Singh v Hodgson
[2022] WASC 334
•3 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SINGH -v- HODGSON [2022] WASC 334
CORAM: FORRESTER J
HEARD: 29 SEPTEMBER 2022
DELIVERED : 29 SEPTEMBER 2022
PUBLISHED : 3 OCTOBER 2022
FILE NO/S: SJA 1082 of 2021
BETWEEN: GULJINDER SINGH
Appellant
AND
PAUL HODGSON
Respondent
ON APPEAL FROM:
For File No: SJA 1082 of 2021
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE A HILLS-WRIGHT
File Number : FR 10804 OF 2020
FR 10805 OF 2020
Catchwords:
Criminal law – Single judge appeal – Appeal against conviction – Whether the appellant had a substantial reason for failure to comply with requirement to provide sample other than a desire to avoid providing information that may be used as evidence – Whether obligation existed to disclose body camera footage prior to trial – Whether requirement for prosecution to establish appellant was intoxicated or there was suspicion of intoxication – Whether magistrate erred in not considering facts - Road Traffic Act 1974 s 66, s 67, s 67A and s 68A
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Act 1974 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | L J Italiano |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Bromley v Bembridge [2002] WASCA 192; (2002) 132 A Crim R 16
Carew v Carone (1991) 5 WAR 1
Parfenova v Diss [2021] WASCA 50
Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd [2008] WASC 282
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
FORRESTER J:
(This judgment was delivered extemporaneously on 29 September 2022 and has been edited from the transcript.)
Introduction
On 24 November 2020, the appellant was charged with:
(1) failing to comply with the requirements of a member of the Police Force, made pursuant to s 66 of the Road Traffic Act 1974 (WA) (RTA) to provide a sample of his breath for a preliminary test (FR 10804/2020); and
(2) failing to comply with the requirements of Senior Constable Turner, a member of the Western Australian Police, made pursuant to the provisions of s 66 of the RTA to provide a sample of his breath for analysis (FR 10805/2020).
The appellant pleaded not guilty to the charges.
The appellant's trial was held in the Magistrates Court at Fremantle on 12 October 2021. After hearing all of the evidence, the magistrate found the appellant guilty of the offences and fined him $300 on the first charge and $900 on the second charge. He was disqualified from holding or obtaining a driver's licence for 10 months reduced by any period during which he was disqualified by a disqualification notice given to him under s 71C of the RTA for the offence.
The appellant applies for leave to appeal against the decision of the magistrate convicting him of the offences.
On 7 April 2022, a registrar of this court ordered that the appellant's application for leave to appeal be heard together with the appeal.
The appellant represented himself at the hearing of this appeal.
Leave to Appeal - legal principles
The 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.[1]
[1] 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,[2] meaning that the ground is required to have a rational and logical prospect of succeeding.[3] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[4]
[2] CA Act, s 9(2).
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[4] 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.[5]
[5] CA Act, s14(2).
The trial
The trial proceeded on 12 October 2021.
Opening addresses
The prosecutor informed the magistrate that on 22 November 2020, the appellant, who was a rideshare driver, was stopped for a random breath test. His interaction with the officer involved was recorded on body worn camera.[6]
[6] Transcript, Western Australia Police v Singh, Magistrates Court of Western Australia, 2 - 3 (Trial Transcript).
The appellant declined to provide a sample of his breath for a preliminary breath test as the officer required him to do under s 66(1) of the RTA, saying he wanted to wipe the tube with a cloth or tissue. That was the subject of the first charge under s 67A(1) of the RTA.[7]
[7] Trial Transcript, 3, 10.
As a result, the appellant was taken to a police vehicle, and required to provide a sample of his breath for analysis, pursuant to s 66(2) of the RTA. The appellant refused, again saying that he wished to wipe the tube. That was the subject of the charge pursuant to s 67(2)(a) of the RTA.[8]
[8] Trial Transcript, 3, 10.
The tubes in question came from sterile, sealed containers and the appellant was told he was not permitted to wipe them due to the risk of interference with the test.[9]
[9] Trial Transcript, 3.
The appellant confirmed to the magistrate that in respect of each of the charges, he relied on the defence to each charge as set out in s 67A(5) and s 67(5) of the RTA. Each of those provisions reads:
It is a defence to a prosecution for an offence against this section 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.[10]
Ryan Lawrence Turner
[10] Trial Transcript, 3 - 4.
Senior Constable Turner gave evidence that he was the officer who required the appellant to provide a preliminary breath sample. SC Turner explained how the machine was operated, and how the 'straw' - that is, the tube into which a person is required to blow in order to provide the sample of their breath - is unwrapped from its bag and inserted into the device used to detect alcohol in the breath.[11]
[11] Trial Transcript, 14 - 18.
SC Turner gave evidence that at no point during the process did he physically touch the plastic tube, because it contains a person's bodily fluids. He did not wear gloves or a face mask. At the time there were no COVID-19 restrictions in force.[12] He said that he demonstrated the test for the appellant. He showed the magistrate how he demonstrated that.[13]
[12] Trial Transcript, 19 - 21.
[13] Trial Transcript, 23 - 24.
The instrument of delegation entitling SC Turner to carry out the testing was tendered as Exhibit 9.[14]
Body-worn camera footage
[14] Trial Transcript, 28.
The footage recorded on SC Turner's body worn camera was played and became Exhibit 8.[15] The initial 30 seconds of footage records only vision but no sound. It captures the appellant driving into position and shows him gesturing and shaking his head. When the recording starts to capture sound, the appellant can be heard saying that he would comply with SC Turner's request if he was permitted to wipe the tube. He said, 'Otherwise I am scared.'
[15] Trial Transcript, 28.
SC Turner said that he would not permit the appellant to clean the tube because it may interfere with the test. He warned the appellant that he would be charged if he refused. The appellant told the officer to charge him.
At this point SC Turner required the appellant to accompany him to his vehicle. He explained to the appellant that he was not permitted to clean the device and pointed out that the tubes come from sealed bags and that they were not contaminated. The appellant insisted on cleaning the tube before providing a sample of his breath. He was told that he could not, and he then responded that the officers should charge him.
The appellant insisted that he be permitted to state on the recording that he was willing to provide a test if he could wipe the tube with a tissue or a cloth that he had. If he could not, he said, he would not provide a sample; it was a risk and a threat to his health.
The appellant asked SC Turner to guarantee that there was no virus on the tube and SC Turner did so. However, the appellant declined to accept that guarantee.
The appellant was informed of the penalty which applied if he continued to refuse and the appellant indicated that he accepted that penalty. SC Turner again showed the appellant how the tube was packaged and asserted it was sterile. The appellant continued to insist that he would only supply a sample if he were permitted to clean the tube.
SC Turner again required the appellant to provide a sample of his breath. The appellant tried to stop the request until he was able to record it. SC Turner declined to wait. The appellant asserted again that he wanted to clean the device, at least the tube.
SC Turner asked the accused when he had last had an alcoholic drink. The appellant said that he did not drink alcohol. He denied having had any alcohol that night.
The appellant said that he took prescription medication for diabetes and 'heart attack'.
The appellant accepted that the tube had not been touched by others but asserted that SC Turner's hands had touched other people and that if one of them was infected his life would be in danger and he was scared of that.
The appellant also said he would not provide a test without being able to clean the tube because he was scared that because of coronavirus there might an infection on the tube, even if it was sealed.
When asked if there was any medical reason he was refusing to supply a sample of his breath, he referred to the pandemic and said he was not refusing; he just wanted to clean the tube first.
Evidence of the appellant
The appellant gave evidence, during which he adduced three Department of Health COVID-19 updates referring to positive COVID-19 cases in hotel quarantine between 21 and 23 November 2020. These became Exhibit 10.[16]
[16] Trial Transcript, 43, Exhibit 10.
He also tendered a bundle of medical certificates and a hospital discharge summary relating to his diabetes and a heart attack, which became Exhibit 11.[17]
[17] Trial Transcript, 44 - 45, Exhibit 11.
The appellant gave evidence that, due to his health conditions, an infection could be fatal to him.[18] At that time, COVID-19 was, according to the appellant, 'quite prevalent' and there were no vaccinations available.[19]
Magistrate's findings
[18] Trial Transcript, 46.
[19] Trial Transcript, 46 - 47.
The magistrate found that there was no issue that the appellant was required by SC Turner to provide a sample of his breath for analysis, pursuant to s 66(2)(b) of the RTA and that he failed to comply. There was no issue that the two devices were approved devices, and that SC Turner was an authorised person in relation to the competent use of those devices.[20]
[20] Trial Transcript, 56.
The magistrate rightly found that the element of the offence was that the appellant had failed to provide a sample; not that he had refused to do so.[21]
[21] Trial Transcript, 57.
The magistrate observed that the onus was on the appellant to establish, on the balance of probabilities, that there was a substantial reason for his failure to comply, other than a desire to avoid providing information that might be used as evidence.[22] He said:
'Substantial' is an ordinary English word, generally indicating a matter of being of real importance, of real validity, of having real substance. The requirement of a substantial reason cannot suggest an entirely subjective test in this sense. What is a substantial reason would have to be considered in light of all the prevailing circumstances surrounding the failure to comply...[23]
[22] Trial Transcript, 57.
[23] Trial Transcript, 58.
The magistrate referred to the fact that the appellant was driving an Uber on the night in question and that neither he nor his passenger were wearing a mask. He found that here was no evidence of actual community spread of COVID-19 at the time, and no lockdown or restrictions related to it.[24]
[24] Trial Transcript, 58.
His Honour accepted that the appellant had a number of underlying medical issues, including diabetes and that he had also previously been hospitalised for five days, suffering ketosis. However, these did not mean the appellant could not provide a sample of his breath. The magistrate did accept that the appellant's underlying health conditions added to his fear as to the impact of COVID-19 and how risky it was.[25]
[25] Trial Transcript, 59.
The magistrate noted that the appellant wanted to clean the mouthpiece to be used in the tests and had expressed concerns about SC Turner's hand having touched the mouthpieces. SC Turner had accepted that he did not always unwrap the mouthpiece in the presence of the person to be tested.[26]
[26] Trial Transcript, 59 - 60.
His Honour noted that the body worn camera footage showed that, even when SC Turner offered to use a new straw, the appellant still declined to provide a sample of his breath unless he was permitted to wipe the mouthpiece with a cloth. SC Turner unsurprisingly refused and explained how the items were sealed and how the test would operate, but the appellant still insisted on being able to wipe the mouthpiece first.[27]
[27] Trial Transcript, 60 - 61.
The magistrate held that, while he was satisfied that the appellant had underlying health issues, and held genuine concerns about contamination in the circumstances as existed, he was not satisfied that the appellant had a substantial reason for failing to comply with the request. His reasons for so finding were that there was no evidence of community spread of COVID-19, no lockdown, and the appellant was at the time engaged in what he acknowledged was a higher risk activity of being an Uber driver without a mask or requiring his passenger to wear a mask, despite his underlying health conditions.[28]
[28] Trial Transcript, 61 - 62.
His Honour was satisfied that the offer of the second straw would have removed any risk in the preliminary test which was significantly greater than that posed by the appellant's occupation, and it was unclear that the wiping of the mouthpiece with a tissue or cloth would have reduced or eliminated any risk.[29]
[29] Trial Transcript, 62.
Accordingly, the appellant was found guilty of each charge.
Grounds of appeal
The grounds of appeal are stated, in effect, to be as follows:[30]
(1)the appellant was not provided with a copy of the police body worn camera footage which, he asserts, 'would have given me a good clarity for representation.';
(2)it was not emphasised that the appellant did not appear drunk in the 'video'. The fact that the appellant was not arrested suggests that he was not drunk or that the police breached their Code of Conduct in failing to arrest him;
(3)despite his repeated request to undergo a test 'after wiping the surface of the tube, by the officer himself', the officer did not allow the appellant to take a test, contrary to s 68A(5) of the RTA;
(4) the magistrate failed to consider that the fact that the officer was not wearing gloves created a fear of infection in the appellant;
(5) the magistrate failed to consider, or properly consider, the fact that the appellant had a substantial reason for refusal to provide a sample of his breath due to his pre-existing medical condition and thus had a defence pursuant to s 67(5) of the RTA;
(6) the video footage shows that the appellant was declining to provide a sample as a result of his health condition and the officer not adhering with 'prescribed PPE requirements'; and
(7) the appellant was entitled to refuse a breath test on health grounds. The prosecution misled the court by stating that COVID-19 was not present in WA and the appellant was not able to properly address the court on this point which resulted in a wrong finding as to the appellant's guilt.
[30] Minute of proposed amended grounds of appeal filed 4 April 2022.
The effect of the grounds of appeal is that the appellant asserts that the magistrate erred in finding that the appellant did not have a substantial reason for failing to comply with the requests to provide a sample of his breath for a preliminary test and then for analysis to the police officer on the basis that:
(a) he had a pre-existing medical condition;
(b) having regard to the fact that COVID-19 was a public health concern, he was entitled to require the police officer to use appropriate personal protective equipment and to wipe the equipment before taking the test; and
(c) the police officer declined to use the appropriate personal protective equipment or to allow him to wipe the equipment.
The appellant also asserts that, in the circumstances, the officer could not establish that the appellant was drunk, when he was not drunk, and did not display any signs of being so.
Appellant's submissions
The appellant did not file any written submissions. It appeared he relied on the minute of proposed amended grounds of appeal as his written submissions, and I have taken them into account as such.
In oral submissions before me, the appellant repeated the arguments he made before the magistrate. He alleged that his life was in danger if he provided the sample of breath to the officer. He claimed all he wanted to do was be permitted to wipe the tube and he would have provided the sample as required.[31]
[31] Transcript of Appeal Hearing Proceedings on 29 September 2022, 3 - 5 (Appeal Transcript).
The appellant also complained that the officer was not wearing gloves and declined to do so, which justified the appellant declining to provided the sample.[32]
[32] Appeal Transcript, 3.
The appellant was unable to point to any submission he would have made more clearly, or at all, had he had access to the body worn camera footage prior to the hearing.[33] In relation to the ground I have numbered 7, he was also unable to point to any argument he would have made, but was unable to make, in relation to the existence of COVID-19 in the community.[34]
[33] Appeal Transcript, 7 - 9.
[34] Appeal Transcript, 9 - 10.
Respondent's submissions
The respondent submits that the magistrate's findings were consistent with the evidence and that the magistrate did not err in finding that the appellant had no substantial reason for refusing to supply a sample of his breath.[35]
[35] Respondent's Outline of Submissions filed 13 May 2022, [12] - [13] (Respondent's submissions).
The respondent submits that a 'substantial reason' is not such 'unless the person from whom the specimen is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health.' In support of this submission, it relies on R v Lennard [1973] 2 All ER 834, 834, quoted in Varley v Webb (Unreported, Sup Ct, 21 July 1987, Lib. No. 6799), 6-7 and Riley v Eason (1993) 19 MVR 478, 479.[36]
[36] Respondent's submissions [15].
As such, the respondent argues, the test applied by the magistrate was unduly favourable to the appellant.[37]
[37] Respondent's submissions [17].
Disposition
I accept the respondent's submission that the appropriate test to be applied in determining whether the appellant had satisfied the magistrate that there was a substantial reason for his failure to comply with the request of SC Turner is as set out by Owen J in Riley v Eason.[38] namely that no reason can be adjudged a substantial one unless the person from whom the sample is required is physically or mentally unable to provide it or the provision of the specimen would entail a substantial risk to his health.
[38] (1993) 19 MVR 478, 479.
The appellant adduced evidence that he was concerned for his health, having regard to his underlying medical conditions. However, while the magistrate accepted that the appellant did have those concerns, he found they were incongruous with the appellant's actions that night. Further, the magistrate considered the appellant's position regarding wiping the tube with a tissue or cloth to be nonsensical and idiosyncratic in the face of SC Turner having shown him how the mouthpiece was sealed.[39] In my view, those findings were open to the magistrate on the evidence.
[39] Trial Transcript, 61 - 62.
Putting to one side the incongruity of the appellant's concerns, they did not establish that he was physically or mentally unable to provide either sample.
Further, regardless of his fears, the evidence adduced by the appellant provided no support whatsoever for the proposition that provision of the sample in either case would actually entail a substantial risk to his health.
It was not in dispute that, after the appellant's initial refusal to provide a sample of his breath, SC Turner showed the appellant the sealed mouthpiece and demonstrated how the test would be done without it being contaminated or constituting a risk to the appellant's health.
The medical records established that the appellant suffered underlying health conditions. However, the appellant was, he said, under the treatment of medical practitioners, and was taking prescribed medication as at November 2020. There was no evidence that providing a sample of his breath by blowing into the previously sealed tube would pose a substantial risk to his health.
The appellant adduced evidence as to the incidence of COVID-19 in Western Australia at the time. However, that evidence established that the only known cases of COVID-19 in Western Australia at the time were cases of returned travellers in hotel quarantine, and that there was then no known community transmission in Western Australia. The evidence was incapable of supporting the appellant's contention that providing a sample of his breath would pose a substantial risk to his health.
Accordingly, in my view the magistrate did not err in finding that the appellant had not satisfied him that there was a substantial reason for his failure to comply with the request of SC Turner in each case. That finding was plainly open to the magistrate.
That is sufficient to dispose of grounds 3, 5, 6 and 7 (as I have numbered them).
Ground 1 effectively alleges that a failure to disclose the body worn camera footage caused a miscarriage of justice.
The question of whether there is a common law obligation of disclosure in respect of a simple offence has not yet been finally resolved. There is a further issue as to whether, even if there is such a common law obligation, it has survived the enactment of the Criminal Procedure Act 2004 (WA) (CPA).[40]
[40] Parfenova v Diss [2021] WASCA 50, [58] and the cases cited therein being Carew v Carone (1991) 5 WAR 1, 8; Bromley v Bembridge [2002] WASCA 192; (2002) 132 A Crim R 16 [52]; Re Her Honour E A Woods; Ex parte Hardie Finance Corporation Ltd[2008] WASC 282 [18] - [20].
The prosecution's obligations of disclosure as set out in the CPA did not extend to requiring the disclosure of the body worn camera footage to the appellant in this case. Neither offence with which the appellant was charged was a 'listed simple offence' within the meaning of s 60 of the CPA.[41] No order was made pursuant to s 60(5)(b) of the CPA.
[41] CPA s 60(1); Criminal Procedure Regulations 2005 (WA) reg 12, Sch 4.
In my view, there was no obligation on the prosecution in this case to provide disclosure of the body worn camera footage to the appellant.
Even if there was such an obligation in this case, no miscarriage of justice has been made out. The appellant did not raise the issue of the non-disclosure at the hearing before the magistrate. The appellant was unable to point to any detriment suffered by him by not having had access to the footage prior to the trial or how he would have conducted the matter differently had he had that access.
There is no merit in ground 1 and I would refuse leave in respect of it.
The appellant's complaint, set out in ground 2 and in the narrative accompanying his grounds of appeal, that he was not drunk and did not show any signs of being so, is misconceived. There was no requirement for the prosecution to establish that the appellant was intoxicated or that there was any suspicion that he might be. SC Turner was entitled under the RTA to make the requests of the appellant in each case.
There is no merit in this ground and I would refuse leave in respect of them.
Ground 4 asserts that the magistrate erred in not considering the fact that SC Turner was not wearing gloves and that this created a fear of infection in the appellant.
However, the magistrate did find that, even when SC Turner demonstrated to the appellant how the test would be set up, and showed that he would not touch the mouthpiece, the appellant was not prepared to provide a breath sample.[42] The magistrate did therefore address the issue which the appellant sought to raise by adducing the evidence that SC Turner was not wearing gloves.
[42] Trial Transcript, 60 - 62.
In any event, had SC Turner been wearing gloves, it would not have meaningfully reduced the risk as claimed by the appellant. Gloves were as liable to be contaminated as bare hands if not changed between cars or on a very frequent basis.
Further, as I have earlier determined, the fear of infection alone cannot constitute a 'substantial reason' such as to provide the appellant with a defence in this matter.
This ground is not made out and leave to appeal should be refused in relation to it.
Conclusion
For the reasons above, I have concluded that there is no merit in any of the grounds of appeal. Leave is therefore refused in relation to them.
As leave has not been granted in respect of any of the grounds of appeal, the appeal must be dismissed.
The orders of the court will be:
(1)Leave to appeal on all grounds is refused;
(2) The appeal is dismissed; and
(3) The appellant is to pay the respondent's costs fixed in the sum of $2495.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Forrester
3 OCTOBER 2022
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