunity on the part of the appellant.
At the time of making the allegations, the complainant could not have known that there would be support for her account that the appellant and his car were in the vicinity of her house at such an early hour. Her house was not between the appellant's home and his work, and there was no suggestion that she would have had any reason to believe he would be in that vicinity at that time. As such, if her allegation was fabricated, she was taking a very significant chance that the appellant would not be able to show he was elsewhere at the time of the alleged offence.
Further, had the appellant not been driving in the complainant's street, the only way the complainant could have known that he was even in the vicinity in his car was for her to have seen him in a different street nearby. Logically, a fabricated allegation would involve the mobile phone footage being taken after such a sighting. However, that was, as a matter of practicality, excluded by the time and location of the footage. Accordingly, if her allegation were fabricated after seeing the appellant's car elsewhere, the complainant would have had to exhibit extraordinary prescience to take the mobile phone footage at 4.59am in her street, driving in an easterly direction, fortuitously behind another vehicle which was broadly similar to the appellant's vehicle, and act in the way that she did.
In my view, there was nothing in the evidence which required the learned magistrate to have a reasonable doubt as to the events occurring as the complainant described. To the contrary on the totality of the evidence, the prosecution case was a compelling one.
The learned magistrate found that the appellant drove his car at the complainant's car, swerving at a very late stage, causing the sounds the complainant described. Following that finding, a conviction for the charge of breaching the FVRO was inevitable.
In relation to the offence of reckless driving, the appellant's counsel conceded that, if the appellant drove in the manner described, it was inherently dangerous to the public or to any person.
However, reckless driving requires not only that the driving have that quality; it must also be proved to be wilful.
In Attree v Randell, Murray J observed that establishing wilfulness requires proof that 'the consequences or likely consequences of that manner of driving are adverted to, but the [accused] proceeds, recklessly indifferent to whether those consequences may occur or not.'[68]
[68] Attree v Randell (1993) 19 MVR 95, 97.
In an appropriate case, an inference can be drawn that a person must have wilfully driven in the manner alleged.[69]
[69] R (a child) v Gwynne (1999) 28 MVR 441, 445
The learned magistrate, in dealing with this element of the charge of reckless driving, stated only that he was satisfied beyond reasonable doubt that the appellant's conduct was 'done deliberately'.
A finding that conduct was 'deliberate' is not the same as a finding that the conduct was 'wilful', as that term is used in Attree. However, it is appropriate to observe that at no point in the course of the trial was any issue taken with the element of 'wilfulness'. In those circumstances, it is highly probable that the magistrate did not consider that he needed to address that element at length or in formal terms.
As is often said, it is appropriate to have regard to the large volume of cases magistrates are required to deal with daily, and the need for them to do so with expedition and a degree of informality. As such, an appeal court should not be overly critical of the reasons given by a magistrate, or to infer from infelicity of language that error is thereby demonstrated.[70]
[70] Gardner v Caporn [2005] WASCA 153 [59]; See also Rundle v Innerd [2015] WASC 340 [117]; Strahan v Brennan [2014] WASC 190 [89] - [90].
Further, in the absence of credible evidence to the contrary, it is to be assumed that a magistrate has taken all relevant matters into account.[71] This is particularly likely to be so in relation to reckless driving where it is unlikely that the magistrate would be mistaken as to what is required to be established by way of the mental element.
[71] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].
In my view, the learned magistrate's use of the word 'deliberate' did not reflect a misapprehension of the appropriate test in this case.
In the circumstances of this case, a person driving in the manner in which the appellant was found to have driven could only have one intention by doing so: to frighten the complainant. It is inherent in forming such an intention that the driver is aware of and considers the likely consequences of their driving, because it is the very fear of those consequences that the driver is hoping to generate.
In carrying out his intention, the appellant travelled onto the wrong side of the road towards the complainant's car at speed, avoiding the complainant's car only at such a proximity as to cause her to fear imminent collision, and to rock her car due to the displacement of air.
In those circumstances, the only reasonable inference was that the appellant was aware of the likely consequences of his conduct but proceeded, recklessly indifferent to them.
Having independently assessed the evidence, it is my view that there is nothing in the evidence which required the learned magistrate to have a reasonable doubt as to whether the driving was reckless.
In my view, the learned magistrate, acting reasonably, was entitled to convict the appellant of both offences. The verdicts were not unreasonable and were supported by the totality of the evidence. I do not have a reasonable doubt as to the appellant's guilt.
Leave to appeal on ground 3 should be refused.

Ground 1

In considering ground 3, I have already set out the features of the evidence which supported the complainant's evidence, compellingly in some respects, and why, in my view, the learned magistrate was entitled to accept the complainant's evidence, notwithstanding his findings as to other parts of her evidence. It is unnecessary to repeat that analysis here.

A trial magistrate's assessment of the credibility of a witness should not be interfered with unless that finding is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because it appears that the magistrate failed to use or has palpably misused their advantage as a trial judge.[72]
[72] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28] ‑ [29]; Smart v Power [2019] WASCA 106 [104].
I am not satisfied that there is any matter which demonstrates that the learned magistrate's acceptance of the complainant's evidence was wrong, or that his Honour failed to use or misused his advantage as a trial judge.
Leave to appeal on ground 1 is refused.

Ground 2

The appellant's argument in relation to ground 2 disregards the fact that the complainant's evidence was itself evidence of identity and the alleged manner of driving.
Once the complainant's evidence has been found to have been capable of being accepted beyond reasonable doubt, as I have found, this ground cannot succeed. There is no basis for any argument that the mobile phone footage was required to establish identity or the appellant's manner or driving before the appellant could be proved to be guilty.
Leave to appeal on ground 2 is refused.
Leave to appeal having been refused on all grounds, the appeal is dismissed.

Orders

Leave to appeal is refused on all grounds.
The appeal is dismissed.
The appellant pay the respondent the sum of $4,000 in costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
21 APRIL 2023